In a prior post, I made a simple, logical argument for why judicial experience, particularly U.S. Courts of Appeals experience, is an important prerequisite for being a Supreme Court justice. My argument, which I clarified further in a response, is that out of all of the jobs out there, being a U.S. Court of Appeals judge is the most similar to being a Supreme Court justice. The day-to-day tasks bear many similarities, and Courts of Appeals judges process and decide the same types of legal issues that Supreme Court justices decide. In short, being a Court of Appeals judge best prepares one for being a Supreme Court justice because of the similarity of tasks and the strong foundation that exists for understanding, processing, and deciding a wide array of legal questions in the context of a variety of case facts. You get that foundation through practice. Other jobs may give one practice for the job, but clearly, being a federal circuit court judge exposes one to a more diverse set of situations than, say, a private or government lawyer, a law professor, a law school dean, a politician, a White House Counsel, and so forth.
Several people responded with insightful comments. CoOp contributor Lawrence Cunningham noted that one should “consider that at least 40 of the 110 or so SCOTUS Justices were not previously judges and some of them were quite successful on the Court.” He included many of the usual suspects, including John Marshall, Earl Warren, Joseph Story, Louis Brandeis, and Hugo Black.
CoOp contributor Dave Hoffman stated: “So it is an empirical question – isn’t it? And I don’t think there is much evidence at all that previous judicial experience makes appellate court judges more productive, more cited, etc.”
And CoOp reader Anthony Encarnacao responded with: “[The] bottom line here [is that] experience is not the key indicator of success. Prior success in all aspects of one’s career is usually a better indicator of success.”
These three lines of thought got me thinking about how we define “success” in the context of Supreme Court justices.