Oh but it does matter. It's all about how well you can sell it. Frankly, it's much easier to sell a judge than a senator. And less hassle for an administration. There's a cost to everything. And most administrations want to reduce the cost of nominating justices to focus on actual issues. As you've seen in the last couple years, even if you have a majority, it doesn't mean you can just ram through everything. Sure, you can get the party to confirm your guy but it may mean they're way less willing to work with you on another issue. So a judge with limited controversy makes far more sense, even if everyone knows they are partisan in reality. Plus, for every big high profile case, you have dozens and dozens of boring procedural cases that aren't partisan so you actually do want the best of the best on legal matters.
Alternate Supreme Court Justices
- Thread starter troosvelt_68
- Start date
I mean, that's what we disagree about. I don't see why it would be hard to get a majority of a Senator's colleagues to vote for him or her in general. Russ Feingold in particular works well, as he was well liked by many Senators on both sides of the aisle. The fact that he was liberal would most likely not enter into it-- even Sotomayor got numerous Republican votes, and everyone knew she would probably be the most liberal Justice on the court when she was nominated.
Well, if you're talking about the Obama years, Russ had the downside of not being Latino or Latina so he couldn't be the first pick, also being like 60 years old. Also it's just different career paths, it's sort of understood in parties that you reward people that went those judicial paths. The goals are different. You reward Solicitor Generals, Circuit Court Judges etc. There's sometimes a sense to appoint Feeder Judges for instance. There's a lot going on. Basically there's just not a lot of incentive to appoint a guy like Feingold. Sotomayor was the first Latin American Justice. Kagan was already seen as a future Justice and had served the administration well as Solicitor General. There's just a lot of stuff going on that it's not worth throwing a left fielder out there.
Bill Clinton wanted to nominate fellow Arkansan Richard S. Arnold for the seat that ultimately went to Breyer, but declined at least in part because he was suffering from non-Hodgkins lymphoma. Arnold died in September of 2004, so if he had been nominated and comfirmed, there would have been a sudden opening on the court right before the 2004 presidential election.
This is an excellent question and I think you’ve already brought it up.
Perhaps you can take the lead and quickly sketch out some ways this might change things. And/or another possibility I’ve heard of the Justices getting fixed 18 year terms.
I’m going to draw a little bit of a far-fetched analogy: It’s like a prosecutor bringing a case against a celebrity. There’s a higher threshold for it happening in the 1st place. But if the prosecutor does bring charges, he or she really wants to win. So does being a celebrity help a person regarding criminal justice? It all depends on what stage of the process you’re talking about.
So, regarding Senators . . .
There’s a higher threshold. Some of this is due to just plain jealousy. Some may be due to the difficulty envisioning persons promoted what’s basically two levels. And being judicial rather than backslapping and in-fighting. For on the issues the Supreme Court speaks on, they’re more powerful than a president. And regarding the checks and balances in our system, the checks on the Supreme Court are thin [and measured in decades, not years]
But if and when a Senator is nominated, friendship and fellow feeling [and wanting an easy confirmation if and when you, too, are nominated, or a close friend of yours in the Senate] will probably lead to an easy confirmation.
Got a little more details on the Nixon years. Seems like there's not a ton of information on who else was considered beyond Haynsworth and Carswell. Carswell was a recommendation from Burger. Similarly, Blackmun was also a recommendation from Burger that an exhausted Nixon just went with since he was a northerner. It seems a shockingly small amount of thought went into the Blackmun nomination with Nixon erroneously assuming he'd have a similar jurisprudence to Burger, with Nixon even introducing him as a "strict constructionist."
For the vacancies created by Black and Harlan, Nixon was only certain for Lewis Powell to replace Black's seat. For the Harlan seat, while he thought about Robert Byrd as a basically impossible to vote down nominee, Nixon ultimately didn't really strongly consider him. (In addition, the shortlist that Nixon sent to the ABA was all a ruse, meant so that the ABA coudl reject Herschel Friday and Mildred Lillie and Nixon could cynically blame them for being against a southerner and a woman) Instead, he really wanted Senator Howard Baker, a conservative he felt could be on the court a long time and eventually be Chief Justice to match the much older Powell. However, it was Baker's refusal to really say whether he wanted it or not despite Nixon's constant insistence. It got so bad that the day before Nixon was supposed to announce the nominees, Baker still had not made a decision. That's when talk about Rehnquist was pushed by John Mitchell and Richard Moore. Nixon wasn't really interested until he heard about Rehnquist's class ranking and then, with Baker still having not decided, decided to go for him.
Rehnquist was genuinely quite shocked by this. When asked if he was being considered by a reporter, he replied "Why should he? I'm not a woman, black, or mediocre."
For the vacancies created by Black and Harlan, Nixon was only certain for Lewis Powell to replace Black's seat. For the Harlan seat, while he thought about Robert Byrd as a basically impossible to vote down nominee, Nixon ultimately didn't really strongly consider him. (In addition, the shortlist that Nixon sent to the ABA was all a ruse, meant so that the ABA coudl reject Herschel Friday and Mildred Lillie and Nixon could cynically blame them for being against a southerner and a woman) Instead, he really wanted Senator Howard Baker, a conservative he felt could be on the court a long time and eventually be Chief Justice to match the much older Powell. However, it was Baker's refusal to really say whether he wanted it or not despite Nixon's constant insistence. It got so bad that the day before Nixon was supposed to announce the nominees, Baker still had not made a decision. That's when talk about Rehnquist was pushed by John Mitchell and Richard Moore. Nixon wasn't really interested until he heard about Rehnquist's class ranking and then, with Baker still having not decided, decided to go for him.
Rehnquist was genuinely quite shocked by this. When asked if he was being considered by a reporter, he replied "Why should he? I'm not a woman, black, or mediocre."
So, sounds like the moderate Republican Howard Baker pulled a Mario Cuomo!
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There would be no vacancies in 2001-2004 so he would have to win a second term to have any SCOTUIS appiointees at all. Even then he would probably only have the Rehnquist seat to fill; I doubt that O'Connor would have retired in 2005 with a Democrat in the White House--though there were the concerns with her husband's health.
Maybe he appoints Sotomayor to the Rehnquist vacancy--she will already have enough experience as a district and Court of Appeals judge, wil be relatively young, and of course will be the first Latina on the Court.
The Republicans already had control of the Senate in 2015 (54 seats) and were unlikely to allow Obama to choose any justice.
That would have left a vacancy for two full years, and in any case, Cuomo's seat would have a liberal one and wouldn't have changed the court's orientation, unlike Scalia's.
36 Republicans out of 41 in 2010 voted against the confirmation of Kagan even though she replaced a justice (Stevens) of similar ideology. And three of the five Republicans who voted Yes--Gregg, Lugar, and Snowe--were no longer in the Senate by 2015.
Replacing an elderly liberal with a younger one was clearly enough to get most Republicans to vote "No" by 2015.
Hm, interesting. The absence of a liberal voice could stop Obergefell— it was decided 5-4 IOTL.
I don’t think there would be any arguments about the vp casting a tiebreaker vote.
Article I
“ . . and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States. . ”
Meaning, our Constitution probably intended the Vice-President to be the actual leader of the Senate, much like the Texas Lt. Governor is a powerful politician and is the actual leader of the Texas Senate.
But things did not evolve this way!
PS The Texas Lt. Governor is elected separately from the Governor, and can even be from a different political party.
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Article I
www.law.cornell.edu
“ . . and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States. . ”
Meaning, our Constitution probably intended the Vice-President to be the actual leader of the Senate, much like the Texas Lt. Governor is a powerful politician and is the actual leader of the Texas Senate.
But things did not evolve this way!
PS The Texas Lt. Governor is elected separately from the Governor, and can even be from a different political party.
Yeah. I think that a lot of the writers and ratifiers of the Constitution probably envisioned the VP as something closer to a British PM/Speaker of the House of Commons. But John Adams was literally such a drag that they just decided to pretend that the "President of the Senate" was the least important person in the room.
Another possible alternative, in 1957 Eisenhower appointed Charles Whittaker to the court but Whittaker only served 5 years because of health issues.
This opened door for JFK to appoint Byron White, a very important Justice who served 30 yrs.
So what if Eisenhower goes with one of the other choices, perhaps AG Brownell or even Warren Burger ?
This would likely eliminate one of JFK's two picks and also likely open door for Nixon or Ford or Reagan to appoint the replacement to this nominee.
Which could mean by 1991 the entire court would be GOP nominees (although not entirely conservative as we still have Brennan, Stevens, Souter plus sometimes Kennedy and O'Connor)
This opened door for JFK to appoint Byron White, a very important Justice who served 30 yrs.
So what if Eisenhower goes with one of the other choices, perhaps AG Brownell or even Warren Burger ?
This would likely eliminate one of JFK's two picks and also likely open door for Nixon or Ford or Reagan to appoint the replacement to this nominee.
Which could mean by 1991 the entire court would be GOP nominees (although not entirely conservative as we still have Brennan, Stevens, Souter plus sometimes Kennedy and O'Connor)