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The Power of Supreme Court Choices

A combative approach from George H.W. Bush put Clarence Thomas on the court and and has been embraced by Mitch McConnell and other Republicans.

President Bush and Barbara Bush with Supreme Court Justice Clarence Thomas at his swearing-in ceremony in 1991.Credit...Dirck Halstead/The LIFE Images Collection/Getty Images

Contributing Opinion Writer

It’s not hard for a new president, in concert with Congress, to erase a predecessor’s legislative, regulatory and diplomatic accomplishments. It’s a president’s Supreme Court legacy that lasts.

Many retrospectives on the life of President George H.W. Bush, who died last Friday, noted that one of the two men he named to the court, Clarence Thomas, is now in his 27th year as a justice and, at age 70, is on track to become one of the longest-serving Supreme Court justices in history.

Justice David H. Souter, who in 1990 became President Bush’s first Supreme Court appointee, has received much less attention in recent days, perhaps because he retired nine years ago and has avoided the spotlight ever since. The soft-spoken New Hampshire judge never became a lightning rod except to those on the right who, while thrilling to Justice Thomas’s hard-edge originalism, were sorely vexed by Justice Souter’s modestly progressive jurisprudence. While one became an icon, the other became the object of a negative mantra: “No more Souters.”

My goal here is not to appraise the two Bush 41 justices. It’s to compare the approaches — one conciliatory, the other, confrontational — that in the space of a single year (July 1990 to July 1991) produced such different nominees. Those approaches remain today as contrasting archetypes for how to fill a Supreme Court vacancy.

Of course, Supreme Court nominations are bound to reflect the priorities of the individual who serves in the White House, and the first President Bush, whose primary focus was on foreign policy, simply wasn’t very interested in the Supreme Court. So in July 1990, when Justice William Brennan had a stroke and retired abruptly and unexpectedly on a Friday afternoon, the president acted with dispatch to get the pesky distraction of a sudden court vacancy off his desk.

It took all of a single weekend. On Monday afternoon, having interviewed Mr. Souter and another potential nominee, Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit, President Bush announced his choice. The president told reporters that he had not taken “the litmus test approach” and had not questioned the nominee about his views on abortion or anything else. “I have too much respect for the Supreme Court for that,” President Bush said. He added that he expected the nominee’s credentials to carry the day in the Democratic-controlled Senate. “We’re not bracing for some horrendous fight with the United States Senate,” he said.

And that was that. President Bush made his choice at the urging of a Republican senator from New Hampshire, Warren Rudman. Senator Rudman was David Souter’s longtime mentor, having preceded him as the state’s attorney general; later, he engineered his appointment first to the New Hampshire Supreme Court and then to the United States Court of Appeals for the First Circuit. President Bush’s chief of staff, John Sununu, a former New Hampshire governor whose hard-right conservatism contrasted sharply with Senator Rudman’s more traditional brand of New England Republicanism, praised the Souter appointment as “a home run for conservatives.”

But he had ample reason to know that was not the case. In fact, according to rumor at the time, Mr. Sununu had privately urged the appointment of Judge Jones, a deeply conservative and polarizing figure on her court, where she still serves. A Jones nomination would most likely have engendered a “horrendous fight” reminiscent of the battle over President Ronald Reagan’s nomination of Judge Robert Bork, whom the Senate had rejected less than three years earlier. President Bush saw no reason to go down that road. The vote to confirm Judge Souter was 90 to 9.

The scenario was much different the following year. On June 27, 1991, the final day of the Supreme Court term, Justice Thurgood Marshall announced his retirement. Once again, President Bush wasted no time. Given the need to prevent the Supreme Court from reverting to an all-white body, as it had been before Justice Marshall’s arrival in 1967, and given the extreme scarcity of conservative African-Americans then in a position to be nominated, there was one obvious choice, and he was sitting in his judicial chambers a mile from the White House.

Barely two years earlier, President Bush had named Clarence Thomas to the United States Court of Appeals for the District of Columbia Circuit. That appointment had been widely seen as an effort to place the young lawyer, only 41 at the time, in the launch position for the Supreme Court. It took only four days after Justice Marshall’s retirement announcement for President Bush to select Judge Thomas, describing him “the best man for the job on the merits.” The nomination was understood in ideological as well as racial terms; as head of the Equal Employment Opportunity Commission, Clarence Thomas had given a series of speeches that underscored his conservative credentials, which he attempted to disavow during his confirmation hearing.

The nomination was instantly controversial and bitterly contested well before Anita Hill’s allegations against Judge Thomas, her former boss, became public — a fact often forgotten in accounts of the nomination. Democrats who had been skeptical of the choice of David Souter, about whom they knew little, to succeed Justice Brennan, the court’s leading liberal, were aghast at the prospect of Judge Thomas, about whom they knew a good deal, being elevated to Thurgood Marshall’s seat. Before Anita Hill’s emergence, the Senate Judiciary Committee had concluded the confirmation hearing with a 7-to-7 deadlock on a resolution that would have sent the nomination to the Senate floor with a positive recommendation. (The committee moved the nomination forward without a recommendation.) The eventual confirmation vote was 52 to 48.

Poles apart, the Souter and Thomas nominations offered templates for the presidencies that followed. Democrats have shied from confrontation, while Republicans have generally embraced and even sought it. President Trump declared on his final campaign swing before the midterm elections last month that “this will be the election of Kavanaugh.” It’s impossible to imagine President Bill Clinton declaring before the 1994 midterms that “this will be the election of Stephen Breyer,” his middle-of-the-road Supreme Court nominee who was confirmed that year by a vote of 87 to 9.

President Obama expected that his first Supreme Court nominee, Judge Sonia Sotomayor, would have an easy bipartisan path to confirmation. She most likely would have except for the stated goal of Senator Mitch McConnell, the minority leader, to block the president at every turn. Senator McConnell, Republican of Kentucky, persuaded the National Rifle Association to oppose the nominee and, in a first for a Supreme Court nomination, to “score” the vote, making it a part of the potent annual report card the NRA issues for every member of Congress. As a result, Republican support for Judge Sotomayor quickly melted away, and she received only seven Republican votes.

Addressing the Federalist Society in Washington last month, Senator McConnell, now the majority leader, was unabashed in describing the current Republican strategy — to go as far to the right as a bare majority will sustain. Explaining why he abolished the filibuster for Supreme Court nominees, he said, “No Republican president could get the kind of nominee we’d want with 60 votes.” Bipartisan appeal? A sin. The narrowest possible victory? A validation.

Such an aggressive program is bound to falter occasionally, as it did last week when Senator Tim Scott of South Carolina, the lone black Republican in the Senate, announced that he would vote against confirming Thomas Farr to a Federal District Court seat in North Carolina. Mr. Farr, nominated a year ago, drew sustained criticism for his connection to the racist campaigns of Jesse Helms, the former North Carolina senator, and for his legal guidance of the state Republican Party’s vote suppression strategy. The seat is the longest-unfilled judicial vacancy in the country, the Senate having refused to confirm President Obama’s successive nominations of two African-American women.

But as the Kavanaugh confirmation (50 to 48) exemplifies, President Trump is winning much more than he’s losing, with an astonishing 29 judges confirmed to the federal Courts of Appeals so far and others slated for confirmation after the new Senate convenes in January. Across all his federal court nominations, the president has chosen two dozen former Supreme Court law clerks, including 10 who clerked for Justice Thomas — more than for any other justice. The legacy continues.

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A correction was made on 
Dec. 6, 2018

An earlier version of this article misstated the result of the Senate vote on Brett Kavanaugh's nomination to the Supreme Court. He was confirmed by a vote of 50 to 48, not 50 to 42.

How we handle corrections

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.

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