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Governors on the Supreme Court

Posted at 11:58 am February 22, 2016, in U.S. Governors

Supreme_Court2With the death of Supreme Court Justice Antonin Scalia, a vacancy exists on the U.S. Supreme Court. As President Barack Obama has indicated that he intends to nominate someone to fill that seat, the question turns to whom he will choose. It will almost certainly be someone with legal training—while the Constitution does not require that a justice be a lawyer, all Supreme Court justices in U.S. history have at least been trained in the law. Further, if recent trends continue, it will likely be a judge or law professor. Seven of the eight current active Justices served on a U.S. Court of Appeals. The eighth, Justice Elena Kagan, was a law professor, serving as Dean of Harvard Law School as well as Solicitor General of the United States.

But could it be a governor?

While not unprecedented, it may seem unlikely. No governor has been appointed to the Supreme Court since 1953, when President Dwight D. Eisenhower nominated California Governor Earl Warren to the bench.* In all, only six governors have been nominated to the court during or after their gubernatorial term (Supreme Court term in parentheses): William Paterson (NJ; 1793-1806); Levi Woodbury (NH; 1845-1851); Chief Justice Salmon P. Chase (OH; 1864-1873); Charles Evan Hughes (NY; 1910-1916); Frank Murphy (MI; 1940-1949); and Chief Justice Warren (1953-1969). It is worth noting that the first chief justice, John Jay, resigned his post on the Court—to become governor of New York.**

But perhaps our current collection of governors should not be so quickly dismissed. There are many who have legal experience. Twenty-four current governors have law degrees (including New Jersey’s own Chris Christie). Six have prior experience as their state’s attorney general and one—Greg Abbott (R) of Texas—served on his state’s Supreme Court before becoming governor.

Indeed, one governor stands out as a potential Court nominee. While Nevada governor Brian Sandoval (R) has not served on a U.S. Court of Appeals, he does have experience in the federal judiciary: he spent 2005-2009 as a federal district court judge, appointed by President George W. Bush. He is also a former state legislator and district attorney. Nominating Sandoval would, of course, require a Democratic president to select a Republican governor, but, as the New York Times has pointed out, even that might have its political advantages. [UPDATE: After reports emerged that the Obama administration was vetting Sandoval as a possible nominee, the governor released a statement indicating that he had asked the White House not to consider him for the post.]

In the end, it is likely that the next Supreme Court Justice will be a current federal Court of Appeals judge or a law professor. But the possibility exists that, for the seventh time in U.S. history, it could be a governor.

– Kristoffer Shields

*Theoretically, President Obama, citing his Republican predecessor as a model, could nominate current California Governor Jerry Brown. Brown at age 77, however, would move from being the nation’s oldest governor to becoming the third oldest justice behind Justices Kennedy and Ginsburg.

**For more on the background experience of Supreme Court Justices, see Kenneth Jost, ed., The Supreme Court, A to Z, 2nd Ed. New York: Routledge, 2013.

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