More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents—the ones Bork had attacked for so long—remained popular with the public and, consequently, in the Senate. By 1987, the Miranda warnings were deeply ingrained in the culture, not least because of their endless repetition on television police dramas; the word privacy may not have appeared in the Constitution but Bork’s criticism of that right—and his defense of Connecticut’s right to ban the sale of birth control—sounded extreme to modern ears.
Most of all, though, racial equality (if not affirmative action) had become a bedrock American principle, and Bork had simply backed the wrong side during the civil rights era. In 1963, he had written a notorious article for the New Republic in which he had assailed the pending Civil Rights Act. Forcing white barbers to accept black customers, Bork wrote, reflected “a principle of unsurpassed ugliness.” More than his views about privacy and abortion, it was Bork’s history on race that doomed his nomination. The key block of voters in the Senate were moderate Democrats from the South like Howell Heflin of Alabama, who were actually sympathetic to Bork’s cultural conservatism. But these senators were all elected with overwhelming black support—and they would not abide views that, fairly or not, sounded racist. Bork ultimately lost by a vote of 58–42.
Enraged by the attacks on Bork, Reagan had said he would nominate a replacement for Bork that the senators would “object to as much as the last one.” So Meese and his allies tried to foist a potentially even more conservative, and a much younger, nominee on the Senate, Douglas H. Ginsburg, a recent Reagan appointee to the D.C. Circuit. But Ginsburg’s nomination collapsed over a few tragicomic days, following revelations that the law-and-order judge had smoked marijuana as a professor at Harvard Law School.
Howard Baker now stepped into the process. A former senator who had been brought in as chief of staff to steady the White House after the Iran-Contra revelations, Baker had little interest in the ideological groundbreaking that Meese was leading at the Justice Department. Baker was an old-fashioned conservative who wanted a justice in his own mold, a believer in judicial restraint. With the White House reeling from multiple fiascos, Baker just wanted to pick someone who would be confirmed—a conservative, to be sure, but not necessarily someone who would please Meese and the other true believers. The call went out to Anthony M. Kennedy, a thoughtful and earnest judge on the Ninth Circuit from Sacramento. He was confirmed quickly and without incident.
George H. W. Bush served as a transitional figure between the old Republican Party and the new. He was born to the country club GOP of his father, the cautious and corporate senator from Connecticut, but the forty-first president was elected in 1988 courtesy of the evangelical and other hard-core conservatives who were increasingly dominating the party. In the Reagan years, figures like Jerry Falwell, Pat Robertson, and, later, James C. Dobson were content to be heard by the White House; but in the first Bush presidency, they wanted more. And the issues that meant the most to them—abortion, above all—were decided by the Supreme Court. They wanted their own justices.
On the Court, and in much else, Bush tried to finesse the demands of the far right. To win their support in the first place, Bush had sworn fealty to the new conservative orthodoxies, including opposition to Roe v. Wade, but it was clear that his heart was never in the cause. For this reason, then, Brennan’s resignation in July 1990 was for Bush more an annoyance than an opportunity. He was preoccupied with the sudden fall of Communism and had no stomach for a fight in the Democratic Senate over a Supreme Court nominee—especially about issues that meant little to him personally. A Yankee aristocrat, Bush surrounded himself with men in the same mold, like his White House counsel, C. Boyden Gray, and attorney general, Richard Thornburgh (who as governor of Pennsylvania was the defendant in the 1986 abortion case).
As his first choice for the Supreme Court, Bush chose yet another man with a background and temperament similar to his own—David H. Souter. The appointee had spent virtually his entire career in New Hampshire state government, where he had a nearly invisible public profile. (Thurgood Marshall, in his final cranky years on the Court, still spoke for many when he greeted the news with “Never heard of him.”) John Sununu, the White House chief of staff, promised conservatives that the appointment would be “a home run” for them, but Souter’s moderate testimony at his confirmation hearing suggested otherwise. Democrats, grateful that Bush had avoided a confrontational choice, raised few objections, and Souter was confirmed by a vote of 90–9.
Even before Souter’s record refuted Sununu’s prediction (as it surely did), conservatives registered their outrage at his appointment—and their demands for Bush’s next choice. Sununu promised that the president would fill the next vacancy with a nominee so conservative that there would be “a knock-down, drag-out, bloody-knuckles, grass-roots fight.” Thus, a year later, Clarence Thomas.
Marshall resigned on June 27, 1991, almost a year to the day after Brennan, and this time conservatives insisted that Bush appoint one of their own. By this point, with Brennan also gone, Marshall was the last full-throated liberal on the Court. His seat was especially precious to his political opponents, since only two members of the Thornburgh majority from 1986—Blackmun and Stevens—remained; the replacements for the other three would all be selected by presidents who publicly opposed Roe v. Wade. The decision appeared as good as overruled.
Thomas’s confirmation hearings, of course, turned into a malign carnival of accusation and counterclaim between the nominee and his one-time aide Anita Hill. But that sideshow obscured the larger significance of Thomas’s appointment. Even though the nominee was unusually reticent in answering the senators’ questions, it was easy to infer that the forty-three-year-old judge believed in what might be called the full Federalist Society agenda: that the justices should interpret the Constitution according to the original intent of the framers, that Congress had repeatedly passed laws that infringed on executive power and violated the Constitution, and that the crown jewels of liberal jurisprudence—from Miranda to Roe—should be overruled.
The scope and speed of the conservative success was remarkable. In just about a decade, conservatives had taken ideas from the fringes of intellectual respectability to an apparent majority on the Supreme Court. Thomas’s confirmation, on October 15, 1991, by a vote of 52–48, meant that Republican presidents had appointed eight of the nine justices—and Byron White, the lone Democrat, was more conservative, and a stronger opponent of Roe, than most of his colleagues. With Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Thomas completing the roster, how could the conservative cause lose?
2
GOOD VERSUS EVIL
Elections impose rituals of transition on the executive and legislative branches, but the judiciary, especially the Supreme Court, glides uninterrupted into the future. The justices who take their places from behind the red curtain on the first Monday in October are usually the same ones who appeared the year before, and they are likely to be there the following October as well. The Court is defined more by continuity than by change. But still, at some moments, even the hushed corridors of the Court crackle with anticipation of a new order. The fall of 1991 was such a moment.
The signs of transition at the Court were physical as well as ideological. It was one of the rare times in Court history when four retired justices were alive. Warren E. Burger, Lewis F. Powell, William J. Brennan Jr., and Thurgood Marshall were still making occasional visits to the Court, all of them walking embodiments of both the sweep of the Court’s history and its relentless retreat into the past.
Burger, the white-maned former chief justice, who had left the bench in 1986, maintained a surpassing ability to annoy his colleagues, even in retirement. He had departed the Supreme Court to lead a commission on the bicentennial
of the Constitution, feeding, perhaps, his taste for pomp, which was always stronger than his interest in jurisprudence. (The celebration in 1987 was widely ignored, even in legal circles.) Worse, Burger’s taste for bureaucratic empire building had led to the construction of a huge structure for the Federal Judicial Center on a desolate plot of land near Union Station. Retired justices of the Court traditionally maintained chambers in the Supreme Court building, but among the hazy justifications for the FJC was that it would provide a new home for retired justices. Characteristically, Burger neglected to check with the justices themselves to see if they had any interest in uprooting themselves from Cass Gilbert’s marvelous structure. None had.
Powell, the Virginia gentleman and centrist who controlled the outcome of so many important decisions, remained as popular as ever and even, in one way, influential. In 1986, the year before he retired, he had cast the deciding vote in Bowers v. Hardwick, which upheld Georgia’s right to criminalize consensual gay sodomy. Byron R. White’s opinion for the Court was brusquely dismissive of the very notion of a constitutional protection for gay sex. But in 1990, Powell told a law school audience that he “probably made a mistake” in joining the majority in that case. Powell’s admission kept the controversy about Bowers alive and signaled that his favored disciple, O’Connor, might also have doubts about having voted the same way.
Burger and Powell passed without much notice on their visits to the Court, but Brennan always drew a crowd. The history of the Court abounds with long tenures, but even three decades does not guarantee that a justice will leave much of a legacy. Forgotten justices like James M. Wayne (thirty-two years on the Court), Samuel Nelson (twenty-seven), and Robert Grier (twenty-four) illustrate that longevity and obscurity can coexist. But Brennan’s thirty-four years ranked among the most consequential tenures the Court had ever seen. His opinion in Baker v. Carr led to the rule of one person, one vote; New York Times Co. v. Sullivan transformed the law of libel to expand First Amendment protections for the press; his opinion in Eisenstadt v. Baird made the result in Roe v. Wade almost inevitable. But even more than the opinions he wrote himself, there was his role as the Court’s master vote counter, first with his great friend Earl Warren and then as the wily leader of the Court’s shrinking but still influential liberal wing.
Brennan’s influence didn’t end with retirement, either, and not just because hundreds of his opinions remained precedents of the Court. He grew especially close to his successor, David Souter. “I’d stick my head in his chamber door, and he’d look up and say, ‘Get in here, pal,’ and when I was ready to go he’d call me pal again,” Souter said at Brennan’s funeral in 1997. “He wouldn’t just shake my hand; he’d grab it in both of his and squeeze it and look me right in the eye and repeat my name. If he thought I’d stayed away too long, he’d give me one of his bear hugs to let me know that I’d been missed…. And he might tell me a few things that were patently false, which he thought I might like to hear anyway. He’d bring up some pedestrian opinion that I’d delivered, and he’d tell me it was not just a very good opinion but a truly great one, and then he’d go on and tell me it wasn’t just great but a genuine classic of the judge’s art. And I’d listen to him, and I’d start to think that maybe he was right.” Brennan’s seven years with Souter put a stamp on the younger man’s career.
Thurgood Marshall was the least seen of the retirees. He was the only member of the Court since Warren who would have held a place in American history even if he had never become a justice. As an architect of the NAACP Legal Defense and Education Fund’s assault on segregation, he had argued and won many of the civil rights landmarks of the 1940s and 1950s, including Brown v. Board of Education in 1954. Lyndon Johnson had put him on the Court in 1967, but Marshall’s tenure had been unhappy. The causes he cared about were in eclipse for most of those years, and he spent his last years fighting ill health and trying to hang on until a Democratic president could appoint his successor. “If I die, just prop me up!” he would instruct his law clerks.
So Marshall’s resignation in 1991, a week before his eighty-third birthday, came as a surprise. “I’m getting old, and coming apart,” he explained at a freewheeling press conference the next day, where he sat slumped over in a chair, looking disheveled. He was asked whether he thought President George H. W. Bush had an obligation to appoint another minority justice in his place. “I don’t think that should be a ploy,” he answered, “and I don’t think it should be used as an excuse, one way or the other.” A reporter followed up, “An excuse for what?” Marshall’s answer seemed directed at his most likely successor. “Doing wrong,” he said. “Picking the wrong Negro…. My dad told me way back…there’s no difference between a white snake and a black snake. They’ll both bite.”
Unwritten Supreme Court protocol called for a wall of separation between the sitting justices and the confirmation process. Nominees were never so presumptuous as to make contact with the Court before they were confirmed, and justices generally refrained from commenting, even in private, about their possible new colleagues. So it was, at first, with the confirmation hearings of Clarence Thomas, which began on September 10, 1991.
There was never much doubt that Thomas would be the nominee. A year earlier he had been confirmed for the United States Court of Appeals for the D.C. Circuit, and the prospect of his replacing Marshall had been much discussed then. The dilemma facing Bush and the Republicans was clear. If Marshall left, they could not leave the Supreme Court an all-white institution; at the same time, they had to choose a nominee who would stay true to the conservative cause. The list of plausible candidates who fit both qualifications pretty much began and ended with Clarence Thomas.
On July 1, 1991, President George H. W. Bush introduced Thomas as his nominee at a press conference at his vacation home in Kennebunkport, Maine. There was awkwardness about the selection from the start. “The fact that he is black and a minority has nothing to do with this,” Bush said. “He is the best qualified at this time.” The statement was self-evidently preposterous; Thomas had served as a judge for only a year and, before that, displayed few of the customary signs of professional distinction that are the rule for future justices. For example, he had never argued a single case in any federal appeals court, much less in the Supreme Court; he had never written a book, an article, or even a legal brief of any consequence. Worse, Bush’s endorsement raised themes that would haunt not only Thomas’s confirmation hearings but also his tenure as a justice. Like the contemporary Republican Party as a whole, Bush and Thomas opposed preferential treatment on account of race—and Bush had chosen Thomas in large part because of his race. The contradiction rankled.
Still, there was much to admire in Thomas, as the early days of his confirmation hearings showed. Thomas began his testimony with a personal story that was extraordinary by any measure. He had grown up in poverty in Pin Point, Georgia, without a father and with a mother who earned twenty dollars every two weeks as a maid. She was so poor, in fact, that she had to send her two boys to live with their grandparents. “Imagine, if you will, two little boys with all their belongings in two grocery bags.” Hard work put him through Holy Cross College and Yale Law School, and he had thrived during his career in government, as an ever-rising official in the federal bureaucracy during the Reagan administration.
Still, as soon as Thomas began answering questions, problems emerged. Four years earlier, Robert Bork’s nomination had been defeated because he expounded broadly about his well-established, and very conservative, judicial philosophy. Consequently, the conventional wisdom had become that nominees should avoid taking substantive stands on most legal issues. But Thomas took the approach to an extreme. In awkward, wooden answers, he gave the impression that he had no views, not simply that he was declining to express them. In one infamous exchange, he told Senator Patrick Leahy that he had never even discussed Roe v. Wade.
Still, there was little organized opposition to Thomas, and his confirmation looked
assured. On Friday, September 27, the Judiciary Committee split 7–7 on Thomas, but even that tepid nonendorsement meant that the full Senate would give him an up-or-down vote. There was little reason to think he might lose.
Then, on Saturday, October 6, the name Anita Hill leaked to the press, and the rest of the Thomas confirmation battle became a tawdry national obsession. Hill had been a young lawyer on Thomas’s staff, first at the Department of Education and then at the Equal Employment Opportunity Commission. During those years, she had confided to friends that her boss had made a series of bizarre sexual comments and overtures to her. In the summer leading up to Thomas’s confirmation hearings, Hill had discussed with some of those friends whether she should come forward with what she knew about the nominee. Through these conversations, Hill’s name reached Democratic staffers on the Judiciary Committee and then several reporters. Once her name became public, the committee decided that she should tell her story in public.
Over seven surreal hours on Friday, October 11, Hill gave testimony that soon became part of American folklore. She said Thomas had talked about his large penis, about his skill at giving oral sex, and about pornographic films starring Long Dong Silver. There was “one of the oddest episodes,” when Thomas looked at a soda can in his office and asked, “Who has put pubic hair on my Coke?” Later that night, after Hill’s marathon testimony, in a confrontation that would become equally famous, Thomas returned to the hearing room. He denied Hill’s allegations in their entirety and denounced the proceeding as a “high-tech lynching for uppity blacks.” Thomas rejected Hill’s allegations of mistreatment, but otherwise refused to answer any questions about his relationship with Hill or his personal life.
The Nine Page 3
