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July 4, 2008

Thinking creatively about different SCOTUS short lists

The holiday times, the end of a notable SCOTUS Term, and this new Findlaw article (titled "What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable") have me thinking creatively about what a truly "unpredictable" SCOTUS short list might really look like.

Consider, for starters, that modern SCOTUS appointments are usually older individuals even though, as detailed here, the "average age of the delegates [at the Constitutional Convention] was 42 and four of the most influential delegates -- Alexander Hamilton, Edmund Randolph, Gouvernor Morris and James Madison -- were in their thirties."   A truly creative SCOTUS short list might include some folks born after the end of the Warren Court.

Consider also that all the current member of the Court were elevated from federal circuit courts even though, as detailed here, dozens of Justices throughout history have come to SCOTUS with no prior judicial experience.  (Notably, the list of SCOTUS judicial rookies includes John Marshall, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, William O. Douglas, Robert Jackson, and Earl Warren.)   A truly creative SCOTUS short list would include some folks who have never donned a black robe.

Finally, we should not leave out classic identity dynamics given that 106 of 110 Supreme Court justices in US history have been white men.  A truly creative SCOTUS short list would certainly include many folks with diverse personal characteristics and backgrounds.

So, for either or both leading Presidential candidates, how about using the comments to start developing a truly creative SCOTS short list?

(Cross-posted at Prawfs)

Some related SCOTUS short-list posts:

July 4, 2008 at 07:45 PM | Permalink


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My research on this topic generally, years ago, found something like 40 percent of Supreme Court nominees had no judicial experience. The confirmation rate for those with and without such experience was an identical 81 percent. On the other hand, I found that those with substantial federal judicial experience were confirmed at a slightly higher rate (but not statistically significant). Likewise, I found those nominees who were between the ages of 45 and 65 were confirmed at a slightly higher rate than those outside that range.

Still, I wonder if the skew toward federal experience in recent courts is simply the residue of the high degree of attention given to nominations. Such nominess obliterate two potential objections: no judicial experience or no federal judicial experiece.

Finally, Justice Frankfurter's famous University of Pennsylania Law Review article on judicial experience remains a classic. His major argument was that by the time a case reaches the Supreme Court, the points of focus are more political than legal. Hence, it makes just as much sense to have people who are political animals on the bench.

Posted by: P.S. Ruckman, Jr. | Jul 7, 2008 2:06:18 PM

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