Bush left a mixed legacy at Supreme Court

Souter, Thomas gave nominations balance

WASHINGTON – Historians who try to define President George H.W. Bush’s legacy would do better than to judge him by his choices for the Supreme Court.

In the middle two years of his single term in office, Bush chose one of the most liberal judges ever nominated by a Republican president, then one of the most conservative.

It wasn’t long after his nomination of David Souter, who came without much of a paper trail, that the conservative legal movement had a new slogan: “No More Souters.” Less than two years into his two decades on the court, Souter played an instrumental role in preserving abortion rights nationwide. He went on to establish a lengthy liberal record.

But by then, Bush – who died Friday night at 94 – had come full circle and nominated Clarence Thomas as the nation’s second African-American associate justice. Thomas was a mere 43 years old and, over 27 years and counting, has become the anchor of the court’s conservative wing following Associate Justice Antonin Scalia’s death in 2016.

While some experts have characterized Bush’s two nominations as a wash, C. Boyden Gray, who was White House counsel throughout Bush’s presidency, disagrees.

“Thomas exceeded our expectations by a much wider margin than Souter may have disappointed them,”

Gray says. “I can't count how many times in my presence I heard (Bush) say he was very proud of that nomination – very, very proud.”

By most accounts, Bush wasn't looking for such an odd couple, or to balance a liberal judge with a conservative. He was choosing nominees with whom he was comfortable. Both Souter and Thomas had been his choices for appeals courts. When he selected each of them for the Supreme Court, he passed over many judges with more established careers appointed by his predecessor, President Ronald Reagan.

“President Bush did not have an agenda for the courts,” says Jeffrey Rosen, president of the National Constitution Center and author of several books on the American judicial system. “President Bush cared a lot about personal connections and personal loyalty, and about character.”

Souter was selected to replace Associate Justice William Brennan, another Republican president's choice who became a liberal justice. At the time, Bush wanted a low-key nominee in contrast to Reagan's 1987 nomination of Robert Bork, who was rejected as too conservative by a Democratic Senate.

Souter spent the next 19 years aligned mostly with the court's liberals, and he waited until Democratic President Barack Obama was elected to step down.

Thomas was chosen in 1991 to replace the court's first African-American justice, Thurgood Marshall. His paper trail was almost as thin, having served on the U.S. Court of Appeals for the District of Columbia Circuit for just 16 months.

While Souter had been confirmed by a 90-9 vote, Thomas barely survived Anita Hill's allegations of sexual harassment in the workplace. He was confirmed, 52-48, in a circus-like atmosphere.

That Bush could move so easily from Souter to Thomas represented an “inflection point” for the Republican Party, Rosen says. Since Thomas' nomination, all eight justices placed on the high court have lined up as expected. There have been no more Souters.