Biden’s Supreme Court Nominee Should Have 5 Key Qualities

By Hon. Benes Z. Aldana (Ret.)

This op-ed was originally published on Law360. It is reposted here with permission.

Now that President Joe Biden has reiterated his campaign promise, we know that the next person to be subjected to a U.S. Supreme Court confirmation ordeal will be a Black woman.

What other characteristics should the president prioritize in his search? Here are five items I hope are on his checklist:

Experience As a State Trial Judge

Looking for someone with a deep understanding of the problems facing society? Look no farther than the judges in your local courthouse.

Trial judges are exposed to myriad issues, including drug addiction; guardianships; digital evidence; cyberstalking; child and adult sexual abuse; veterans’ issues; separatist movements, including so-called sovereign citizens who think they can choose which laws do and don’t apply to them; and many more.

Chief Justice John Roberts has compared the job of a judge to that of an umpire who calls balls and strikes. But appellate judges never even enter the stadium. They only read the record of the case — created by the trial judge. They never see or hear the plaintiffs, defendants or witnesses.

Over 95% of the cases in this country are decided in state and local courts. These judges hear cases about pretty much everything.

Federal courts hear only cases that involve the constitutionality of a law, cases involving U.S. laws and treaties, cases involving ambassadors, and even more arcane issues.

For these reasons, a Supreme Court justice who has never heard a trial — preferably at the state level — has a giant hole in her judicial experience.

The last member of the Supreme Court to come from the ranks of state trial judges was Justice Sandra Day O’Connor, whose judicial career began with her election to the Superior Court of Maricopa County in Arizona in 1974.

Among current justices, only Justice Sonia Sotomayor has trial court experience, and that was with the U.S. District Court for the Southern District of New York.

One member of the court, Justice Elena Kagan, had never been a judge of any kind before ascending to the high court. It may surprise some to learn that, over the court’s 232-year history, that’s been the case for 1 in 3 justices.

A Product of Public Higher Education

Of the nine members of the Supreme Court, all but one are alumni of Harvard Law School — Justices Stephen Breyer, Neil Gorsuch, Kagan and Roberts — or Yale Law School, including Justices Samuel Alito, Brett Kavanaugh, Clarence Thomas and Sotomayor. Justice Amy Coney Barrett went to Notre Dame Law School, which isn’t in the Ivy League but is still an elite private school.

Nearly all of the current justices also attended Ivy League universities as undergraduates.

Some of the most famous and influential justices of the Supreme Court came from somewhere other than the Ivy League law schools, including Justice Thurgood Marshall, who attended Howard University School of Law; Justice Warren Burger, who went to Mitchell Hamline School of Law; and Justice Earl Warren, hailing from the University of California Law School at Berkeley.

Justice Robert H. Jackson, who wrote a famous dissent in Korematsu v. U.S., the 1944 case that upheld the legality of incarcerating Japanese-Americans during World War II, didn’t graduate from any law school. He apprenticed in a law firm and then spent a year at Albany Law School before passing the bar.

If diversity of educational background, and not just of race and gender, is important, Biden should consider the graduates of our great public law schools. (Full disclosure: I am a proud alumnus of the public University of Washington School of Law.)

A Lifelong Learner

Every state bar association requires attorneys to complete some hours of continuing education each year. My current home state of Nevada requires 13 credit hours each calendar year.

Most states have no such requirements for judges.

Four states — Maryland, Massachusetts, Michigan and South Dakota — require no continuing education. Neither does the District of Columbia.

John Wooden, widely considered to be one of the most successful men’s college basketball coaches in history, with 10 national titles in his last 12 years at UCLA, was known to often share the maxim, “It’s what you learn after you know it all that counts.”

Lifelong learning and the humility to admit that we don’t know everything are valuable qualities. As such, the president should consider a nominee who has continued to take courses and grow in the profession of judging when nothing required her to do so.

Someone Committed to the Public Good

In nominating Justice O’Connor to become the Supreme Court’s first female justice in 1981, President Ronald Reagan said she possessed the “unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good which have characterized the 101 brethren who have preceded her.”

With all due respect to the late president, not all of the preceding justices possessed those virtues.

Justice James Clark McReynolds, who was on the court from 1914 to 1941, infamously refused to speak to Justice Louis Brandeis or even be photographed with him because Brandeis was Jewish.

In the 2015 book, “Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted,” author Ian Millhiser catalogs many of the court’s sins, including 30 years of decisions that undermined three constitutional amendments designed to provide equal rights to people who were formerly enslaved.

In a recent column in The New York Times, Jamelle Bouie suggests public service as a strong prerequisite for appointment to the court, writing: “There is … something admirably democratic about choosing to interpret the Constitution people who have, at one point in their lives, been responsive to or responsible for the mass of ordinary citizens.

The Supreme Court’s official mandate is to interpret the U.S. Constitution. But justices need to understand that real people will have to live by the court’s decisions.

A Model of Civility and Collegiality

America’s political and cultural divides are deep and widening. Trust is diminishing in many institutions.

The polling organization Gallup’s annual “Confidence in Institutions” survey doesn’t track public confidence in the courts as a whole, but since 1973, the share of the public holding a great deal or quite a lot of confidence in the Supreme Court has ranged from a high of 56% for two years in the mid-1980s, to a low of 30% in 2014.

The figure was 36% in 2021, two points lower than the presidency.

The leaders of our public institutions have always needed the public’s confidence. In the Federalist Papers, Alexander Hamilton wrote that the judicial branch envisioned by the Constitution would have “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.”

He was saying that courts would be powerless — useless — if people didn’t believe they were fair. Only if people believe a court is fair will they abide by the court’s decisions.

I’ve known hundreds of judges. The ones who receive the highest marks in evaluations are those who work to ensure that all parties in a case walk away feeling like they were heard and that their arguments were considered fairly.

The next person to join the Supreme Court will have a similar and possibly greater challenge. And that is to build consensus among colleagues divided into hardened ideological silos and, according to at least one account, by personal resentments as well.

How do you achieve influence in an organization where there are essentially nine co-CEOs with one vote apiece on every decision? Diplomacy and respect will be key.

A 16th century Englishwoman, Lady Mary Wortley Montagu, said, “Civility costs nothing and buys everything.” The next justice will need to understand that calculus, and earn the respect of everyone.


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