Alternate Supreme Courts Thread

[Jackson Lennock]

He was always something of a racial liberal. The same year he joined the Klan, he was leading the prison reform movement in the state to end the convict leasing system (slavery 2.0). The only case where he defended the moral rightness of violence was one involving leased black miners (who had a life expectancy of about five years...). The Executive Secretary of the NAACP also testified on his behalf during his Supreme Court confirmation process.

Continuing...

As a police court judge and county prosecutor, his reputation was also that of being soft on [expletive here]. As prosecutor, his interest was mainly in prosecuting white (illegal) vendors of liquor, rather than poor black drunks and gamblers (to the frustration of many). As a judge, he routinely gave out de minimis penalties to black defendants who he thought were being prayed upon (and in one instance, when a defendant couldn't afford his $1 punishment, Black gave him the dollar).

As a private lawyer, he was one of the only attorneys in Alabama who'd bring black claimants' cases in employment and personal injury suits. He also represented the AFL when they were one of the only orgs for equal rights in labor (and others wouldn't represent them).

He partly joined the Klan because his Jewish father-figure encouraged him to do so, since having a man on the inside could help keep the crazies away from the Jewish community. The first woman Black asked to marry was that father-figure's niece, but the family was orthodox so it didn't work out. (Black converting to Judaism would be a fun POD, I suppose). He was generally philosemitic - the two Justices he got along with most both as a Senator and as a Justice were Cardozo and Brandeis (both of whom couldn't believe the reports that Black had been in the Klan).

Black's Klan membership is often chalked up to politics, but Black at the time joined any civic organization he could where the membership was likely to sit on a jury, and the Klan made sure its members paid their poll taxes and sat on juries. If you're shocked at the idea of referring to the Klan as a civic org, I'd point you to the later Senator Robert Byrd who compared it to the Rotary Club when he joined. Just about every lawyer, judge, and sheriff was a member too. At Klan meetings he'd often play up the importance of equal justice under the law, and that if standards weren't applied to people the members didn't like they wouldn't be there for the members when they needed them. This apparently worked well for him, because there were definitely many juries with Klan members on them who ruled even for his black clients. This is a long way of saying careerism probably explained his membership more than politics did, and he probably told himself stories about how it was all for the best to help him sleep at night.

 

[Jackson Lennock]

Since he passed away yesterday...

Orrin Hatch (chair of the Senate Judiciary Committee) Hatch expressed interest in serving on the United States Supreme Court. It was reported that he was on Ronald Reagan's short list of candidates to succeed Lewis F. Powell Jr. on the Supreme Court in 1987, but was passed over at least in part because of the Ineligibility Clause. The Constitution says that no member of Congress shall be named to any office for which the pay has been increased by Congress while he was a member, but in February 1987, Congress gave the Justices a $6,000 salary increase, an action that could have prevented Senator Hatch's nomination. Otherwise, because of senatorial courtesy, a very strong tradition, even liberals in the Senate might have found it hard to oppose Senator Hatch's nomination.

What if Hatch had been nominated and confirmed? Either Hatch pledges to reject the $6,000 salary increase if confirmed or Congress doesn't do the salary increase at all.

Hatch would be 53 years old when nominated and could plausibly serve as long as Kennedy did. Both Hatch and Kennedy retired in 2018.

Hatch might rule the other way in a case like Employment Division v. Smith; or at least join O'Connor's concurring opinion which kept the higher standard but disagreed on its application. O'Connor's opinion was joined in part by Brennan, Marshall, and Blackmun ... so it could end up as the governing opinion. That would potentially mean no Religious Freedom Restoration Act, although the specified concerns about Amerindian practices which motivated the Religious Land Use and Inmates Preservation Act could come into play here, since Smith was an Amerindian using peyote for religious reasons.

Hatch himself would be about as Conservative as Bork, but that doesn't guarantee big changes on the Court and there would be areas where he might swing left. Scalia, Thomas, and Rehnquist often disagreed on things, for example. Without the Bork fight, there might not be as strong a desire for Souter as a 'stealth nominee.' Somebody like Lawrence Silberman or Edith Jones (who was the only other candidate HW interviewed for the seat that went to Souter) might get nominated instead. Or maybe a moderate pick is demanded to replace the liberal Brennan - so Kennedy might get nominated for that seat. Hatch was somewhat significant during the Thomas hearings, so it's possible that the Thomas nomination fails with him not there ... in which case Emilio Garza might be nominated (or Edith Jones, or maybe even Jose Cabranes). Hatch "famously defended Thomas ... by reading aloud from The Exorcist to suggest Anita Hill lifted details of her sexual harassment allegations from the horror book."

Hatch also recommended Ruth Bader Ginsburg to Clinton, who hadn't considered her previously. It's possible that a recent Speech by Scalia brought her to Clinton's attention (when asked whether he'd have preferred to be on a stranded island with the two frontrunners Lawrence Tribe or Mario Cuomo, Scalia answered Ruth Bader Ginsburg), but it is also possible that Tribe or Cuomo is the nominee. Either would be a tougher confirmation fight than Ginsburg was. Maybe Cabranes gets the nod.

On LGBT rights,
Hatch supported the Defense of Marriage

There would be an open Senate Seat as well. Who would be the Senator from Utah instead of Hatch?

Hatch was Conservative, but worked very hard to build across the aisle relationships.
He was a key player in the Children's Health Insurance Plan (CHIP) and the Americans with Disabilities Act (ADA) [both of which could also be interpreted as meaning he could view Federal Actions on stuff like that as Constitutional].
Hatch opposed the Obamacare individual mandate in 2011, but supported something similar in 1993.
Hatch supported the Medicare part D expansion in 2003.
Hatch was an architect of the H1-B visa program in 1990, supported its later expansion, and generally supported family reunification immigration.

 

[Bolt451]

What's the most likely opportunity for the court to expand

(Theres Still time, Joe!!)

 

[Jackson Lennock]

What's the most likely opportunity for the court to expand

The most obvious one is FDR lowering his sights and going for 11 or 12 seats instead of 15.


Another would be the late 1970s/early 1980s. People were getting very annoyed with the Supreme Court at the time.

Historically Congress made it that fewer cases got to the Supreme Court at this time. Before reforms in the period, Constitutional Questions went straight from a three-judge District Court Panel to direct Supreme Court Appeal. Congress mostly got rid of those (there are a few exceptions, like McCain-Feingold) and now you have to appeal all cases to the relevant U.S. Court of Appeals, where a three-judge panel hears your case. And then, if you don't like your outcome there, often you have to appeal within the relevant Court of Appeals to a panel comprised of all of the Court of Appeals judges within the Circuit. Typically, it's only if two circuits disagree that a case will get picked up by the Supreme Court.

Another idea brought up was the creation of a separate national court of appeals above the Circuit Courts but below the Supreme Court. Senator Heflin proposed the idea in 1981.

Both of those two ideas were considered less extreme than the other alternative brought during the Nixon, Ford, Carter, and Reagan years - stripping the Court of Jurisdiction to hear cases. Nixon first brought it up on bussing. Senators like Jesse Helms, John Ashbrook, and Philip Crane introduced 22 jurisdiction-stripping bills in the period to keep the Court from hearing cases on school prayer, abortion, bussing, and other subjects.

​

Congress can also just say 'all cases are appealed to this or that circuit and those opinions are to be respected as if they were a Supreme Court opinion' if it wanted to. Look, for example, to the 1944 Opinion United States v. Alcoa. In that case, because so many of the Justices were former Roosevelt Administration figures who had recuse themselves - the Supreme Court didn't have enough Justices to hear the case!
See the relevant law:

​

In practice, the Federal Circuit is the last Court one goes to on Patent Issues since the Supreme Court usually chooses to not take up those cases. The DC Circuit often is the 'Supreme Court' for Administrative Law Cases, since not all Federal Agencies are vested with the authority to appeal to the Supreme Court and it ends up left to the Solicitor General whether to do so or not.

All of this stuff is basically me saying that since Court Packing was viewed very negatively after FDR's failure and there were plenty of alternative options to reign in the Court that meant you didn't have to try and pack it to resolve issues. If jurisdiction-stripping legislation somehow passed and the Court proceeded to ignore it, Court Packing could come up as an idea though.


It's possible that with the creation of two new Circuits (the Eleventh Circuit in 1981 and the Federal Circuit in 1982) the idea could be revived that there needs to be a 'Justice for every Circuit.' There are 11 numbered circuit, the DC Circuit, and the Federal Circuit - so that would mean 13 Justices.

 

[True Grit]

Since he passed away yesterday...

Orrin Hatch (chair of the Senate Judiciary Committee) Hatch expressed interest in serving on the United States Supreme Court. It was reported that he was on Ronald Reagan's short list of candidates to succeed Lewis F. Powell Jr. on the Supreme Court in 1987, but was passed over at least in part because of the Ineligibility Clause. The Constitution says that no member of Congress shall be named to any office for which the pay has been increased by Congress while he was a member, but in February 1987, Congress gave the Justices a $6,000 salary increase, an action that could have prevented Senator Hatch's nomination. Otherwise, because of senatorial courtesy, a very strong tradition, even liberals in the Senate might have found it hard to oppose Senator Hatch's nomination.

What if Hatch had been nominated and confirmed? Either Hatch pledges to reject the $6,000 salary increase if confirmed or Congress doesn't do the salary increase at all.

Hatch would be 53 years old when nominated and could plausibly serve as long as Kennedy did. Both Hatch and Kennedy retired in 2018.

Hatch might rule the other way in a case like Employment Division v. Smith; or at least join O'Connor's concurring opinion which kept the higher standard but disagreed on its application. O'Connor's opinion was joined in part by Brennan, Marshall, and Blackmun ... so it could end up as the governing opinion. That would potentially mean no Religious Freedom Restoration Act, although the specified concerns about Amerindian practices which motivated the Religious Land Use and Inmates Preservation Act could come into play here, since Smith was an Amerindian using peyote for religious reasons.

Hatch himself would be about as Conservative as Bork, but that doesn't guarantee big changes on the Court and there would be areas where he might swing left. Scalia, Thomas, and Rehnquist often disagreed on things, for example. Without the Bork fight, there might not be as strong a desire for Souter as a 'stealth nominee.' Somebody like Lawrence Silberman or Edith Jones (who was the only other candidate HW interviewed for the seat that went to Souter) might get nominated instead. Or maybe a moderate pick is demanded to replace the liberal Brennan - so Kennedy might get nominated for that seat. Hatch was somewhat significant during the Thomas hearings, so it's possible that the Thomas nomination fails with him not there ... in which case Emilio Garza might be nominated (or Edith Jones, or maybe even Jose Cabranes). Hatch "famously defended Thomas ... by reading aloud from The Exorcist to suggest Anita Hill lifted details of her sexual harassment allegations from the horror book."

Hatch also recommended Ruth Bader Ginsburg to Clinton, who hadn't considered her previously. It's possible that a recent Speech by Scalia brought her to Clinton's attention (when asked whether he'd have preferred to be on a stranded island with the two frontrunners Lawrence Tribe or Mario Cuomo, Scalia answered Ruth Bader Ginsburg), but it is also possible that Tribe or Cuomo is the nominee. Either would be a tougher confirmation fight than Ginsburg was. Maybe Cabranes gets the nod.

On LGBT rights,
Hatch supported the Defense of Marriage

There would be an open Senate Seat as well. Who would be the Senator from Utah instead of Hatch?

Hatch was Conservative, but worked very hard to build across the aisle relationships.
He was a key player in the Children's Health Insurance Plan (CHIP) and the Americans with Disabilities Act (ADA) [both of which could also be interpreted as meaning he could view Federal Actions on stuff like that as Constitutional].
Hatch opposed the Obamacare individual mandate in 2011, but supported something similar in 1993.
Hatch supported the Medicare part D expansion in 2003.
Hatch was an architect of the H1-B visa program in 1990, supported its later expansion, and generally supported family reunification immigration.

Hatch was really reluctant to retire IOTL, even once it became clear that just about every establishment Republican wanted him to step aside in favour of Romney - wonder if there might be a similar dynamic here. I imagine he’d still retire, if only to make sure a Republican replaces him, but if he’s stubborn enough it might mean an extra progressive seat on the court.

I also think Hatch’s role in the RBG nomination is overblown - she’d been a favourite of Democrats since the early 80s, and after Cuomo and Judith Kaye declined a lot of people, in particular Janet Reno, were pushing Clinton to consider her. Feel like that still happens with or without Hatch.

 

[Jackson Lennock]

A timeline where Hatch is put on the bench...

Year	Chief Justice	Most Senior Associate Justice							Least Junior Associate Justice	Ideological Breakdown
1987	William H Rehnquist	William H Brennan	Byron White	Thurgood Marshall	Harry Blackmun	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Conservative (3) Moderate (2) Liberal (4)
1990	William H Rehnquist	Byron White	Thurgood Marshall	Harry Blackmun	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Edith Jones	Conservative (4) Moderate (2) Liberal (3)
1991	William H Rehnquist	Byron White	Harry Blackmun	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Edith Jones	Jose Cabranes	Conservative (4) Moderate (3) Liberal (2)
1993	William H Rehnquist	Harry Blackmun	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Edith Jones	Jose Cabranes	Amalya Kearse	Conservative (4) Moderate (3) Liberal (2)
1994	William H Rehnquist	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Edith Jones	Jose Cabranes	Amalya Kearse	Ruth Bader Ginsburg	Conservative (4) Moderate (3) Liberal (2)
2005	Edith Jones	John Paul Stevens	Sandra Day O'Connor	Antonin Scalia	Orrin Hatch	Jose Cabranes	Amalya Kearse	Ruth Bader Ginsburg	John Roberts	Conservative (4) Moderate (3) Liberal (2)
2006	Edith Jones	John Paul Stevens	Antonin Scalia	Orrin Hatch	Jose Cabranes	Amalya Kearse	Ruth Bader Ginsburg	John Roberts	Alberto Gonzales	Conservative (5) Moderate (2) Liberal (2)
2010	Edith Jones	Antonin Scalia	Orrin Hatch	Jose Cabranes	Amalya Kearse	Ruth Bader Ginsburg	John Roberts	Alberto Gonzales	Elena Kagan	Conservative (5) Moderate (2) Liberal (2)

Orrin Hatch (1987): With the retirement of swing-Justice Lewis Powell, the Reagan Administration saw an opportunity to transform the Court. Hoping to take advantage of Senatorial Courtesy, they nominated the Conservative Senator Orrin Hatch for the seat. Despite concerns regarding the Constitution's Eligibility Clause, Hatch was confirmed swiftly after pledging to forgo a salary increase granted to the Justices that term until Congress opted again to raise Judicial Pay (which they did in 1988, out of respect for their colleague).

Edith Jones (1990): The smoothness of the Hatch confirmation gives the HW Bush Administration the confidence to go with Edith Jones over David Souter. When folks asked O'Connor what difference having two women on the Court made, she said it was nice that a dedicated bathroom for Women Justices was finally put in. [O'Connor said this OTL after Ginsburg was confirmed. Clearly she had a sense of humor]. She would write the opinion overturning Roe v. Wade in Planned Parenthood v. Casey. The Conservative Jones and Moderate O'Connor often disagreed, but they had a bond as women who spent much of their lives in the Southwest. Later the two would take leading roles in the promotion of independent judiciaries abroad.

Jose Cabranes (1991): Without Hatch on the Judiciary Committee, Thomas's nomination fails narrowly. In November of 1991, aware of Democratic warnings that they will refuse to confirm anybody in the election year, the Bush team nominated Jose Cabranes of the Second Circuit hoping for a quick and easy confirmation. Cabranes was confirmed,

Amalya Kearse (1993): Without Hatch on judiciary, Clinton doesn't think to nominate then-Judge Ruth Bader Ginsburg. Clinton had two frontrunners in mind - Governor Mario Cuomo and professor Laurence Tribe. Cuomo proved too uncertain to accept the nomination, and Clinton nominated Tribe. After the Thomas failure, Republicans were out for blood against Tribe, who had proved to be a very public and vitriolic critic of Thomas. The Tribe nomination failed, and Clinton opted for a 'first' in Judge Amalya Kearse of the Second Circuit as the first Black Woman on the Court and, in many minds, 'fixing' the lack of representation after Marshall's retirement. Rumors of her being a registered (moderate) Republican, her reputation for seriousness and brilliance on the Second Circuit, and the historic significance as a 'first' let to her swift confirmation despite a vocal abortion dissent on her record. She would prove to have strong relationships with fellow moderate Republican Sandra Day O'Connor and her moderate colleague from the Second Circuit Jose Cabranes.

Ruth Bader Ginsburg (1994): After Harry Blackmun's retirement, Clinton hoped to avoid another Tribe-style headache. But unlike replacing the heterodox White, Blackmun had become a firm liberal most known for authoring Roe v. Wade, recently overturned in Planned Parenthood v. Casey (1991) which purported not to overturn Roe but was criticized as effectively doing just that. To not nominate someone supportive of women's rights (i.e., abortion rights) would be risk angering liberals ahead of what appeared to be a rough 1994 midterm election. Fortunately, Clinton had heard of a story from the White vacancy: Scalia had been asked following a speech if he'd have preferred to be stuck on a desert island with Mario Cuomo or Lawrence Tribe - and he'd answered Ruth Bader Ginsburg. Furthermore, she would be another 'first' as the first Jewish woman on the Court, and Clinton enjoyed the opportunity to revive the tradition of the 'Jewish Seat' held by Cardozo, Frankfurter, Goldberg, and Fortas before Blackmun. Ginsburg's history as a supporter of abortion rights while also a vocal critic of Roe's reasoning, prominent women's rights litigator, and reputation as being well-respected by her Conservative colleagues, made her confirmation an easy one. Following the testimony in her favor by her former colleague and Conservative legal icon Robert Bork, her confirmation was unanimous.

Edith Jones (2005) (Promotion) / John Roberts (2005): Sandra Day O'Connor initially announced her retirement in 2005, with John Roberts nominated to replace her as Associate Justice. Circumstances changed following the surprise passing of Chief Justice William H Rehnquist. President Bush announced his intention to elevate Justice Jones to the position of Chief Justice, and O'Connor decided that three confirmations in a year would be too many - delaying her retirement. Jones attracted a fierce fight, but it backfired on Democrats as many woman watching the proceedings found the Democratic attacks on the first Woman Chief sexist. Already having been interviewed by members of the Senate, and having been well-liked, Roberts was nominated instead for Jones's Associate Justice seat. At 56 year old, Jones would be the first Woman Chief Justice - a difficult person for Democrats to oppose despite her very Conservative reputation.

Alberto Gonzales (2006): When O'Connor initially announced her retirement in 2005, Bush had sought to nominate his confidant Alberto Gonzales - but Senate Judiciary Chairman Arlen Specter thought it was "a little too soon" after Gonzales's appointment as attorney general for him to be appointed to another position. This wasn't an issue a year later, and so Bush nominated Attorney General Alberto Gonzales to replace O'Connor. Gonzales had broad bipartisan support during his AG nomination and this carried over to his Supreme Court candidacy. Ironically, this would hurt Bush among Conservatives who feared that Gonzales was "squishy" on Affirmative Action and Abortion. Some attacked Bush for being "too Texan" by elevating Jones and nominating Gonzales.

Elena Kagan (2010): With a largely Conservative Court, President Obama faced a challenge: nominate a vocal liberal who could loudly dissent, or a pragmatist who thoroughly understood their colleagues' reasoning and either weave majorities or horse-trade their vote in exchange for establishing narrower opinions. President Obama decided the latter was more important and nominated Solicitor General Elena Kagan to the bench.


=========

I'll write on opinions in a later post.

 

[Elektronaut]

I'm a little dubious on the senatorial courtesy point, tbh. Bork was nominated, after all, on a blithe albeit relatively well-founded assumption that the prevailing orthodoxy of the Senate was that the President's choice on a nominee should be defered to, and that it had previously confirmed him to the DC court. OTL was actually an example of a widely-shared Senate convention breaking down.

Cabranes is too moderate for Bush, particularly in a world where the norm is successfully nominated right-wingers. And Kearse is too moderate for Clinton in a world where the court has gone very much to the right. (Particularly if the norm of the Senate just okaying the President's choice still holds)

Based on what we know about her personality, I think Edith Jones would be about the last person a president would want to nominate as Chief Justice. I suspect she'd probably have a Scalia-like effect on the other justices.

 

[Ricardolindo]

I'm a little dubious on the senatorial courtesy point, tbh. Bork was nominated, after all, on a blithe albeit relatively well-founded assumption that the prevailing orthodoxy of the Senate was that the President's choice on a nominee should be defered to, and that it had previously confirmed him to the DC court. OTL was actually an example of a widely-shared Senate convention breaking down.

There was, in fact, a strong belief that the Senate would not reject one of its own. That's one reason why at one point Nixon intended to nominate Senator Howard Baker to succeed John Marshall Harlan II.
BTW, did Reagan's Justice Department not remember Haynsworth and Carswell?

 

[Elektronaut]

There was, in fact, a strong belief that the Senate would not reject one of its own. That's one reason why at one point Nixon intended to nominate Senator Howard Baker to succeed John Marshall Harlan II.

... I know, I'm not disputing that view existed, I'm pointing out that there was also a prevailing orthodoxy in the Senate at the time that the Senate should defer to the President's choice on a nomination, and that view came unstuck.

Hatch's views were all out in the open btw - he'd been at the front of a lot of the Reagan administration's activities, like promotion of constitutional amendments on abortion.

BTW, did Reagan's Justice Department not remember Haynsworth and Carswell?

It's not a question of them forgetting or a question of it just being on the Justice Department. The reality is that there was a view in the Senate that the Senate shouldn't reject a President's nominee, and up until Bork was that was the dominant view in the Senate. But it lingered for a long time even after Bork - Breyer and Ginsburg got overwhelming Senate support, as did John Roberts. The notion you should vote for a nominee unless you had a very, very good reason not to do so stayed around for quite a while until we got to the situation we have today of nominee votes being almost wholly on party lines.

It wasn't a particularly well-founded view historically that the Senate should defer, but it was the view at the time. (Though that being said, the last time the Senate had rejected a nominee before Nixon was John J. Parker's nomination under Hoover; so while it wasn't as unknown for the Senate to reject a nominee as the orthodoxy of the time held, it was still pretty damn rare.)

 

[Jackson Lennock]

My sense is that the Senate would be less willing to reject one of their own than than they would be to undermine presidential prerogatives. If you vote down Hatch, you still have to work with the guy after.

I'm a little dubious on the senatorial courtesy point, tbh. Bork was nominated, after all, on a blithe albeit relatively well-founded assumption that the prevailing orthodoxy of the Senate was that the President's choice on a nominee should be defered to, and that it had previously confirmed him to the DC court. OTL was actually an example of a widely-shared Senate convention breaking down.

My sense is that the Senate would be less willing to reject one of their own than than they would be to undermine presidential prerogatives. If you vote down Hatch, you still have to work with the guy after.

Cabranes is too moderate for Bush, particularly in a world where the norm is successfully nominated right-wingers. And Kearse is too moderate for Clinton in a world where the court has gone very much to the right. (Particularly if the norm of the Senate just okaying the President's choice still holds)

Cabranes is being considered for the same reason as Kennedy was considered OTL: after the failed Thomas nomination, Bush needs a quick confirmation before the Democrats don't let him put up anybody at all. My guess is Cabranes is at least where Souter was on the left-right spectrum and very likely to the right of Souter (somewhere between Kennedy and O'Connor), and replacing Marshall with a centrist instead of letting a liberal replace Marshall would still be a net-win for the Conservative agenda. And yeah, there's been a successful string of right-wingers nominated, but the Thomas nomination just failed big-time here and OTL there had been two successful right-wing appointments the year prior to the Bork failure, but the Bork/Ginsburg flop plus fears that *nobody* would be confirmed in the final year meant pragmatism won out with the Kennedy nomination.

Emilio Garza is a possibility, but he's only been on the Fifth Circuit for six months come November 1991. Garza also would have served for three years on the Federal District Court and a Texas trial judge for a year though. But I just figured the safer route would win out in the last minute. When playing around with these sorts of ideas, I admit that I have a bit of a bias against letting one side 'win' too much, since it feels unrealistic to me. But the right's problems with Judicial appointees letting them down (Blackmun, Powell, Stevens, O'Connor, Kennedy, Souter, Roberts sort of...) was itself sort of a flukeish string of good luck for the other side.

Clinton considered Kearse for Attorney General historically. Kearse also (a) is put on at a point in which there are no Black members of the Supreme Court and (b) Kearse was on the record as firmly pro-choice (see the attached quote) and would be nominated at a time when Roe has just been overturned. She also is being nominated after another nominee - Lawrence Tribe - failed for being viewed as too partisan a pick.
It's also Bill Clinton, who wasn't too interested in putting arch-liberals on the bench. Ginsburg and Breyer both were considered fairly moderate - and certainly were to the right of older-style liberals like Douglas, Brennan, and Marshall.

And in both the Cabranes and Kearse nominations, they're following the failure of a prior presidential nominee (Thomas and Tribe respectively).

During her tenure on the appeals court, Kearse filed a scathing dissent in a case that recently became one of the more controversial abortion rulings by the Supreme Court: the issue of whether the federal government may prohibit federally funded family planning clinics from dispensing information about abortion. [in Rust v. Sullivan (1991)]

The New York federal appeals court upheld the regulation, which was affirmed earlier this year by the high court.

In heatedly disagreeing with her judicial colleagues on the issue, Kearse wrote: “By prohibiting the delivery of abortion information and prohibiting communication even as to where such information can be obtained, the present regulations deny a woman her constitutionally protected right to choose. She cannot make an informed choice between two options when she cannot obtain information as to one of them.”

Based on what we know about her personality, I think Edith Jones would be about the last person a president would want to nominate as Chief Justice. I suspect she'd probably have a Scalia-like effect on the other justices.

Possibly. She told one of her colleagues to shut up once during oral argument, which goes to your point. That she also did so in the context of a Chief Judge having to police an associate also doesn't help. Apparently H.W. found her manner to be abrasive, chilly, and off-putting, so he went with his fellow Yankee Souter, who he personally liked more. I just figured Dubya would want to seize the opportunity to name the first Woman Chief to elevate somebody more Conservative; plus I thought he might dislike her less than his dad did because of personality differences.

Roberts and Alito like OTL is a possibility though.

 

[Elektronaut]

I mean Garza was the actual runner-up to Thomas IOTL - he was the only other person who got an interview.

Clinton gave very serious consideration to putting Cuomo on the court, so I don't think he was making a point of nominating moderates. What favoured Ginsburg and Breyer was their political support at a time when much of Clinton's agenda was coming unstuck in the Senate and a lot of nominees had fallen by the wayside; they were seen as easy confirmations. Having Clinton nominate Larry Tribe and then immediately sequeing into 'Clinton was trying to nominate moderates' is... odd.

I think I was being generous in saying Jones would be Scalia-like, to be honest. Radioactive is probably more on point. And Bush did seriously consider nominating a woman IOTL in the form of Alice Batchelder, who would likely have been one of his nominees apart from the intercession of a personal financial issue she had.

 

[Jackson Lennock]

I mean Garza was the actual runner-up to Thomas IOTL - he was the only other person who got an interview.

Clinton gave very serious consideration to putting Cuomo on the court, so I don't think he was making a point of nominating moderates. What favoured Ginsburg and Breyer was their political support at a time when much of Clinton's agenda was coming unstuck in the Senate and a lot of nominees had fallen by the wayside; they were seen as easy confirmations. Having Clinton nominate Larry Tribe and then immediately sequeing into 'Clinton was trying to nominate moderates' is... odd.

I think I was being generous in saying Jones would be Scalia-like, to be honest. Radioactive is probably more on point. And Bush did seriously consider nominating a woman IOTL in the form of Alice Batchelder, who would likely have been one of his nominees apart from the intercession of a personal financial issue she had.

Except Garza was passed over precisely because he'd only been on the Fifth Circuit for seven or eight weeks. My point is that Cabranes would be a certain person who would move the court somewhat to the right, but Garza would be seen as a riskier gambit, and I figured they'd go for the safe option.

I don't think Clinton's legislative agenda and trouble with failed confirmations is going to happen differently here. Here before the Kearse nomination it's worse, because Tribe fails too. Also, sorry for not being clearer - I didn't mean to say Clinton was trying to nominate moderates only ... I meant that he did nominate moderates and he wasn't too interested in only nominating liberals - i.e., being insufficiently liberal wasn't a deal-breaker. Kearse seems pretty in line with his OTL picks and on some social-cultural issues seems a bit left of them, and would make sense if there are no African-Americans at all on the court.


Fair enough on the Edith Jones part. I yield. I guess it would still be Roberts and Alito like OTL.

 

[Francisco Cojuanco]

Barrett wouldn't be that different from Kavanaugh, although she's been a bit more liberal on criminal procedure and death penalty cases

Also possibly immigration cases, from some of the internal blowback she's gotten

 

[Ricardolindo]

Also possibly immigration cases, from some of the internal blowback she's gotten

What blowback? Do you have a link?

 

[Elektronaut]

Garza wasn't passed up because he'd only been on the appeals court for that length of time. Thomas just won out because he had more political backing both in the administration and the Senate. Garza was the favoured choice of the part of the administration that wanted to take a side-step demographically and appoint a Hispanic nominee to the seat, and they just lost the argument on that one.

 

[Jackson Lennock]

 

[Elektronaut]

View attachment 53124

This is just Wikipedia relaying the ass-covering briefing that went on after the selection had been made. So of course their line is praise for Garza but a 'it's not his time' conclusion.

The reality is that the administration was acutely conscious of the need to placate the right - Souter was beginning to show signs of being a disappointment, an election year was coming up, and Bush already had enough problems on the right. So they wanted someone not just on the right but very right-wing, and a lot of people thought the only way that circle could be squared with the Senate was through Thomas - who they assumed would be difficult to attack because he was black. (There was an over-estimation on this point of course - an over-estimation even outside of the harrasment issue I mean)

In addition, Gray knew Thomas socially, so Thomas had a really strong advocate right at the heart of the selection process. Quayle and a lot of other people of the right were also really pro-Thomas as well of course, and there was Danforth in the Senate, who also knew Thomas and was a strong supporter. There was pressure from some like Thornburgh to consider a Hispanic nominee because there was seen to be more political capital to be made from that for the Republicans, (And Thornburgh had his own ambitions of course) but all the Hispanic nominees, including Garza were always running behind Thomas in the selection process, at all points. It was not some kind of open contest which just happened to chose Thomas, Thomas was the favourite from minute one, because the political support and political rationale pointed in his direction. 'Garza's new to the appeals court' is just a media briefing line which smooths out that reality.

If you want book sources for all this I can cite them, but that seems a bit OTT for a casual internet post.

 

[Ricardolindo]

This is just Wikipedia relaying the ass-covering briefing that went on after the selection had been made. So of course their line is praise for Garza but a 'it's not his time' conclusion.

The reality is that the administration was acutely conscious of the need to placate the right - Souter was beginning to show signs of being a disappointment, an election year was coming up, and Bush already had enough problems on the right. So they wanted someone not just on the right but very right-wing, and a lot of people thought the only way that circle could be squared with the Senate was through Thomas - who they assumed would be difficult to attack because he was black. (There was an over-estimation on this point of course - an over-estimation even outside of the harrasment issue I mean)

In addition, Gray knew Thomas socially, so Thomas had a really strong advocate right at the heart of the selection process. Quayle and a lot of other people of the right were also really pro-Thomas as well of course, and there was Danforth in the Senate, who also knew Thomas and was a strong supporter. There was pressure from some like Thornburgh to consider a Hispanic nominee because there was seen to be more political capital to be made from that for the Republicans, (And Thornburgh had his own ambitions of course) but all the Hispanic nominees, including Garza were always running behind Thomas in the selection process, at all points. It was not some kind of open contest which just happened to chose Thomas, Thomas was the favourite from minute one, because the political support and political rationale pointed in his direction. 'Garza's new to the appeals court' is just a media briefing line which smooths out that reality.

If you want book sources for all this I can cite them, but that seems a bit OTT for a casual internet post.

Wasn't Souter fairly conservative in his first year on the Supreme Court?

 

[Jackson Lennock]

This is just Wikipedia relaying the ass-covering briefing that went on after the selection had been made. So of course their line is praise for Garza but a 'it's not his time' conclusion.

The reality is that the administration was acutely conscious of the need to placate the right - Souter was beginning to show signs of being a disappointment, an election year was coming up, and Bush already had enough problems on the right. So they wanted someone not just on the right but very right-wing, and a lot of people thought the only way that circle could be squared with the Senate was through Thomas - who they assumed would be difficult to attack because he was black. (There was an over-estimation on this point of course - an over-estimation even outside of the harrasment issue I mean)

In addition, Gray knew Thomas socially, so Thomas had a really strong advocate right at the heart of the selection process. Quayle and a lot of other people of the right were also really pro-Thomas as well of course, and there was Danforth in the Senate, who also knew Thomas and was a strong supporter. There was pressure from some like Thornburgh to consider a Hispanic nominee because there was seen to be more political capital to be made from that for the Republicans, (And Thornburgh had his own ambitions of course) but all the Hispanic nominees, including Garza were always running behind Thomas in the selection process, at all points. It was not some kind of open contest which just happened to chose Thomas, Thomas was the favourite from minute one, because the political support and political rationale pointed in his direction. 'Garza's new to the appeals court' is just a media briefing line which smooths out that reality.

If you want book sources for all this I can cite them, but that seems a bit OTT for a casual internet post.

I'd be interested in book sources I could read in my free time, sure.

My understanding was Thomas was the first choice for the Brennan Seat but the timing didn't work because he'd only been on the DC Circuit for a few months. In his memoir, Thomas says that the sense that he'd been selected to replace Marshall on the basis of race had distressed him, and finding out from Gray a few years later that it probably cut against him (for the Marshall confirmation) because the Administration had publicly opposed affirmative action. To me it seems like Garza was the preferred choice for the Marshall seat, but the shortage of experience prevented his nomination the same way it prevented Thomas's.

What ambitions did Thornburgh have?

Wasn't Souter fairly conservative in his first year on the Supreme Court?

Yes, but the cases that year weren't that Conservative.

Rust v Sullivan (a case dealing with abortion) comes up as an example, but that case law-wise had more to do with administrative procedures and what strings the government could attach to grants of money to private actors.

 

[Ricardolindo]

Yes, but the cases that year weren't that Conservative.

Rust v Sullivan (a case dealing with abortion) comes up as an example, but that case law-wise had more to do with administrative procedures and what strings the government could attach to grants of money to private actors.

There was Barnes v. Glen Theatre, Inc. in which Souter was the decisive fifth vote in ruling nude dancing was not constitutionally protected, though he concurred on different rationales than Rehnquist's plurality opinion and Scalia's concurrence. Both of those cited Bowers v. Hardwick. Ironically, Byron White who had written the majority opinion in Bowers v. Hardwick also wrote the dissent in Barnes v. Glen Theatre, Inc. Whether that was because of homophobia or him simply taking different views of the First Amendment, on one hand, and substantive due process, on the other hand, is an interesting question.