WI: Thurgood Marshall Never Retired?

[Westbrook 49]

In 1991, Associate Justice of the Supreme Court Thurgood Marshall announced his retirement. This came as a surprise to many, as Marshall had intended to wait for a Democratic President to finally retire, and so a liberal could be appointed as his successor. Instead, George H.W. Bush got to appoint Marshall's replacement, Judge Clarence Thomas, an avowed conservative.

But what if Marshall didn't retire in '91? What if he decides to wait until the 1992 Presidential elections are over? In that case, Bill Clinton would have been the winner, and Marshall would have gotten a Democratic President to retire with. In fact, Marshall died January 24th, 1993-a mere four days after Clinton was inaugurated.

So, if Marshall dies with Clinton in office (or if Clinton was informed that Marshall intended to retire), how would this have affected the early Clinton Administration? Who would Clinton have appointed to succeed Marshall, and how would they have affected the direction of the Court in the future?

 

[Paul V McNutt]

I think that Clinton would have appointed Judge Harry Edwards of tyr Washington DC Court of Appeals.

 

[Derek Jackson]

Might Gore get to be President? a different court majority

 

[Wendell]

This article might be useful for this discussion.

 

[Westbrook 49]

Wendell-Thanks for the article, I found it helpful. I do have to say that I had a bit of a "Whoa, what?!" moment when I read that Elena Kagan was supposed to have been appointed to the seat that was ultimately filled by John Roberts. Can you imagine how history might have changed there?!

 

[Westbrook 49]

Here's a name that might bring up some interest: A. Leon Higginbotham, Jr. He was a black jurist who was named to the bench by Lyndon Johnson, raised to the Third Circuit by Jimmy Carter, and had a really interesting career before he became a judge. He's got the kind of backstory that I think would appeal to Bill Clinton's senses, and a pretty good judicial record.

However, he was 66 when appointed, which is a bit old for a Supreme Court appointment. As well, Higginbotham died in 1998, shortly after the Clinton impeachment hearings (in which he spoke up for Clinton), so I kind of doubt that the Senate would let Clinton appoint a new Justice shortly before the 2000 election and their chance of winning the Presidency and therefore the Court (although that might be interesting to see).

 

[Westbrook 49]

I think that Clinton would have appointed Judge Harry Edwards of tyr Washington DC Court of Appeals.

It would have been a good choice. Edwards had a reputation for collegiality on the D.C. Circuit, and would have only been 54 when he was appointed. However, Clinton had the idea that he would appoint a non-jurist to the Court (and ended up appointing two judges), so I don't know if Edwards would have made the list (maybe in the end after a long process, as what happened with Ginsburg/Breyer?).

Might Gore get to be President? a different court majority

That would almost be a certainty. A lot of the Court's cases from this time period were along 5-4 lines, with the liberals (Souter, Stevens, Ginsburg, Breyer) and the conservatives (Rehnquist, Scalia, Kennedy, Thomas) facing off with Sandra Day O'Connor in the middle as the deciding seat. If you subtract Thomas and add Clinton Jurist X, it's likely that the liberals + X would end up controlling a lot of decisions. Even more, if O'Connor or Kennedy joined with that faction, more decisions would be 6-3, or possibly even 7-2.


(P.S.-Sorry for the late responses).

 

[Orville_third]

It might be interesting if Anna Diggs Taylor got the seat. It certainly would change the court's views on surveillance...

 

[Westbrook 49]

It might be interesting if Anna Diggs Taylor got the seat. It certainly would change the court's views on surveillance...

Possibly. Taylor was likely on the original list, but I doubt that she would ultimately have been the nominee.

According to this New York Times article, from March 20th, 1993, when Justice Byron White retired, the names being considered were:

• Judge Patricia M. Wald, D.C. Federal Circuit Court of Appeals
• Senator Joseph Lieberman of Connecticut (which would have been very interesting later on)
• Governor Mario Cuomo of New York
• Guido Calabresi (which is a name you expect to hear from The Godfather, dean of Yale Law School)
• Judge Richard S. Arnold, Eighth Federal Circuit Court of Appeals
• Judge Amalya Lyle Kearse, Second Federal Circuit Court of Appeals, would have made history as the second woman and first black woman on the Court
• Judge Jose Cabranes, Chief Judge of the Federal District Court for Connecticut would have made history as the first Hispanic appointed to the Court (later appointed to the Second Circuit)
• Laurence Tribe, Harvard Law School professor and liberal legal scholar
• Judge Stephen Breyer, First Federal Circuit Court of Appeals Chief Judge (later appointed to the Supreme Court)

This is probably a good place to start for ideas for who might replace Marshall, along with Edwards.

 

[David T]

Might Gore get to be President? a different court majority

No doubt a Court with one more liberal member might have decided *Bush v. Gore* differently. But would there even be a *Bush v. Gore* if the Court were more liberal? Remember that one of the arguments that Gore supporters used to attract reluctant liberals (who might otherwise have stayed home or voted for Nader) in 2000 was that control of the Supreme Court was at stake. If the Court had five liberals (Souter, Ginsburg, Breyer, Stevens, and whoever Clinton would choose to replace Marshall) and only two hard-core conservatives (Rehnquist and Scalia) with Kennedy and O'Connor being somewhere in between, the specter of a right-wing Court would seem less persuasive, so Bush might win a narrow but clear victory in Florida.

 

[Paul V McNutt]

There is an important POD for a liberal SCOTUS in 2000. OTL that year the Court defended the Boy Scouts right to exclude gays. If the case had gone the other way, there would have been an angry public reaction that would have stimulated the social conservative vote. bBush would win Florida without a recount.

 

[CCK]

I also think Clinton would have appointed Harry T. Edwards to replace Justice Marshall. But he would have also been under a lot of pressure to appoint a woman too. The nomination would have taken place just a couple of weeks after the inauguration. Clinton at the time was having trouble getting a woman confirmed as the A.G. Zoe Baird and Kimba Wood would eventually have to withdrawal their nominations before Janet Reno got through.

One possible candidate to replace Marshall would've been Norma Holloway Johnson. An African-American woman who had been appointed to the D.C. District Court by President Carter in 1980.

 

[CCK]

There is an important POD for a liberal SCOTUS in 2000. OTL that year the Court defended the Boy Scouts right to exclude gays. If the case had gone the other way, there would have been an angry public reaction that would have stimulated the social conservative vote. bBush would win Florida without a recount.

I disagree, what did Gore in in Florida was that butterfly ballot in Palm Beach county, and the thousands of votes there that went to Pat Buchanan that were likely meant for Gore. The Religious Right were already going to go all out for Bush because of Monicagate. I don't see a different ruling in the Boy Scouts case getting the Religious Right more fired up than they already were after 8 years of "Slick Willy".

 

[David T]

I disagree, what did Gore in in Florida was that butterfly ballot in Palm Beach county, and the thousands of votes there that went to Pat Buchanan that were likely meant for Gore. The Religious Right were already going to go all out for Bush because of Monicagate. I don't see a different ruling in the Boy Scouts case getting the Religious Right more fired up than they already were after 8 years of "Slick Willy".

In 2000 Bush got 68 percent of the white evangelical vote; in 2004, he got 78 percent. http://www.people-press.org/2004/12/06/religion-and-the-presidential-vote/ This certainly suggests that there was room for him to do better with the white evangelical vote in 2000 than he did in OTL--and even a very small improvement would be enough for him to carry Florida by a sufficient margin to avoid a recount (or at least a recount that Gore could win by counting hanging chads, etc.).

 

[TheYoungPretender]

There's also Clinton's lack of interest in LGBT issues in general. In 1996, ads for his reelects in the South featured his DOMA support; Hillary Clinton I believe sounded quite conservative on gay marriage as late as 2004.

Also, the biggest effect on the Court's jurisprudence might the Commerce clause cases through the 1990s. 60 years of stare decisis, the respect the court pays to its own precedents, started to be chipped away in the 1990s - all in the name of anti-judicial activism of course! - as well as the traditional separation between church and state.

 

[Tammany Tiger]

There is an important POD for a liberal SCOTUS in 2000. OTL that year the Court defended the Boy Scouts right to exclude gays. If the case had gone the other way, there would have been an angry public reaction that would have stimulated the social conservative vote. bBush would win Florida without a recount.

The Elian Gonzalez custody case probably had a bigger impact in Florida. In that case, the Clinton administration argued that Elian should be returned to his father in Cuba. That angered many Cuban Americans in that state. Gore initially favored giving custody to Elian's Miami relatives, but later supported the administration's position. His flip-flopping would up angering both sides.

Also, before the 2000 election, the state of Florida made an effort to remove convicted felons from the voting rolls. In the process, it also mistakenly disqualified some non-felons, many of whom were African American. That, too, might have made the difference in an election that close.

 

[CCK]

In 2000 Bush got 68 percent of the white evangelical vote; in 2004, he got 78 percent. http://www.people-press.org/2004/12/06/religion-and-the-presidential-vote/ This certainly suggests that there was room for him to do better with the white evangelical vote in 2000 than he did in OTL--and even a very small improvement would be enough for him to carry Florida by a sufficient margin to avoid a recount (or at least a recount that Gore could win by counting hanging chads, etc.).

I've never heard of a Supreme Court decision in June effecting an election in November. I just don't see it giving Bush any more voters than he was already going to get. Plus you still have to factor in the October surprise that year (the revelation of Bush's DWI arrest). Even Karl Rove has said that hurt them with evangelicals voters. A lot of that bump with evangelicals in 2004 IMO had to do with 9/11 and the "Holy War" against Islamic fundamentalist. Plus John Kerry being catholic probably didn't help him with that crowd either.

 

[Westbrook 49]

So, here's a shortlist I've come up with for the nominees to fill a potential Marshall vacancy, just the top five candidates.

-Harry T. Edwards, D.C. Circuit Court of Appeals; the consensus candidate.

-Amalya Lyle Kearse, 2nd Circuit Court of Appeals; would be the first black woman appointed to the Court, and curious both the second black and second woman Justice; described as a "moderate Republican" in some of the articles I've read.

-A. Leon Higginbotham, Jr., 3rd Circuit Court of Appeals; would appeal to President Clinton's sense of ambition, good storyline.

-Norma Holloway Johnson, D.C. Circuit Court of Appeals; much the same reasoning as Kearse, but seemingly more liberal.

-Jose Cabranes, Chief Judge, Federal District Court of Connecticut (later appointed to 2nd Circuit); would be first Hispanic on the Court, considered as a way to boost Democratic support amongst Hispanics?, was considered possibly not liberal enough to be appointed.