Hi.
I'm working on a TL in which HHH will be playing a role & I was wondering if you had any ideas who he'd nominate for his five picks?
Alternate Supreme Court Justices
- Thread starter troosvelt_68
- Start date
I'm working on a TL in which HHH will be playing a role & I was wondering if you had any ideas who he'd nominate for his five picks?
I've recently started wondering about what Harold Stassen would be like on the court.
Well with Fortas, it was actually a concerted effort by the Nixon administration to create the sense that Fortas would be investigated (even though it was unclear if that could be done outside of impeachment) including Nixon convincing Warren that Fortas was going to be removed. So I think Fortas actually stays.
If Hubert Humphrey wins the close 1968 election, perhaps . . .
Terry Sanford (D - North Carolina)
He was governor of North Carolina for four years in the early 1960s, was president of Duke University all through the 70s and half the 1980s, seriously ran for U.S. president in both 72 and 76, and was U.S. Senator from North Carolina from 1986 to 93.
I like governors as potentially combining both legal jurisprudence and practical know-how of what actually works for society.
That's a neat idea though I could see Sanford as either Humphrey's VP or in Humphrey's cabinet. Also I've thought about and toyed with the idea of Sanford as President but I could just never figure out a way to get him there. It just seemed like he didn't have much of a chance.If Hubert Humphrey wins the close 1968 election, perhaps . . .
Terry Sanford (D - North Carolina)
He was governor of North Carolina for four years in the early 1960s, was president of Duke University all through the 70s and half the 1980s, seriously ran for U.S. president in both 72 and 76, and was U.S. Senator from North Carolina from 1986 to 93.
I like governors as potentially combining both legal jurisprudence and practical know-how of what actually works for society.
My thinking was more that Fortas wanted to get off court and back to lucrative law practice so he might choose to quit under HHH knowing that after 3 terms GOP would likely win in 72
In the event James Eastland ends as interim POTUS adter Nixon resigned, might he try to nominate William Harold Cox if alternate judges were to end their term during his?
All sourced from the book Supreme Conflict by Jan Crawford.
Though we've talked about how HW ultimately was deciding between Edith Jones and David Souter for the spot of Supreme Court, early on there was actually a far more likely candidate. It was former DC Circuit Judge and then member of Bush's Counsel Kenneth Starr (who would later become famous as the independent counsel that tormented Clinton over Whitewater and then Lewinski so much that Democrats, happy to keep the Independent Counsel Act alive when it was torturing Reagan over Iran-Contra, agreed to let it expire). However, Starr was seen by some as having a few opinions that made him seem "soft." Luttig, at the Office of Legal Counsel, was heavily against him. Similarly, Attorney General Dick Thornburgh literally threatened to resign if Starr was appointed. Otherwise we probably get Justice Starr.
In 2004, Sandra Day O'Connor had worked out a plan that Rehnquist, suffering from illness and barely able to talk, would retire and then a year later O'Connor would retire. If this original arrangement held on and Rehnquist retired in 2005, it's very unlikely that Roberts would be Chief Justice. Roberts, though impressive, was not what officials thought of when thinking the spot. Instead, it was going to be either the heavily connected but combative Michael Luttig (unlikely as Bush felt he had pissed too many people off) and Harvie Wilkinson, respected and acclaimed within conservative circles. We would likely have the Wilkinson Court according to Crawford.
However, Rehnquist refused to retire and O'Connor, not wanting to leave the court with two vacancies, decided to leave first despite having already hired her clerks. The White House, not finding a suitable female candidate, went with the more confirmable John Roberts. Roberts ended up performing so well in his confirmation hearing however that when Rehnquist died, it just made a lot of sense to push Roberts up and just make him Chief Justice.
Then Bush's desire to have someone take the O'Connor seat with a woman was on his mind. But all the women that would have been popular with conservatives were basically told to him by Chuck Schumer that they were going to filibuster (Priscilla Owen, Janice Rogers Brown). Other female judges had some ethical issues that weren't too serious but just not worth the headache (Karen Williams). Others ended up being rather unimpressive in their decisions and a sense they would be insufficiently conservative or just not at the level to survive a hearing (Edith Brown Clement). So the choice to pick Harriet Miers was because she was a woman, she was someone close to the administration so unlikely to pull a "Souter", and with small enough of a paper trail to be confirmable. It would end up being a disaster and Miers herself ended up suggesting Alito, who had very little paper trail and was good enough at the hearings that there wasn't much energy to oppose him.
So here's an alternative court (assuming presidential elections don't really change)
The Wilkinson Court (as of 2012)
Chief Justice Harvie Wilkinson (appointed by W. Bush in 2004)
Justice Robert Bork (appointed by Reagan in 1985)
Justice Antonin Scalia (appointed by Reagan in 1987)
Justice Kenneth Starr (appointed by H.W. Bush in 1990)
Justice Clarence Thomas (appointed by H.W. Bush in 1991)
Justice Ruth Bader Ginsburg (appointed by Clinton in 1993)
Justice Stephen Breyer (appointed by Clinton in 1994)
Justice John Roberts (appointed by W. Bush in 2005)
Justice Sonia Sotomayor (appointed by Obama in 2010)
Bork would die in 2012 assuming he doesn't retire under Bush (though he probably would have retired under Bush). Also, Roe is probably overturned in Casey ITTL. Could have an interesting TL if Bork dies right after Obama wins reelection but also with the Supreme Court striking down Obamacare in the Sebellius case.
Though we've talked about how HW ultimately was deciding between Edith Jones and David Souter for the spot of Supreme Court, early on there was actually a far more likely candidate. It was former DC Circuit Judge and then member of Bush's Counsel Kenneth Starr (who would later become famous as the independent counsel that tormented Clinton over Whitewater and then Lewinski so much that Democrats, happy to keep the Independent Counsel Act alive when it was torturing Reagan over Iran-Contra, agreed to let it expire). However, Starr was seen by some as having a few opinions that made him seem "soft." Luttig, at the Office of Legal Counsel, was heavily against him. Similarly, Attorney General Dick Thornburgh literally threatened to resign if Starr was appointed. Otherwise we probably get Justice Starr.
In 2004, Sandra Day O'Connor had worked out a plan that Rehnquist, suffering from illness and barely able to talk, would retire and then a year later O'Connor would retire. If this original arrangement held on and Rehnquist retired in 2005, it's very unlikely that Roberts would be Chief Justice. Roberts, though impressive, was not what officials thought of when thinking the spot. Instead, it was going to be either the heavily connected but combative Michael Luttig (unlikely as Bush felt he had pissed too many people off) and Harvie Wilkinson, respected and acclaimed within conservative circles. We would likely have the Wilkinson Court according to Crawford.
However, Rehnquist refused to retire and O'Connor, not wanting to leave the court with two vacancies, decided to leave first despite having already hired her clerks. The White House, not finding a suitable female candidate, went with the more confirmable John Roberts. Roberts ended up performing so well in his confirmation hearing however that when Rehnquist died, it just made a lot of sense to push Roberts up and just make him Chief Justice.
Then Bush's desire to have someone take the O'Connor seat with a woman was on his mind. But all the women that would have been popular with conservatives were basically told to him by Chuck Schumer that they were going to filibuster (Priscilla Owen, Janice Rogers Brown). Other female judges had some ethical issues that weren't too serious but just not worth the headache (Karen Williams). Others ended up being rather unimpressive in their decisions and a sense they would be insufficiently conservative or just not at the level to survive a hearing (Edith Brown Clement). So the choice to pick Harriet Miers was because she was a woman, she was someone close to the administration so unlikely to pull a "Souter", and with small enough of a paper trail to be confirmable. It would end up being a disaster and Miers herself ended up suggesting Alito, who had very little paper trail and was good enough at the hearings that there wasn't much energy to oppose him.
So here's an alternative court (assuming presidential elections don't really change)
The Wilkinson Court (as of 2012)
Chief Justice Harvie Wilkinson (appointed by W. Bush in 2004)
Justice Robert Bork (appointed by Reagan in 1985)
Justice Antonin Scalia (appointed by Reagan in 1987)
Justice Kenneth Starr (appointed by H.W. Bush in 1990)
Justice Clarence Thomas (appointed by H.W. Bush in 1991)
Justice Ruth Bader Ginsburg (appointed by Clinton in 1993)
Justice Stephen Breyer (appointed by Clinton in 1994)
Justice John Roberts (appointed by W. Bush in 2005)
Justice Sonia Sotomayor (appointed by Obama in 2010)
Bork would die in 2012 assuming he doesn't retire under Bush (though he probably would have retired under Bush). Also, Roe is probably overturned in Casey ITTL. Could have an interesting TL if Bork dies right after Obama wins reelection but also with the Supreme Court striking down Obamacare in the Sebellius case.
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Doesn't seem very likely to me. It seems more likely one of the other liberal justices would retire if that was the concern. But Fortas was not all that old and wanted to stay on the Court and had good relations with the other Justices. Besides, most people don't think they're going to die at 71. So yeah, I think it's way too early for Fortas unless you just wanna make it happen by author fiat but I'm just saying it seems unlikely without the Administration basically threatening to arrest him.
In other words, “a pig in a poke.” And no disrespect to the Justices or anything! It’s just a colloquial English expression which means buying something without taking a good look at it. So, the game is to get someone with extremist views but you’re just hoping they haven’t written too much of it down? ! ?
What a heck of a way to run a Republic.
And I know I’ve put forward a couple of governors, who aren’t going to have much judicial paper trail. But you hope governors on average are going to be more centrist as well as more practical, with exceptions on both counts of course. And yeah, I’d like to see more centrist Justices as boring as that might be [Still intrigued by the idea that
from The Brethren, by Bob Woodward & Scott Armstrong, 1979, top of page 256 “When Powell first arrived on the Court the previous year [January 1972] . . .”
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Article III
“ . . shall hold their offices during good behaviour, . ”
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There’s a real random element. President Nixon got 4 appointments in his first term. President Ford appointed John Paul Stevens in 1975. Meaning, had it not been for Watergate, Nixon would have gotten 5. President George W. Bush got 2 total appointments. President Obama got 2 total. President Carter in his one term from 1977 to 1981 got 0 appointments. And yet, President Trump in his one term got 3.
One solution is a Constitutional Amendment where each Justice gets a fixed 18 year term.
That would mean a president appoints two Justices each term. Or in other words, a new Justice every other year. What about a Justice who died or retired? Well, someone would be appointed merely for the balance of the 18-year term. And the tradition [hopefully] would be that if that balance is less than nine years, the person tends to get re-appointed and if it’s more than nine, the person tends not to be.
But—
Constitutional Amendments are tough. You could almost label me a “non-serious” person at this point, if you so choose!
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dcharles
Banned
Article III
www.law.cornell.edu
“ . . shall hold their offices during good behaviour, . ”
********************
There’s a real random element. President Nixon got 4 appointments in his first term. President Ford appointed John Paul Stevens in 1975. Meaning, had it not been for Watergate, Nixon would have gotten 5. President George W. Bush got 2 total appointments. President Obama got 2 total. President Carter in his one term from 1977 to 1981 got 0 appointments. And yet, President Trump in his one term got 3.
One solution is a Constitutional Amendment where each Justice gets a fixed 18 year term.
That would mean a president appoints two Justices each term. Or in other words, a new Justice every other year. What about a Justice who died or retired? Well, someone would be appointed merely for the balance of the 18-year term. And the tradition [hopefully] would be that if that balance is less than nine years, the person tends to get re-appointed and if it’s more than nine, the person tends not to be.
But—
Constitutional Amendments are tough. You could almost label me a “non-serious” person at this point, if you so choose!
The only thing that's not serious is thinking that the US is going to have that same Constitution in 2050.
This is a terrible idea.
You increase the "churn" on the Court, increase the likelihood of more & more partisan appointments, and increase the chances of Justices deciding cases with their own future interests in mind.
There's a really good reason SCotUS appointments are for life.
I have a sense reconfirmation would create the same headaches--but might make it possible to remove liars like Thomas (who's married to an insurrectionist... Yeah, he's not partisan.
)dcharles
Banned
This is a terrible idea.
You increase the "churn" on the Court, increase the likelihood of more & more partisan appointments, and increase the chances of Justices deciding cases with their own future interests in mind.
There's a really good reason SCotUS appointments are for life.
I have a sense reconfirmation would create the same headaches--but might make it possible to remove liars like Thomas (who's married to an insurrectionist... Yeah, he's not partisan.
One of the best *moderate* court reform ideas I've heard was drawing the Justices at random from the Circuit Courts for each term. It makes the politics of any case impossible to predict, so that hopefully, confirmations are based on juridical skill and not political affiliation.
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That sounds like a scheme to get rid of a sitting (permanent) SCotUS entirely.
It might not be a bad idea...
dcharles
Banned
It wouldn't get rid of a court of final appeal, but it would get rid of Supreme Court Justices as a permanent office.
The U.S. has been through highly partisan times before, such as the 1890s.
In some ways, I’m a “stand patter.” Never a guarantee, but a good chance we might be able to get through our highly partisan times just fine and without a Constitutional amendment. And then, there’s this following part:
Article III
“ . . In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. . ”
*********************
I read this in straightforward fashion. In a law pertaining to Big Pharma, for example, or a law requiring tobacco companies to have their books wide open, Congress could say “ . . this is not subject to judicial review . . ” But even though this Constitutional provision is clearly here, it would still feel like a Constitutional crisis.
And so, I remain open to other and better reforms.
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You might well be right.This is a terrible idea.
You increase the "churn" on the Court, increase the likelihood of more & more partisan appointments, and increase the chances of Justices deciding cases with their own future interests in mind.
There's a really good reason SCotUS appointments are for life.
I have a sense reconfirmation would create the same headaches--but might make it possible to remove liars like Thomas (who's married to an insurrectionist... Yeah, he's not partisan.
Fixed 18 year terms might make things even worse. The Court might be even more pro-corporate power, because where else are you going to get the cushy jobs after retirement? And even less willing to stand up for the rights of minorities, such as transgendered persons, simply because it’s not a strong majority position [I think some transgend issues have thin majorities]
I’m just exploring ideas and asking you to explore along with me.
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Justice Clarence Thomas was a known entity. It’s no surprise that he turned out to be an ideologue.
If he said something about Roe v. Wade bring established law, he was confirmed back in Oct. 1991. And I kind of think some sort of “statue of limitations” would apply.
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