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Alternate Supreme Courts Thread

Thinking about this, it makes sense why they didn't go for Bork in 1986. Scalia was a bit less conservative on racial discrimination issues than Rehnquist or Bork (the latter two argued for the right of private people [not government] to discriminate, whereas Scalia had done no such thing). To put up *two* nominees in 1986 who cast skepticism on the Constitutionality of part of the Civil Rights Act of 1964 would have been thermonuclear.

If the goal is to get Scalia and Bork on the court, it would make more sense to leave Rehnquist as an Associate Justice and just nominate Bork to be Chief Justice. Bork's 42-58 defeat in 1987 OTL might go go differently without the preparation the Democrats had done in anticipation of his nomination and there being 8 additional Republican Senators.

Scalia would proceed to get confirmed in 1987 because he'd be an easier sell than Bork for the reasons mentioned already (less inflammatory civil rights positions, less of a paper trail, Italian-American, etc.).

In his later years, Rehnquist's efficacy on the court waned. As he got older, he didn't have time to do the duties of Chief Justice and act as a Conservative crusader on the bench. He'd probably be much more Conservative and focused on that.

Bork being confirmed could either hasten Thomas's advancement or prevent it entirely. Thomas was put on the DC Circuit in 1990 following Bork's retirement. If the seat opens up in 1986 instead of 1990, it could either mean Thomas is put on the bench 4 years earlier OR that there is no opening for Thomas in 1990.

Without the memory of the 1987 Bork fight, Republicans won't be as intent on going for a 'stealth candidate' in 1990 or 1991.
The HW Bush Administration viewed Edith Jones and Lawrence Silberman as too openly Conservative following what a mess the Bork and Ginsburg nomination attempts had been, and without their nomination it is unclear if the same strategy would be pursued that lead to Souter being picked as stealth candidate. HW could end up nominating one of several conservative names to replace Brennan - Edith Jones, Laurence Silberman, Douglas H Ginsburg, or Clarence Thomas (4 years on the bench here). Or it could be a moderate to centrist pick like Anthony Kennedy, Ken Starr, or David Souter. Kennedy and probably Starr would both be more Conservative than Souter though.

If Thomas isn't an option in 1991 to replace Marshall, then the options are Emilio Garza (who'd only been on the Court of Appeals Bench a couple of months) and ... not a lot of other Conservative picks who aren't white guys. Maybe Jose Cabranes, under the idea that a centrist would still move the court in a preferred direction. Or they could go with Edith Jones. Abraham David Sofaer is another prospect - an Indian-born Jewish-American, a District Court Judge in the prestigious Southern District of New York, ally of Daniel Patrick Moynihan previously, and a Republican since 1984.

I agree it wouldn't be totally safe to nominate two outspoken conservatives who had opposed the Civil Rights Act even in 1986, but, as I said, Bork would simply be replacing Rehnquist, someone with the same position as himself.
It certainly could be safer to nominate Bork for Chief Justice, as there would be only one nomination. On the other hand, Bork would probably face more opposition for Chief Justice than for Associate Justice. David Tenner once suggested at soc.history.what-if that the safest option could be elevating O'Connor to Chief Justice and nominating Bork for her seat as Associate Justice.
 
They didn't put up Bork in 1986 because Bork was nearly sixty, overweight, a fairly heavy smoker, and as demonstrated IOTL had a long trail of being anti-civil rights, and Rehnquist's nomination IOTL got into trouble for roughly the same reasons. The Reagan justice department itself worried that sending up Bork and Rehnquist could mean a force multiplier effect could be in play which could potentially end both nominations.

Rehnquist ended up with 33 votes against him for CJ. I think that's the baseline for how many votes Bork will have against him. And yes, though the pre-86 mid term Senate is more comfortable for the Republicans, those mid-terms are still just ahead for Senators, who will be actutely conscious of black voters; Bork IOTL particularly lost out with southern Democrats who knew they'd relied on a coalition of black and white voters the year before.

Bork, of course, would not be waved through like Scalia. A lot of people (including members of the judiciary committee) thought that Bork sank Bork IOTL because of his performance.

In short, it's a lot more up in the air than the people who think nominating Bork first would have been the 'correct' move.

Even assuming Bork and Rehnquist are confirmed, which I obviously don't think is a given, Scalia is not a certainty for the Powell seat. Scalia was waved through IOTL because senators were exhausted from the Rehnquist fight, not because there was nothing to go on in respect of Scalia; and of course, it was a like-for-like replacement, not a nomination which would change the composition of the court.

In 1987, a Scalia nomination would absolutely change the composition of the court. And IOTL, a lot of interest groups had done their homework on Bork, knowing that he had been the runner-up the previous year and would be a real possibility before the end of Reagan's term. Such would be the case with Scalia, and doubtless those interest groups would be fully up to speed on Scalia calling affirmative action "the most evil fruit of a fundamentally bad seed" and that he had taken a position in a case that "differential treatment" of a black employee did not amount to discrimination, a view for which he'd receieved a rebuke from the DC court itself - among much else.

With much tougher questioning, would Scalia keep his cool, or would we see flashes of his famous temper?

And remember - the establishment view at the time was that the Senate should be a rubber-stamp on the President's choices for the court. (That was, historically-speaking, not well-founded, but it was a widespread view at the time) That was the thinking that lead to the very blase selection of Bork IOTL - with a closely-fought Bork fight the previous year, whichever way it goes, that view would be under rather more strain and scrutiny in 1987 ITTL. There would likely be a lot more thinking about the merits of even nominating a Scalia.

It is possible that Bork is confirmed in 1986 and then Scalia is in 1987 - but it's far from anything like the certainty that a lot of people seem to assume it would be.
 
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I don't think it's certain that Bork gets confirmed in 1986, just that it'd be more probable. And I acknowledge that it'd be a force-multiplying bonkers move to put Bork and Rehnquist up, which is why I think figured it'd have been safer to just avoid that two'fer and shove Bork in the Chief post.

O'Connor being made Chief and Bork as Associate Justice is an interesting move though. She'd get confirmed very quickly. She'd be a very good Chief too - Burger already delegated Chiefly functions like counting the votes to her, and she made sure to keep the Court not too far from the mainstream of public opinion.
 
Following a substantial hearing loss in 1925, McReynolds strongly intended to retire but friends persuaded him not to. What if he had retired? I think Coolidge would nominate Learned Hand to succeed him. Then, there would be four liberals in the Court (him, Holmes/Cardozo, Brandeis and Stone) and I think Hughes would have joined them in most New Deal cases.
 
Following a substantial hearing loss in 1925, McReynolds strongly intended to retire but friends persuaded him not to. What if he had retired? I think Coolidge would nominate Learned Hand to succeed him. Then, there would be four liberals in the Court (him, Holmes/Cardozo, Brandeis and Stone) and I think Hughes would have joined them in most New Deal cases.

Hand was a Theodore Roosevelt Progressive, and so was aghast at much of the New Deal because of its sheer scope. But what *parts* of the New Deal he'd be horrified by would be of much significance.

If Hughes (joined by Hand and Cardozo) has the ability to define the contours of American law, the New Deal cases would end up more evolutionary than revolutionary, with expansions of Federal Power being more fact-specific than doctrinal. NLRB v Jones & Laughlin (1937) was pretty consistent with a broad reading of Commerce Jurisprudence going back to 1905 (if manufacturing was in the middle of a 'current of interstate commerce' - i.e., an interstate supply chain - it could be regulated by the Federal Government). By contrast, Carter Coal (1935) was mining coal before it entered the current of commerce and Schecter Poultry (1935) was about regulation of transactions at a point in the supply chain where they were all intra-state, i.e., after exiting the current of commerce (a position which, unlike Carter Coal, got UNANIMOUS support from the bench).

US v Butler (overturned by Wickard) would be decided on the basis of Congress's power to tax and spend, rather than the Commerce Power. This was Hughes's position OTL in a draft dissent (which he later opted not to put out, silently joining the majority). That was the case OTL which angered Roosevelt to the point of trying to pack the Court. He didn't really care too much about many New Deal programs being struck down because the New Deal was more of a grab bag of innovations and policy experiments than a coherent policy program. The Agricultural Price Supports, however, went to the heart of the Democratic Party's traditional support for the American farmer and was also a national version of a program FDR was very proud to have put together in the State of New York. It also was the case which was doctrinally the must frustrating - the Court essentially argued that it was within the taxing and spending power, but the tenth amendment was an independent limit on Congress and so there was no using the taxing power to regulate manufacturing.

Hughes almost dissented in Darby (1941) and Roberts almost dissented in Wickard (1942). Hammer v Dagenhart will end up overturned like in OTL's US v Darby, and the governing rule will be that the Federal Government can prohibit whatever it wants from crossing state lines (such as goods produced by child labor).
 
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Hand was a Theodore Roosevelt Progressive, and so was aghast at much of the New Deal because of its sheer scope. But what *parts* of the New Deal he'd be horrified by would be of much significance.

If Hughes (joined by Hand and Cardozo) has the ability to define the contours of American law, the New Deal cases would end up more evolutionary than revolutionary, with expansions of Federal Power being more fact-specific than doctrinal. NLRB v Jones & Laughlin (1937) was pretty consistent with a broad reading of Commerce Jurisprudence going back to 1905 (if manufacturing was in the middle of a 'current of interstate commerce' - i.e., an interstate supply chain - it could be regulated by the Federal Government). By contrast, Carter Coal (1935) was mining coal before it entered the current of commerce and Schecter Poultry (1935) was about regulation of transactions at a point in the supply chain where they were all intra-state, i.e., after exiting the current of commerce (a position which, unlike Carter Coal, got UNANIMOUS support from the bench).

US v Butler (overturned by Wickard) would be decided on the basis of Congress's power to tax and spend, rather than the Commerce Power. This was Hughes's position OTL in dissent. That was the case OTL which angered Roosevelt to the point of trying to pack the Court. He didn't really care too much about many New Deal programs being struck down because the New Deal was more of a grab bag of innovations and policy experiments than a coherent policy program. The Agricultural Price Supports, however, went to the heart of the Democratic Party's traditional support for the American farmer and was also a national version of a program FDR was very proud to have put together in the State of New York. It also was the case which was doctrinally the must frustrating - the Court essentially argued that it was within the taxing and spending power, but the tenth amendment was an independent limit on Congress and so there was no using the taxing power to regulate manufacturing.

Hughes almost dissented in Darby (1941) and Roberts almost dissented in Wickard (1942). Hammer v Dagenhart will end up overturned like in OTL's US v Darby, and the governing rule will be that the Federal Government can prohibit whatever it wants from crossing state lines (such as goods produced by child labor).

What was Theodore Roosevelt progressives' objection to the New Deal? I know Wilson progressives like Brandeis disliked the ties with big business and monopolies.
Where did you read that Hughes almost dissented in Darby and Roberts almost dissneted in Wickard? Also, why did they? I find the latter case less surprising as Roberts was slightly more conservative than Hughes and being the last Justice not nominated by Franklin Delano Roosevelt, was very much at odds with the other Justices by the end of his tenure. Indeed, his relationship with Hugo Black was so strained that he refused to sign the traditional letter acknowledging his service.
 
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From Wikipedia:
Hand was increasingly called upon to judge cases arising from the flood of New Deal legislation. The line between central government authority and local legislation particularly tested his powers of judgment. In 1935, the case of United States v. Schechter came before the Second Circuit. Hand and his two colleagues had to judge whether a New York poultry firm had contravened New Deal legislation on unfair trade practices. They ruled that the National Industrial Recovery Act did not apply to the Schechter Poultry Corporation, which traded solely within the state. "The line is no doubt in the end arbitrary," Hand wrote in a memorandum, "but we have got to draw it, because without it Congress can take over all the government." The Supreme Court later affirmed Hand's decision.

Basically, Theodore Roosevelt Progressives wanted *more* government but viewed the New Deal as *unlimited* government.

Court Packing and Compromise

Internal Court records reveal that it was only very reluctantly that Hughes agreed to join the portion of United States v. Darby152 upholding federal regulation of wages and hours of employees engaged in “production for commerce.”153 Such records similarly show that Roberts initially opposed upholding the regulation sustained in Wickard v. Filburn, 154 and there is reason to doubt that either of the justices ultimately would have voted to sustain those measures had more of their colleagues shared their reservations. Even after Darby, Roberts would file dissents from decisions upholding the application of the Fair Labor Standards Act to various local employments on the ground that the Commerce Clause did not authorize Congress to reach them.155 And though he eventually acquiesced in the authority of these precedents,156 he continued to construe the statute not to apply to matters of purely local concern that he believed were reserved to the states.

Issues of Nondelegation would also continue to be a limit on the New Deal. Brandeis's skepticism of concentrated power made him a strong protector of the separation of powers.
 
An interesting POD would not change the composition of the Court, but centers on a Justice swinging the other way. I'm thinking of Kennedy allegedly being initially inclined of siding with Scalia in the Casey decision. That would essentially have caused shockwaves in American political life, given as it would largely have been status quo ante 1/22/1973 legally. What would an abortion debate that's now explicitly centered around the states look like in the 1990s? I suppose gay rights might still animate the culture wars, but it will look rather different.
 
An interesting POD would not change the composition of the Court, but centers on a Justice swinging the other way. I'm thinking of Kennedy allegedly being initially inclined of siding with Scalia in the Casey decision. That would essentially have caused shockwaves in American political life, given as it would largely have been status quo ante 1/22/1973 legally. What would an abortion debate that's now explicitly centered around the states look like in the 1990s? I suppose gay rights might still animate the culture wars, but it will look rather different.

I posted a thread about this: https://forum.sealionpress.co.uk/index.php?threads/roe-v-wade-overturned-in-1992.4694/
 
An interesting POD would not change the composition of the Court, but centers on a Justice swinging the other way. I'm thinking of Kennedy allegedly being initially inclined of siding with Scalia in the Casey decision. That would essentially have caused shockwaves in American political life, given as it would largely have been status quo ante 1/22/1973 legally. What would an abortion debate that's now explicitly centered around the states look like in the 1990s? I suppose gay rights might still animate the culture wars, but it will look rather different.

My guess is it would still be a 7-2 on upholding most of the regulations, which O'Connor concurring in part and dissenting in part and joined by Souter.

White retires in 1993 and is replaced by a pro-choice Judge. The Court proceeds to still have to deal with smart abortion lawyers bringing cases like whether the lack of a life of the mother exception would pass a rational basis test (the lowest standard of review), whether a life of the mother exception is an element to be proven by the government or an affirmative defense to be proven by the defendant, whether state laws unduly affect the right to travel, what first amendment rights doctors have to communicate with their patients, what right-to-practice doctors have, Fourth Amendment protections for abortion providers, etc. Maybe even a commerce clause challenge to a federal abortion law...

Even if Roe is overturned, there'll be a bunch of lawsuits to come up with other piecemeal limits on the States' ability to regulate doctors.
 
My guess is it would still be a 7-2 on upholding most of the regulations, which O'Connor concurring in part and dissenting in part and joined by Souter.

White retires in 1993 and is replaced by a pro-choice Judge. The Court proceeds to still have to deal with smart abortion lawyers bringing cases like whether the lack of a life of the mother exception would pass a rational basis test (the lowest standard of review), whether a life of the mother exception is an element to be proven by the government or an affirmative defense to be proven by the defendant, whether state laws unduly affect the right to travel, what first amendment rights doctors have to communicate with their patients, what right-to-practice doctors have, Fourth Amendment protections for abortion providers, etc. Maybe even a commerce clause challenge to a federal abortion law...

Even if Roe is overturned, there'll be a bunch of lawsuits to come up with other piecemeal limits on the States' ability to regulate doctors.

Could O'Connor become a second Blackmun because of abortion?
 
My guess is it would still be a 7-2 on upholding most of the regulations, which O'Connor concurring in part and dissenting in part and joined by Souter.

White retires in 1993 and is replaced by a pro-choice Judge. The Court proceeds to still have to deal with smart abortion lawyers bringing cases like whether the lack of a life of the mother exception would pass a rational basis test (the lowest standard of review), whether a life of the mother exception is an element to be proven by the government or an affirmative defense to be proven by the defendant, whether state laws unduly affect the right to travel, what first amendment rights doctors have to communicate with their patients, what right-to-practice doctors have, Fourth Amendment protections for abortion providers, etc. Maybe even a commerce clause challenge to a federal abortion law...

Even if Roe is overturned, there'll be a bunch of lawsuits to come up with other piecemeal limits on the States' ability to regulate doctors.
I'm by no means saying that overturning Roe would kill the issue though.

Though I highly suspect that the Court would probably rule in favor of a right to travel (barring some circumstance like minors).

Also keep in mind that the Court may very well be reluctant to interfere with state ability to regulate the medical profession for the simple reason that it would open the door to limiting the states' abilities to regulate the legal profession (which is something that affects them personally, I mean, when was the last time a non-lawyer was on the SCOTUS bench?). I can see cases of whether a doctor licensed in more than one state can advertise, say, NY abortion services in, well, PA.

Advertisement regulation cases would be a big deal, though whether they could be forestalled in many cases due to state court rulings is well, iono.
 
I'm by no means saying that overturning Roe would kill the issue though.

Though I highly suspect that the Court would probably rule in favor of a right to travel (barring some circumstance like minors).

Also keep in mind that the Court may very well be reluctant to interfere with state ability to regulate the medical profession for the simple reason that it would open the door to limiting the states' abilities to regulate the legal profession (which is something that affects them personally, I mean, when was the last time a non-lawyer was on the SCOTUS bench?). I can see cases of whether a doctor licensed in more than one state can advertise, say, NY abortion services in, well, PA.

Advertisement regulation cases would be a big deal, though whether they could be forestalled in many cases due to state court rulings is well, iono.

In my thread, @Elektronaut argued persuasively that Republicans would try to restrict abortion nationwide but that at least as long as O'Connor is there, anything too restrictive is not going to be upheld and unlikely to be passed anyways.
 
In my thread, @Elektronaut argued persuasively that Republicans would try to restrict abortion nationwide but that at least as long as O'Connor is there, anything too restrictive is not going to be upheld and unlikely to be passed anyways.
Right. I mean Congress could regulate it as interstate commerce in theory, but it's unlikely that anything too overarching could pass.
 
Could you, please, expand on "ATL Kennedy"?

Blackmun went from moderate conservative to consistent liberal over time, mainly over the hate mail he got over the abortion issue but also because of the combo of Brennan politicking him and Burger offending him.

Kennedy moved left on social issues over time (from Webster to Casey, for example; or from the two Carhart cases to Whole Women's Health in 2016) but they were much smaller drifts and he still remained otherwise conservative in areas like criminal law and economic matters. Blackmun moved left on both of those things. Look at how the one Commerce case between NLRB (1937) and Lopez (1995) where the government lost - National League of Cities v Usery (1976) - was undone within a decade because Blackmun drifted left.
 
If John Kerry won in 2004 but the Senate is the same

Chief Justice Merrick Garland [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Stephen Breyer [Liberal]
Jose Cabranes [Centrist]
[Replacing Souter]
Diane Wood [Liberal][Replacing O'Connor]
Sonia Sotomayor [Liberal] [Replacing Stevens]

There are enough Moderate to Liberal Republicans even in a 55-45 Senate than Kerry could get liberal picks through.
Garland was respected generally and could be allowed to move the court left there.

Putting the liberal Wood and Sotomayor on along with the Centrist Cabranes doesn't change too much. O'Connor was Centrist and Souter/Stevens Liberal - so you have two liberals and a centrist.

Liberals (4) Moderate Liberals (1) Centrists (1) Moderate Conservatives (1) Conservatives (2)


Thinking about this more, Souter or O'Connor probably retires in 2005, Rehnquist dies in 2005, Souter or O'Connor retires in 2006, and Stevens would be stubborn enough to try and hold out. If that's the case, Kerry would take a whalloping in the 2004 midterms for similar reason Bush did OTL (Katrina and Iraq headaches) but not as bad as W because there wouldn't be the Social Security failure. There as a 10.6% swing in the House popular vote from 2004 to 2006 and 12.8% from 2002 to 2006. Maryland, Michigan, Minnesota, New Jersey, and Washington are all possible flip opportunities - and the OTL gettable Republicans for Kerry would be Lincoln Chafee, John Warner, Susan Collins, Olympia Snowe, Lindsey Graham, and Arlen Specter. If the Republicans pick up more than a couple of seats, Kerry would be unable to replace Stevens with somebody like Sotomayor.

My guess is Harry Reid would still want to see Brian Sandoval removed as a potential political opponent in 2004. If he's a district court judge, Reid might recommend Kerry nominate Sandoval like he recommended Obama nominate Sandoval to replace Scalia.

It also seems unlikely to me that Kerry would make Garland Chief Justice. Elevating Breyer (who had been Chief Judge of the First Circuit for four years) or nominating Cabranes (Chief Judge of the US District Court for the District of Connecticut) makes more sense as an administrative matter. Ted Kennedy would probably fight hard to see Breyer elevated.

Also, I don't know why I called Breyer a liberal instead of a moderate liberal. He swings right on a bunch of stuff.


Chief Justice Stephen Breyer [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Jose Cabranes [Centrist]
[Replacing Souter]
Merrick Garland [Moderate Liberal] [Replacing Breyer]
Diane Wood [Liberal][Replacing O'Connor]
Brian Sandoval [Centrist] [Replacing Stevens]

Liberals (2) Moderate Liberals (2) Centrists (2) Moderate Conservatives (1) Conservatives (2)


It'd be more of a continuation of the Centrist court of OTL where Breyer-Souter-Kennedy-O'Connor had most of the power (or before that, Stewart-White-Powell controlled things) since Nixon. Here it would be Breyer-Kennedy-Cabranes-Garland-Sandoval.
 
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Chief Justice Stephen Breyer [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Jose Cabranes [Centrist]
[Replacing Souter]
Merrick Garland [Moderate Liberal] [Replacing Breyer]
Diane Wood [Liberal][Replacing O'Connor]
Brian Sandoval [Centrist] [Replacing Stevens]

Liberals (2) Moderate Liberals (2) Centrists (2) Moderate Conservatives (1) Conservatives (2)


It'd be more of a continuation of the Centrist court of OTL where Breyer-Souter-Kennedy-O'Connor had most of the power (or before that, Stewart-White-Powell controlled things) since Nixon. Here it would be Breyer-Kennedy-Cabranes-Garland-Sandoval.

Thinking about this further...

If Stevens doesn't retire before 2008, which is a possibility depending on how confident he thinks Kerry's reelection chances are or how confident he is about his health ... the Republicans probably pick up the Presidency in 2008 (George Allen, George W Bush comeback, John McCain, Mitt Romney, Bill Frist ... take your pick).

Possible replacements for Stevens, including their age in 2010:

Viet Dinh (42) (O'Connor Clerk, Assistant AG for OLC - like Bill Rehnquist and Scalia was OTL; NewsCorp Board i.e., Fox News parent company)
Paul Clement (44) (Deputy SG 2001 to 2004, SG 2004 to 2005; Scalia Clerk previously)
Don Willett (44) (Deputy Assistant AG for OLC; Texas Supreme Court Justice)
Wallace B Jefferson (47) (Chief Justice of Texas Supreme Court)
Brian Sandoval (47)
Steven Colloton (47) (Circuit Judge)
Raymond Gruender (47) (Circuit Judge)
William Pryor (48) (Circuit Judge)
Edith Brown Clement (52) (Circuit Judge since 2001, District Judge from 1991 to 2001)
Alberto Gonzales (55) (Texas Supreme Court Justice, White House Counsel)
John Roberts (55) (DC Circuit Judge since 2003, Principal Deputy SG under HW)
Priscilla Owen (56) (Justice of the Texas Supreme Court here)
Samuel Alito (60) (Third Circuit Judge)

Other OTL names from the Trump era like Brett Kavanaugh, Neil Gorsuch, Thomas Hardiman, and Amul Thapar were put on the bench during the second Bush term, so they won't be options.

McCain wins in 2008

If John McCain wins in 2008 and there are no Obama-style coattails, states like Minnesota, Nebraska, and Oregon stay Republican and it's a 56-44 Democratic Senate.

Souter and Stevens probably still retire, and there's no way McCain is able to put an Alito-style Conservative on the bench. Maybe a Roberts Conservative, but even that would be tough.

Some moderate or 'stealth' names:
Amul Thapar (41) - District Court Judge since 2008, and before that US Attorney for the Eastern District of Kentucky. Seems unlikely to me, but worth sticking on the list.
Viet Dinh (42) - O'Connor Clerkship would help for a moderate seat, OLC coupled with that makes him Supreme Court tier, but his work in drafting the PATRIOT Act would be very controversial)
Neil Gorsuch (43) - He had no paper trail on many social issues OTL and was confirmed for the Tenth Circuit unanimously. The two Supreme Court Justices he clerked for were heterodox moderate conservatives (Byron White and Anthony Kennedy). His two cases on the Tenth Circuit which the Supreme Court took a second look at before 2010 saw the Supreme Court unanimously take his position.
Brian Sandoval (47) - District Court Judge since 2005, AG of Nevada from 2003 to 2005, and a preferred pick of Harry Reid who wouldn't want to see him run for Governor in 2010
Wallace B Jefferson (47) - Chief Justice of the Texas Supreme Court, OTL somebody from the Soros org recommended to Clinton advisers that he replace Scalia.
Edith Brown Clement (52) - Considered a moderate. She was a Circuit Judge since 2001, District Judge from 1991 to 2001
 
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