Justice Stephen Breyer will soon be leaving the Supreme Court, just as it was expected. According to reports, this week’s resignation will come after the Supreme Court confirms his successor. This is likely to happen in the summer. While the change could be made faster, there would still only be eight justices in major cases, so it is unlikely that that will happen.
Joe Biden pledged to be the first Black woman appointed to the Supreme Court during the presidential campaign. All indications are that he is going to keep that promise. Biden wasn’t the first person to pledge such an honor. Ronald Reagan pledged to be the first female nominee to the Court during his campaign. He fulfilled this promise by nominating Sandra Day O’Connor.
This would represent a significant milestone in the country’s history and be consistent with the Biden Administration’s larger efforts to diversify federal courts. Multiple potential nominees possess the required qualifications, and almost all of them would likely be confirmed. (For the record, I remain firm in my belief that the Senate is the best place to be. shouldNominees with the required qualifications and character should be confirmed. Elections have consequences.
By making the nomination, President Biden can diversify and strengthen the Court in many ways. The President has the chance to broaden the Court’s experience, by nominating someone with significant experience in the state courts.
All current justices have excellent educations and are smart. Elena Kagan was the only one who came to Court without any appellate court experience. As Solicitor General, she also had extensive experience in federal appellate judges. Sonia Sotomayor, the only sitting justice who was not a judge on a trial case, had previously served as a Judge. NoneNone of the justices currently in office has had any experience with state courts. This is not good.
Most of the Court cases stem from state court proceedings, including habeas and other cases. Some cases also incorporate state law claims (as is common in sentencing cases or ACCA cases). As a trial judge brings a different perspective, it is important to have a justice who understands state court procedures and the differences between them. O’Connor, Souter and other justices had this experience. However, none of the current justices have it.
According to reports, President Biden is shortlisting several qualified candidates who are experienced in the state court system. While I haven’t looked at their records enough to determine which would be “best”, I don’t think they are interested. It is possible to diversify Court’s activities in several ways by introducing this nomination. That would be great! Other than state court experience there is also trial-level criminal defense experience. This diversity will be a significant asset to the Court’s ability to do its job.
The White House can nominate any jurist that reflects the President’s preferred philosophy in judicial practice and meets other criteria. Biden, like President Reagan has promised to make history. It would make a difference for both the Court and the country if the White House also selected someone who has experience in state courts, something that One First Street has been lacking for some time.