A number of names are being tossed about in the sweepstakes to succeed Justice John Paul Stevens, and the three front-runners at the moment seem to be Merrick Garland and Diane Wood, both federal appeals court judges, and Solicitor General Elena Kagan, former dean of the Harvard Law School. My own preference would be for Elena Kagan. This is not because of any particular virtue in Kagan, or defect in Wood and Garland–all three of whom, I’m sure, are eminently qualified to serve–but because Kagan, if appointed and confirmed, would be the first Supreme Court justice since Sandra Day O’Connor (1981) who had never been a federal appellate judge.

Beginning in the late 1960s it was President Richard Nixon’s preference to appoint federal judges to the Court because he wanted some indication of a judicial ‘track record’ to guide his selections. He did not always abide by this rule–William Rehnquist (1971) was a senior Justice Department official–but since the Nixon years, tenure on the federal bench has become a bipartisan requirement for promotion to the Supreme Court. Lawyers are now routinely appointed to the federal appellate bench as a kind of minor league for the Court, and Court nominees are expected to have federal judicial experience. I have a happy memory of listening to Al Franken, in his Radio America days, angrily denounce President George W. Bush’s ill-fated nominee, Harriet Miers, because she had never served as a federal judge!