Bush left a mixed legacy at Supreme Court
Picks of Souter, Thomas were polar opposites
WASHINGTON – Historians who try to define 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 office, 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 Jeffrey 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.
Reagan ultimately settled in 1988 on the moderate Anthony Kennedy, whose retirement this year paved the way for new Associate Justice Brett Kavanaugh.
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. Now Associate Justice Sonia Sotomayor, perhaps the court’s most liberal member, holds the seat.
Thomas was chosen in 1991 to replace the court’s first 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 confirmed by a 90-9 vote, Thomas barely survived Anita Hill’s allegations of sexual harassment in the workplace. He was confirmed, 52-48, in a circus-like atmosphere he described as “a high-tech lynching for uppity blacks who in any way deign to think for themselves.”
Leonard Leo, executive vice president of the Federalist Society, says Thomas’ nomination “has done more than any other since the appointment of Justice Antonin Scalia to bring us back to an interpretation of the Constitution that places a premium on human freedom and dignity through the enforcement of limited, constitutional government.”
That Bush could move so easily from Souter to Thomas represented an “inflection 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.