Alternate Supreme Court Justices/Nominations

Over on the "What Happen to Richard Nixon if he loses in 68" thread, some one pointed out that "Nixon wanted to be a supreme court justice as a young adult. just throwing that out there. "
 
With regard to non-lawyers on the Court:

"Arthur S. Miller & Jeffrey H. Bowman, Break the Monopoly of Lawyers on the Supreme Court, 39 Vand. L. Rev. 305, 317 (1986) (“It is a matter of historical record that Professor Edward Corwin of Princeton, not a lawyer but a highly respected constitutional scholar, thought he would be named to the Court by Franklin Roosevelt”)." http://www.ecln.net/elements/conferences/book_berlin/dorsen.pdf I rather doubt that FDR seriously considered the appointment, though.
 
In regards to non-lawyer judges, I recall former Senate Majority Leader Harry Reid saying that the Supreme Court was out of date, and that the Court ought to be filled with people who have been legislators and academics. This was in response to John Roberts (who himself was responding to Samuel Alito’s breach of unwritten protocol after saying “not true” after Barack Obama denounced the Citizens United decision), who said that he didn’t understand why the Supreme Court even has to be at the State of the Union when it has became a political pep rally. Safe to say, most people did not agree with Reid.
 
Harriet Miers (Center-Right): Appointed to the Texas Supreme Court by Governor Bush in 1995 (This seat went to Priscilla Owen, now an appellate judge for the Fifth Circuit, IOTL), she is able to build up a strong enough judicial record to get her confirmed.

Merrick Garland (Center-Left): With both Miers, Ginsburg, and Sotomayor serving on the Supreme Court, President Obama faces less pressure to nominate a woman for John Paul Stevens' seat, and goes with Garland.

Thomas Hardiman (Right): Nominated by President Jeb Bush (who narrowly defeated Donald Trump in the 2016 primaries after receiving endorsements from a number of religious right figures), to fill the seat vacated by the death of Antonin Scalia, following the refusal of Senate Republicans to hold a vote on President Obama's nomination of Jane L. Kelly.

Amul Thapar (Right): Nominated by President Bush to replace retiring Justice Anthony Kennedy, the first Asian-American justice.
 
Harriet Miers (Center-Right): Appointed to the Texas Supreme Court by Governor Bush in 1995 (This seat went to Priscilla Owen, now an appellate judge for the Fifth Circuit, IOTL), she is able to build up a strong enough judicial record to get her confirmed.

Merrick Garland (Center-Left): With both Miers, Ginsburg, and Sotomayor serving on the Supreme Court, President Obama faces less pressure to nominate a woman for John Paul Stevens' seat, and goes with Garland.

Thomas Hardiman (Right): Nominated by President Jeb Bush (who narrowly defeated Donald Trump in the 2016 primaries after receiving endorsements from a number of religious right figures), to fill the seat vacated by the death of Antonin Scalia, following the refusal of Senate Republicans to hold a vote on President Obama's nomination of Jane L. Kelly.

Amul Thapar (Right): Nominated by President Bush to replace retiring Justice Anthony Kennedy, the first Asian-American justice.

Nice list! However, I would think (at least in my opinion) that Jane Kelly would at least get a hearing. Jane Kelly was someone who Chuck Grassley, then Chairman of the Senate Judiciary Committee, highly praised when Obama first nominated her in 2013 for a Circuit Court position. She was confirmed 96-0 and was seen as someone who was a consistently bipartisan, truly moderate judge. A lot of people would put pressure on Grassley to give her a hearing given the fact that he so highly praised her. Whether or not she gets confirmed is another story altogether.
 
Nice list! However, I would think (at least in my opinion) that Jane Kelly would at least get a hearing. Jane Kelly was someone who Chuck Grassley, then Chairman of the Senate Judiciary Committee, highly praised when Obama first nominated her in 2013 for a Circuit Court position. She was confirmed 96-0 and was seen as someone who was a consistently bipartisan, truly moderate judge. A lot of people would put pressure on Grassley to give her a hearing given the fact that he so highly praised her. Whether or not she gets confirmed is another story altogether.

I could see her getting a hearing but not a vote - If McConnell had scheduled a vote, it would have put alot of senators up for reelection in a bad position.
 
I could see her getting a hearing but not a vote - If McConnell had scheduled a vote, it would have put alot of senators up for reelection in a bad position.

I mean, the best they could do is reject her nomination. Then whoever the incoming Republican President nominates wouldn’t be seen as stealing the seat. Again, it would also depend on which Senators cross over and vote yes. I could see Lisa Murkowski, Susan Collins, and Mark Kirk voting yes, and maybe Lindsey Graham.
 
I mean, the best they could do is reject her nomination. Then whoever the incoming Republican President nominates wouldn’t be seen as stealing the seat. Again, it would also depend on which Senators cross over and vote yes. I could see Lisa Murkowski, Susan Collins, and Mark Kirk voting yes, and maybe Lindsey Graham.

With the four senators you've mentioned, you'd only need one more Republican vote to confirm Kelly, and a vote agains her could be a liability for any Republican senator in a close reelection race. That's why I don't think McConnell would have allowed a vote to come to the floor, even if Grassley held hearings.
 
Another list! The backstory here is largely unchanged, except for the fact that Ted Cruz becomes President in 2016 in a TL where Trump never runs. The Justices start to diverge from the election of Bill Clinton, hence why Clarence Thomas is the only Supreme Court justice from OTL.

Conservative Wing:

Chief Justice Marcia Cooke: Nominated by President George W. Bush in 2005 to replace the recently deceased Chief Justice William Reinquist, Marcia Cooke served on the D.C. Court of Appeals from 2002-2005 (ATL where the Gang of 14 that broke the judicial filibusters formed earlier. She replaces Janice Rogers Brown’s nomination, and she and Miguel Estrada are confirmed to the Court earlier. Brown is placed on the Ninth Circuit Court of Appeals). Bush's nomination of her came from him wanting to make history with not just the first African American woman on the court, but the first female Chief Justice. She was rated by the American Bar Association as Unanimously Well Qualified. Originally, Bush nominated Janice Rogers Brown of the Ninth Circuit Court of Appeals, but her controversial endorsement of Lochner-era policies, her politically partisan opinions, and the ABA rating her as Not Qualified because of this (despite a minority’s ranking her as Qualified) caused Bush to pull her nomination. Her confirmation was not overtly polarizing, despite some concerns from Democrats that she would tilt the court in a more conservative direction. Most Democrats conceded her well spoken demeanor and her intelligent language used in her opinions. A small group of Democrats attempted to filibuster it, but it wasn’t enough to stop a cloture vote. Cooke was confirmed as the first African American woman and the first female Chief Justice by a vote of 81-19.

Associate Justice Allyson Kay Duncan: Nominated in by President George W. Bush in 2006 to replace retiring Justice Sandra Day O’Connor. Duncan's nomination was lauded by Democrats, especially Elizabeth Dole and John Edwards (a moderate Republican and liberal Democrat, respectively), the former Senators from Duncan's home state of North Carolina. As a result, her hearing was ultimately uneventful, and was confirmed by a vote of 98-2. The two dissenting votes came from Massachusetts Senator Ted Kennedy and Vermont Senator Patrick Leahy, who argued that Allyson was more conservative than she let on. She became the first African American woman on the Supreme Court.

Associate Justice Amul Thapar: Nominated by President Ted Cruz in 2017 following the death of Antonin Scalia in 2016. Thapar served as a judge on the Unirted States Court of Appeals for the Sixth circuit since 2008. Thapar's nomination was fiercely opposed by Democrats, who were still upset at Republicans voting down President Obama's nomination of Judge Sri Srinivasan (despite the judge himself struggling in his hearing). Republicans held 56 seats in the Senate, and the Democrats used the four seat deficit to filibuster Thapar's nomination. When the time came for cloture, Democrats were shocked when four of their own, Joe Manchin, Heidi Heitkamp, Joe Donnelly, and Jon Tester voted to end the filibuster and invoke cloture. These same four Democrats voted for the confirmation of Judge Thapar, and he was confirmed 60-40. He became the first Indian American on the Supreme Court.

Associate Justice Amy Barrett: Nominated by President Ted Cruz in 2018 following the retirement of Anthony Kennedy. Amy Barrett served on the Seventh Circuit Court of Appeals since early 2017, and was Cruz's first Appeals court nominee. Much like Amul Thapar, her nomination was heavily opposed by Democrats, especially since her nomination was seen as one that would overturn Roe v. Wade. At her hearing, ranking Judiciary committee member Diane Feinstein, Mazie Hirono, and Dick Durbin generated notable controversy when they asked her if she was a practicing Catholic, and whether or not her faith would interfere with her conduct on the court. The President of the University of Notre Dame, co-signed by several leading law professors, sent a letter to the Senate Judiciary Committee condemning the so-called religious test Barrett was subjected to. Nevertheless, her nomination was, like Thapar, attempted to be filibustered, but the same four Democrats who invoked cloture for Thapar invoked cloture for Barrett, along with Democrat Tim Kaine. She was confirmed 59-41. Jon Tester was the only one who voted to invoke cloture to not vote to confirm Barrett.

Associate Justice Clarence Thomas: Same as OTL.

Liberal Wing:

Associate Justice Stephanie Seymour: Nominated by President Bill Clinton in 1993, Seymour served on the Tenth Circuit Court of Appeals since she was appointed by president Jimmy Carter in 1979. Her nomination was extremely polarizing. Many people saw the contentious nomination as political revenge for what the Democrats put Clarence Thomas through. The main allegation against Seymour was that, during her years of private law practice, she falsified evidence to get the results she needed for her clients. However, none of the allegations were substantiated or corroborated, but nevertheless, they factored into the final vote on the Senate floor. She was ultimately confirmed by a vote of 54-46, but the allegations have followed her throughout her entire career on the Supreme Court. It was later proven in 2014 that these allegations were false, and was the result of a coordinated attack by outside dark-money political groups to derail Seymour's nomination.

Associate Justice Richard Arnold: Nominated by President Bill Clinton in 1994. His nomination was largely uneventful, as he was replacing a liberal Justice in Harry Blackmun. Briefly, there was some opposition to him for his strongly liberal leanings on certain topics, but his hearing proved him to be an eloquent speaker and very intellectual individual. He was confirmed 98-2. His career on the Supreme Court was nearly cut short in 2004 when he developed a seemingly deadly infection during a treatment for lymphoma. Miraculously, he recovered and returned to the bench in February of 2005. (This infection killed him in 2004 OTL). However, his burgeoning age of 83, as well as his frequent spates of illness, have made many wonder if he is considering retirement, which would allow President Cruz his third Supreme Court pick.

Associate Justice Merrick Garland: Nominated by President Barack Obama in 2009 to succeed the retiring David Souter. Garland's nomination was a surprising pick, since Barack Obama was heavily expected to pick Sonia Sotomayor from the Second Circuit. Some Democrats, notably the more progressive ones such as Bernie Sanders, Russ Feingold, and Barbara Boxer, were opposed to Garland's nomination over his more moderate views on criminal justice, Guantanamo Bay, and the death penalty. These concerns were voiced in Garland's hearing, where progressive Democrats' concerns were left unassuaged. Ultimately, he was confirmed by a vote of 62-38, with nine Republicans voting for the nomination, while the three aforementioned Democrats voted with the rest of the Republicans in voting no.

Associate Justice Kamala Harris: Nominated by President Barack Obama in 2010 to succeed the retiring John Paul Stevens. Harris' nomination was notable because she had never served a day as a judge. She had been the District Attorney of San Francisco since 2004, and before then, served as a deputy district attorney in Almeda County, California from 1990 to 1998. Because of this, many Republicans opposed her nomination, as they had felt that one had to serve a day on the bench before being appointed to the nation's highest court. Seemingly agreeing with them, the American Bar Association rated Kamala Harris as "Qualified," but only but a small majority, with the others on the panel rating her as, "Not Qualified." As a result, she was grilled by Senate Republicans during her hearing, while Senate Democrats assured them that she was a well qualified individual. An unforeseen roadblock occurred when it was leaked to the press by an unknown source that former Speaker of the California Assembly and former San Francisco Mayor Willie Brown, had a relationship with Kamala Harris in the late 1980's, and was influential in advancing her career, including appointing her to a number of important state advisor boards that jump started her law career. Many Republicans called on her or the President to withdraw her nomination. Some Democrats even opposed her nomination after these allegations came forward. President Obama expressed worry over the allegations, but declined to withdraw Harris' nomination, saying that he would leave it up to the Senate to decide. When the time came to vote, the Senate was deadlocked at 50-50. Five Democrats, Blanche Lincoln, Kent Conrad, Byron Dorgan, Claire McCaskill, Joe Lieberman, and Arlen Specter voted against Harris' confirmation. For the first time in history, Vice President Joe Biden broke the Senate tie to confirm Kamala Harris to the Supreme Court. The decision to confirm Harris was what ultimately led to devastating midterm losses for the Democratic Party.
 
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(POD: The Gulf War drags on for longer, giving Bush a "rally-round-the-flag" effect. Events proceed from there.)
 

SsgtC

Banned
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(POD: The Gulf War drags on for longer, giving Bush a "rally-round-the-flag" effect. Events proceed from there.)
Out of curiosity, why would Powell nominate Elizabeth Warren? Did she remain a moderate-to-liberal Republican in TTL? (And I assume you do mean Colin Powell, correct?)
 
I think Dave T's assessment is fair, but also that it sort of elides a lot of the problems Bork had. Kennedy's opening salvo against him gets a lot of prominence, but swing Senators still held out for committee performance, and Bork was a nightmare in committee - that would still be true in 1986. Rehnquist's CJ nomination got 33 votes against IOTL, mostly liberal Democrats and their presidential field, which is Bork's bedrock anti vote. Particularly given 1986 was an election year and 1987 wasn't, I don't think it's impossible that Bork racks up another eighteen votes against, given the amplification effect of another nomination with an anti-civil rights record - precisely what the administration feared. (It's not impossible that Southern Democrats anticipate what a lot of them believed in 1987, that African American votes had been crucial in 1986. And Arlen Specter, an influential Republican swing vote on the Judiciary Committee, was up for re-election in 1986....)
 
Out of curiosity, why would Powell nominate Elizabeth Warren? Did she remain a moderate-to-liberal Republican in TTL? (And I assume you do mean Colin Powell, correct?)

Cool lineup, although I do have to ask why Powell would appoint Elizabeth Warren? Also, what would the conservative and liberal wings look like on this Court?

It is Elizabeth Warren, who ITTL remained a fairly moderate Republican (the Quayle administration pushed for some of her proposed bankruptcy reforms as part of an effort for a "kinder, gentler conservatism") and was able to get through the Senate by way of a lot of horse-trading on the part of Colin Powell's administration. She became significantly more liberal over the course of her term, particularly during the Feingold administration.

The conservative wing is made up of Chief Justice Jones, Justice Thomas, Justice Luttig, and Justice Sykes, while Justices Warren, Lessig, and Sotomayor make up the liberal wing. Callahan and Sandoval are the court's swing votes, but both of them are significantly more conservative than liberal.
 
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SsgtC

Banned
It is Elizabeth Warren, who ITTL remained a Republican (the Quayle administration pushed for some of her proposed bankruptcy reforms as part of an effort for a "kinder, gentler conservatism") and was able to get through the Senate by way of a lot of horse-trading on the part of Colin Powell's administration.

The conservative wing is made up of Chief Justice Jones, Justice Thomas, Justice Luttig, and Justice Sykes, while Justices Warren, Lessig, and Sotomayor make up the liberal wing. Callahan and Sandoval are the court's swing votes, but both of them are significantly more conservative than liberal.
Ok. So an earlier, more effective version of Bush's "Compassionate Conservatism?"
 
Ok. So an earlier, more effective version of Bush's "Compassionate Conservatism?"
More of a continuation of the first Bush's similar efforts - just as Clinton felt the pressure to pass "tough-on-crime" measures as a perceived liberal, Quayle (and Bush before him) wanted to break the "heartless" line of attacks against Republicans. It had mixed success.
 
New list. A couple of POD's: Gerald Ford appoints Paul Roney in 1975 instead of John Paul Stevens, Reagan appoints Cornelia Kennedy in 1981 instead of Sandra Day O'Connor, Douglas Ginsburg's nomination is never pulled, Janice Rogers Brown and Elena Kagan are appointed to the D.C. Circuit Court of Appeals earlier (Kagan was actually appointed in 1999 OTL by Clinton but was never given a hearing)

Conservative Wing

Chief Justice Diane Sykes (appointed in 2005 by George W. Bush; replaced William Rehnquist)
Associate Justice Bill Wilkins (appointed in 1988 by Ronald Reagan; replaced Lewis Powell)
Associate Justice Clarence Thomas (appointed in 1992 by George H.W. Bush; replaced William Brennan)
Associate Justice Samuel Alito (appointed in 2005 by George W. Bush; replaced Paul Roney)
Associate Justice Raymond Kethledge (appointed in 2015 by Mitt Romney; replaced Antonin Scalia)

Liberal Wing

Associate Justice Ruth Bader Ginsburg (appointed in 1993 by Bill Clinton; replaced Thurgood Marshall)
Associate Justice Gilbert Merritt (appointed in 1993 by Bill Clinton; replaced Byron White)
Associate Justice Guido Calabresi (appointed in 1997 by Bill Clinton; replaced Harry Blackmun)

Associate Justice Elena Kagan (appointed in 2012 by Barack Obama; replaced Cornelia Kennedy following her retirement)
 
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As I said in the other thread (https://www.alternatehistory.com/forum/threads/dbwi-douglas-ginsburg’s-nomination-withdrawn.463991/#post-18629077) Ginsburg's nomination had all but collapsed, and Janice Rogers Brown is way too extreme to pass muster with the closely divided Senates of the early 2000s, particularly for as symbolic a role as CJ. (In Jan Crawford Greenburg's memorable phrase, she was 'thermonuclear') Edith Jones' nomination would also have been extremely problematic.

Changed Douglas Ginsburg and Edith Jones with Bill Wilkins and Clarence Thomas. However, I feel that Janice Rogers Brown’s nomination might slip through with a few changes, even as I see her judicial philosophy as far too extreme. For example, you could have a few more Republican Senators win re-election in 2000, preferably the ones that came within less than 3% of winning (Slade Gorton, John Ashcroft, Bill McCollum. Maybe Rod Grams, but not William Roth). Plus, you could either have the Gang of 14 form earlier or have Trent Lott use the nuclear option. However, the vote would definitely be close.

Also, not only would she be the first African American woman on the bench, she would also be the first female Chief Justice. Would there be some Senators who wouldn’t want to deny that? It’s like many in 1986 who didn’t want to deny Scalia being the first Italian- American justice, hence the unanimous confirmation.
 
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Changed Douglas Ginsburg and Edith Jones with Bill Wilkins and Clarence Thomas. However, I feel that Janice Rogers Brown’s nomination might slip through with a few changes, even as I see her judicial philosophy as far too extreme. For example, you could have a few more Republican Senators win re-election in 2000, preferably the ones that came within less than 3% of winning (Slade Gorton, John Ashcroft, Bill McCollum. Maybe Rod Grams, but not William Roth). Plus, you could either have the Gang of 14 form earlier or have Trent Lott use the nuclear option. However, the vote would definitely be close.

You would need a filibuster-proof Republican majority, as Bush IOTL was warned that is what the nomination would have faced - which I don't remotely see being in place in 2002. The degradation of the filibuster and the challenges it faced also didn't happen on a silver penny, it was a gradual process resulting from a prolonged friction between the use of the filibuster and repeated judicial nominations - the nuclear option was precisely that, and it was only implemented nearly a decade after the issue had first reared its head to the point of becoming a major issue. There isn't going to be a use of the nuclear option over a single nominee, even if there were the votes to do so which I don't think there would be, certainly not on a nomination with as many liabilities as Brown, nor is there going to be a gang of 14 moment arising from a single nomination.
 
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