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May 11, 2008

Developing a SCOTUS short list of district court judges

With this Newsweek essay, headlined "The 2008 Bench Press: The most important decision a president ever makes?  It's choosing a Supreme Court nominee," Anna Quindlen reminds us that it is not too early to start obsessing over who might be on the presidential candidates' SCOTUS short list.  Though I have (and others have) blogged this topic before, my recent great experience at the Sixth Circuit Judicial Conference reminded me how many federal district judges would make great Justice material.

In this post from 2005 during the last round of nomination debates, I argued that the Supreme Court could really benefit from having a Justice with trial court experience.  Remarkably, it has been nearly half a century since the Supreme Court has even a single Justice with experience as a federal district court judge, and I think the Justices' confusing work in various arenas (especially sentencing) reflects a lack of practical district court wisdom.

With all these thoughts in mind, I hope readers might use the comments to suggest great federal district judges for the next Supreme Court vacancy.  On this day of honoring moms, perhaps female district judges should be placed at the top of the list.  More generally, all shrewd SCOTUS watchers know that various matters of personal demographics — age, race, gender, religion, geography — may be of considerable concern to those selecting the next nominee to the Supreme Court.

Some related SCOTUS short-list posts:

May 11, 2008 at 10:34 AM | Permalink


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Not to fight the hypothetical, but I think that the number of Supreme Court cases decided in which experience as a district court judge would be very valuable (as compared to experience as a prosecutor, defense attorney, or civil litigator) is really quite small. Plus, sitting Justices can sit by designation in the district court if they like; perhaps it makes more sense to encourage sitting Justices to take time in the district court than it does to look for district court judges as future Justices.

If you want me to name names, though, here are some current or recently-departed district judges I would support if Barack Obama is elected President: Paul Cassell, David Levi, Mark Filip, Patrick Schiltz, Mark Kravitz.

Posted by: Orin Kerr | May 11, 2008 1:49:27 PM

Orin -- I take it you'd support those guys if McCain is elected too? ;-) Although it does say something unfortunate that 3 of the 5 district judges you named have left the bench for greener pastures.

And I the spirit of Mother's Day, I'll name Amy St. Eve, who (like Judge Filip) has very quickly made a reputation as one of the best judges in the Northern District of Illinois. Don't know if she's a mother, though.

Posted by: Jonathan F. | May 11, 2008 2:54:13 PM

Adalberto Jordan, SD Florida
Nancy Gertner, D Mass
Greg Presnell, MD Florida
Gerald Lynch, SNDY

Posted by: Lindsay | May 11, 2008 4:03:53 PM

Judge Rosenthal in Houston would be an excellent pick for McCain. She's probably not conservative enough, but she's a well respected judge and the fact that she's female can't hurt her candidacy.

Posted by: | May 11, 2008 5:15:01 PM

"Why do you think the number of cases in which experience as a district court judge would be valuable is limited"? (I understand that you offer the caveat "as compared to prosecutors, civil litigators, etc.") I think that district court judges have a keener appreciation of the "real world" effects of Supreme Court decisionmaking, esp. in areas such as procedure (criminal and civil), sentencing, and evidence (off the top of my head). But more generally, I think a district court judge sitting on the Supreme Court might better recognize when a proposed opinion offers little or no guidance to the lower courts. And thus - it might (I concede this is a "big" might) lead to more precisely written opinions.

Posted by: Alex | May 11, 2008 7:10:54 PM

Orin, given that the vast majority of district court judges were once prominent prosecutors, defense attorneys, or civil litigators (and/or state judges), I think service as a district judge likely includes some of the other types of experience you mention.

Moreover, criminal justice issues --- not just sentencing, but also search and trial and habeas issues --- comprise roughly 1/3 of the SCOTUS docket and this is the bread + butter of the work of federal district courts. I suppose high-profile con law cases do not play to district court experiences, but I am not calling for all of SCOTUS to be filled with district court vets. Rather, it seem at least 1 of 9 ought to have logged some serious trial court time.

Posted by: Doug B. | May 11, 2008 7:46:30 PM

Nancy Gertner [Mass.]
Paul Grimm [Md.]

defense attorney

Posted by: Barry | May 12, 2008 8:43:00 AM

Royal Furgeson, Western District of Texas

Posted by: Jason | May 12, 2008 9:22:15 AM

Judge Kopf.

Posted by: Booker fan | May 12, 2008 11:51:00 AM

Judge Doty of Minnesota.

Posted by: M | May 12, 2008 1:20:42 PM

Judge Loretta Preska, SDNY, is pretty much universally respected throughout that district. In fact, as I recall, she did make the "short list" of possible nominees that the Bush admin was said to be circulating last summer. She's the only district court judge in recent memory whose name has been "officially" floated as a potential SCOTUS nominee.

Out of curiosity, if anyone knows: when was the last time a sitting SCOTUS Justice sat by designation in a district court?

Posted by: NYC 3L | May 12, 2008 2:06:46 PM

Lee Rosenthal, SDTX

Posted by: bruce | May 12, 2008 4:09:23 PM

Then Associate Justice Rehnquist tried a civil case in the Eastern District of Virginia in Richmond in 1984. He was reversed by the Court of Appeals for the Fourth Circuit for giving an improper jury instruction.

Posted by: Tom | May 12, 2008 5:15:45 PM

Sidney Fitzwater, Chief Judge N.D. Tex

Posted by: B | May 13, 2008 10:39:49 AM

Having clerked at the District Court level for many years, I agree it is important to have some Justices with experience as a trial judge. Perhaps when writing an opinion, they'll take a moment to think, "How would I instruct a jury on this?" or "Can a trial court easily apply that brilliant 17-part balancing test I just crafted?"

Perhaps they'll understand the realities of sentencing, and the power of the prosecutor. They'll know what is like to make instant rulings, and have actual experience with jury deliberations and jury questions. They may even get an idea of how the real world works in terms of searches and seizures, "voluntary" consents to search, plea hearings, mentally impaired defendants who seek to represent themself, and other matters.

We in the trenches often read SCOTUS opinions, and wonder if the authors have any idea what actually goes on in the trial courts, or in the real world.

(Exhibit A: the mess they recently made of the Heck v. Humphrey doctrine. Do we really want every person arrested to immediately file an anticipatory lawsuit, on the off-chance they someday may be convicted and later have the conviction set aside? Are we supposed to stay thousands of these proceedings for decades? Do we really want discovery in a civil action occurring simultaneously with a criminal proceeding in which the defendant has a right against self-incrimination? Do we really want the civil case to be used to conduct discovery in the criminal case? Fealty to academic theory and dogma must be tempered by practical reality.)

Posted by: Anonymous Clerk | May 16, 2008 8:28:32 PM

Jeffrey Fisher, Stanford law prof & Sup Ct litigator extraordinaire

Posted by: Jeff | May 18, 2008 9:35:42 AM

I would hope that the next president (particularly if it is Sen. Obama) will seriously consider appointing someone with criminal defense attorney background. Many judges at all levels are former prosecutors, as that seems to be a surest career path to the bench. Defense perspective on the bench is sorely missing.

As a result, I think recommendation of Jeffrey Fisher is a good one.

Posted by: Gene | Nov 2, 2008 12:13:25 PM

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