Full Top 10
My SCOTUS shortlist released from behind the paywall
Last week, I argued that the homogeneity on the US Supreme Court (and among federal appeals court judges) is bad for the judiciary and bad for America.
To remedy that, I created a scoring system to identify high-quality candidates who would bring a variety of valuable, neglected characteristics to the Court next time a seat is open. I then shared—in three parts behind a paywall—the Top 10 candidates identified by my scoring system.
I’ve gotten a lot of requests to make the full list available. I want to push this conversation forward, and I want these candidates to get the attention they deserve. So the full Top 10 list is below. No pay wall.
But please, if this work is of interest, do like and/or share this post (and consider becoming a paid subscriber) to show your support.
Scoring System
Federal appeals court judges earn points if they:
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 1st, 2nd, 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 president
Are young enough to be considered for a SCOTUS seat
Why Do We Need a New Approach?
In my view, the conservative legal movement needs to be not just originalist but republican as well. That means reflecting the sensibilities of all of America, not just the Northeast and Mid-Atlantic. It means hailing from, being educated in, and building careers across the nation. It means understanding the political branches not just the courts. It means serving in state governments not just in DC.
My system produced a list of 10 extraordinarily talented and highly qualified SCOTUS candidates. Not a single one has a degree from Harvard, Princeton, or Yale. But all of them excelled in college and law school. Not a single one built a career in DC, NYC, or Boston. Every one has shown a commitment to a particular region. Nearly all have served at the state level. Nearly all have experience across the branches of government.
If we want to change the judiciary, we need to change our views about what qualifies an individual for legal public-service at the highest levels.
The List
#10. Judge Britt Grant
Age: 47
11th Circuit (Alabama, Florida, Georgia)
Judge Grant is an ideal SCOTUS candidate in the eyes of my scoring system with one exception. First, the big 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.
Her law degree is from Ivy+ Stanford. We have had more than enough Ivy+ graduates on the Court (and Stanford Law is especially worrying nowadays). We need to expand the experiences and sensibilities on the Court, not double down on what we have had for generations. Importantly, as my new research shows (it’ll be released next month), SCOTUS justices from Ivy+ institutions act as though talent is pretty much only found at Ivy+ schools. They hire clerks from a very narrow sliver of colleges and law schools. This is important because SCOTUS clerks go on to become leaders in the worlds of law and policy. That kind of elitism is bad for the Court and bad for America. Justices Kennedy and Breyer earned undergrad degrees from Stanford, and both were too elitist in their clerk hiring.
Nevertheless, Judge Grant makes it on my list because she is so good on the other dimensions…and because of former Chief Justice Rehnquist. Rehnquist had a law degree from Stanford, but he was a hiring outlier compared to other Ivy+ justices. He was a model when it came to looking for talent far and wide. On some of my study’s measures, Rehnquist selected clerks from the most diverse pool of schools among justices in the last half century. Since he could do it, I’m hoping Judge Grant could, too.
Since this is Grant’s eighth year on the federal bench, we could assess her history of clerk hiring to date. If she, like too many Ivy+ judges, acts as though all of nation’s talent is found at Ivy+ schools, she’d fall off my list. If, however, she has a Rehnquistian approach to opportunity, she’d move closer to the top.
#9. Judge Ryan Nelson
Age: 51
9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington)
Judge Nelson, from Idaho Falls, Idaho, graduated twice from BYU (including a J.D. with honors and Order of the Coif). He serves in the circuit where he was born and raised. His clerkships include time at The Hague, working on the Iran-United States Claims Tribunal. He also has a variety of federal experience: as a deputy assistant attorney general, as deputy general counsel at OMB, and two staff-level stints with the U.S. Senate. His time at OMB should have given him knowledge of executive-branch governing (apart from just prosecutions), his time in DOJ’s Environment and Natural Resources Division should have provided him policy expertise uncommon on the Court, and his legislative-branch experience hopefully developed in him an appreciation for democratic decision-making.
Judge Nelson is the only one among my Top 10 lacking meaningful state-level experience. Otherwise, his professional, academic, and geographic background makes him worthy of serious consideration.
#8. Judge Don Willett
Age: 58
5th Circuit (Louisiana, Mississippi, Texas)
Judge Willett is the second-most senior individual on my list, but he has one of the most impressive and varied careers. Born and raised in humble circumstances in Texas—where he currently serves—Willet graduated from Baylor and earned master’s and law degrees from Duke. Though Duke is an Ivy+ school, no Duke grad has yet served as a SCOTUS justice; therefore, elevating Willett would not perpetuate the narrow pipeline onto the Court. Moreover, though Ivy+ justices have a distorted sense of where talent can be found, I don’t have evidence that this would be true of a Duke grad. As with Judge Grant, Judge Willet’s clerk hiring while an appeals court judge would be instructive. If I get that information, Willet could move up or off my list.
Professionally, Willett has the kind of background we need. He worked on the staff of a Texas governor for four years and served in the executive office of a president. He also served as a U.S. deputy assistant attorney general. Returning to the state level, he then served as the deputy attorney general of Texas and then for a dozen years as a justice on the supreme court of Texas.
Willet has spent most of his life outside of the Acela corridor. He has served in policy-making roles for a governor and president, worked for both the Texas and the U.S. attorney general, and has served as a state supreme court justice. He’s an outstanding candidate.
#7. Judge Paul Matey
Age: 54
3rd Circuit (Delaware, New Jersey, Pennsylvania)
Born and raised in New Jersey, Judge Paul Matey serves in the circuit where he was shaped. He attended college and law school—both at respected Catholic institutions—close to home, graduating with an undergraduate degree from the University of Scranton (in PA) and a JD from Seton Hall (in NJ). He earned his law degree summa cum laude and was the editor-in-chief of the school’s law review. Matey then built his career in the same region. First, he had two federal clerkships and served as a federal prosecutor in the circuit. He then transitioned to state-level work, serving for six years in the office of his home state’s governor.
Matey’s career (like that of most others on my list) provides a telling contrast to the standard resume of SCOTUS justices and those typically named on SCOTUS short lists. For too long we’ve assumed that the ideal candidate leaves home as an 18-year-old for college and law school at an Ivy and then takes on the expected legal jobs in DC and New York. Matey, however, like so many talented people who care about place, excelled at great schools in his region. And like so many talented people who care about public service and place, he served close to home—as an assistant US attorney in his home state and in the executive branch in his home state. He’s now been a federal appeals court judge in that circuit for six years.
For entirely too long, individuals like this have been undercapitalized—to the detriment of the nation. There should be more justices like Judge Matey.
6. (Tie) Judge Eric Murphy
Age: 45
6th Circuit (Kentucky, Michigan, Ohio and Tennessee)
Eric Murphy is the youngest judge on my list. Born in Indiana, Murphy graduated summa cum laude from the public Miami University (of Ohio). He then earned his law degree from the University of Chicago with high honors; he was inducted into the Order of the Coif and served on the law review. Though Chicago is an Ivy+ school, there’s not been a Chicago Law graduate on SCOTUS, so elevating Murphy would not perpetuate the narrow SCOTUS pipeline.1 As with Judge Grant (#10) and Judge Willett (#8), I would like to know more about Judge Murphy’s clerk hiring during his time on the bench to ensure he would not continue the too-narrow pipeline into legal leadership.
Murphy clerked for the highly respected Judge Wilkinson (4th Circuit) and Justice Kennedy. He was also Ohio’s state solicitor for more than five years, earning valuable executive-branch and state-level experience. We need more justices who can see through the eyes of the states.
Judge Murphy is a product of and continues to serve in the Midwest. He would be an excellent addition to the Court.
#6. (Tie) Judge William Pryor
Age: 63
11th Circuit (Alabama, Florida, Georgia)
Judge William Pryor is the most senior individual on my list. He serves as the chief judge on the 11th circuit, which includes his home state of Alabama. Pryor is also the only George W. Bush appointee on my list; he has been a federal appeals court judge for more than 20 years.
America has not had a SCOTUS justice with a college degree from a public school in 40 years (since Chief Justice Burger’s retirement). Judge Pryor (like Judge Murphy) could change that, having graduated from (what is now) the University of Louisiana at Monroe. He earned his undergraduate degree magna cum laude and his law degree (from non-Ivy+ Tulane) magna cum laude. He was the editor-in-chief of the law review. Prior to his confirmation to the 11th circuit, Pryor was Alabama’s deputy attorney general and attorney general. His experience in this important executive-branch, elected, state-level office would be a great benefit to the Court. His firsthand understanding of the duties of officials in the political branches and the importance of the states in our federal system are invaluable.
Pryor’s strong background enabled him to edge out a number of Bush-appointed judges who scored well on my system, including Jeffrey Sutton and Steven Agee.
4. Judge Elizabeth Branch
Age: 57
11th Circuit (Alabama, Florida, Georgia)
Judge Branch was born and raised in Georgia, where she now serves. She graduated cum laude from Davidson, a liberal arts college in North Carolina. She earned a JD from Emory (in Georgia) with distinction; she was an editor of the law journal and was inducted into the Order of the Coif.
After clerking and working in private practice in her home state, Branch had several valuable professional experiences in the federal executive branch. She worked in the general counsel’s office at the Department of Homeland Security and then for the important regulatory entity OIRA (inside of OMB). Unlike judges who only know prosecutions and the work of DOJ, Branch has experience in executive-branch policymaking roles. She then served as a judge on the Court of Appeals of Georgia, earning valuable state-level experience.
SCOTUS needs justices who are committed to a place, excelled at non-Ivy+ schools, built careers outside of the Acela corridor, have policymaking experience, and have state-level experience. Branch fits the bill. Excellent candidate.
3. Judge Joan Larsen
Age: 56
6th Circuit (Kentucky, Michigan, Ohio and Tennessee)
Judge Larsen, a product of Northeast Iowa, graduated with highest honors from the public University of Northern Iowa. She earned her JD from Northwestern (Illinois), where she graduated first in her class. After two impressive DC clerkships (Sentelle and Scalia) and time at DOJ, she returned to teach law in the Midwest. She then served as a justice on the Michigan Supreme Court. Larsen is now in her ninth year on the federal bench.
Larsen’s is the kind of resume that should automatically rise to the top. She excelled at the public college just 10 miles from her birthplace and a great private law school in her region. She earned coveted DC-based opportunities but returned to her home region to build a career. She did state-level public service and now serves as a federal appeals court judge in the Midwest.
Larsen is an ideal candidate.
2. Judge Kyle Duncan
Age: 52
5th Circuit (Louisiana, Mississippi, Texas)
Judge Duncan, a product of Louisiana, is one of only two individuals on this list with undergraduate and law degrees from a public university. He graduated from LSU with a BA summa cum laude and earned his JD from LSU (Order of the Coif and law review). He clerked for the 5th Circuit on which he has now served as a judge since 2018. He was a law professor at Ole Miss (also in the 5th circuit), and he worked as an assistant solicitor general in Texas (in the 5th circuit) and as the appellate chief for the Attorney General of Louisiana (5th circuit).
Judge Duncan did not chase an education or career along the Acela corridor. Instead, he excelled at his home state’s flagship college and law school. He then stayed in this region, teaching law there, working for two different states’ attorneys general, and now serving as a judge there. A background like this should be the norm on the US Supreme Court, not a rarity.
1. Judge Robert J. Luck
Age: 46
11th Circuit (Alabama, Florida, Georgia)
Judge Robert Luck had the highest score among all federal appeals court judges. He checked virtually all of the boxes in my system.
At 46, he is the second youngest individual in the Top 10. He is a product of Florida. Born in South Miami, he earned his undergraduate and law degrees from the public University of Florida. He earned his BA with highest honors and his JD magna cum laude; he was editor-in-chief of the Florida Law Review.
Luck clerked and was in private practice in South Florida. He was a staff attorney to a judge on the 11th Circuit (where he now serves) and was a federal prosecutor in the state. He also served on the staffs of two U.S. senators.
Luck also served on three Florida courts—a circuit court, a court of appeals, and the Florida Supreme Court. He has now been a federal appeals court judge for nearly six years.
Why did Judge Luck score the highest? He excelled at his state’s public flagship university and law school. Despite his relative youth, he has remarkable experience. He’s worked in the federal executive, legislative, and judicial branches. He was a federal prosecutor and served his state in three judicial roles. He was committed to his home state, building a career there and ignoring the lure of DC and the Acela corridor.
We need SCOTUS justices like Judge Luck.
"Were nominated by a GOP president" - I'd be interested in another list of liberal judges, to benefit us whenever we get another SCOTUS pick (whenever that happens, goddamn our luck has been so bad). Diversity of backgrounds for SCOTUS picks should be a non-partisan goal!