There are good magistrates and state judges who have been elevated to federal judgeships. But the presumption tends to be that they’re not ideal picks.
There are good magistrates and state judges who have been elevated to federal judgeships. But the presumption tends to be that they’re not ideal picks.
One of the biggest changes in judicial nominations over the last 20 years is that sitting judges are more rarely picked to be federal judges. By that I mean for many years, one of the surer paths to a federal judgeship was to be a state judge, a magistrate judge, or district court judge (for the court of appeals). That largely stopped in the first Trump administration, a trend that continued in the Biden administration. From what we have seen so far, it is likely to continue.
Some of this has to do with the changing dynamics of the confirmation process. During the Bush and early Obama years, when 60 votes were necessary to advance a judicial nominee, it was rhetorically powerful to say, “He has a judicial track record. We know his temperament and his fairness.” Even after the “nuclear option,” this was Obama’s preferred trick to coax a Republican Senate to confirm his judges. At least half the judges confirmed in the 113th Congress had judicial experience.
Now the White House has a free hand to pick whomever they want, and sitting judges are not ideal choices in most circumstances. For one thing, they tend to be older. For another, their selection process can yield exactly the wrong kinds of candidates. For example, any state judge appointed through a “Missouri Plan” process will have essentially been picked by the state bar. A magistrate judge or a bankruptcy judge has been picked by a panel of the district court — in other words, their careers up until that point were designed to exude vanilla competence.
This is not to say that there aren’t good magistrates or state judges who have been elevated. But the presumption tends to be that they’re not ideal picks.
There are places where that presumption flips. In states like Arizona, Georgia, and Florida, the state bench is a great place to find judges. This is because strong governors over years have undertaken concerted efforts to align the state bench with judicial conservatism rather than party politics or the interests of the bar.
State supreme courts present unique difficulties in that they are highly influential and political bodies. The judge I clerked for, Diane Sykes, was nominated to the Seventh Circuit from the Wisconsin Supreme Court in no small part so that the Democratic governor of Wisconsin could appoint Louis “Loophole Louie” Butler to succeed her. A nominee has not been announced to replace Judge Sykes, but this dynamic would counsel against picking, say, Justice Rebecca Bradley on the Wisconsin Supreme Court. Although a strong conservative, picking Bradley would allow Governor Tony Evers to replace her and cement a 5–2 Democratic supermajority on the Wisconsin Supreme Court, dooming, among other things, the House majority.
What about district courts? For a while, they were a relatively popular place to find circuit judges, but they are now largely out of favor.
There are many reasons for this. Being on the district court is a slog and district judges can see their job as a form of civil service. In the civil service you clock out when your pension vests. A decent number of seats that flipped or almost flipped from one party to the other came from elevated district judges, who simply left when eligible (John Tinder, Ann Williams, Brooks Smith, Gerald Lynch, Thomas Venaskie, Christopher Droney, Julia Gibbons). That’s not a risk worth taking.
Furthermore, good district judges and good circuit judges have different skill sets. Circuit judges deal with complex legal questions and a relatively monastic environment. District judges run trials, manage court rooms, and often must shoot from the hip. If picking a circuit judge from Rawls’s “veil of ignorance,” you’re going to want him to be young, smart, well credentialed, and politically adept. You’re going to want your district judge to be experienced, quick on his feet, and confident.
Another issue is that the blue slip remains in place for districts. To see why this matters, look at the recent selection of Josh Dunlap for the First Circuit. In Maine, there’s a very strong district judge, Lance Walker, who probably would’ve been the favorite 20 years ago. Had he been picked, though, he would need to vacate his district court seat, and his replacement would be subject to Senator Angus King’s veto. The odds of replacing Walker on the district court with an equally sound district judge are practically nil. Promoting him would have entailed giving up the only conservative district judgeship in New England.
It’s a similar dynamic in other states. Judge Daniel Domenico in Colorado would make an excellent circuit judge were there a vacancy, but he’s the only good judge on the District of Colorado. There’s no chance Michael Bennet, running for governor, would even allow him to be replaced, let alone be replaced by someone as strong as he is. (Recall that when Domenico was appointed, Cory Gardner was in the Senate.) Mark Scarsi in Los Angeles would have made a strong addition to the Ninth Circuit, but you have to assume the White House knew it’d be opening up a seat for another Maame Ewusi-Mensah Frimpong were Scarsi appointed to the Ninth Circuit.
On the other hand, were a vacancy to occur in Chicago, elevating someone like Steve Seeger or Martha Pacold would make sense while Dick Durbin is still in the Senate — he would see the seat filled in a way that deferred to the president. Illinois has long had a “commission system” that divvies up seats between the parties, and Chicago’s lions of the bar are relatively proud that, because of this process, they never have drawn-out vacancies. Once Durbin leaves, though, I would be shocked if this tradition continued, in which case we should hold on to those district judgeships for dear life.
So far, the only judges to be nominated have come from the judicial powerhouse of Florida. With good reason, this seems likely to continue.