A Supreme Court Short List (part 1 of 3)

A better system for identifying candidates for the next opening

In this post:

• The striking sameness among SCOTUS justices and federal appeals-court judges

• My new system for identifying SCOTUS candidates

• #10, #9, and #8 on my Top 10 list

A Uniformity Problem

One big problem with the U.S. Supreme Court over the last several decades is the homogeneity of justices. Sadly, those similarities are also found among federal appeals court judges. This uniformity hurts America. It limits opportunity, stokes populism, and causes the judiciary to reflect the sensibilities of a sliver of our great nation.

For the most part, these judges went to the same set of colleges and law schools. Then they had remarkably similar careers: They clerked for federal judges, spent a little time in private practice, served as prosecutors, maybe some time at the DC office of the U.S. Department of Justice (DOJ).

The geographic narrowness is striking, too: Many spent much of their lives along the Acela corridor, from DC up through New England. Many grew up there. Then they headed to Ivy League colleges and law schools. Then DC-, Boston-, or New York-based law firms. Then clerking in DC or for the 1^st or 2^nd Circuits. As a result, the top level of the federal judiciary is filled with people who know only a corner of America.

They also know a small slice of American law and policy. Astonishingly few have meaningful experience outside of the judicial branch, even though their decisions affect the policy-making branches. When they do have non-judicial experience, it’s generally in near-judicial roles (e.g., as an assistant US Attorney, at DOJ).

Finally, they have terribly little experience at the state level—even though their decisions often implicate state constitutions, state legislation, and state regulations. Only one current SCOTUS justice has meaningful state-level experience.

It’s high time we change this.

So I created a scoring system to identify candidates who should be considered for the next SCOTUS vacancy.

A System to End the Uniformity

Since federal appeals court judges are now the preferred SCOTUS candidates for presidents of both parties, I’m going to focus there.¹

My scoring system rewards federal appeals court judges who:

• Graduated from and excelled at non-Ivy+ colleges and law schools, particularly publics

• Have spent most of their careers outside of DC, NYC, and Boston

• Serve on appeals courts other than the 1^st, 2^nd, and DC Circuits

• Have meaningful experience in the legislative and/or executive branches, especially if those roles are less related to the day-to-day work of the courts

• Have meaningful experience at the state level

• Were nominated by a GOP president²

• Are young enough to be considered for a SCOTUS seat³

7 Quick Initial Comments

Before sharing the Top 10 list generated by my system, here are seven quick takeaways.

First, my system does not produce the same names appearing on others’ potential-SCOTUS-nominees lists. The people creating those lists appear to prefer judges with Ivy-League degrees, lots of experience along the Acela corridor, no state-level experience, etc.

Second, nine of my Top 10 are Trump appointees. Had age not been a factor in my scoring system, more George W. Bush picks would be on this list.

Third, to be clear, I’ve not yet read enough about these judges’ judicial philosophies and dispositions. This list is based entirely on my current résumé-focused scoring system. It is possible that once I’ve read enough opinions from these judges and learned about their other activities, my rankings would change.

Fourth, although my scoring system prioritizes academic excellence from non-Ivy+ schools, three of the Top 10 have law degrees from non-Ivy Ivy+ schools—one Chicago, one Stanford, one Duke (I discuss this below). None of these three individuals, however, made my Top 5. And none of the Top 10 earned an Ivy+ undergrad degree.

Fifth, all of the Top 10 have some non-judicial governing experience

Sixth, nine of the Top 10 have meaningful state-level experience.

Seventh, the Top 10 includes four judges from the 11th Circuit, two from the 6th, two from the 5th, one from the 3rd, and one from the 9th.

With no further ado, here are the first three names and brief biographical sketches. (I’ll release the second batch of names on Wednesday, and the final batch on Thursday).

The List: #10, #9, and #8.

#10. Judge Britt C. Grant

Age: 47

11^th Circuit (Alabama, Florida, Georgia)

Judge Grant is an ideal SCOTUS candidate in the eyes of my scoring system with one important exception. First, the plus side. She was born and raised outside of the Acela corridor, and she now serves in the circuit where she was shaped. She graduated summa cum laude from Wake Forest, an excellent non-Ivy+ college. She has professional experience with the federal legislative branch (having worked for a member of the U.S. House) and the federal executive branch (having worked in several roles in the White House complex). This latter experience distinguishes Grant from most appeals court judges with federal executive-branch experience: They have generally only worked for DOJ. Grant also has invaluable state-level experience, having worked as Georgia’s solicitor general and as a justice on the state’s supreme court. Grant is now an experienced appeals court judge (serving since 2018) despite her relative youth: She could serve on SCOTUS for 35+ years. She’s an excellent candidate.

Here's the downside.