Justice Thomas And The State Bench: The New Supreme Court Feeders?

In the past couple of weeks, two law professors - and former Justice Thomas clerks - have been named associate justices on state Supreme Courts.  As I reported a couple of weeks ago, Governor Tim Pawlenty named 35 year old Professor David Stras of the University of Minnesota to that state's Supreme Court.  And last week, Tim reported that Utah Governor Gary Herbert nominated 45 year old BYU law professor Tom Lee to the Utah Supreme Court.  

I think these appointments are notable. First, it's  interesting to see that the Justice Thomas clerkship seems to be paying a particular dividend - a subsequent appointment to a  state Supreme Court.  As far as I know, this is unique benefit that other former clerks have not garnered.  I don't know if these two appointments are random or if they're the result of something systemic.  I understand that Justice Thomas' clerks are fiercely loyal to both their old boss, and each other, so that may be a factor.  But I think there might be something else going on here.

As I've suggested previously, I believe we may be seeing a new Supreme Court nominee feeder - Justice Thomas - and a new Supreme Court feeder system...the state Supreme Courts.  Lacking the ability to appoint judges to the U.S. Courts of Appeal during an Obama Presidency, but in an effort to culture (and observe) future Republican Supreme Court nominees, it seems that the Republicans may be tapping a new route to the High Court.  It's not clear whether state Supreme Courts will be as effective as federal appellate courts as a petri dish for studying a judge's political commitments.  But they might be.  I'm sure that the Republicans would do anything to avoid the blind-side hit that came with the appointment of Justice Souter (after less than two years on the First Circuit.)  And if someone - like a Justice Stras - can be battle tested the first day of a Republican Presidency (and under the age of 45, while he's at it), that would give tremendous flexibility to that new President in the case of a quick vacancy. 

To quote another Republican, Tim James, it makes sense.

Comments

[anon]

Sandra Day O'Connor was also a state court judge, though not a state Supreme Court - she was appointed to the SCOTUS from the Arizona Court of Appeals.

[Anon]

Justice Allison Eid on the Colorado Supreme Court is also a former Justice Thomas clerk, although she was appointed a few years ago.

[Anon]

Justice Souter himself was a state court judge for roughly 10 years, most of them on the state supreme court, prior to being appointed to the First Circuit. In light of this fact, I am always puzzled by claims that he was a "stealth nominee" by virtue of only having been a federal judge for such a short period of time. Rather, if he was a stealth nominee, it was because people didn't pay attention to state court judges in the 1980's and/or records for state court decisions were not widely available before their dissemination over the Internet.

[Anon]

Justice Souter was a stealth nominee despite his years on the state court bench because his state court service shed no light on how he would address federal questions, especially constitutional questions.

Yes, one can certainly argue that those selecting Justice Souter should have been able to discern his views through pointed questioning or other methods (i.e., extending his judicial approach)... but his state court decisions could not shed any direct light on how he would act as a Supreme Court justice.

[Anon]

Scott Bales, an O'Connor clerk, is a justice of the Arizona Supreme Court (appointed by Janet Napolitano).
http://www.azcourts.gov/meetthejustices/JusticeWScottBales.aspx

[roger dennis]

And of course Justice Brennan was a New Jersey supreme before his nomination to the big top..there also might be some interesting State Con Law jurisprudence issues that create interesting track record issues, like school finance or same sex marriage.

[anon]

If Thomas has a better track record than other Justices for his former clerks becoming judges, my guess is that it has a lot to do with the Federalist Society's successes in lobbying for their favored judicial candidates (and it's not surprising that many of their favored candidates would be former Thomas clerks). Depending on state court procedures, it may be easier for the Fed. Society to lobby Republican governors to get results than to push candidates through the federal process, even if there were a Republican President. In Minnesota, for example, I believe that David Stras did not have to face legislative confirmation or even go through a merit board. All he needed was the Governor's appointment. It's obviously a lot easier for the Fed. Society to lobby a single governor than convince a merit board or a legislature to go with their choice. I don't know about Eid & Lee though -- that is, whether they needed more than a gubernatorial decision.

[JB]

Does anybody happen to know, or have an intuition about, whether there are more state court judges being elevated to the federal courts these days (i.e., the last ten years)? My hunch is that fewer and fewer state judges are being "elevated" to the federal bench, but I could be wrong on that.

[jordan retro 11]

Cultured and fine manners are everywhere a passport to regard.what do you think?