The U.S. Supreme Court nomination of Elena Kagan has been criticized by some Republican senators because she has no judicial experience, but a lack of judicial credentials is no surprise on state Supreme Courts and neither is a strong showing of gender diversity.
Since Justice John Paul Stevens announced his retirement last month, the National Center for State Courts has entered the debate over the dynamics of the high court by offering comparisons with the Supreme Court's sister courts at the state level.
The center's latest research shows that 85 percent of state courts of last resort -- 46 of 53 -- include at least one member who came to the court without prior judicial experience. Only seven states -- California, Kentucky, Louisiana, Michigan, Oklahoma, South Dakota and Tennessee -- have courts of last resort constituted entirely of judges with lower-court judicial experience.
The 53 state courts of last resort include the Supreme Courts of all 50 states, the criminal courts of last resort in Oklahoma and Texas, which are separate from those states' Supreme Courts, and the District of Columbia Court of Appeals.
The late Chief Justice William Rehnquist was the last member of the U.S. Supreme Court to serve without prior judicial experience. He took his judicial oath on Jan. 7, 1972, one day after Lewis Powell Jr., who also had never served as a judge, took his oath. Both men had had extensive private practice experience, and Rehnquist also had served in the U.S. Department of Justice Office of Legal Counsel.
The center said there are 19 sitting state chief justices who joined their high courts without prior judicial experience, including four who were installed as chief justice without prior service as an associate justice. Those four are Minnesota Chief Justice Eric Magnuson, Montana Chief Justice Mike McGrath, Nebraska Chief Justice Michael Heavican and New Jersey Chief Justice Stuart Rabner. Justices without prior judicial experience tend to come from backgrounds in academia, the private practice of law or law enforcement, according to the research.
And state Supreme Courts long have passed the landmark that will occur if Kagan is confirmed: three female justices -- one-third of the nation's high court for the first time.
The center reports that nearly half of state courts of last resort -- 25 of 53 -- already have that level of gender balance, or greater. Women currently constitute 31 percent of all sitting justices on state courts of last resort.
The court of last resort with the highest percentage of women is the District of Columbia Court of Appeals, where six of the nine members, or 67 percent, are women. As of April 1, three states have a female majority on their highest courts: Tennessee at 60 percent, and Wisconsin and Michigan, both at 57 percent. All three of these states have a female chief justice. Nationwide, women head 20 of the 53 courts of last resort.
And although Sandra Day O'Connor became the first female justice in 1981, the first woman to serve on a state Supreme Court was Florence Ellinwood Allen, who was elected to the Ohio Supreme Court in 1922.
Finally, for all of you Supreme Court junkies, with the retirement last year of Justice David Souter, the nation's high court has no sitting justice with any state court experience.
"Perhaps even more remarkable, this is the first time since 1789 that the highest court in the land has not included a member with at least some judicial experience from the state courts," reported the center.
Justice Stevens' successor will be the 112th justice to serve on the Court. Nearly half of those justices -- 49 -- had either state trial or appellate court experience. Ten members served at both the state trial and appellate levels prior to their elevation to the U.S. Supreme Court, including, most recently, Souter, O'Connor and William Brennan Jr.
In the 2008-09 term, state court cases accounted for 16 percent of the Supreme Court's docket -- the second-largest source of cases.
This article first appeared on The BLT: The Blog of Legal Times.