Paul A. Freund
https://en.wikipedia.org/wiki/Paul_A._Freund of Harvard Law School was often considered America's most distinguished constitutional scholar and was, except perhaps for Learned Hand, the man most often mentioned as a potential Supreme Court justice never to be appointed. In 1962, when Justice Whittaker resigned, speculation about Freund was particularly widespread. (Also mentioned was Judge William Henry Hastie, who would have been the first African-American appointed to the Court, but JFK probably felt it still too early for such an appointment.) One reason Freund may ultimately have been rejected is that JFK was already being accused of having too many Harvard men in his administration. Also, some people in the administration feared that Freund would not be liberal enough. Not that he was a conservative in the sense of wanting to turn back the "revolution of 1937"--that kind of conservative would not have any serious chance of being appointed in 1962--but still he was a former student of Frankfurter's, [1] and seemed closer to Frankfurter's views than to those of say, Warren or Douglas. In any event, JFK finally settled on Byron "Whizzer" White, whom he knew from his World War II Navy days and even earlier.
So let's say JFK had appointed Freund instead of White. Consequences? White turned out to be more conservative, in all likelihood, than Freund would have been. One difference between them: Freund was more secularist, White more willing to give governments leeway in aiding religious schools. I am also not sure that Freund would have been as likely to side with the government and against defendants in criminal procedure cases as White. On abortion, Freund was critical of
Roe v. Wade; unlike White, he would probably have held the Texas statute unconstitutional, but he criticized the Court majority for going too far in imposing a specific legislative scheme on the states:
"What of the abortion case? There the problem is the prescription of a kind of legislative code, to the exclusion of alternatives. A law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests. The Court went further. It adopted what could be called the medical point of view — making distinctions that turn on trimesters and on the development of the fetus and its viability.
"There are other lines that also could have been drawn — for instance, the proposal of the American Law Institute to immunize abortions when the pregnancy is the result of rape or incest, or the fetus is severely abnormal, or the mother's health, physical or mental, would be impaired seriously by bringing the fetus to term. That is not so much a medical as an ethical approach. Physicians probably would not be entirely happy with it. If the Court had said that a state must adopt one or another or some similar set of distinctions, drawing lines between lawful and unlawful abortion, some of the bitter debate on the issue might have been averted. The animus against the Court might at least have been diverted to the legislative halls..."
https://books.google.com/books?id=wTedX0OUbCMC&pg=PA1480
One important difference: White, who remained a Democrat despite his conservative reputation, decided not to resign from the Court until after a Democrat was elected president in 1992. (Incidentally, White was often on the dissenting "liberal" side in 5-4 decisions in his last years on the Court because--and here his being a Democrat of the New Frontier generation was relevant--he was more inclined than most of the Nixon and Reagan appointees to side with national power over "federalism" or "states' rights" claims.) Freund, who died on February 5, 1992 would not have that option (unless one can say he would have lived longer as a Supreme Court justice than as a professor and then professor emeritus at Harvard, which I doubt).
Any thoughts?
[1] Of course, so was Brennan, allegedly leading Frankfurter to say, "I always encourage my students to think for themselves, but Brennan goes too far!"