It is being reported today that Justice David Souter will step down at the end of this term.  Assuming this is true, I think that one of the most interesting questions in selecting his successor will be whether to follow the longstanding trend of promoting a judge from one of the nation’s intermediate federal courts of appeals.  (All of the sitting Justices were selected from the nation’s circuit courts of appeals.)  I understand the arguments for drawing Justices from the pool of sitting federal appellate judges: they have already survived rigorous vetting and Senate confirmation; with experience judging in an elite appellate court, they are uniquely prepared to hit the ground running at the Supreme Court level; and, coming from nonpartisan public offices, they may be perceived as more objective and neutral than nominees coming from the political sphere.  I think these are all good arguments.

But I also think that any collective decision-making body benefits from diversity in its composition.  For that reason, I suspect I was more sympathetic than most legal academics to the nomination of Harriet Miers.  And I took umbrage at the proprietary attitude towards the Supreme Court that some people in the world of elite federal appellate practice — both liberal and conservative — seemed to evince in their dismissal of Miers.

There is a balancing act, though: diversity should not come at the expense of competence — it is important that new Justices have the sort of training and experiences in the law that will allow them to scrutinize advocates’ arguments with rigor and to write opinions that will merit the respect of even those who disagree with the outcomes.  Some interesting places to look for such nominees besides the federal circuit courts of appeals would be state supreme courts and federal district courts.  (When was the last time a trial-court judge was promoted to the Supreme Court?)  I also like the idea of looking to a politically moderate governor or senator who has substantial legal practice experience.