Thurgood Marshall — the man who should have been Chief Justice

If LBJ could have not practiced crony politics in 1968 and nominated Thurgood Marshall as Chief Justice, think of how different SCOTUS would have been into the 1970s and 1980s.

Marshall certainly didn't have Fortas’ baggage, and there is no way Northern Republican Senators would have voted against cloture, or voted against Marshall's actual nomination.

Happy 100th birthday anniversary, Thurgood.

Anyway, how would this all have played out, if Marshall had been nominated and approved as chief justice?

Let’s say that Southern Democratic Senators would have dropped threats to filibuster in exchange for LBJ not nominating anyone to fill Marshall’s associate judgeship vacancy.

Then, let’s say Nixon would have appointed Warren Burger to that position. He would have spent his career as a mediocre associate justice instead of as a mediocre chief justice.

Abe Fortas’ acceptance of retainers from private individuals might never have come up, neither the original ones that knocked out LBJ’s actual attempt to elevate him, nor the later ones that drove him off SCOTUS completely. But, if they had, Blackmun still would have replaced him, let’s assume. Would Lewis Powell or Rehnquist have gotten the nod to replace Hugo Black, then, if there had been two openings?

Especially if Fortas’ issues had not come to light until well into Nixon’s second term, he wouldn’t have dared to have named Rehnquist, given Rehnquist’s position as Assistant Attorney General of the Office of Legal Counsel. Marshall, in fact, might not had been averse to directly talking to Nixon.

Ford still would have had the William O. Douglas position to fill. I’m going to assume he still would have named John Paul Stevens.

Note who just got skipped? William Rehnquist, again.

Carter, of course, made no SCOTUS appointments.

But, if Fortas had hung on until Carter became president, Carter might have named LBJ Interior Secretary Bruce Babbitt. Or, he might have beaten Reagan to naming the first female justice.

That takes us to Reagan.

With his pledge to nominate a woman, O’Conner gets the nod. Still no Rehnquist, possibly.

We would have had no Rehnquist Court. And, of course, no Burger Court either.

Given a more liberal composition of the court in general, I think Reagan would then have flinched from naming Scalia to the court. And, I think Democrats would have rallied against him.

Marshall himself? Maybe he would have felt more invigorated by being chief justice. He might have held out until after 1991, especially if he saw the chance of Bill Clinton winning as the 1992 election loomed.

Clinton, as a “new Democrat,” and a complex person, might well have nominated Stevens from his associate justiceship.

Anyway, food for thought.