Stepping Stone to the Supreme Court
The increased prevalence of justices who served on federal appellate courts
When Senator Hillary Clinton and her allies failed to thwart Brett Kavanaugh’s appointment to the D.C. Circuit in May 2006, they knew that he was well positioned for a possible Supreme Court nomination down the road. Indeed, the function of a federal appellate judgeship as a stepping stone to the Supreme Court had never been more clear. When Samuel Alito replaced Sandra Day O’Connor on the Supreme Court a few months earlier, the Court for the first time ever consisted of nine justices who had previously been federal appellate judges.
In this post, I will take a closer look at the emergence of this phenomenon, and in my next post I will explore the possible reasons that underlie it.
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Of the past 14 justices who have been appointed to the Court—beginning with Antonin Scalia in 1986—13 of them were serving on a federal court of appeals at the time of their appointment. The lone exception is Elena Kagan, whose nomination to the D.C. Circuit by Bill Clinton in 1999 died from inaction.
When Chief Justice Roberts joined the Court twenty years ago, the Court had eight former federal appellate judges for the first time ever. Only Justice O’Connor had never been a federal appellate judge. (She had served for five years as a state trial judge and for less than two years as a state appellate judge.) Alito’s replacement of O’Connor made it a nine-justice sweep, and that continued until Kagan replaced Justice John Paul Stevens in 2010. The Court has had eight justices with federal appellate experience at all times ever since, with the exception of the 14 months in which the Scalia seat lay vacant.
The prevalence of former federal appellate judges on the Supreme Court is a recent development. From 1900 until 1969, the Court never had more than three former federal appellate judges. It reached that level of three only for around 12 years in those seven decades. In most years it had two such members, but from 1930 to 1949, it had zero (1937-1946) or just one.
By his selections of Chief Justice Warren Burger (formerly of the D.C. Circuit) in 1969 and Justice Harry Blackmun (Eighth Circuit) in 1970, Richard Nixon very briefly created the first Court with a majority of former federal appellate judges. But that majority disappeared when he appointed William Rehnquist (then head of the Office of Legal Counsel at the Department of Justice) to replace John Marshall Harlan II (formerly of the Second Circuit).
The Court then bounced back and forth between four and five members who were formerly on the circuit courts: Gerald Ford appointed John Paul Stevens (Seventh Circuit) in 1975 (up to five), Ronald Reagan picked O’Connor to replace Potter Stewart (Sixth Circuit) in 1981 (down to four), and Reagan, in the aftermath of the defeat of his nomination of Robert Bork (D.C. Circuit) filled Lewis Powell’s seat with Anthony Kennedy (Ninth Circuit) in 1988 (back to five).
The further upward trend dates from Kennedy’s appointment. In 1990, the number grew from five to six as David Souter (First Circuit) replaced William Brennan. Clarence Thomas (D.C. Circuit) made no net change on this score in filling the seat of Thurgood Marshall (Second Circuit). But Ruth Bader Ginsburg (D.C. Circuit) brought the total to a then-historic high of seven when Clinton appointed her to succeed Byron White in 1993. Stephen Breyer (First Circuit) maintained the level of seven when he replaced Blackmun in 1994. And the composition of the Court remained unchanged from 1994 to 2005—the second-longest period in American history without a Supreme Court appointment. (The longest—not by much—was between Joseph Story’s accession to the Court in February 1812 and Smith Thompson’s in September 1823.)
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As a prelude to my next post, it’s worth noting that the tenure of the justices in their federal appellate seats has varied considerably and for some has been remarkably short—especially as measured by the end date of nomination to the Supreme Court.
On the short end of current and recent justices are David Souter, Clarence Thomas, John Roberts, and Ketanji Brown Jackson.
Souter had been on the First Circuit only two months when George H.W. Bush plucked him from obscurity to replace Brennan. Bush appointed Clarence Thomas to the D.C. Circuit in March 1990 and nominated him to the Supreme Court in July 1991. Roberts had barely two years in his D.C. Circuit robe when George W. Bush picked him (first to replace O’Connor, and then switched to replace Rehnquist as Chief). And Ketanji Brown Jackson had been on the D.C. Circuit for only eight months when Joe Biden named her to Breyer’s seat. (She had previously served eight years as a district judge.)
Antonin Scalia and Amy Coney Barrett are in a middle range. Scalia was on the D.C. Circuit for just under four years when Reagan nominated him. Barrett was on the Seventh Circuit for just under three years when Donald Trump tapped her to replace Ruth Bader Ginsburg.
On the long end are:
Anthony Kennedy, nearly 13 years on the Ninth Circuit;
Ruth Bader Ginsburg, roughly 13 years on the D.C. Circuit;
Stephen Breyer, 14 years on the First Circuit;
Samuel Alito, 15+ years on the Third Circuit;
Sonia Sotomayor, more than 10 years on the Second Circuit;
Neil Gorsuch, more than 10 years on the Tenth Circuit; and
Brett Kavanaugh, 12 years on the D.C. Circuit.