Why We Have So Many Former Federal Appellate Judges on the Supreme Court

Explaining the dramatic shift

As we have seen, in recent decades there has been a dramatic shift in the professional background of Supreme Court justices.

Over the first seven decades of the 20th century, justices were drawn from a variety of backgrounds: United States senators, U.S. Attorneys General and other top Department of Justice officials, state supreme court justices, and governors. While service as a federal appellate judge was also a common qualification, there was a stretch of nearly 40 years in which not a single one of the 24 justices appointed during that period was serving as a federal appellate judge when he was appointed.

In sharp contrast, of the past 14 justices who have been appointed to the Court—beginning with Antonin Scalia in 1986—13 of them (all but Elena Kagan) were serving on a federal court of appeals at the time of their appointment.

Justice Elena Kagan (the exception)

To make the point another way: Until 1969, the Court never had more than three former federal appellate judges. When John Roberts became chief justice in 2005, the Court had eight former federal appellate judges for the first time ever. The total reached nine when Samuel Alito replaced Sandra Day O’Connor in 2006. The full Court has had eight justices with federal appellate experience ever since Kagan replaced John Paul Stevens in 2010.

Let’s explore what might explain this dramatic shift.

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Let’s first consider what I will call a “best practice” hypothesis. Under this hypothesis, presidents have come to select federal appellate judges for the Supreme Court because they recognize that federal appellate service provides the best training to be a Supreme Court justice. The work of a federal appellate judge is the work most like that of a Supreme Court justice: deciding cases as part of a panel of judges, addressing a broad range of federal legal issues, reading briefs, conducting oral argument, and writing opinions. A Supreme Court justice will be a better justice by virtue of this training.

Similarly, this hypothesis would posit, high-quality performance by a federal appellate judge provides the strongest possible assurance of high-quality performance as a Supreme Court justice. And that’s true when quality is understood to include the judicial philosophy that a president desires in a justice. So a president deciding whom to nominate to a Supreme Court vacancy will rightly concentrate on, and favor, candidates with federal appellate experience.

This best-practice hypothesis has a lot of force. But in the real world of politics, it’s sensible to be skeptical of “good government” accounts. The hypothesis doesn’t fit well with a good chunk of the evidence. Four of the past eleven justices elevated from a federal court of appeals had very short stints as federal appellate judges at the time they were nominated: David Souter had only two months, Clarence Thomas not much more than a year, John Roberts barely two years, and Ketanji Brown Jackson only eight months. It is difficult to see how such short stints could have provided significant training and testing. (I don’t mean by this observation to slight the other experience these nominees had; I’m just focusing on the explanatory power of the hypothesis.)

The best-practice hypothesis also can’t explain why the predominance of former federal appellate judges is so recent. Its logic would apply with equal force to the first seven decades of the 20th century, when the presidential practice was very different. So unless we are to adopt the dubious assumption that presidents themselves have become more disposed to practice good government in recent decades, it’s difficult to see how the hypothesis can explain the dramatic shift to picking federal appellate judges.

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I will instead offer a much simpler political explanation: In recent decades, the confirmation wars have intensified, the political parties have polarized over judicial philosophy, and the confirmation process has become much more prominent in the public eye. In this new environment, federal appellate judges have become far and away the safest picks for Supreme Court seats. That is so for various reasons.

For starters, unless (as with Robert Bork), the nominee has done a lot of outside writing, the nominee’s judicial record will be the focus of the confirmation process. The White House will aim to select a nominee whose judicial record pleases its political base without providing damaging ammunition to its opponents.

A good appellate judge will likely have formed friendly relationships with, and earned the respect of, colleagues who are on the opposite side of the ideological spectrum. Every judge has lots of non-ideological cases. The judge’s colleagues value someone who deals with these cases efficiently and effectively, and the lawyers who win the judge’s vote will appreciate his wisdom.

A good appellate judge has also been well positioned to win a good rating from the American Bar Association’s judicial-evaluations committee. The Trump administration has recently—and for good cause—completely terminated the ABA’s privileged role in the process, so this won’t be a factor for any Supreme Court vacancy that might arise in Donald Trump’s second term. But for all of the ABA’s faults, the reality is that its positive ratings of conservative Supreme Court nominees have provided a good defense against attacks from the Left.

A federal appellate judge will also have the advantage of already having gone through the confirmation process. That process included an FBI background check and an ABA review, so it provides some assurance that there will be no unwelcome new surprises. If that confirmation process was quiet, the judge would have been confirmed unanimously or by a very large margin, thus putting opponents of the Supreme Court nomination at a disadvantage. (For example, Samuel Alito was confirmed to the Third Circuit by unanimous consent in 1990.) If the process was contentious, the White House would have assessed how effectively the judge navigated the difficult terrain.

The stature of being a federal appellate judge has its own force, irrespective how long the judge has been on the bench. The simple etiquette of referring to a judge by the honorific of Judge (rather than Mr. or Ms.) also confers a subtle benefit on a nominee who is a judge. (That benefit of course extends to district judges and state judges.)

A federal appellate judge—especially one whose tenure has been more than a few years—will also have a network of talented former law clerks who can serve as his advocates and proxies during the confirmation process.

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To illustrate, by contrast, the challenges that senators, governors, or other elected officials face in this new environment, let’s review Bill Clinton’s bumblings on the Supreme Court seats that arose in 1993 and 1994.

Clinton very much wanted to nominate a politician—or, if you prefer, a statesman: “someone with a big heart,” someone “of genuine stature and largeness of ability and spirit.” New York governor Mario Cuomo was initially high on his list, and after he withdrew, Clinton was on the verge, in both instances, of selecting his Secretary of the Interior, former Arizona governor Bruce Babbitt. But Babbitt had made enough enemies in his political life that Republican senators, like my former boss Orrin Hatch, made clear that they would oppose him. And even though Clinton, with a large Democratic majority in the Senate, could easily have gotten Babbitt confirmed, he didn’t want to incur the political costs of doing so.

Imagine likewise if a president were to nominate a senator to the Supreme Court. The only senators whom the political base of either party would accept would be those most objectionable to the other party. With his party in control of the Senate, a president could win a bitter fight to get his senator nominee confirmed. But why would he see any advantage in picking the senator rather than a federal appellate judge with a proven record?

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The practice of appointing federal appellate judges to the Supreme Court is now self-reinforcing. If a president wants the justice he appoints to be influential with the former federal appellate judges now sitting on the Court, he will look for someone who has the qualities of an excellent federal appellate judge. Someone who isn’t actually a federal appellate judge (e.g., Elena Kagan) might sometimes have those qualities, but the best place to look for someone who has them is on the federal courts of appeals.