I have written before about judicial nomination cascades: situations in which a sitting judge is appointed to another court, leaving another vacancy on the judge’s original court. Usually, cascades move in a single direction: trial judges are appointed to appellate courts, or intermediate appellate judges to courts of last resort.
But this week, Massachusetts initiated a rare reverse judicial cascade when Justice Edward McDonough, Jr., who is currently on the Massachusetts Appeals Court, was nominated for a seat on the Massachusetts Superior Court, which is the state’s general jurisdiction trial court. Judge McDonough previously served on the Superior Court from 2013 to 2017.
Judge McDonough’s long career as a trial lawyer suggests a high level of comfort with the trial bench, and it is inspiring to see judges who prefer the hurly-burly of the trial courts over the more sanitized settings of the appeals court. Assuming the appointment is successful, it will be interesting to see who Governor Charlie Baker nominates for the vacancy created on the Appeals Court.
I recently wrote a post for Prawfsblawg on judicial nomination cascades, in which a sitting judge is elevated to a higher court, leaving a seat on the bench which itself must be filled. Sometimes the cascade stops after the second appointment, but on occasion we see triple or even quadruple cascades, as each seat is subsequently filled with a judge from a lower court. (A commenter to the Prawfsblawg post, for example, noted the Rehnquist-Scalia-Sentelle-Voorhees cascade at the federal level in 1986-87).
Federal nomination cascades often run to the state level, where governors (and occasionally legislatures) typically have authority to fill judicial vacancies by appointment. In recent weeks, the Georgia Court of Appeals has been particularly affected: three judges have been nominated (and two confirmed) for federal positions. With another judge retiring soon, Governor Nathan Deal will have to fill four of the court’s fifteen seats in short order.
Georgians should be proud that their intermediate appellate court has produced so many jurists thought worthy of federal positions. But the state will have to act quickly and carefully to keep the Court of Appeals at full strength.