03/11/2013 12:27 pm ET Updated May 11, 2013

The Laboratory of Judicial Nominations

Last week was a depressing week for those who want the Senate to confirm more of President Barack Obama's judicial nominees. Precisely because there had been several months of progress, the successful filibuster last week by the Republicans of President Obama's nomination of Caitlin Halligan to a seat on the D.C. Circuit represents an enormous disappointment. And while it is important to think of ways to fix matters in the Senate, it might be time to consider another way to get progressives wearing a robe: turn to state courts, the true laboratories of judicial nominations.

Before we leave Washington, it is important to realize why things seemed better--and so why this week hurt so much. First, the Obama of 2013 seemed more interested in judicial nominations, and more aggressive in how he approached them. In the first two months of the year, he nominated three-dozen judges to the federal bench. Most of these nominations were re-nominations--nominees previously neglected by the Senate but re-nominated by the President in what Politico referred to as an attempt by the President to "scold" the Senate for its earlier inaction.

Second, the Senate was confirming judges at a faster rate. There were thirteen district court confirmations during the Senate's lame duck session in December. In late February, a promising district court nominee from California, William Orrick, was finally reported out of the Senate Judiciary Committee. Two federal appellate nominees, William J. Kayatta, Jr. and Robert E. Bacharach, were confirmed last month as well. We were also told that the Senate filibuster reform deal would mean it was easier for the President to get his judges confirmed.

And then March came, and it was back to the old ways. Obama was the first President since William Howard Taft--the Taft who was President one hundred years ago--to serve at least one full term and not have a nominee confirmed to a seat on the D.C. Circuit. Halligan seemed so unobjectionable--she was known by her colleagues as a "moderate" and had served long stints as a prosecutor.

But the motion to defeat the Halligan filibuster received only 51 votes, far short of the 60 needed. Only one Republican Senator, Lisa Murkowski of Alaska, voted to defeat the filibuster, and even she indicated she would vote against Halligan on the merits. Three Democratic senators did not even bother to cast a vote to break the filibuster.

If there is one lesson to draw from this, it is that the judicial nominations process in the Senate remains broken. There are many things to do about that, and Senator Jeff Merkley from Oregon has already called for revisiting the filibuster compromise. But we have heard all of this before, and it has not amounted to much. So maybe it is time to look outside of Washington, to look to the states for new and exciting judicial nominees who actually become judges.

Why the states? Well, for one thing, there is less that Republicans who lose elections at the state level can do to block Democrats from getting progressive judges on the bench. In states where judges are nominated by a Democratic Governor and confirmed by a branch of the state legislature, that branch of the state legislature responsible for confirmations tend not to be barely Democratic, but overwhelmingly Democratic. In those states where Democratic Governors face legislative branches controlled by Republicans, those Republicans are more willing to cooperate with Democratic nominees anyway.

In states where merit commissions are involved, these commissions do not face Republican obstruction. In states where judges are directly elected, if the judge wins a majority of the vote, the losing party does not matter--they cannot block the judicial candidate from becoming a judge, because the candidate winning the most votes automatically becomes a judge.

Having progressives on state courts would mean having progressives on courts that matter just as much, if not more than, the federal courts. Think of the progressive victories in state courts: that is where gay marriage was first recognized, and where limits on campaign contributions have been most protected. State courts matter quantitatively as well as qualitatively. The former Chief Judge of the highest court in New York State wrote several years ago that her courts receive ten times more petitions in one year than the federal court system in the entire country receives in a year.

Getting progressives on state courts is the beginning of the battle, not the end. There is nothing more significant than the normative power of the actual. Once these judges gain experience on state courts, articulate progressive positions in a convincing fashion, and show that they are not judges to be feared, it makes them stronger candidates for elevation to a higher position-- perhaps a federal cabinet position, perhaps a federal judicial nomination to a lower federal court, and perhaps even a nomination to the Supreme Court.

Goodwin Liu is a good example of this. President Obama nominated Liu to the U.S. Court of Appeals for the Ninth Circuit. Senate Republicans filibustered his nomination, calling his nomination an "extraordinary circumstance." Fast-forward two years, and Liu is now a Justice on the California Supreme Court, nominated by Governor Jerry Brown, without much obstruction by Republicans in California. Liu has proven himself to be a capable judge, one even relied on by his conservative colleagues. Imagine if Ruth Bader Ginsburg retires in the next few years, and her former clerk Liu is nominated--with the support of Republican Justices on the California Supreme Court testifying before the United States Senate.

Other ambitious governors have used this strategy before, not just Brown. While a Republican Governor of Minnesota preparing to run for President, Tim Pawlenty nominated the star young academic David Stras to the Minnesota Supreme Court. Just this year, potential 2016 Democratic Presidential candidate Andrew Cuomo nominated Jenny Rivera, a former law clerk to then-District Court Judge Sonia Sotomayor, and a law professor with a long background in the civil rights community, to the highest court in New York. Rivera was confirmed precisely because Cuomo knew state legislatures are different than the United States Senate: the Republicans in the State Senate who opposed her still permitted the State Senate to vote on her. With a seat on the highest court in New York, Rivera will have the chance to prove herself respected in the blue and in the red parts of New York, and get the support of her colleagues on the New York Court of Appeals.

I hope that the Senate can find ways to vote on and confirm more of President Obama's judicial nominees. But even if they do not, it is time for Democratic Governors--particularly those with national ambitions--to show that even if Washington cannot find ways to get progressives on the courts, at least the states can.

David Fontana is Associate Professor of Law at George Washington University Law School