Marshall retires during the Carter administration and is succeeded by McCree.

In our timeline, Justice Thurgood Marshall was urged by the Carter administration to retire so that Carter could nominate his successor. Carter planned to nominate Solicitor General Wade McCree to succeed him.
What if he did retire and McCree succeeded him?
In our timeline, McCree died in 30 August 1987. I highly doubt that service in the Supreme Court would make him live longer. What would happen once he died? A problem is that his death was during the Robert Bork Supreme Court nomination. Would Reagan have nominated a successor for McCree, too, at the time, or would he have waited until Lewis Powell's seat was filled? If the former, how would the Senate have dealt with two simultaneous nominations?
In any case, Reagan would have been heavily pressured to nominate a black or at least a minority to succeed McCree. The problem is that there were very few black conservatives with any judicial experience. Reagan nominated only one black to a circuit court: Lawrence W. Pierce. He may be considered to succeed McCree but, at the time, he would have been 62-63. Reagan may not want to nominate a relatively old person, especially as he had elevated the 61 year old Rehnquist to Chief Justice in 1986.
Other two black possibilities are Amalya Kearse and William Thaddeus Coleman, Jr., both of whom are listed in https://en.wikipedia.org/wiki/Ronald_Reagan_Supreme_Court_candidates. Those two may be too moderate for Reagan but once Bork is defeated, he may decide that it's better not to nominate a conservative. In addition, he may realize that it would be hard to find a really conservative black judge. With Coleman, there's also the age issue. Out of the 3 black possibilities, Kearse appears to be the most likely to me, as she was younger and was on Reagan's shortlist to succeed Pottee Stewart in 1981.
Another possibility: Maybe Reagan tries a Hispanic in order to keep the minority seat, while expanding the number of conservative options available? The problem is that there are no Hispanics listed in the Wikipedia page that I linked to.
Any thoughts?
 
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Dear David, I found your thread https://soc.history.what-if.narkive.com/Q9eVBuLm/mr-justice-mccree, regarding this. You mentioned that Pierce, himself, may not be conservative enough for Reagan's taste, as he had been a Democrat, and later
worked for the New York state government under Rockefeller.
Finding a black who would be as conservative as Reagan would like would, IMO, be very difficult. Reagan may have to nominate a moderate black, with Kearse being the most likely possibility, given her youth, compared to Pierce and Coleman. What do you think?
Another possibility, IMO, is that Reagan decides to nominate a Hispanic, in order to keep the minority seat, while expanding conservative options. Do you know of any conservative Hispanic judges or politicians in the 80s?
 
Bowers v. Hardwick is a 5-4 ruling in favor banning sodomy laws on privacy-related grounds, so provides more precedent for keeping roe strong.
 
Bowers v. Hardwick is a 5-4 ruling in favor banning sodomy laws on privacy-related grounds, so provides more precedent for keeping roe strong.

What's your reasoning for thinking that Bowers v. Hardwick would go the other way, in this timeline? McCree being on the Supreme Court instead of Marshall wouldn't change the Supreme Court's ideological composition compared to our timeline. Do you think that McCree could have persuaded Powell to go along with him, Brennan, Blackmun and Stevens in ruling sodomy laws unconstitutional?
 
You're right, maybe Juan Pérez-Giménez (https://en.m.wikipedia.org/wiki/Juan_Pérez-Giménez)? He was 46, Chief Judge of US District Court of Puerto Rico since 1984, previously a judge of the same since 1979, and seem pretty conservative, at least by his ruling about Obergefell vs Hodges.

Problem is, I don't think that a district judge has ever been nominated to the Supreme Court, at least not in the last decades.
 
I know but unfortunately there were not many Hispanic judges in 1970s-1980s qualified for Supreme Court. I found Judge Juan Rafael Tortuella but he was probably too moderate for Reagan. Ben Toledano also was considered for a Court Appeal seat but was blocked by his past segregationism. Some others are District Judges too, at least JPG was Chief Judge. I think that a black judge, given lack of Hispanic alternatives and public pressure to fill Marshall-McCree seat with an Afro-American, is more probable.
 
If McCree dies at the same time as OTL, then I suspect you're looking at this seat ultimately being pushed back beyond the 1988 election, one way or the other.

Biden and the committee scheduled Bork's nomination over nearly, what, four months. I don't think they'd pull a full McConnell 2016 over this vacancy, but once hearings for a seat being potentially flipped is into an election year, you have the argument a lot of Republicans had made against Fortas in 68, that it should be left to the new president - as it was with the Powell vacancy, the White House was terrified of a third rejection, and precisely this happening to Powell's seat. Combined with Reagan's weakened political capital being invested in filling the Powell seat simultaneously, the chances of this seat being filled before 1989 are extremely shaky.

The fact that Reagan would almost certainly not be able to find an acceptable - to him - black or minority justice just adds to the arguments for rejecting the nomination with Democrats.

He could try going down the Kennedy route, of course, and nominate a candidate who could be potentially acceptable to Democrats - Kearse might just about be so. But I think the politics of such a nomination would be very shaky, on both sides of the aisle - Democrats would hope a Democratic president would nominate a more liberal justice, while the Republican right would hope that a new Republican president would have greater options come 1989. Ultimately Kearse's problem in OTL was that she was probably a bit too moderate for both parties.
 
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The fact that Reagan would almost certainly not be able to find an acceptable - to him - black or minority justice just adds to the arguments for rejecting the nomination with Democrats.

He could try going down the Kennedy route, of course, and nominate a candidate who could be potentially acceptable to Democrats - Kearse might just about be so. But I think the politics of such a nomination would be very shaky, on both sides of the aisle - Democrats would hope a Democratic president would nominate a more liberal justice, while the Republican right would hope that a new Republican president would have greater options come 1989. Ultimately Kearse's problem in OTL was that she was probably a bit too moderate for both parties.

While Reagan would no doubt prefer a more conservative nominee than Kearse, she was on his list to succeed Potter Stewart, in 1981. IMO, once he realizes that he can't find a more conservative black with any legal experience, he may decide to nominate her.
 
Remember it isn't actually required a Supreme Court nominee even have legal experience. What matters is if Reagan can get enough support in Congress.

It isn't legally required for a Supreme Court nominee to have legal experience but the Senate would never confirm someone without legal experience and a President who nominated someone without legal experience would be mocked. I don't think Reagan would ever nominate someone without legal experience, as he wouldn't want to look like a fool.
 
While Reagan would no doubt prefer a more conservative nominee than Kearse, she was on his list to succeed Potter Stewart, in 1981. IMO, once he realizes that he can't find a more conservative black with any legal experience, he may decide to nominate her.

Kearse was on the longlists in 1981 with double-figure names in them, she wasn't given serious consideration. Given Reagan's explicit desire to make his first appointment a woman, pretty much all qualified women were given some consideration, and it would have been considered politic to give a degree of consideration to a highly-rated black and female appeals court judge - who was also rumoured to be a Republican, at that.

As above, I think the politics of a Kearse nomination are extremely fraught.
 
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