Alternate Supreme Courts Thread

[Jackson Lennock]

It's not too old for any possibility of nomination, but it would certainly be seen as a negative against him, just as indeed it was IOTL when Scalia was nominated.

I actually think Bork is entirely possible here, but what I don't think would happen is a headlong rush to nominate him with no serious discussion, and with Meese's guys with their hands down their pants, as happened IOTL. That's not how the IOTL Bush nominations were handled, which was a much more competitive and open process.

And I hope we're not going to fall for the post-1900 fantasy of George Bush Moderate in any discussion about this.

IOTL George Bush Moderate came within a hair of nominating both Clarence Thomas and Edith Jones. Why? Because the guy felt he had an acute need to merge himself into the Reagan phenomenon and, in so far as possible, not allow a cigaretto paper to be opened up between himself and the right.

Nominating one of the intellectual godfathers of the right very much makes sense as part of that view. Indeed, I can see a view in the minds of the likes of Thornburgh (who let us not forget had certain ambitions) that they kind of have to nominate Bork.

And I don't think the right-wing alternatives to Bork in '89 are particularly strong.

It's quite possible Souter (even as still a NH supreme court justice) ends up as the Kennedy for this Bork nomination.

I vaguely recall that somebody asked the Reagan administration if they'd done the work of getting copies of all of Bork's opinions to rebut Ted Kennedy, and the Reagan people said no. If the Bush people merely do that, it'd help Bork a lot.

One name I forgot to mention above was Orrin Hatch. Reagan seemed to prefer to nominate him in 1987 because of his youth and perceived ease of confirmation. But Hatch was ineligible due to voting on a salary hike for the Justices in 1986. By 1989, he'd be Constitutionally eligible to be nominated.

Souter was considered for the Kennedy spot OTL prior to Ginsburg getting the nod, on the assumption that Kennedy was too squishy. It seems plenty possible he gets it here if a Bork nomination flops.

There's also Laurence Silberman, who I didn't mention above. But he'd have confirmation issues.

 

[Ricardolindo]

Ginsburg might flop like historically, although Clarence Thomas's marijuana use seems to not have derailed his confirmation in 1990. A big fear about Ginsburg was he'd only been on the bench for a year, and people didn't know how much of a libertarian he'd be (crime, right to privacy, etc.)..

The problem with Douglas Ginsburg wasn't only that he had smoked marijuana as a student, like Clarence Thomas, that wouldn't necessarily rule him out. The problem was that he has also smoked marijuana as a Professor, which was considered unacceptable.

 

[Elektronaut]

What Kennedy said was certainly pretty tough, he was going for the throat, but it wasn't a total caricature of Bork's views. His record on civil rights was genuinely piss-poor and he had a very restrictive view of the first amendment which put him to the right of Scalia. (Basically, if it wasn't explicitly political speech in a newspaper, it didn't count)

If there's anything that sunk Bork presentationally, it was how he handled himself in front of the Senate, not that his views were massively distorted by Liberals in the air war.

The Reaganauts complaining that the administration embarked on an ideological battle to move the court significantly to the right and Democrats had the temerity to take them at their word, nah, that's not a serious complaint from them on Bork.

Hatch is a possible nominee, but, I mean, the assumption that the Senate wouldn't vote against one of their own, which would be the main point in his favour, nah, I think that's extremely tenuous. Hatch had been one of the point men on the social side of Reaganism, on constitutional amendments etc; there'd be no shortage of quotes, no doubt whatsovever which way he'd go on Roe. Hoping the entire Senate goes all Susan Collins-level naive and defers to senatorial courtesies which IOTL were breached with the rejection of Bork - yeah, I think that's a very tenuous assumption. When was the last time a senator had been nominated? Byrnes?

 

[Makemakean]

Not immediately once it happened I don't think, no. It took a while for that to become a bottom line for Democrats and the politics of it to become fixed; at the time it happened you had the likes of Ted Kennedy and Jesse Jackson opposing it.

Yes, certainly not immediately. At the time Roe v. Wade happened, even pro-choice activists were a bit, "Wait, the Supreme Court can just go and say that abortion is a constitutionally guaranteed right in all fifty states like that?" RBG has famously stated she felt that the Court had gone a little too far and interpreted its authority a little too broadly.

 

[Makemakean]

What Kennedy said was certainly pretty tough, he was going for the throat, but it wasn't a total caricature of Bork's views. His record on civil rights was genuinely piss-poor and he had a very restrictive view of the first amendment which put him to the right of Scalia. (Basically, if it wasn't explicitly political speech in a newspaper, it didn't count)

If there's anything that sunk Bork presentationally, it was how he handled himself in front of the Senate, not that his views were massively distorted by Liberals in the air war.

The Reaganauts complaining that the administration embarked on an ideological battle to move the court significantly to the right and Democrats had the temerity to take them at their word, nah, that's not a serious complaint from them on Bork.

Hatch is a possible nominee, but, I mean, the assumption that the Senate wouldn't vote against one of their own, which would be the main point in his favour, nah, I think that's extremely tenuous. Hatch had been one of the point men on the social side of Reaganism, on constitutional amendments etc; there'd be no shortage of quotes, no doubt whatsovever which way he'd go on Roe. Hoping the entire Senate goes all Susan Collins-level naive, I think that's a very tenuous assumption. When was the last time a senator had been nominated? Byrnes?

Seeing you know surprisingly much about this, mind if I ask you something I've long been somewhat curious about but haven't really known where precisely to look for more information? Apparently, Dallin Oaks, President of the Quorum of the Twelve Apostles in the Mormon Church and currently first in line to take over as its Prophet were the current Prophet--Russell Nelson--to go and die, his name was tipped on a number of occasions during the Ford, Reagan, and Bush 41 administrations as someone who might be a possible Supreme Court Justice. I've always been a tad miffed by this seeing, you know, would you really want to have someone with such close ties to the Mormon Church on the Supreme Court? But, then again, Eisenhower had Eztra Taft Benson in his cabinet.

How close was Oaks to being nominated?

 

[Elektronaut]

Seeing you know surprisingly much about this, mind if I ask you something I've long been somewhat curious about but haven't really known where precisely to look for more information? Apparently, Dallin Oaks, President of the Quorum of the Twelve Apostles in the Mormon Church and currently first in line to take over as its Prophet were the current Prophet--Russell Nelson--to go and die, his name was tipped on a number of occasions during the Ford, Reagan, and Bush 41 administrations as someone who might be a possible Supreme Court Justice. I've always been a tad miffed by this seeing, you know, would you really want to have someone with such close ties to the Mormon Church on the Supreme Court? But, then again, Eisenhower had Eztra Taft Benson in his cabinet.

How close was Oaks to being nominated?

Not close, I think is the answer.

He was, though, definitely on the lists Ford and Reagan (for the 1981/O'Connor nomination) drew up. I don't think he was given any serious consideration after that. He definitely wasn't a contender in '86.

I know it's a bit funky that the future Mormon Pope was in consideration as a supreme court nominee, but he absolutely had the traditional nominee background; did very well at law school, was a law clerk, did some private practise. It sounds like he absolutely could have become an appeals court judge. And in 1981 he was a Utah supreme court justice, and in 1975 a university president. That's not nothing.

All that and the fact he was seen as pretty moderate as president of BYU, and that he got on two lists six years apart, that feels to me like he got on those lists due to some senate/Washington sponsorship from the old boys network. Edward Levi had him amongst the highest-rated people available 1975, but he was almost immediately dropped from serious consideration. That really feels to me like some of Oaks' mates/sponsors somewhere in Washington were really singing his praises, but had practically no clout to push his nomination from the inside.

Given their backgrounds I assume Oaks and Levi knew each other personally; but it clearly wasn't enough to make Levi a booster for Oaks' nomination. That could be literally the extent of Oaks' standing in Washington - vaguely knowing Edward Levi from law school and from the university president scene, but not as a friend.

Levi supposedly abandoned Oaks' (Apparently first-class) name on confirmability grounds, which also sounds like they were aware a Mormon nominee in the era of 1975 would have been unlikely.

 

[Jackson Lennock]

1972: The landmark case of Doe v. Bolton recognizes by a 6 to 1 vote that the privacy principal of Griswold v. Connecticut applies to a woman's right to choose an abortion so as to preserve her own life or health.

Continuing:


Supreme Court in 1997:
4 Conservatives (Hatch, Rehnquist, Scalia, Jones)
1 Libertarian (Ginsburg)
2 Moderates (Cabranes, Kearse)
2 Liberals (Kravitch, Breyer)

1996 Election: Ann Richards Elected

1997: Phyllis Kravitch retires after 16 years on the bench. Richards nominated DC Circuit Judge Ruth Bader Ginsburg at the advise of Chief Justice Hatch. Ginsburg was known for collegiality with her colleagues on the mostly conservative DC Circuit, and was considered sufficiently moderate on matters of criminal law and business cases to satisfy Conservative senators. Her age - 64 years old - also helped smooth things over.

1999: Edith Jones is made to retire after saying inappropriate statements concerning young Black and Hispanic men having "proclivities toward crime" and that "a death sentence provides a public service by allowing an inmate to make peace with God." (See here). Facing a majority Conservative Senate after the 1998 midterms, Richards nominated Court of Appeals Judge Sonia Sotomayor. Sotomayor had been nominated by Kemp to the Southern District of New York and elevated by Richards to the Court of Appeals a year prior. Her debate proved contentious - and involved racialized smears - but the support of liberal Republicans got her over the line.

Supreme Court in 2001:
3 Conservatives (Hatch, Rehnquist, Scalia)
1 Libertarian (Ginsburg)
2 Moderates (Cabranes, Kearse)
3 Liberals (Breyer, Bader-Ginsburg, Sotomayor)

The problem with Douglas Ginsburg wasn't only that he had smoked marijuana as a student, like Clarence Thomas, that wouldn't necessarily rule him out. The problem was that he has also smoked marijuana as a Professor, which was considered unacceptable.

Perhaps, but I think the lack of a judicial record to assuage Conservative fears didn't help either. It wasn't *just* that he

Also, if thinking of a name other than Souter - what about Charles Fried? At the time, he was at least O'Connor-like I think.

 

[Jackson Lennock]

A few other Roe/Casey PODs worth thinking about.


FIRST - What if Blackmun hadn't included the viability rule?

Roe's second draft (the first just striking down Texas's law as vague) would have had the OTL Trimester rule, and said general bans could be allowed afterwards so long as there were life and health exceptions. Roe's two dissenters (White and Rehnquist) were complementary of the Trimester-focused opinion, and in private said they'd likely join the opinion in part and dissent in part. So Roe could to some degree have been a unanimous opinion. I think it's noteworthy that the first collateral attack on Roe (Missouri trying to ban the predominant means for performing second-trimester abortions in Danforth v. Planned Parenthood) was after the First Trimester. My guess is something like Casey still happens (chipping away at the amount of autonomy doctors have), but it would prove far less controversial and be a debate of the scope of the right and not over the right itself.

SECOND - What if Rehnquist had picked up sooner that Kennedy was hesitant to overturn Roe?

In Planned Parenthood v. Casey, Kennedy initially voted to overturn Roe. But going back to Webster, he seemed to not be on board with going all the way. What if Rehnquist had opted to go with Samuel Alito's interpretation of the Undue Burden test (thus upholding all of Pennsylvania's law) and a Casey majority reaffirms the Webster plurality's "flexible" approach towards viability? At a big picture level there wouldn't be much difference - Webster only upheld a 20 week de facto ban, and O'Connor in Stenberg v. Carhart in 2000 said the law at issue failed for reasons entirely separate from undue burden (O'Connor pointed to the lack of a health exception; and Kennedy in 2007 pointed to vagueness concerns). One could speculate whether O'Connor and Souter would sign onto such a version of Casey in part. I could also imagine Thomas and Scalia refusing to join such an opinion, akin to how Scalia refused to join the plurality in Webster.

 

[Ricardolindo]

This honestly seems like a very strange thing to believe when we've just been talking about the same sort of thing happening multiple times on the Republican side in that same period.

You realise White wasn't nominated by Kennedy with the intent of producing the kind of White we saw on the court, right?

Do you agree that John F. Kennedy would have been disappointed with Byron White's conservatism if he had lived? While John F. Kennedy in 1962 may not have disapproved of Byron White's decisions, I think that if he lived and his views evolved, I think he would have disapproved.

 

[Jackson Lennock]

Do you agree that John F. Kennedy would have been disappointed with Byron White's conservatism if he had lived? While John F. Kennedy in 1962 may not have disapproved of Byron White's decisions, I think that if he lived and his views evolved, I think he would have disapproved.

White was Conservative on Substantive Due Process, Speech, and Crime.

White was still liberal on race, sex, class, campaign finance, federal economic power, and procedural due process when it came to public benefits. He also supported access to contraceptives, the rights of illegitimate children, public funding of access to the court system, and favored the "intentional hostility is an illegitimate state interest" doctrine. He was also routinely quite left in business cases, though right of Brennan/Marshall.

 

[Elektronaut]

Do you agree that John F. Kennedy would have been disappointed with Byron White's conservatism if he had lived? While John F. Kennedy in 1962 may not have disapproved of Byron White's decisions, I think that if he lived and his views evolved, I think he would have disapproved.

Between the oft-overstatement of how much to the right White was, the oft-overstatement of how much to the left Kennedy was, and Kennedy knowing White for decades, I honestly doubt he would have been that disappointed.

Justices in those days weren't appointed to be doctrinaire party line figures like they are nowadays, incidentally. It was more about qualification, temperament, all those individual qualities. Political reliability came into it of course, but it didn't have the absolute dominance it has today.

 

[Jackson Lennock]

Let's say Douglas takes a magic pill and lives 20 years longer: would he be perceived as having drifted right over time?

His DeFunis v. Odegaard opinion, for example, opposed affirmative action and asserted a strict color-blindess approach.

He later embraced the nondelegation doctrine - a cause celebre of the right today.

His dissent in Maryland v. Wurtz became the basis for the National League of Cities v. Usery. Douglas was a big Tenth Amendment buff who essentially thought federal labor laws and regulations couldn't apply to the state governments themselves (with the exception of civil rights matters). The "Anticommandeering doctrine" would have been something he embraced. He was skeptical of Federal intrusions on state matters like inheritance too. I can't help but wonder what his position would have been in a case like Lopez v. United States (whether possession of guns near schools burdened interstate commerce).

I suspect he may have supported extending the Cleburne-Moreno "targeted hostility is not a legitimate state interest" approach to certain economic cases. In Morey v. Doud (1956), he voted to strike down a piece of economic legislation on rational basis grounds. It was really apparent that the statute, which exempted the American Express company by name from a licensing requirement, was a pretty craven effort to give a politically connected company a monopoly against the public interest.

 

[Ricardolindo]

Between the oft-overstatement of how much to the right White was, the oft-overstatement of how much to the left Kennedy was, and Kennedy knowing White for decades, I honestly doubt he would have been that disappointed.

Justices in those days weren't appointed to be doctrinaire party line figures like they are nowadays, incidentally. It was more about qualification, temperament, all those individual qualities. Political reliability came into it of course, but it didn't have the absolute dominance it has today.

I did say I thought John F. Kennedy in 1962 would not have been disappointed with Byron White's decisions. However, I wonder if a longer lived John F. Kennedy, who presumably would become more socially liberal, would have been disappointed with Byron White's decisions.

 

[Jackson Lennock]

If Clinton had won the 2016 election.

First, I suspect that the Republicans would try and force Garland through during the lame duck in order to prevent Clinton from nominating somebody more progressive. I suspect there'd also be efforts to drag out the hearings, if only to delay the confirmation process of President Clinton's nominees.

Second, Trump would probably pull shenanigans like OTL and refuse to acknowledge he lost. The Senate Republicans (with a 52 seat majority) might just wait until Trump has his chance in Court (December 2016?) to start acting on the Clinton Administration.

Third, there would still be a 52 to 48 Republican Senate majority. If Corey Booker gets a cabinet post like he supposedly was supposed to, then it becomes 53 to 47 since New Jersey's Republican Governor appoints his replacement. Ruth Bader Ginsburg probably retires in 2017, and I assume Lindsey Graham would try to get J. Michelle Childs nominated to replace her. The Clinton Administration, already behind because of McConnell slow walking the confirmation hearings of her cabinet nominees, might just accept Graham's pitch if he follows through and gets her 10 to 12 Republican votes.

Childs would probably piss off the left flank of the Democratic party. From a progressive perspective, she wasn't great on labor issues or crime. On other issues she seems to have been a fairly reliable liberal though. Maybe on religion she'd be moderate like Breyer and Kagan.

3 Conservatives (Roberts, Thomas, Alito)
1 Moderate Conservative (Kennedy)
4 Moderate Liberals (Breyer, Kagan, Garland, Childs)
1 Liberal (Sotomayor)


Kennedy would not retire in 2018, but Stephen Breyer might. He would be 80 (historically 83 when he retired). Clinton would probably choose Paul Watford or Sri Srinivasan to replace him. Both were in the final 3 for the Scalia seat and considered somewhat moderate. Srinivasan generally hewed center on criminal and speech issues and was deferential to administrative agencies, whereas Watford had a civil libertarian streak on first and fourth amendment matters (which, when the Supreme Court reviewed his opinions, they agreed with).

3 Conservatives (Roberts, Thomas, Alito)
1 Moderate Conservative (Kennedy)
4 Moderate Liberals (Kagan, Garland, Childs, Watford/Srinivasan)
1 Liberal (Sotomayor)

 

[Fleetlord]

Third, there would still be a 52 to 48 Republican Senate majority.

Given the relative lack of ticket-splitting in 2016, I think Clinton Victorious manages to drag McGinty over the line with her -- Feingold is more questionable given his underperformance but on the gripping hand Kander came surprisingly close and might win in this scenario (at which point Booker is SOL).

Though a 50+Kaine majority may not make a huge difference vs a slight Republican one, except that the latter may still be tempted to just brazenly not approve anyone.

 

[Jackson Lennock]

Given the relative lack of ticket-splitting in 2016, I think Clinton Victorious manages to drag McGinty over the line with her -- Feingold is more questionable given his underperformance but on the gripping hand Kander came surprisingly close and might win in this scenario (at which point Booker is SOL).

Though a 50+Kaine majority may not make a huge difference vs a slight Republican one, except that the latter may still be tempted to just brazenly not approve anyone.

I'm not sure. Both candidates were deeply unpopular and I suspect there were a number of people who voted Republican down-ballot precisely because they thought Clinton was going to win. It seems to me equally likely that if it looks more certain that Clinton will win, Kelly Ayotte would win since she only lost by 1,017 votes. The same goes for Joe Heck in Nevada, to a lesser extent.

 

[Jackson Lennock]

What if Sandra Day O'Connor hadn't retired? Let's suppose Bush nominates somebody more controversial than Alito who has to be withdrawn like with Harriet Miers. By that point, O'Connor's husband is too far gone mentally for O'Connor to spend any meaningful time with him and O'Connor decides it would be better to continue serving on the Court.

O'Connor's continued drift left might halt with Roberts on the bench. OTL Breyer was very effective at persuading O'Connor to join narrow opinions and tilt left. Scalia and Thomas irked her in Breyer's direction. But in the six months they served together, she apparently adored John Roberts as another Conservative with a preference for moving the law slowly and ruling narrowly. Whatever effect Roberts has on O'Connor would likely be dampened by Kagan joining the Court though. But Sotomayor might irk O'Connor.

Gonzales v. Carhart (2008) probably goes the same as OTL. The Federal statute was drafted with the Stenberg opinion (including O'Connor's concurrence) in mind.

FEC v. Wisconsin Right to Life, Inc. (2007) probably goes the same as OTL. Five Justices narrowed the McCain-Feingold law, but three (Scalia, Kennedy, and Thomas) wanted to overturn a prior opinion in the process. Roberts didn't, nor did Alito. The Court ultimately overruled that opinion a bit in Citizens United (2010). My guess is Citizens United wins its case in 2010, but with O'Connor as the pivotal vote the decision is a narrower one (probably exempting nonprofits and newspapers entirely from McCain Feingold).

District of Columbia v. Heller (2008) may go the same way too. O'Connor in 2013 chose as a Senior Judge to write an opinion criticizing New York's gun laws as ignoring Heller and McDonald. It might be a much narrower opinion though, since O'Connor just interpreted it as you cannot completely ban guns entirely. She made public statements saying that she thought there was no reason to have an assault rifle.

NFIB v. Sebelius (2012) probably comes out similarly, except there would be a four-justice plurality instead of a three-justice plurality. O'Connor was conservative on federal power and would dislike the Medicaid expansion (she was the only Justice who dissented in South Dakota v Dole on spending clause limits, for example). She publicly seemed to approve of the Roberts position too.

Town of Greece v. Galloway (2014) might go differently.

Whole Women's Health v. Hellerstedt (2016). If O'Connor is still on the Court in 2015, it's possible she narrows the scope of the opinion. Hellerstedt essentially rewrote the Casey Undue Burden test into a benefits-and-burdens test (i.e., do the health benefits outweigh the burdens imposed). Casey just asked if a law amounts to a de facto ban to the women it affected and requires bans on particular sorts of procedures to have health exceptions. The case outcome would probably be the same (Texas's law there would have meant there'd be just one clinic in the state). She might rule more narrowly though (either deal with it as an as-applied challenge, or find that the problematic parts of the law are severable from the non-problematic parts). John Roberts in 2020 OTL basically overturned Hellerstedt by saying the law failed under the old Casey-standard, but voting to strike down an identical law in Louisiana.

EDIT: There's also the issue of res judicata (claim preclusion - ergo you don't get a second bite at the apple in a case). The Hellerstedt majority pretty much sidestepped normal rules on this stuff.

I'm unsure of how O'Connor would rule in U.S. v. Windsor (2013) or Obergefell v. Hodges (2015). O'Connor's Lawrence v. Texas opinion seemed to go out of its way to differentiate laws targeting gay sex from matters like gay people in the military or gay marriage. Perhaps she'd join the majority in Windsor on Federalism grounds (marriage is reserved to the states, and the Federal Government isn't allowed to undermine state definitions of marriage) but a Federalism rationale would cut against her being part of the Obergefell majority.

O'Connor first started becoming forgetful around 2013, reportedly. But she was physically healthy until 2017 (when she began to need to use a wheelchair), but was still able to make public appearances until 2018. Her public announcement of the dementia diagnosis said it had occurred "some time ago." She continued to serve as a Senior Justice sitting by designation until 2013 though, so I suppose she'd have retired in 2013 or 2014. Or perhaps until 2015, on the assumption that Obama would appoint somebody more moderate if there's a GOP Senate. Harry Reid's proposal OTL to nominate Brian Sandoval might gain traction for the O'Connor seat?

 

[Jackson Lennock]

What if Charles E Hughes was made Chief Justice in 1910, and not Edward White? Taft had apparently promised Hughes the Chief Justiceship, but opted for White instead. The reasons were a mix: partly it was because White was experienced and well liked, whereas Hughes had been on the Court for a month when Chief Justice Fuller died. But it may also have partly been to do with Taft desiring the Chief Justiceship for himself eventually.

Hughes could be a epoch-defining as Marshall. He served historically from 1910 to 1916, and as Chief from 1930 to 1941. Here he could serve from 1910 to 1941. I assume he would not step down from being Chief Justice to run for President.

The Lochner era may or may not be sidestepped. For starters, Lochner itself appeared to have been abandoned either in 1908 (Muller v. Oregon) or 1917 (Bunting v. Oregon) before it came back in a 5-3 decision in Adkins v. Children's Hospital (1923). My guess is Edward White retires sooner if he isn't Chief Justice. If he retires under Wilson, somebody more progressive is there in his place.

Hughes (1910 to 1941)
White (1894 to 1918); Clarke (1918 to ???)
McKenna (1898 to 1925); Stone (1925 to ???)
Holmes (1902 to 1932)
William Day (1903 to 1922); Pierce Butler (1922 to 1939)
Van Devanter (1910 to 1937) [OTL Hughes Seat]
Pitney (1912 to 1922); Sanford (1922 to 1930);
McReynolds (19n14 to 1941)
Brandeis (1916 to 1939)

Hammer v. Dagenhart (1918) OTL was 5-4 (White, Day, Pitney, Van Devanter, McReynolds).

Clarke retired in 1922 OTL for a variety of reasons. One was that he saw White's declining health, and didn't want to endure that himself. Another was that he had a very bad relationship with McReynolds (but so did everybody) and did not want to put up with him anymore. A third was he was unhappy being in the minority so consistently. If Clarke is put on to replace White, then (a) he doesn't witness White's declining health, (b) Hughes is Chief Justice [and Hughes was very good at managing relationships on the Court], and (c) Clarke is part of a moderate to progressive majority comprised of Hughes, Clarke, Holmes, Brandeis, and a fifth vote depending on the case [McKenna for national regulatory power, Sanford in Lochner-like cases?].

 

[Jackson Lennock]

Kerry wins in 2004 revisited.

My big question is - does O'Connor retire in 2005 like historically? The expectation was that Rehnquist would retire in 2005 due to his declining health and O'Connor in 2006, but O'Connor surprised everybody by going first. Then there was the double-trouble of Rehnquist dying anyway. I could see Souter trying to rush out the door like in 2009 OTL, and O'Connor being deferential to her friend. But if O'Connor waits until 2006, she might not retire at all because her husband would be too far gone health-wise to spend time with. He was placed in assisted living just a few months after her January 2006 retirement. I think if Souter retires first, O'Connor doesn't retire at all. She would announce a 2006 retirement in the summer (June or July), at which point her husband would be so far gone that it would not be worth it.

Additionally, Kerry has a 55-45 Republican Senate. Some of the Republicans are liberal/moderate, but many Democrats at this time are moderate/conservative too. Kerry also has the added headaches of staffing a new administration and (like Bush OTL) Katrina. I don't think he'd be inclined for Court fights - just to move the Court left from its center-right majority.

Souter probably would be replaced by Garland. It's one center-left Justice for another, and Garland is a bit to the left of Souter I imagine.
Rehnquist probably provokes a fight from Conservatives. My guess is Jose Cabranes would be an easy confirmation. A Centrist to replace a right-wing Chief.
Stevens may retire in 2006 assuming O'Connor doesn't. My guess is Elena Kagan gets the nod as another easily confirmed nominee.

2 Conservatives: Scalia, Thomas
2 Moderate Conservatives: O'Connor, Kennedy
1 Centrist: Cabranes
3 Moderate Liberals: Breyer, Garland, Kagan
1 Liberal: Ginsburg

The Court goes from 5-4 slightly Conservative to 4-1-4 Centrist. Cabranes is the swing Justice.


If O'Connor retires in 2005 like OTL, then I suppose Kagan is nominated to replace her. Cabranes (or maybe Garland?) would be the pick to replace Rehnquist. Souter retires in 2006 and I'm unsure who Kerry could get through the Senate. Stevens either retires in 2007 after GOP gains in the midterms (which makes for a confirmation headache) or perhaps not at all (he seemed content enough to let Souter retire first in 2009, for example, and only started slurring at oral argument in 2009/2010). The Court would be at least 4 liberals and 2 centrists, plus Kennedy, meaning the liberals have solid room for error in any given case.

 

[Vidal]

My big question is - does O'Connor retire in 2005 like historically? The expectation was that Rehnquist would retire in 2005 due to his declining health and O'Connor in 2006, but O'Connor surprised everybody by going first. Then there was the double-trouble of Rehnquist dying anyway. I could see Souter trying to rush out the door like in 2009 OTL, and O'Connor being deferential to her friend. But if O'Connor waits until 2006, she might not retire at all because her husband would be too far gone health-wise to spend time with. He was placed in assisted living just a few months after her January 2006 retirement. I think if Souter retires first, O'Connor doesn't retire at all. She would announce a 2006 retirement in the summer (June or July), at which point her husband would be so far gone that it would not be worth it.

I think your assessment here is right, but I would say that Souter being deferential and saying "I hate DC, but you actually need to be home with John" probably has the slight edge. It's plausible to me that we see the 2005 double opening happening at the same time.

My thinking here is Kerry probably names Garland to replace O'Connor, but there may be a desire to name a woman. What is your thinking behind Kagan replacing O'Connor? Are you assuming she becomes Solicitor General in Jan. 2005 ITTL?

One potential way I think the Republican majority handles this is by letting Kerry name older justices under the assumption they won't be around for a long time. In particular, I think you could see Breyer elevated to CJ. He's popular among his fellow justices, seen as more moderate than his liberal colleagues, and 67 years old. The assumption would be that his service would not be long enough to seriously move the Court to the left.

Of course, that leaves Kerry with three appointments, which may be too much for Kerry to want to take on. (Potentially: Sotomayor to replace O'Connor, Breyer to replace Rehnquist, and Garland to replace Breyer). I'm not sure what Kerry's appetite might be for that kind of musical chairs. Amalya Kearse, who is about Breyer's age, might also be a suitable choice to replace O'Connor given Republicans would expect the seat to be open in 5-15 years.

Then, we likely see Souter step down in 2006 and there's a similar back-and-forth process. Cabranés is also a natural choice here. So, if it's Garland in 2005, it's probably Cabranés in 06, or vice versa.