Plenty of people have noted that recent Supreme Court picks have all come from the federal bench. The usual response is to argue that we should look for non-judges to appoint to the Supreme Court. There is some merit to that position, but I’d also look more to state-court judges.
My friend Joe Hoffmann and I are working on a criminal law casebook; in the course of selecting cases for the book, I’ve read a ton of state appellate decisions. There are certainly some bad state appellate courts out there, but there are also some excellent ones, and in surprising places: not just New York and California but Kansas and Iowa, North Carolina and Connecticut. A large fraction of the constitutional litigation that occupies the Supreme Court comes from the states; the Justices would do a better job in those cases if they had more experience with them before coming to the Court. Here’s one example of that problem (there are many others): Murder cases are rare in federal court but common in the states. If the bodies of constitutional law that regulate the death penalty—nearly all defined by the Supreme Court—are dysfunctional, as most lawyers and academics believe, the reason may be that Supreme Court Justices have too little experience with the laws and procedures at issue in murder cases. Choosing a couple of good state-court judges for Supreme Court vacancies would help to remedy that problem.
Another advantage of picking state judges for Supreme Court vacancies is that most state appellate judges are elected officials. Nominees who both have judicial experience and know what it means to run for office have a lot to be said for them: think Sandra Day O’Connor, who in retrospect looks like a pretty good choice. Perhaps President Obama, who is said to like the idea of picking a politician, can get a twofer: an elected official with judicial experience. There are a lot of them out there. Just not on the federal bench.