Howard Baker instead of William Rehnquist

Having settled on Lewis Powell as successor to Hugo Black in 1971, Richard Nixon turned his attention to the seat left by John Marshall Harlan's retirement (soon to be followed by death). At first Nixon wanted a conservative woman judge for the seat, but there were few conservative women judges in those days, and fewer still who would be rated qualified for the Supreme Court by the American Bar Association's Selection Committee. He finally gave up on the idea of appointing a woman; he and John Mitchell decided on Senator Howard Baker of Tennessee. The Senate was sure to confirm him, and Nixon liked the idea of two justices from the South. (Nixon had earlier considered Herschel Friday, a Little Rock attorney, but Friday's representation of the Little Rock School Board in the 1957 school desegregation crisis proved somewhat controverisal, and he got a very lukewarm rating from the ABA.)

"But when Mitchell met Baker to ask, Baker wanted time to decide, citing concerns about salary. As John Dean put it, Baker 'dithered,' asking for still more time. Nixon decided that time was up, and Baker lost his chance." Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, p. 28. http://books.google.com/books?id=7Pr0YbpKnwgC&pg=PA28

Suppose Baker had accepted, and was appointed to the Court instead of Rehnquist. A few obvious consequences:

(1) The difference on the Court itself. Baker, as a moderate conservative, looks to me to be more likely to vote like Powell than like Rehnquist on most issues. However, according to his biographer, "With opponents, he believed the Roe v. Wade decision a mistake" and deemed states "the proper arbiters of the question." At the same time, he "found it 'increasingly difficult' to listen to either lobby with sympathy and meditated that abortion was 'freighted with all of the moral, cultural, and religious weight a single issue can bear.'" Moroeover, he did vote for Medicaid funding of abortion in cases of rape, incest, or danger to the mother's life or healt. James Lee Annis, Howard Baker: Conciliator in an Age of Crisis, p. 137. https://books.google.com/books?id=7KQRTOfq5S8C&pg=PA148 My guess is that he votes against Roe but afterwards attempts to restrict it rather than overrule it outright.

Anyway, I can think of a lot of cases where Baker's vote will in this ATL will be to the left of Rehnquist's in OTL--but they will mostly be cases where Rehnquist was in the minority anyway. I tend to think Baker will side with the Court's conservatives in most 5-4 cases.

(2) The difference made by his absence from the Senate (where he was to become Minority and then Majority Leader). His role as ranking minority member of the Ervin Committee investigating Watergate and his "What did the President know and when did he know it?"--a question supposedly given to him by his counsel Fred Thompson--are well-known. But I don't think the history of Watergate and impeachment would be that different without Baker in the Senate. More important may have been his role in providing just enough Republican support for the Panama Canal Treaty to get it ratified.

There is also his role as Majority Leader after 1980 until he retired in 1984, especially during the year 1981 when most of Reagan's economic agenda was enacted. To quote the Almanac of American Politics 1984, p. 1090:

"Baker took an unwieldy group of 53 Republican senators and welded them into a solid majority. They were an odd group: most of them freshmen, men and two women of widely differing views and no great trust of one another. None had served as part of a Republican majority in Congress; none had ever chaired a congressional committee. As members of a minority, they were used to scoring points; now they were responsible for running a government. Under Howard Baker's leadership they did. Baker profited from the unity the Republicans had been developing in the late Carter years, and the attempts Republicans of disparate views were already making, to come up with policies they could all support. He benefitted from the leadership of the administration. But finally it was Howard Baker who kept the Republicans all together, voting as a unit, controlling the Senate with their 53 or 54 votes, crafting budgets and pushing through tax cuts and then increases. He did this largely throgh close individual attention to each Republican senator. Like Lyndon Johnson, he got to know his colleagues, and he relied more on rewards than on threats to get them to do whar he wanted."

Who would be the most likely alternative to Baker as Minority and then Majority Leader from 1976-1984? Robert Griffin of Michigan was considered the most likely alternative to Baker in 1976, but he was defeated for re-election to the Senate in 1978. I am not sure, however, that Griffin would be defeated for re-election in this ATL. Griffin, disappointed that he had lost the race for Minority Leader to Baker, announced his retirement in 1978, missed large numbers of roll-call votes, and then changed his mind and decided to run after all. Carl Levin in his fairly narrow (52-48) 1978 victory over Griffin in OTL made much of the missed votes, which presumably won't happen in this ATL if Griffin is elected Minority Leader in 1976.

(3) Baker in this ATL does not run for president in 1980. This may help GHW Bush a little becasue the anti-Reagan vote will be less divided, but Reagan won so heavily in New Hampshire (after which Baker dropped out) that it would probably make little difference.

(4) In this ATL Baker presumably doesn't serve as Reagan's chief of staff from 1987-8. I'm not sure what difference that would make but in the wake of Iran-Contra and the Democrats reclaiming the Senate (and Donald Regan's quitting under fire) it was useful for Reagan to have a man who had good relations with senators of both parties, as Baker did.

(5) When does Baker retire? Theoretically, he could be on the Court well into the Obama era (he died in 2014) but I think he would have retired under some Republican president. It might be as early as the Reagan era or as late as the GW Bush era. I'm pretty sure that if he were still on the Court in 1992 he would stay on it through the Clinton years and be pro-Bush in Bush v. Gore (assuming it is not butterflied away--for example, maybe whoever succeeds Baker as Senator from Tennessee is strong enough to win re-election not only in 1978 but in 1984...).
 
(6) Who replaces Baker in the Senate? The recently-elected Governor at the time was Winfield Dunn, a Republican. Some possible candidates who jump out to me are Lamar Alexander (a former staffer for Baker, Dunn's campaign manager, and OTL the unsuccessful Republican gubernatorial candidate in 1974 and the successful one in 1978), Dan Kuykendall (a very conservative Memphis-based Congressman who got turfed out in '74 OTL), and John Duncan Sr. (another conservative Congressman, this time from Knoxville). And then there's the question of whether they actually win...

(7) With Rehnquist no longer on the court, who gets appointed to replace Burger? If a Republican president is still in office in 1986, Baker might be a good choice, but he might also be viewed as too moderate if it's a conservative Republican - and, in any case, that President might appoint a different Justice (Sandra Day O'Connor [if she even still gets appointed]?), or take the Bush-Roberts approach of looking outside the sitting Justices.
 
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