I've been wargaming what the Supreme Court would look like if John Kerry had been elected in 2004. Some of my scenarios might be a bit different, but for the purpose of this exercise, I want to keep it as close to OTL and plausibility as possible. So: John Kerry is elected President, and we will say that the Senate has a 55-45 Republican majority at the time, as it did in OTL. This could lead to President Kerry choosing more moderate or older nominees who can get through the Senate.
OTL, W. Bush appointed two Justices, John Roberts for Chief Justice William Rehnquist and Samuel Alito for Sandra Day O'Connor. I think Kerry gets two Justices of his own to appoint at a minimum, possibly more. In fact, Kerry could appoint up to five (5) Justices! Which might stretch plausibility, but I do have reasoning.
The four Justices that I think might leave the Court during a Kerry Presidency (one-term):
Chief Justice William Rehnquist (died, Sept. 3rd, 2005).
Associate Justice Sandra Day O'Connor (OTL announced retirement July 1st, '05; departed Jan. 31st, '06).
Associate Justice David Souter (OTL retirement in June of 2009, announced in April '09).
Associate Justice John Paul Stevens (OTL retirement in June of 2010, announced in April of '10).
Going by the numbers:
One Appointment: President Kerry is guaranteed at least one appointment, as Chief Justice Rehnquist dies in September of '05, his health had been failing prior to that, and I don't think you can butterfly that away. There's a number of possibilities for this particular seat, chief of which would be Judge Merrick Garland, D.C. Circuit Court of Appeals (the sheer irony of Chief Justice Garland ITTL when he can't even get a hearing OTL is satisfying). The Garland Court would be a change from the Roberts Court in a number of ways, a significant shift to the left on a number of issues, but not an enormous sea-change.
Two (2) Appointments:
OTL what President Bush received. There are several possibilities.
-Rehnquist, Elevation. Much like Chief Rehnquist himself, President Kerry could elevate one of the sitting Justices to the position of Chief. After some consideration, I came up with four options:
*Stephen Breyer, appointed 1994, age 67;
*Antonin Scalia, appointed 1986, age 69;
*Anthony Kennedy, appointed 1988, age 69;
*Ruth Bader Ginsburg, appointed 1993, age 72.
(Note: these candidates are all dependent on the idea of O'Connor retiring as she did OTL, if she hadn't, O'Connor could very well be a candidate for Chief).
My reasoning behind these four: Breyer would be the youngest, and is well-regarded amongst his peers and in Congress, where he had served on the Senate Judiciary Committee as counsel, he's not an incendiary personality, he's got administrative experience as a former Chief Judge on the First Circuit, he'd also be the first Jewish Chief Justice;
Scalia would be more along the lines of a swap, with Scalia's replacement being a more liberal Justice-likely Garland again, depending on most circumstances-and Democrats could agree noting his age, and the fact that it's possible that, as Chief, Scalia would be ineffective, driving people away from his position, unknown if he would have wanted the position anyways due to administratia;
Kennedy is much like Scalia, only with administrative experience, more perceived moderate views, Democrats would want him as Chief due to the idea that he could be influenced, might be a Burger-style Chief and end up annoying all of the other Justices with his weathervaning;
Ginsburg would be the first-ever female Chief Justice (as well as the first Jewish Chief), her age would be a point for Republicans as it would be expected for her not to serve long in the position, Democrats would happily vote for her, she's shown her skills in keeping the liberal wing intact (OTL), no idea if she would have wanted it, health is a concern.
Souter wouldn't want it and is likely to step down, Stevens is too old, and it would be a frigid day in hell before John Kerry nominated Clarence Thomas for Chief Justice of the Supreme Court; not to mention that the liberal wing of the Democratic Party and women's rights groups would throw an absolute shit fit.
Again, it's unlikely that Kerry can drive through a liberal-conservatives are going to scream about court-packing as it is-but he could get through a moderate or older candidate as a replacement.
-Rehnquist and O'Connor (OTL):
Finding a replacement for O'Connor is going to be pretty easy for Kerry: he has to appoint a woman. Bush could get away with it, I don't think Kerry could. Fortunately, there are a large number of women judges and lawyers available!
If Kerry also wants to put the first Hispanic on the Court at the same time, making it doubly hard to vote against that nominee, he's got really two options: Judge Sonia Sotomayor of the 2nd Circuit, and Judge Kim McLane Wardlaw of the 9th. Sotomayor was the OTL Obama choice, and I feel like she would be here as well: she's qualified, has an interesting backstory, less of a paper trail than in OTL; and while both Sotomayor and Wardlaw were District Judges and have trial-level experience, Sotomayor's appointment by HW Bush gives her a bipartisan heft that Wardlaw doesn't have.
Kerry could also appoint a woman to the Chief's spot, putting potentially four women on the Court at once.
The name that he could choose that would blow everyone's mind? Hillary Rodham Clinton.
Now, this would cause Republicans to perform a bodily function previously thought impossible as they shit themselves sideways and split themselves in half down the middle at the same time. But putting HRC on the Court does a few things: first female Chief Justice (I don't think that Clinton would accept anything less than the Chiefship), an accomplished and talented lawyer, legislative and political experience, and, openly unsaid but present, it removes a rival for the Democratic nomination and a potential Presidential candidate, which Republicans could get behind because it sidelines her from active politics.
Could Kerry muster the political capital and will to push Clinton through? It would be a huge push, but historically, I think he'd benefit, and there's a tradition of Senators granting that courtesy to fellow Senators of approval, though John Tower might have something to say about that.
If Kerry does go HRC for Chief, and double woman, he'd pick Wardlaw for the O'Connor seat, can't put two New Yorkers up.
-Rehnquist and Souter:
Souter had long been tired of Washington, and his retirement in '09 was widely interpreted as him waiting for a Democratic President to appoint his successor. Souter would probably retire as soon as possible. Since he's a member of the "liberal" wing of the Court, President Kerry might actually be able to appoint a liberal to replace him, someone a bit younger, or another first, i.e. the first Hispanic-not necessarily a woman-or the first Asian Justice, the most obvious candidate being Harold Hongju Koh, Dean of Yale Law School. There's also geographic diversity to consider, a potential Western or Southern appointment, and professional diversity, so a politician might work-Jennifer Granholm and Janet Napolitano, Governors of Michigan and Arizona respectively, come to mind; or if you're thinking Senate, maybe Russ Feingold? Kerry could also go with the hometown pick, and choose Judge Sandra Lynch of the First Circuit, who is an older judge as well.
-Rehnquist and Stevens.
The most unlikely combo, as I can't see Souter not retiring, and Stevens wouldn't leave until later in a Kerry Administration, but a possibility. Judge Diane Wood is my favorite to replace Stevens.
Two appointments shifts the Court, no matter what; though clearly Rehnquist-O'Connor is the biggest sea change, replacing the conservative anchor and Chief, and the Court's swing vote, pushes the Court to the left, making either one of the "liberal" Justices the new swing vote, likely creating something of a 6-3 majority.
Three Appointments:
-Rehnquist, Elevation, O'Connor. This is going to have conservatives screaming "Courtpacking!!!" at the top of their lungs, despite the fact that it's a perfectly logical scenario. Kerry would likely have to compromise on who he wants-older judges or lawyers, moderates, though I don't think he'd accept a Republican name as a nominee, unless it's one of the GOP-appointed Justices to elevate and then fill those spots. Maybe an older nominee, a perceived moderate, or someone who wouldn't have been nominated under any other circumstance, like Richard Posner, someone like that. This would be an enormous change-a new Chief, a new swing vote, two new members of the Court.
-Rehnquist, O'Connor, Souter.
Three new appointments. Again, the likelihood is that Kerry can't put an outright liberal in either O'Connor or Rehnquist's seat. The names that suggest themselves to me are, in order, Garland, Sotomayor, Wood.
-Rehnquist, Elevation, Souter.
Maybe the most likely scenario. I feel like O'Connor would be very reluctant to step down with a Democratic President-she did OTL because of her husband's health, maybe she feels like she still has to, that's kind of unquantifiable-but my guess is that if she stayed, Souter's definitely leaving. Again, you're going to see a female nominee for one of these positions, so you have three women on the Court, the first three women on the Court. Breyer I think gets the nod for the Chiefship here.
-Rehnquist, Souter, Stevens.
O'Connor decides to stay on the Court, but three vacancies occur anyways. Not a lot of an ideological swing, aside from Rehnquist's replacement.
Stevens-I don't know if he would retire? He only left in '10 because he found himself slipping mentally, and this is years earlier. He'd complete thirty years on the bench in '06, and he died in '19, so that's OTL 13 years of him being an ex-Justice. I'm assuming you'd get a Republican President in '08, so would he be willing, or indeed able, to wait another 2-6 years to step down?
Four (4) Appointments:
-Rehnquist, O'Connor, Souter, Stevens.
Basically one right after the other: Rehnquist and O'Connor in '05, Souter in '06, Stevens in '07. Again, shifts the Court to the left, but more of a matter of degrees. A Republican Senate isn't going to allow President Kerry to appoint someone like Laurence Tribe to the Court, so you'll be getting more moderate names proposed. Especially after '06, where it's very likely Democrats are going to lose more seats, Stevens' replacement might actually be more conservative than he was.
-Rehnquist, Elevation, O'Connor, Souter.
A very likely scenario to me. Essentially, Kerry's appointments are creating a 6-3 "liberal" majority, the inverse of what we see in OTL today, causing some major ripples. President Kerry would have equalled the appointments of Bush senior and Clinton in numbers, and done in one term what it took President Reagan two. You're not getting the outright liberals again, but certainly you'll see a swing to the left, something like the Burger Court.
-Rehnquist, Elevation, Souter, Stevens.
More unlikely to me, but possible. O'Connor sticking has interesting implications for down the line, depending on how long she stays. But I think this would be something of a more "moderate" Court, narrow decisions and limited movement in either direction.
Five (5) Appointments:
-Rehnquist, Elevation, O'Connor, Souter, Stevens.
The most implausible scenario. The likelihood of 5 Justices retiring in a single term boggles the mind. But if it did happen, John Kerry would be likely the most impactful one-term President ever in terms of the Supreme Court, as he appointed more Justices than anyone since Eisenhower, and the most Democratic appointees since FDR.
OTL, W. Bush appointed two Justices, John Roberts for Chief Justice William Rehnquist and Samuel Alito for Sandra Day O'Connor. I think Kerry gets two Justices of his own to appoint at a minimum, possibly more. In fact, Kerry could appoint up to five (5) Justices! Which might stretch plausibility, but I do have reasoning.
The four Justices that I think might leave the Court during a Kerry Presidency (one-term):
Chief Justice William Rehnquist (died, Sept. 3rd, 2005).
Associate Justice Sandra Day O'Connor (OTL announced retirement July 1st, '05; departed Jan. 31st, '06).
Associate Justice David Souter (OTL retirement in June of 2009, announced in April '09).
Associate Justice John Paul Stevens (OTL retirement in June of 2010, announced in April of '10).
Going by the numbers:
One Appointment: President Kerry is guaranteed at least one appointment, as Chief Justice Rehnquist dies in September of '05, his health had been failing prior to that, and I don't think you can butterfly that away. There's a number of possibilities for this particular seat, chief of which would be Judge Merrick Garland, D.C. Circuit Court of Appeals (the sheer irony of Chief Justice Garland ITTL when he can't even get a hearing OTL is satisfying). The Garland Court would be a change from the Roberts Court in a number of ways, a significant shift to the left on a number of issues, but not an enormous sea-change.
Two (2) Appointments:
OTL what President Bush received. There are several possibilities.
-Rehnquist, Elevation. Much like Chief Rehnquist himself, President Kerry could elevate one of the sitting Justices to the position of Chief. After some consideration, I came up with four options:
*Stephen Breyer, appointed 1994, age 67;
*Antonin Scalia, appointed 1986, age 69;
*Anthony Kennedy, appointed 1988, age 69;
*Ruth Bader Ginsburg, appointed 1993, age 72.
(Note: these candidates are all dependent on the idea of O'Connor retiring as she did OTL, if she hadn't, O'Connor could very well be a candidate for Chief).
My reasoning behind these four: Breyer would be the youngest, and is well-regarded amongst his peers and in Congress, where he had served on the Senate Judiciary Committee as counsel, he's not an incendiary personality, he's got administrative experience as a former Chief Judge on the First Circuit, he'd also be the first Jewish Chief Justice;
Scalia would be more along the lines of a swap, with Scalia's replacement being a more liberal Justice-likely Garland again, depending on most circumstances-and Democrats could agree noting his age, and the fact that it's possible that, as Chief, Scalia would be ineffective, driving people away from his position, unknown if he would have wanted the position anyways due to administratia;
Kennedy is much like Scalia, only with administrative experience, more perceived moderate views, Democrats would want him as Chief due to the idea that he could be influenced, might be a Burger-style Chief and end up annoying all of the other Justices with his weathervaning;
Ginsburg would be the first-ever female Chief Justice (as well as the first Jewish Chief), her age would be a point for Republicans as it would be expected for her not to serve long in the position, Democrats would happily vote for her, she's shown her skills in keeping the liberal wing intact (OTL), no idea if she would have wanted it, health is a concern.
Souter wouldn't want it and is likely to step down, Stevens is too old, and it would be a frigid day in hell before John Kerry nominated Clarence Thomas for Chief Justice of the Supreme Court; not to mention that the liberal wing of the Democratic Party and women's rights groups would throw an absolute shit fit.
Again, it's unlikely that Kerry can drive through a liberal-conservatives are going to scream about court-packing as it is-but he could get through a moderate or older candidate as a replacement.
-Rehnquist and O'Connor (OTL):
Finding a replacement for O'Connor is going to be pretty easy for Kerry: he has to appoint a woman. Bush could get away with it, I don't think Kerry could. Fortunately, there are a large number of women judges and lawyers available!
If Kerry also wants to put the first Hispanic on the Court at the same time, making it doubly hard to vote against that nominee, he's got really two options: Judge Sonia Sotomayor of the 2nd Circuit, and Judge Kim McLane Wardlaw of the 9th. Sotomayor was the OTL Obama choice, and I feel like she would be here as well: she's qualified, has an interesting backstory, less of a paper trail than in OTL; and while both Sotomayor and Wardlaw were District Judges and have trial-level experience, Sotomayor's appointment by HW Bush gives her a bipartisan heft that Wardlaw doesn't have.
Kerry could also appoint a woman to the Chief's spot, putting potentially four women on the Court at once.
The name that he could choose that would blow everyone's mind? Hillary Rodham Clinton.
Now, this would cause Republicans to perform a bodily function previously thought impossible as they shit themselves sideways and split themselves in half down the middle at the same time. But putting HRC on the Court does a few things: first female Chief Justice (I don't think that Clinton would accept anything less than the Chiefship), an accomplished and talented lawyer, legislative and political experience, and, openly unsaid but present, it removes a rival for the Democratic nomination and a potential Presidential candidate, which Republicans could get behind because it sidelines her from active politics.
Could Kerry muster the political capital and will to push Clinton through? It would be a huge push, but historically, I think he'd benefit, and there's a tradition of Senators granting that courtesy to fellow Senators of approval, though John Tower might have something to say about that.
If Kerry does go HRC for Chief, and double woman, he'd pick Wardlaw for the O'Connor seat, can't put two New Yorkers up.
-Rehnquist and Souter:
Souter had long been tired of Washington, and his retirement in '09 was widely interpreted as him waiting for a Democratic President to appoint his successor. Souter would probably retire as soon as possible. Since he's a member of the "liberal" wing of the Court, President Kerry might actually be able to appoint a liberal to replace him, someone a bit younger, or another first, i.e. the first Hispanic-not necessarily a woman-or the first Asian Justice, the most obvious candidate being Harold Hongju Koh, Dean of Yale Law School. There's also geographic diversity to consider, a potential Western or Southern appointment, and professional diversity, so a politician might work-Jennifer Granholm and Janet Napolitano, Governors of Michigan and Arizona respectively, come to mind; or if you're thinking Senate, maybe Russ Feingold? Kerry could also go with the hometown pick, and choose Judge Sandra Lynch of the First Circuit, who is an older judge as well.
-Rehnquist and Stevens.
The most unlikely combo, as I can't see Souter not retiring, and Stevens wouldn't leave until later in a Kerry Administration, but a possibility. Judge Diane Wood is my favorite to replace Stevens.
Two appointments shifts the Court, no matter what; though clearly Rehnquist-O'Connor is the biggest sea change, replacing the conservative anchor and Chief, and the Court's swing vote, pushes the Court to the left, making either one of the "liberal" Justices the new swing vote, likely creating something of a 6-3 majority.
Three Appointments:
-Rehnquist, Elevation, O'Connor. This is going to have conservatives screaming "Courtpacking!!!" at the top of their lungs, despite the fact that it's a perfectly logical scenario. Kerry would likely have to compromise on who he wants-older judges or lawyers, moderates, though I don't think he'd accept a Republican name as a nominee, unless it's one of the GOP-appointed Justices to elevate and then fill those spots. Maybe an older nominee, a perceived moderate, or someone who wouldn't have been nominated under any other circumstance, like Richard Posner, someone like that. This would be an enormous change-a new Chief, a new swing vote, two new members of the Court.
-Rehnquist, O'Connor, Souter.
Three new appointments. Again, the likelihood is that Kerry can't put an outright liberal in either O'Connor or Rehnquist's seat. The names that suggest themselves to me are, in order, Garland, Sotomayor, Wood.
-Rehnquist, Elevation, Souter.
Maybe the most likely scenario. I feel like O'Connor would be very reluctant to step down with a Democratic President-she did OTL because of her husband's health, maybe she feels like she still has to, that's kind of unquantifiable-but my guess is that if she stayed, Souter's definitely leaving. Again, you're going to see a female nominee for one of these positions, so you have three women on the Court, the first three women on the Court. Breyer I think gets the nod for the Chiefship here.
-Rehnquist, Souter, Stevens.
O'Connor decides to stay on the Court, but three vacancies occur anyways. Not a lot of an ideological swing, aside from Rehnquist's replacement.
Stevens-I don't know if he would retire? He only left in '10 because he found himself slipping mentally, and this is years earlier. He'd complete thirty years on the bench in '06, and he died in '19, so that's OTL 13 years of him being an ex-Justice. I'm assuming you'd get a Republican President in '08, so would he be willing, or indeed able, to wait another 2-6 years to step down?
Four (4) Appointments:
-Rehnquist, O'Connor, Souter, Stevens.
Basically one right after the other: Rehnquist and O'Connor in '05, Souter in '06, Stevens in '07. Again, shifts the Court to the left, but more of a matter of degrees. A Republican Senate isn't going to allow President Kerry to appoint someone like Laurence Tribe to the Court, so you'll be getting more moderate names proposed. Especially after '06, where it's very likely Democrats are going to lose more seats, Stevens' replacement might actually be more conservative than he was.
-Rehnquist, Elevation, O'Connor, Souter.
A very likely scenario to me. Essentially, Kerry's appointments are creating a 6-3 "liberal" majority, the inverse of what we see in OTL today, causing some major ripples. President Kerry would have equalled the appointments of Bush senior and Clinton in numbers, and done in one term what it took President Reagan two. You're not getting the outright liberals again, but certainly you'll see a swing to the left, something like the Burger Court.
-Rehnquist, Elevation, Souter, Stevens.
More unlikely to me, but possible. O'Connor sticking has interesting implications for down the line, depending on how long she stays. But I think this would be something of a more "moderate" Court, narrow decisions and limited movement in either direction.
Five (5) Appointments:
-Rehnquist, Elevation, O'Connor, Souter, Stevens.
The most implausible scenario. The likelihood of 5 Justices retiring in a single term boggles the mind. But if it did happen, John Kerry would be likely the most impactful one-term President ever in terms of the Supreme Court, as he appointed more Justices than anyone since Eisenhower, and the most Democratic appointees since FDR.
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