Alternate Supreme Court Justices

[troosvelt_68]

It's been a little while since we've had this type of thread so I thought I'd kick it off again.

I've got quite a few to postulate but I'll start with this one.

1968 and Warren replacement

I think the big issue there was LBJ trying to get two cronies in (Fortas and Thornberry), if he'd done just one he might have succeeded.

So either he picks someone other than Thornberry or he and Fortas decide that CJ post isn't that important as long as Abe is on the court.

Either way they go with an alternate... Indiana Senator Birch Bayh.

Bayh was a Senator so tough for his colleagues to reject him and as chair of the key Senate subcommittee he'd been a leader in passing the 25th amendment.

So either CJ Bayh or CJ Fortas with AJ Bayh.

I'll give time for others to chime in before posting about another 1968 alternate... HHH wins

 

[OneLurkerOnAH.com]

What if Thomas E. Dewey accepted the position of Chief Justice in 1953 and was appointed instead of Warren? Dewey considered Warren to be Eisenhower's biggest mistake, so you'd probably see a more conservative and pro-law-and-order Chief Justice and Supreme Court as a whole, but Dewey would remain strongly supportive of civil rights.

 

[troosvelt_68]

And likely would step down under Nixon (or we could have him and Black and Harlan all go in 1971)

 

[David T]

The three most often named justices who were never nominated:

Learned Hand: https://www.alternatehistory.com/forum/threads/justice-learned-hand.339654/

Henry Friendly: https://www.alternatehistory.com/forum/threads/a-friendly-court.381584/

Paul Freund: https://www.alternatehistory.com/fo...frankfurterians-justice-paul-a-freund.445009/

All were from a "judicial restraint" philosophy nowadays not popular on either the Left or Right.

A few more possibilities:

Ribicoff as an alterantive to Goldberg in 1962: https://www.alternatehistory.com/forum/threads/mr-justice-ribicoff.436465/#post-16476749

Shitley Hufstedler if Humphrey had won in 1968 or if Carter had a vacancy: https://en.wikipedia.org/wiki/Shirley_Hufstedler

One more possibility if Adlai Stevenson had been elected: https://en.wikipedia.org/wiki/Walter_V._Schaefer

 

[troosvelt_68]

Or William Hastie was a possible appointee a couple times, once under Eisenhower and also as an LBJ backup should Marshall fail.

 

[Mad Bad Rabbit]

Justice Robert Bork >;k

POD: the 1986 Senate elections are more favorable to Republicans. Paul Laxalt (R-NV) does not retire yet and wins one last term; while Jeremiah Denton (R-AL), Mack Mattingly (R-GA), Jim Broyhill (R-NC), James Adbnor (R-SD) and Slade Gorton (R-WA) all eke out narrow victories instead of narrow defeats, putting the Senate at 49 D / 51 R.

Sen. Zorinsky (D-NE) still dies in March 1987, being replaced by David Kanes (R-NE) and putting the Senate at 48 D / 52 R.

The Bork nomination still occurs and is still extremely divisive, with the vote going almost entirely on party lines. Democrats vote 46 Nay, 2 Yea (Sen. Boren of OK and Sen. Hollings of SC) and Republicans vote 48 Yea, 4 Nay (Chafee, Packwood, Stafford, and Weicker) giving a 50-50 tie, which Vice President George Bush resolves in Bork's favor.

[ Specter and Warner, who were on the fence in OTL, now see which way the wind is blowing and vote Yea ]

[ There are subsequent arguments on whether the Vice President has the constitutional authority to break a tie in this case, but the Supreme Court does not wish to involve itself in the matter and denies cert. ]

 

[C2sg]

I've read before that Archibald Cox (the future Watergate special prosecutor) was a Supreme Court candidate if JFK lived. The Arizona judge Lorna Lockwood was considered for the first woman nominee during LBJ's time too.

Or William Hastie was a possible appointee a couple times, once under Eisenhower and also as an LBJ backup should Marshall fail.

During JFK's time, Hastie was opposed by Chief Justice Earl Warren, who balked because "he's not a liberal and he'll be opposed to all measures we are interested in, and he would be completely unsatisfactory." Associate Justice William O. Douglas also objected to Hastie as the nominee, saying he would be "just one more vote for Frankfurter". So Kennedy eventually appointed Byron White.

 

[bguy]

Clarence Manion, the arch-conservative former Dean of Notre Dame Law School, claimed that Eisenhower offered to put him on the Supreme Court if Manion would drop his support for the Bricker Amendment. Assuming that claim is true then if Manion had been willing to make that deal then he would presumably have gotten the "Catholic seat" appointment that IOTL went to William Brennan.

 

[OneLurkerOnAH.com]

What if Thomas E. Dewey accepted the position of Chief Justice in 1953 and was appointed instead of Warren? Dewey considered Warren to be Eisenhower's biggest mistake, so you'd probably see a more conservative and pro-law-and-order Chief Justice and Supreme Court as a whole, but Dewey would remain strongly supportive of civil rights.

Here's another idea. Before asking Dewey, Ike actually asked John Foster Dulles. I wonder what a Dulles Court would look like and perhaps more importantly, what effect Dulles being occupied that would have on Eisenhower's foreign policy. Dulles also died in 1959, so Ike would probably get to replace him, which would be fun.

 

[dcharles]

Here's another idea. Before asking Dewey, Ike actually asked John Foster Dulles. I wonder what a Dulles Court would look like and perhaps more importantly, what effect Dulles being occupied that would have on Eisenhower's foreign policy. Dulles also died in 1959, so Ike would probably get to replace him, which would be fun.

Gross.

 

[dcharles]

What about Gore?

 

[marktaha]

What if they had to face reconfirmation every five years?

 

[EricArthurBlair]

One interesting scenario would be if Theodore Roosevelt had stood for re-election and won, in which case he would be in a position to appoint 6 justices (incl. a Chief Justice) to the Supreme Court and tilt it in a more progressive direction early on. I could easily see him considering the likes of William Howard Taft, Charles Evans Hughes, Hiram Johnson, or William Borah, as all were at the time moderate-to-progressive Republicans.

Albert Cummins and Herbert Hadley are also possibilities.

 

[Dancing Fool]

I wish to compliment everyone on an informative thread, with short and snappy comments, and a good mix of right and left.

Nicely done!

 

[OneLurkerOnAH.com]

One interesting scenario would be if Theodore Roosevelt had stood for re-election and won, in which case he would be in a position to appoint 6 justices (incl. a Chief Justice) to the Supreme Court and tilt it in a more progressive direction early on. I could easily see him considering the likes of William Howard Taft, Charles Evans Hughes, Hiram Johnson, or William Borah, as all were at the time moderate-to-progressive Republicans.

Albert Cummins and Herbert Hadley are also possibilities.

I don't think he'd be on good enough terms with Taft to nominate him. Ditto for Hughes. I don't know if Borah or Johnson would want to be on the Court. I think Learned Hand is certainty and Hadley is a possibility though.

 

[troosvelt_68]

Consider now a HHH win in 1968,

For sure he gets to replace Warren (already resigned), Black (died 1971) and Harlan (died 1971)

Reports are that Douglas was planning to retire but refused under Nixon, so with HHH he does.

And there is a decent chance Fortas still steps down

Assuming HHH loses in 72 (12 yr itch) you still have basically an 7 1/2-1 1/2 liberal court

On the liberal side you have Brennan, Marshall and the 5 HHH nominees plus 1/2 of Byron White

On the conservative Stewart and 1/2 of White.

So more tilted to left than court tilted to right now.

And assuming 76 is still poison chalice to lead to Democratic 80's you could see that top heavy tilt continue into today

 

[EricArthurBlair]

I don't think he'd be on good enough terms with Taft to nominate him. Ditto for Hughes. I don't know if Borah or Johnson would want to be on the Court. I think Learned Hand is certainty and Hadley is a possibility though.

If Roosevelt had been re-elected in 1908, I don't think there would be an issue with him nominating Taft; bear in mind that he and Taft were still on good enough terms that IOTL Taft was Roosevelt's handpicked successor, and this was before he and Roosevelt broke with each other over the Pinchot-Ballinger controversy.

I was not aware of there being and personal issues between Roosevelt and Hughes?

Also, I am aware this is technically not alternate supreme court justices, but what do you think the odds are of Roosevelt considering Louis Brandeis for nomination earlier than Wilson did IOTL?

 

[OneLurkerOnAH.com]

If Roosevelt had been re-elected in 1908, I don't think there would be an issue with him nominating Taft; bear in mind that he and Taft were still on good enough terms that IOTL Taft was Roosevelt's handpicked successor, and this was before he and Roosevelt broke with each other over the Pinchot-Ballinger controversy.

I was not aware of there being and personal issues between Roosevelt and Hughes?

Also, I am aware this is technically not alternate supreme court justices, but what do you think the odds are of Roosevelt considering Louis Brandeis for nomination earlier than Wilson did IOTL?

I misunderstood your scenario. I thought you were talking about a scenario for Roosevelt winning in 1920, because I had honestly forgotten that Taft got to choose a Chief Justice. Relations between Roosevelt and Hughes were always kind of cold. Not sure about Roosevelt and Brandeis, but Roosevelt liked Jews, so it's definitely possible.

 

[Dancing Fool]

Not sure about Roosevelt and Brandeis, but Roosevelt liked Jews, so it's definitely possible.

I myself like Jews, Muslims, Christians, Hindus, and Buddhists. The rare exception to my very broad-minded views on religion is this big ego science fiction writer who once said, If someone wants to make some real money, he needs to start a religion. Or something very similar to that [when all his organization is doing is teaching alpha state meditation!] But perhaps that is a tale for another time!

It is interesting how there used to be a medium strong traditional of a “Jewish seat” on the Supreme Court, and I guess that tradition weakened over time? Maybe Felix Frankfurter last held this “seat”? ? ? I’m not really sure

 

[Johannes Parisiensis]

One interesting scenario would be if Theodore Roosevelt had stood for re-election and won, in which case he would be in a position to appoint 6 justices (incl. a Chief Justice) to the Supreme Court and tilt it in a more progressive direction early on. I could easily see him considering the likes of William Howard Taft, Charles Evans Hughes, Hiram Johnson, or William Borah, as all were at the time moderate-to-progressive Republicans.

Albert Cummins and Herbert Hadley are also possibilities.

How would it rule about the New Deal, if the Lochner Era is set to end earlier than OTL?