It certainly used to.
Perhaps the most obvious examples are those from the early 19th century. Appointments of new justices were once tied to the creation of new circuit courts. And that was for good reason: Circuit courts were not the intermediate courts of appeals of today (with few exceptions, the most notable of which were the “Midnight Judges” that served from 1801 until 1802); they were largely nisi prius courts, functioning alongside district courts, with only limited appellate review. But they did not have their own judges. Various combinations of justices from the Supreme Court and judges from the district courts sat to form the circuit courts.
When Congress created the Seventh Circuit in 1807, therefore, which consisted of the new states of Kentucky, Tennessee, and Ohio, it required that the new justice assigned to that seat hail from there. The result was Jefferson’s appointment of Thomas Todd of Kentucky. There were reasons to require a Western man. After all, he would have to ride circuit there, despite the Herculean nature of the task at that time, and the Western states wanted a member of the Court who was familiar with their land laws. (Whether Todd satisfied that interest—or any interest—is open to debate; he has been labeled the Most Insignificant Justice, besting Gabriel Duval[l] for that title, but at least most of his opinions did involve land tenure, see Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. Chi. L. Rev. 481 (1983).) Likewise, the appointments to the eighth, ninth, and tenth seats on the Court were consistent with the geography of their respective circuits. John Catron practiced in Tennessee (reorganized as part of the Eighth Circuit), John McKinley was a Senator from Alabama (in the Ninth Circuit), and Stephen Field, who later wrote for the majority in Pennoyer v. Neff, was a California jurist (part of the Tenth Circuit at the time). The tradition thus continued, though Congress no longer saw the need to make it mandatory.
But enough with 19th-century trivia. With the impending retirement of Justice Stevens, geography has returned to the discussion about the President’s next appointment. And that raises the question: Why? This is no longer an era in which sitting justices ride circuit; but, more importantly, no region of the country continues to possess interests so unique that they must be represented by a justice on the Court. Modern travel and technology have muted many of the differences that once existed between North and South or East and West. Parochial interests do remain, but they are either slight or irrelevant here.
In other words, concern for the Court’s geographic diversity is nothing more than another factor on a (growing) list that makes up the identity politics that decides Court appointments today. And that is unfortunate. One might hope that we could at least pretend that an appointment is filled by the best candidate.
While geographic diversity was once much more important than it is now when it came to selecting Supreme Court nominees, even in the days of circuit riding there was never a hard and fast rule that a justice had to be from the circuit that he served. That would have posed too tight a geographic restriction on the appointive power.
For example, from 1801 to 1860, there were always justices from both Virginia (Marshall, Barbour, Daniel) and Maryland (Chase, Duvall, Taney) on the court, even though both Maryland and Virginia were in the same circuit. Since both Marshall and Taney presided over that circuit (the 4th), the non-Chief Justices from Virginia and Maryland had to be assigned to other circuits.
I also take issue with the suggestion that the most obscure Supreme Court justice was either Gabriel Duvall or Thomas Todd. My vote goes to Ward Hunt. People who have studied constitutional history have at least heard of Duvall and Todd; in 20-plus years as a law professor I have never met anyone who had even heard of Ward Hunt whose specialty wasn’t the Supreme Court in the 1870’s and 80’s. Plus, no one can possibly match Hunt’s achievement of being absent from every oral argument before the court during his last four years on the bench (1878-1882). Duvall and Todd may not have written many opinions, but they at least showed up for work. Hunt did once convict Susan B. Anthony of the crime of voting while female, but that happened while he was sitting on the circuit court.
The home state of a Supreme Court nominee has also played a role in electoral politics. Part of Richard Nixon’s “Southern Strategy” involved him nominating Southern judges to the Supreme Court. After Abe Fortas resigned from the Court in 1969, Nixon nominated Clement Haynsworth of the Fourth Circuit Court of Appeals. Haynsworth was rejected, so Nixon nominated another Southerner—G. Harrold Carswell of the Fifth Circuit. But Carswell was voted down in the Senate, largely because of pressure by civil rights groups and feminists who were concerned over his judicial record.
By the time Justices John Harlan and Hugo Black retired, Nixon had backed off his attempts to nominate a Southern judge. Instead, he wanted to placate women’s rights groups by nominating the first female justice to the Supreme Court. The problem was that there was a dearth of available female candidates to draw from. Nixon considered nominating Mildred Lillie, an obscure California Court of Appeals judge, until the ABA deemed her unqualified.
With this backdrop in 1971, then Assistant Attorney General William Rehnquist was asked about his chances of being nominated to the nation’s highest court. Rehnquist quipped that it was not likely given that “I’m not from the South, I’m not a woman, and I’m not mediocre.”
Public health scholars use the notion that “place matters. By “place,” they mean not only geography but also race, ethnicity, gender, class, and worldview. The contemporary nomination and confirmation of Supreme Court justices, it seems to me, incorporates this broader understanding of “place.” Why should we dismiss this as another example of “identity politics”? We are talking, after all, about the major way people locate themselves in society.