Law professor David Fontana, in a blog post titled “The Laboratory of Judicial Nominations,” argues for progressives frustrated by continuing Republican obstruction of judicial nominees to direct more attention to placing progressives on state courts. The advantages to this strategy, Fontana claims, are threefold:
1. Republicans would have fewer opportunities to obstruct when they’re in the minority.
2. State courts not only decide far more cases than do their federal counterparts, but also frequently tackle issues of great legal and political interest, and sometimes they have provided significant victories for progressives (marriage equality, campaign finance restrictions).
3. Progressive state judges who “articulate progressive positions in a convincing fashion” can make themselves more compelling candidates for service on the federal bench by demonstrating that their jurisprudential approach falls within the legal mainstream. Fontana cites several examples of governors seeking to elevate the profile of young legal talent by nominating them to their states’ high courts: Jerry’s Brown nomination of Goodwin Liu in California, Tim Pawlenty’s nomination of David Stras in Minnesota, and Andrew Cuomo’s nomination of Jenny Rivera.
I agree with Fontana’s admonition not to ignore state courts, given the role they play in policy making and the consequences of ceding the field to conservatives. And developing a deeper bench can produce all kinds of benefits. But I’m not sure I share Fontana’s view that serving on state supreme courts with conservatives and earning their respect will translate into easier confirmation proceedings should they be nominated to federal appellate positions. After all, Richard Taranto still waited about
18 15 months to be confirmed, despite having clerked for conservative judges (Sandra Day O’Connor and Robert Bork) and facing no conservative opposition in the Senate. A number of nominees have been filibustered ad nauseum despite the support of Republican home-state senators. And Goodwin Liu derived no benefit from the conservative law professors who testified to his fitness to serve on the Ninth Circuit Court of Appeals. If conservative interest groups demand that Republican senators obstruct judicial nominees, then those nominees get obstructed, irrespective of other considerations. In the end, there’s no substitute for fixing a broken Senate.