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POD: leaving the world no poorer, US Supreme Court Justice James Clark McReynolds dies in a simple slip-and-fall accident. It's the summer of 1933, and Franklin Roosevelt has been president for less than six months.

Now what?


(No, I'm not being unpleasant. McReynolds was arguably the nastiest, most unpleasant man to ever serve on the US Supreme Court. He was anti-Semitic and racist even by the low standards of the 1920s. He refused to speak to, or have his picture taken with, either of the two Jewish justices, and when a black lawyer appeared before the Court he reversed his chair and sat with his back to him through the entire Court hearing. More generally, he was just a horrible human being.)


Anyway. OTL, FDR got to appoint a whopping nine justices; at the time of his death, 8 of 9 seats on the court were filled by his nominees. But he didn't get a single one in his first four years. No seats came open until his second term, when van Devanter retired in 1937, allowing him to appoint Hugo Black. So, WI he got one early?

Presumably he appoints a good New Dealer. But probably not Hugo Black, who is still a fairly junior senator and not yet well known. OTL he also considered Sherman Minton for the seat -- but, again, four years earlier Minton is probably too young and too much of an unknown quantity. There's Felix Frankfurter... but he's still quite controversial from the still-fresh Sacco and Vanzetti trial, and also this would mean a third Jewish justice on the court (after Brandeis and Cardozo). It seems unlikely. So who, then?


One interesting possibility: Irving Lehman, brother of the not-yet Senator Herbert Lehman. That's the Herbert Lehman who succeeded FDR as governor, having been elected as Lt. Gov in 1928 and 1930. Lehman as in Lehman Brothers, yes. Their father was one of the founders.

Irving was elected to the New York Appeals Court in 1923 on a joint Democratic and Republican ticket. He went on to become Chief Justice in 1939 by unanimous nomination, and died in 1945. So, this is a guy who is friendly terms with Wall Street and Finance, but also friendly terms with the NY State Democratic Party and likely a solid New Dealer. The big question mark with Lehman is that he'd be the third Jewish member of the Court as well (counting Cardozo as Jewish, which everyone did except Cardozo). People were already grumbling about "too many Jews" on the Court after Cardozo's appointment, so that could sink Lehman. But if not him, then who?


Anyway: whoever FDR appoints is very likely to be a reliable liberal and a New Dealer. So the conservative-liberal split on the Court in FDR's first term is now 6-3 instead of 7-2. Are any of the conservative judges swayable on the major New Deal cases, if our unknown *Justice is a good convincer? And if not, what happens with the court pack bill? FDR now things he needs four judges, not six. Does that make any difference?


Thoughts?


Doug M.
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