February 29, 2012

Company for Stephen Field?

Stephen Field had been a California Supreme Court justice for less than six years when President Lincoln appointed him to the United States Supreme Court in 1863. He was the first to serve on both courts. He’s also the last, at least so far.

Roger Traynor didn’t make it, even though he was often described as “one of the finest jurists who never sat on the United States Supreme Court.” Other California Supreme Court justices have been considered for the high court but passed over, most recently Carlos Moreno who was reported to be on President Obama’s short list for the seat that went to Sonia Sotomayor.

It’s possible, however, that Justice Field’s monopoly on service on both courts will soon end. And this is true regardless of the results of this year’s presidential election.

If President Obama is reelected, Goodwin Liu, the California Supreme Court’s newest member, will likely be mentioned for any high court vacancy. Obama already nominated Liu once, to the Ninth Circuit Court of Appeals, but Republicans filibustered, giving Governor Brown the appointment opportunity. Respected Supreme Court journalist Linda Greenhouse wrote after Liu’s blocked Ninth Circuit nomination that Liu, “a Rhodes scholar and former Supreme Court law clerk, is a leading progressive legal scholar of his generation. Although the Republicans came up with other rationales for opposing him, . . . the actual reason was that they couldn’t stand the thought of a young, super smart, energetic liberal sitting on the appeals court, in the launch position to become the first Asian-American on the Supreme Court.” Liu’s launch, however, could come from a different site.

If a Republican is elected in November, look for former California Supreme Court Justice, and current D. C. Circuit Court of Appeals Judge Janice Rogers Brown to be given serious consideration for the next high court opening. Judge Brown was considered in 2005 for the seat vacated by Justice Sandra Day O’Connor, and had been mentioned as a potential nominee when she was still on the California Supreme Court, before there was even an opening on the high court.

Neither Liu nor Brown, however, would have smooth sailing to confirmation. The Republicans already filibustered Liu once. And Brown took her seat on the federal appeals court only over strong opposition, like when the New York Times called her “among the very worst” of President Bush’s “many unworthy judicial nominees.” So, maybe Stephen Field’s unique place in history will be secure for a while longer after all.

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