Thank you for this thoughtful column. The incessant efforts to whitewash the legacies of Bush 41 and 43 are sickening. Both of them deserve a lot of the blame for the fragile state of our democracy--and our world.
1
Thank you for a reminder and review that's good to have. This is such an important matter for all Americans, yet most of us pay no attention--a luxury that is going to cost all of us before we shuffle off, and cost our children and grandchildren going forward.
Bring. Back. Civics education!!! And keep education liberal: with literacy in language, history, social studies, stem, and literature guaranteed for all. Focusing on stem alone is a recipe for ignorance in too many other areas, which our nation cannot afford.
18
The fact that a president and his allies in the Senate can so easily transform the federal judiciary to fit their politics - a practice used by both those on the left as well as the right - argues strongly for a new de-politicized approach to appointing judges. Perhaps we should explore the viability of one that depends on the recommendations of an independent commission made up of term-limited legal experts and historians from the bench, law-enforcement and academia.
12
@Charles Michener How about reducing the power of the Supreme Court?
How can a Supreme Court 5-4 majority strike down any law as unconstitutional when there is no consensus that that law is indeed unconstitutional.
There is no possibility of a "depoliticized process to appoint judges" when the Supreme Court justices make numerous political decisions that are values-based.
Also, when you say "depoliticized process" I interpret that to mean "let's give more power to legal elites," which is the last thing I'd want.
1
The appointment of Clarence Thomas is a huge irremovable stain on the Bush I presidency.
The reasoning behind was a blatant 'we need a conservative black person on SCOTUS' -- that, and nothing more.
The shameless lying on the part of Thomas is still fresh in my mind, as are Kavanugh's more recent one.
Appalling that the GOP, which harbors conservatives who see nothing wrong with endless moralizing, see nothing whatsoever wrong with judges who lie to get ahead.
2
Mitch McConnell has at least laid to rest the idea that "conservative" for judicial nominees means "strict constructionist" or "originalist." All it means is "outcome determinative" for conservative political goals. He has unmasked himself and the liars who claim that all they want is someone who will construe the Constitution as it was written.
2
Justices are people, thank goodness. Souter is a fine person. Thomas is a fine person. Both have served well. Both thought carefully, decided carefully, wrote carefully. I am not in favor of royalizing the bench, but these people are both exemplars of judicial integrity. Thanks to both.
1
I don't remember Sununu's role in Souter's nomination the way you do. I recall his having assured anyone who wanted to listen that Souter was a sure vote to overturn Roe v Wade. I believe Justice Souter is one of the best justices who has ever served on the court and most serious lawyers I know agree. Clarence Thomas has also been frozen in time- he is generally thought of only in terms of his Anita Hill hearing. But, any experienced Supreme Court watcher will tell you he writes very persuasive opinions in the style and usually in agreement with the late Justice Scalia, but with far less rancor.
The president and the Supreme Court justice who have flown under the radar are Reagan and O'Connor. It should be recalled that she voted to uphold Roe every time Souter did and without both of them, appointed by Republican presidents, Roe would no longer be the law of the land.
It's hard for me to talk about the rottenness of the state of the USA without sounding melodramatic. Goya's"black" painting, "Saturn Devouring His Son," comes to mind. In it, a lunatic old man, Titas Cronus, God of Time, holds the bloodied, partially eaten body of one of his sons. No doubt he's eating the younger man--indeed, has eaten part of him. Why is he eating his own progeny? The painting assumes we've heard the story: because it's been prophesied that one son with dethrone him. In other words, Goya is merely illustrating, in stark and dramatic, if also grotesque, terms what those in power will indeed do in order to keep their power, to those who have less power than they do, to those they're supposed to care for. That's pretty much where we're at, folks. How to right things?
1
The irony is thick, that Donald Trump, a man with no real personal judicial compass aside from reduced taxes, should leave a lasting conservative legacy.
2
I've said it before, and I'll say it again: we need a constitutional amendment to fix the judicial nomination process. The amendment should have three core components:
(1) Staggered 18-year term limits, to lower the stakes on the process and to keep any one president/party from dominating the process.
(2) A high threshold for the Senate to approve a nominee, to prevent the extremist candidates that McConnell prides himself on (I'm partial to a two-thirds majority since that is what is required for removal).
(3) A requirement that the Senate hold a vote on any nominee within 120 days of the nomination being submitted to the Senate, in order to prevent the other abuse that McConnell prides himself on.
I would think an amendment like that would garner broad support, if nothing else than as giving the bird to evil, old Mitch.
4
Add to Bush's "accomplishments"
1. Iran-Contra ( a.k.a. Contragate )
2. Pardoning a half-dozen criminals, including a general
3. House of Bush House of Saud - enriching the oily Bushes over generations
No mentions of those affronts to the people in the past 7 days.
2
"Democrats have shied from confrontation, while Republicans have generally embraced and even sought it." What Ms. Greenhouse should have written is that Democrats have no guts and ignore their base while Republicans have guts and stand up for their base. Is there any wonder why Republicans have more electoral success than Democrats do?
2
Bush's nomination of Thomas reflects so much about Bush as a person and president. Bush's admirable sense of fairness and his belief in American exceptionalism motivates him to try to reward African-Americans and make the Supreme Court more representative of the US by nominating Thomas. But Bush, who was not known for his incisive intelligence, picks a dreadfully bad lawyer for the Court. In sun: worthy intentions, but disastrous results.
2
I grew up in Montreal where our votes counted for far less than the 3/5ths of a vote that was given to the slave owners for each slave they owned. I was aghast when I moved to Chicago and my wife's vote counted for less than 3/5 of a vote in our 93% plus African American congressional district. I cannot usethe pejorative that others might use for Mr Thomas but I understand his anger at those of us that see his being on the Supreme Court being totally attributed to his being that rare combination of race and education rather than competence. Sadly his anger is justified and his being on the court does not serve the interest of most Americans.
The death this week of "the noblest Roman of them all" should remind us that Brutus for all his nobility was loved neither by those that assassinated Caesar nor those wanted Caesar as their Emperor.
1
I love the constant forgetting that the Senate abolished the filibuster for all judicial nominees besides Supreme Court nominees before McConnell did the same for Supreme Court nominees. Presumably, that was also because the then-president, Barack Obama, would never have gotten the kind of nominees he wanted--stark liberals--had the filibuster been maintained.
3
The article said Thomas' nomination was "instantly controversial and "bitterly contested", but it does not say why. The reason was that he had criticized Roe vs Wade and that the abortionist lobby wanted to keep him off the Supreme Court without making it obvious that they were doing so. They wanted to create the illusion that Roe vs Wade was "settled law". The Anita Hill mess made it possible to oppose the nomination without mentioning abortion. And nowadays the abortion argument at the time is "often forgotten". The abortionist lobby had covered its tracks.
1
Clearly, the "way to pick a Supreme Court justice" is to find an explicit or closet liberal and then vote for him. No originalist, no conservative need apply or he'll be borked, thomased, and kavanaughed.
4
That picture tells you everything you need to know about GWHB. And Clarence Thomas.
1
When Thomas was nominated, no one knew of the Anita Hill controversy. As Ms. Greenhouse indicates, Bush was replacing a black justice -- Thurgood Marshall -- and selecting a black nominee was important. However, finding a black nominee with exemplary credentials and Republican leanings was extremely difficult.
Democrats, at the time, believed that the so-called black seat on the Court rightfully belonged to a civil rights champion, not a conservative black. So the Democrats played a large role in making Thomas's nomination controversial -- essentially they called for what did not exist -- a black Republican liberal. When Ms. Hill came forward, that, of course, added fuel to the fire and Bush was stuck where he did not want to be.
Still, Thomas prevailed in a heavily Democratic Senate. Bottom line, Thomas's nomination was unusual because it was both racially and sexually charged. Still, about ten Democrats voted for Thomas, a sign that, until Ms. Hill came forward, his appointment was relatively non-controversial. There is no question that the sexual abuse evidence changed everything. But, by that time, Bush had committed himself and was out on a limb where he did not want to be.
1
There is no denying Trump is a consequential president.
Terrible and disgusting, but consequential.
3
The likely long lasting harm done to our democracy by McConnell is tragic.
9
The long-term record of the Senate filibuster shows why it was abolished. A great deal of productive legislation successfully was blocked by vested minority party interests illegitimately employing that technique, often to the country's detriment.
The more recent record after the abolishment of the filibuster reflects far more significant damage inflicted by the effective disenfranchisement of a minority party's voices, and a much greater net detriment to our country's interests.
As a result of a persistent pattern of egregious Republican abuses under Mitch McConnell, the Senate is in a state of historic disarray today. Should the Democrats regain commanding control, their first order of business will be substantially to restructure the Senate.
They should begin by following Nancy Pelosi's suggested lead in the House and distribute procedural decision-making power from its present concentration in the Majority Leader, where McConnell has subjected it to unprecedented abuse. They need to restore the filibuster rule immediately rather than wait until after they have affected their changes. As McConnell so aptly has demonstrated, a perception of fairness and participation in arriving at meaningful compromise is far more important to accomplishment of results than any immediate advantage of position.
If Democrats can accept risks and grant good faith to their Republican colleagues, it's possible to once again enjoy the functioning Senate that our founders intended us to have.
@Peter G Brabeck: There is no conceivable band-aid that can ever cover up the atrocious malapportionment and grotesque unfairness of the US Senate.
3
@Peter G Brabeck: Good faith is scarcer than hen's teeth in the Republican Party.
3
The appointment and tenure system for supreme court judges strikes me as a huge gaping flaw in our government. We get no say in selecting people who make decisions that affect hundreds of millions of people - decisions they don't have to explain, let alone defend, in any public forum. And they get to do this for the rest of their lives.
What is the process for accountability here, if any?
5
@Surprised The Supreme Court has way more influence than was intended. This began with the New Deal, and it has only gotten worse over time. The Supreme Court was never supposed to make major social decisions for our nation.
1
Both Souter and Thomas, though “poles apart,” were nominated and confirmed. George H. W. Bush is the last President that could be said of.
7
The worst scenario is Trump gets to appoint two more justices pushing the court to the far right and a return to the America of 1950. This possible dream come true will make religion mandatory and being a minority dangerous while enhancing the life of aging white straight republicans and donors.
2
The only ''combative'' part was from healthy and alcoholic Senators on the Democrat-controlled Senate Judicuary Committee. This was Ted Kennedy's new sport since the Soviet Union no longer required his public-relations efforts.
Kennedy destroyed as much of the historic nature of advising and consenting to presidential nominations as he could, and left some scraps to the Democratic Senators of the Kavanaugh era.
Perhaps having state legislatures nominate Senators was indeed the best method.
2
Mitch McConnell and friends are in power.
Pro Publica on Citizens United:
Mitch McConnell said “All Citizens United did was to level the playing field for corporate speech…. We now have the most free and open system we’ve had in modern times.”
Pro Publica--- "The “playing field” surely is not level for American voters — Citizens United invited corporations and special interests to spend freely to amplify their speech and drown out the rest of us. That’s the opposite of “free and open”.
Thus corporations can effectively regulate the US government, instead of elected govt regulating corporations. A 21st century version of aristocracy rules the nation that rebelled from King George.
Corporations and the wealthy donors pretend that any regulation of them by a democratically elected govt is 'big govt interference and the road to tyranny.' It's labeled too 'left wing' and anti corporate for govt to regulate in its citizens' interests. A warped democracy.
The NRA with its donations and scoring of candidates on gun regulation is 1 blatant example of corporate dominance over public interest.
The citizens of the US are at a disadvantage in public danger from guns, unaffordable health care, unfair taxes, and economic inequality that's Un American.
Polls show citizen majorities disagree with special interests on most issues and want to reverse Citizens United, as do many politicans. What are the chances? Citizens have no clout compared to GOP, Trump and the courts.
7
The decisions of judges sitting on the highest courts are completely misaligned with the will of the vast majority of US citizens. What ever happened to Lincoln's "Government of the people, by the people, for the people, shall not perish from the Earth." as the Supreme Court has given more and more power to big corporations and the wealthiest 0.1%. The so called "right wing conservatives" are the single biggest threat of our democracy as they disenfranchise the rest of us so they can stay in power by taking legal bribes from the rich. Yes the party of Trump is “winning”, but at what cost to the future of our country.
5
New SCOTUS appointees was the key reason to vote against Ms Clinton. One can ignore the illiterate tweets and childish adjectives of the elected President given his choices for the high court. Today, thankfully, it's no longer the last refuge of liberal Democrat social issues. Nothing matters more.
4
@Teller: Do you expect God to reverse climate change after abortion is banned?
5
Bush Sr, although temperamentally moderate, still resorted or acceded to dog whistle politics with the infamous Willie Horton ad. With Clarence Thomas, his appointment was more than a matter of convenience and racial balance. It seemed deeply cynical to put an archly conservative black man in Thurgood Marshall's former seat, and then dare Dems to fight him.
And when the Anita Hill controversy exploded, Bush was well positioned to get the straight truth from Clarence, or probably detect his lies. Once she testified, Bush should have withdrawn the nomination. But of course he didn't.
Now there's a serious question whether Justice Thomas should be impeached along with Bart Kavanaugh. After all, no branch of government or public life should be a refuge for unrepentant sexual predators.
5
I hope this bit by Greenhouse and others also keeping their feet on the ground in the midst of all the reflexive sanctimony over GHWB - typical of the Bush dynasty PR machine - will put paid to the mostly undeserved hagiography of a velvet-gloved stealth neo-imperialist and corporate stooge.
GHWB served his plutocrat class and his elders/minders well, along with the deep state and most fundamentally the oligarchy that is now taking the nation and the world over a cliff. We should not forget what the unholy marriage among oilmen, industrialists and the espiocracy has meant for the world the last hundred years or so.
2
Above all, given Trump/McConnell's impact on the federal courts, Dems must do what it takes to regain the White House and Senate in 2020. Think of the potential impact on the Court: Thomas and Alito are both pushing 70, and Thomas does not look to be in great health. If Ginsburg and Breyer can hang in there for two more years, we could have a solidly Dem appointed Court within four years.
Again, however, this depends on the Dems not overplaying their hand. They have momentum now, but I pray they not let the hard left once again undermine their prospects with millions of Americans in the political center.
As a center/left lib Dem, I disagree with many of Thomas' opinions. Yet we underestimate him at our peril. Like him or not, he has produced some powerful, well written opinions.
As a single example, see his dissent in Gonzales v. Raich. There, the Court's liberal majority opinion struck down California's Compassionate Use Act as inconsistent with federal marijuana prohibition. As a social conservative, Thomas is probably no fan of marijuana legalization. Yet his commitment to structural principles of federalism led him to reject the liberal majority's invalidation of a state law that would have allowed cancer and other patients medicinal marijuana. Now that States are finally legalizing, of course, even for adult recreational use, on their own, Raich is mostly a dead letter. Yet the left undermines the Dems when we engage in simplistic good/evil thinking.
2
Pick a judge that actually understands the proper constitutional role. Who knows not to try to make up laws or portions of the constitution to satisfy their personal wishes, or to update the constitution. That is not their role, so the last two supreme court nominees are a great example for all judges. Simple!!!
2
@vulcanalex: Making no decisions at all so lawyers can bicker and bill clients forever is what the US judicial system is really all about.
2
What a nice piece of revisionist history. Ms Greenhouse contends that Democrats have avoided confrontation in their choices of Supreme Court nominees, while Republicans have sought it. That's a crock!
It is far more accurate to say that Republicans have never mounted all-out, scorched earth campaigns against Democrat nominees, while that is the standard approach for opposing any genuinely conservative Republican nominee. Republicans very easily could have "gone to the mattresses" over the appointment of RBG, Sotomayor or Kagan, each of them a radically liberal progressive known for judicial activism. Yet large numbers of Republicans simply allowed Democrat Presidents to have their nominees.
I know this is the point at which liberals will lose their minds complaining about Merrick Garland and will conveniently forget that both Senators Schumer and Biden have said they would have tabled a Republican nominee pending an election, had the circumstance occurred on their watch.
The reality is that the left weaponized the Supreme Court beginning with the New Deal, while Republicans played nice and avoided confrontation with the O'Conners, Souters, Kennedys and Roberts of the world. Whenever real conservatives were put forward, we got the disgraceful behavior of the Bork, Thomas, Gorsuch and Kavanaugh nominations.
It's not a pretty picture, but the left could at least own its role in it.
5
I'm about to lose my mind because I am tired of lying republicans and quite frankly am starting to think there are no honest ones left. You have no integrity. From Polifact:
Biden's floor speech was on June 25, 1992, and there was no Supreme Court vacancy to fill. There was no nominee. This suggestion was never implemented; calling it a "rule" is farcical.
Biden did not argue for a delay until the next president began his term, as McConnell is doing. He said the nomination process should be put off until after the election.
"Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed."
Biden said if Bush were to nominate someone anyway, "the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over."
Bush's nominee would STILL HAVE A HEARING and be confirmed, just not until after the election had been completed. This would be like confirming Garland in December of 2016.
1
Yes, the canonized former president put Thomas on the SCOTUS - certainly the worst choice and the worst justice to have ever served.
The sugary-sweet media coverage this week seem to deny that he was a really lousy president who made many terrible decisions.
2
@Sam Kanter No president can be considered lousy after having two years of the Trump Criminal & Company running things. They are all Saints.
All the Democrats' appointments are described as 'moderate', "middle of the road".
Of course.
6
Interesting NPR interview Dec 2
--- “The Impact Of Clarence Thomas' Supreme Court Nomination”--- with former NYT exec editor Jill Abramson, who wrote book "Strange Justice: The Selling Of Clarence Thomas" with Jane Mayer.
Abramson says:
--- “conservatives were angry at Bush’s 1st choice for the Court, David Souter. So to satisfy them Bush nominated Thomas to replace the legendary Thurgood Marshall the 1st black justice.
Thurgood Marshall feared that the GOP, in a political move to disarm its liberal opponents, would replace him with a black nominee who shunned the very civil rights agenda for which Marshall had spent his life fighting.
The GOP and advisors to Bush "knew that Democrats and liberals might be loath to oppose a black nominee, even one who opposed many of the landmark cases that Justice Marshall championed."
"Republicans thought Anita Hill was lying and they orchestrated a political opposition campaign against her. Whether Bush knew the details of all of that, I don't know. Bush said Thomas was the best qualified man for the job, which created a bit of controversy since he had very little judicial experience.”
Thomas thought the Hill hearings were a 'high tech lynching'? Sounds like Trump.
Plenty of politics there---the very thing the GOP always charge the Democrats with.
3
@Meredith
Many believed that Justice Thomas' description of his confirmation as a "high tech lynching" was simple allusion to his race. Actually the description was far more profound.
Our system of justice provides a very specific process for making and adjudicating allegations. In the Thomas hearing -- and later with regard to Justice Kavanaugh -- an angry mob decided to dispense with that process, drag these men into the public square and deny their nominations solely based upon the unfounded, unproven and largely uninformed sentiments of the mob. Is there any better way to describe a lynching?
3
The S. Court's 2010 Citizens United decision excused big money domination of US elections as “ protected free speech per 1st amendment.” This has removed the influence of average citizens on politics.
Bush was naïve--- he ‘simply wasn’t very interested in the S. Court” and saw the nomination as a ‘pesky distraction’. Now we know how crucial it is for the nation's whole future.
After the nation was able to climb the enormous mountain of the civil rights movement---1954 school integration, and 1964 Civil Rights Act, etc--- it was tragic to replace Marshall with Thomas.
Bush in the senate had followed the line of rw Barry Goldwater--who lost to LBJ's landslide.
A NYTimes article worth reading--- “When the Subject Is Civil Rights, There Are Two George Bushes” JUNE 9, 1991.
Examples----Bush’s campaign benefited from the notorious Willie Horton ads. But he also appointed the 1st black Chairman of the Joint Chiefs, Gen. Colin Powell.
He vetoed a civil rights bill in 1990, but he donated half proceeds from his autobiography to the United Negro College Fund.
In 1948, as a student at Yale, he led a fund-raising drive for the United Negro College Fund, but as a Texas candidate he vetoed the Civil Rights Act of 1964.
At times he got a 70% approval rating among blacks.
This is one of our most contradictory presidents, in a contradictory America.
2
what mcconnell has been doing should be criminal. that he is so obviously racist and gets elected over and over says a lot about the people of kentucky. none of it good.
4
Not GHW Bush's greatest hour.
It is one thing to have a lifetime appointment to the court in 1790 or even 1890, when life expectancy was low but today it is absurd. Pretty soon Trump and Mitch will be nominating 35 year olds. Of course term limits for Federal judges requires a Constitutional change. Nominations to the Federal court have now become part of Republican contempt for democracy, a way for today’s troubled and not all that popular party, a party that appeals to a diminishing part of the electorate, to force its views on the rest of us and future generations. The result is a court that is increasingly seen by as partisan and political. For conservatives, who supposedly cherish institutions, it is quite a turnaround.
1
The single most important point of this article is Ms. Greenhouse's pointing out that the leader of the US Senate publicly stated when Obama was elected (and for the eight years that followed) that his job was to block Obama's presidency at every turn. This has become the calling card of the Republican Party nationally, including this week watching State lame duck sessions in Wisconsin and Michigan actively vote to thwart the will of the electorate.
Love or Hate George H.W. Bush, he is the last of a kind where it seems to just not have occurred to him to do anything but what was right and fair -- at least as he saw it -- rather than screw the other side and stop governance.
The mourning happening with the death of 41 should be the in recognizing the loss to the country of politicians that care about the people and the country as a whole. It is hard to see a way back.
1
And son of Bush made a round of calls to lobby for Kavanaugh to be appointed - especially using his power to lobby Collins.
1
From the article:
"President Trump...has chosen two dozen former Supreme Court law clerks, including 10 who clerked for Justice Thomas".
A clerk for Clarence Thomas would be exceptionally qualified, since it obvious that they would have been doing 100% of the work that a U.S. Supreme Court judge was supposed to be doing.
Other than the New York City Department of Education, I can't think of any other organization, where a person could do so little, and still remain employed.
It's no wonder that author Greehouse said, "My goal here is not to appraise the two Bush 41 justices". How embarrassing that would have been, give Bush's recent funeral.
1
Let us not forget that so much of Thomas' anger is the result of his knowledge that many of us think he is on the Supreme Court not because of his knowledge of jurisprudence but because of his colour.
I watched the Thomas hearings and believe he is on the court because of his colour not because of his competence and he is on the court because even as we have so many outstanding black jurists there is a paucity of those who are members of the cult of low taxes and small government that wish a do over of the Civil War.
Thomas Chandler Haliburton the early 19th century world renowned writer and humourist pegged Thomas in his quote.
"When a man is wrong and won't admit it, he always gets angry." Thomas is a very angry man enmeshed in a very angry cult.
3
To say that “Thomas just reads the constitution [sic] as written and intended and applies the law” is as intellectually dishonest as the claims of Thomas, Alito, Scalia et al to that effect themselves. It is no more than a wholly disingenuous, literally-incredible rationalization for their predisposition to inflicting their radical “conservative” political ideology on American society as far and as widely as they can, so clear in how consistent they have been in following, ignoring or rejecting precedent as it may or may not be convenient, and conforming their decisions, to their transparent political agenda.
How ironic it is that those who have been for so long so shrill in decrying “politicizing the Court” have become the most zealous in doing so themselves, even as they deny that and hypocritically continue to accuse others of it.
No one today has been more aggressive, effective and shameless in this, while willfully undermining the very independence of the judiciary in America so essential to a functional democracy and equality before the law, than Republican Majority Leader McConnell, and now President Trump. They are hard at corrupting what they swore to defend. And the Federalist Society has been central in it.
3
@D P Luna: The US is amazingly tolerant and respectful of people projecting the worst in themselves onto everyone else to justify being badder themselves.
1
It is chilling that Mitch McConnell is still around. Don’t the good people of Kentucky understand that he is not good for their interests? Kentucky is one of the poorest States in this country.
Mitch McConnell stands for nothing that would help the normal citizens, read poor, of Kentucky, yet he keeps getting elected
I suspect it is because Kentucky makes it extremely impossible for those very people to vote.
McConnell is one of the worst Republicans that has ever served in the U.S. Senate. He is barely human
4
Nominating Clarence Thomas for the Supreme Count (especially for the seat vacated by Thur good Marshall) speaks volumes about George Bush and his values..
"Combative" doesn't begin to cover it. More like pandering to the worst political instincts. ("Who could oppose a black nominee"? and/or the implication that Thomas was "the best we can do" in terms of a black or non-white nominee.)
The ultimately cynical, politically-motivated sort of choice. And a disgrace that "keeps on giving" in terms of the knee-jerk right-wings views and opinions (often in 5-4 decisions).
The choice of Thomas should alone cause some major revisionism in terms of Bush's politics and presidency!
1
George H.W. Bush looks like a decent man when seen in contrast of the present POTUS, but his ugly Willie Horton campaign, the recently disclosed dirty trick that destroyed Gary Hart’s political career and especially his cynical appointment of Clarence Thomas to the Supreme Court indicate that he was as venal as any of them.
"Don't speak ill of the dead." That's the dictum many of us grew up with. But I have one question: Why not? The truth about a single life, the whole truth, shouldn't be ignored. This past week of mourning for George H.W. Bush has been a week of both remembrance for his strengths and a white-washing of his weaknesses. Let's not forget he was responsible for "Willie Horton" (he never repudiated it). It was precisely this kind of dog-whistle race-baiting that led to Trump. Connect the dots. Every GOP president since Reagan has quietly race-baited 38% of the country (the deplorables) to get their vote and win. Let's also not forget Clarence Thomas and Anita Hill. Professor Hill was attacked relentlessly by the GOP and Bush surrogates. And there's more, much more but I don't have the space to write it all.
If we don't speak up about the entire legacy of Bush 41, then we are setting the stage for a white-wash when Trump dies. I imagine news outlets will not want to speak of his treasonous crimes and only focus on what? They will come up with something, anything not to speak ill of the dead.
2
@cgtwet I believe the old adage to not speak ill of the dead is for the recently dead. Give them a year or two of peace and adoration, then we can rake them over the coals.
Any good reason other than ideology to not mention the Bork nomination?
2
I brought a case to Federal Court and the judge I got was a GHW Bush appointee. He hated civil rights laws and from the historical review I did of cases he decided over the years, he was a pretty clear misogynist. The ruling he gave me after he ruled I could not have a jury trial, was gobbldygook. He made it an unpublished decision. I was BTW the only person I know of who made it into court under the Whistleblower Protection Act. The judge did write that I had been a whistleblower and that was why what happened to me happened, but he had no authority to rule under that law. I went through an entire trial and then he wrote I didn't have standing under the civil rights laws either. If that were so, the case would not have been accepted in DC, before my case was then transferred to this miserable jurisdiction. Eric Holder was the lawyer for the government who made me do that.
@ljm: US Courts really are a make-work project for lawyers usually signifying nothing.
I'm not sure if the Republic can survive much more of the modern GOP.
1
What a biased article. Democrats have shied away from confrontation, but Republicans have embraced it?? Fact is, Republicans have allowed Dems their liberals, but Dems have waged war to prevent Repubs from appointing conservatives. And Breyer is a centrist?? Give me a break, he’s a full/fledged liberal.
4
@Ted George: Conservatives who conserve nothing have a comprehensive disregard for the established meanings of words.
1
My recollection is that the lawyers have a rating system that details who in their ranks is considered most competent. Judge Thomas received rather low marks from his peers and nothing in the years since has suggested this appraisal was unfair. By comparison, Judge Scalia was a brilliant and interesting man even if you disagreed completely with his opinions.
Has Judge Thomas grown on the job? Has he surprised those who figured they could count on him to simply rubber stamp the majority? No. But he was an African American conservative then, and he is an African American conservative now.
3
Somehow this was missing from all the many obituaries. It was George H.W. Bush who gave us Thomas and Scalia, which led to Citizens United, a bizarre distortion of the First Amendment which has allowed right-wing billionaires to dominate elections and buy state legislatures across the country.
It was also under George H. W. Bush's leadership that the Republican Party welcomed the Christian Right with open arms -- lending legitimacy to what had heretofore been regarded as an extreme point of view that Evangelical Christianity is the official religion of the United States.
It was George H.W. Bush who was only too happy to fire up white hatred whenever he needed it to win elections. The Bush organization hired some of the dirtiest people in American politics when they needed to defeat John McCain in the South Carolina primary, and the Bush Campaign also commissioned the Willie Horton ads, bringing white hatred to the forefront of the 1988 presidential election.
And finally, George H.W. Bush did nothing and said nothing to oppose the white nationalist groups and Christian zealots who made up the Tea Party -- a movement that ended up capturing the GOP and led to the nomination of Donald Trump. The Bushes had very little to say about Trump or Trumpism until Trump started driving Jeb out of the race. That was the point at which the Bushes cared.
2
It's refreshing how much we learn from you about the intricacies related to the SC nominations. Yet, while learning (always) from your knowledge, I feel that the judicial system has nothing, absolutely nothing, of a fair play of judiciary decisions but a lot, or almost, it is actually just the arena of the basest political power struggles and we, the citizens, are just spectators of the game among the interests of the powerful. Is it a way of changing this state of affairs ? (It's not a rhetorical question). Again, thank you Ms. Greenhouse, your column is a course on civic instruction.
2
Supreme Court nominees are supposed to be chosen based on their ability to properly and impartially interpret the law and comport themselves properly regarding their office.
Given multiple opinions of Mr. Thomas that have avoided citing relevant law for multiple pages while looking like an opinion post, given his unwillingness to recuse himself from multiple cases where his family could visibly benefit or where he has a personal interest, and given his multiple large speaking fees paid for by right-wing partisan organizations, I have serious doubts as to his fitness to serve as a Supreme Court Justice.
Regardless of anything else I may feel about the elder Mr. Bush (rest in peace), this part of his legacy makes me quail.
No pun intended, VP Dan.
3
@Jacob Sommer: The Republicans go to great lengths to assure that their favorites are adequately funded to circulate in Washington society.
1
It's not that Republican presidents are being confrontational in their nominees but that Senate Republicans are being conciliatory when it comes to nominees by Democratic presidents and Democrats are being confrontational with Republican nominees.
1
Merrick Garland might respectfully disagree!
2
Are you referring to the Garland doctrine of conciliation on the part of republicans ???
Revisionism at its worst.
2
@J, How does Merrick Garland fit in with these "conciliatory" Republicans? Perhaps Merrick didn't like beer enough?
2
The problem with the American court system is that it is ill-moral, and does not meet the standard established in GOD's word. For that reason and many more, the nation is doomed for failure and destruction. The only question is "how soon?"
So basically: it is only OK to nominate hard-left liberals to the Court, so that Ms. Greenhouse's dream of social engineering can be brought into being.
3
I'd like everyone to understand that despite the cacophony of cheers lauding the greatness of GHWB, the fact is that he was an elitist born to privilege who worked hard to portray an image of the ordinary man but never quite managed. Read his lips: No New Taxes. Yea sure, and Clarance Thomas and sad am (did he think it was like a trans-am?)
It speaks volumes about Americans ignorance that they can cheer the legacy of this man. I can imagine the invective emanating from people when Clinton or Obama dies, either of whom did more for this country than both GWH and GW Cheney & Company LLC combined.
7
@matty I particularly like the contributions of President Obama. He got us out of Iraq and Afghanistan. He closed Guantanamo. He enforced the "red Line" against Assad in Syria. He stood down Iran. Domestically, he replaced our antiquated health care system with Obama care which lowered our premiums all the while allowing us to keep our own doctors and our own insurance. He revived our economy, increasing the annual growth rate to 2%. Most of all, he deceased racial tensions and increased respect for law enforcement. Well done Mr. Obama.
1
GHWB and Clarence Thomas are the root cause and reason why I no longer vote for Republicans.
68
@LMS
I see no problem with bending long standing rules of comity to pack the courts with harsh ideologues.
LOL
2
Mitch McConnell's iron fisted control of the judiciary has harmed not only the generations alive today, but those coming up and likely the future of the United States. We now have three Clarence Thomases, two of which are partisan victims who whine and fantasize punishment to the country for their imagined abuses.
The elevation of Kavanaugh to the Supreme Court has inflicted violence upon the women of America. When will this end? We're being bullied by Kentucky voters.
8
"...the stated goal of Senator Mitch McConnell, the minority leader, to block the president at every turn." Indeed. McConnell's cynicism and hypocrisy is beyond belief.
Years ago every time the Supreme Court was mentioned, my first thought of dismay was: Clarence Thomas. Then it was: Clarence Thomas and Merrick Garland. Now it's: Clarence Thomas, Merrick Garland, and Brett Kavanaugh.
I still love my country, it's the tainted politics I can't abide, and I mourn the bleak future we're bequeathing the grandkids.
Thank you for your work, Ms. Greenhouse, it truly is a 'point of light' ~ and we definitely need some light in this time of darkness.
4
"...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." Given the above, why is Sen. McConnell not ever described in NYT news articles and editorials, or by its columnists, particularly those of the center-right, as a right wing, far right, extreme right wing, or extreme far right Republican and/or Conservative in the same way that Senators Warren, Harris, and Sanders get described in articles and columns as far left wing or far left or extreme far left Liberals/Democrats.
What's good for the goose should be good for the gander!
4
Americans must stop glorifying only one thing in politics: re-election.
Clarence Thomas was obviously a ploy to get back in the good graces of the hard right after the tax increase before the 1992 election, and it failed.
If we honor those who do right for their country and not party, on both sides, we will finally become a mature and intelligent empire.
3
During the Clarence Thomas nomination, the Democrats controlled both the House and the Senate. Bush Sr. used the democrats identity politics against them. Clarence Thomas is African American so the Democrats were forced to accept him despite their misgivings. If the nominee was any other race with a similar record, the Democrats would have had no hesitation in turning him down. The Democrats were so desperate to have an African American on the bench that they swallowed him though he still gives them indigestion 27 years later.
2
Bushes greatest mistake. The gift that keeps on giving, to the
“ religious “ right and grifters everywhere. But I repeat myself.
Seriously.
2
Please.
The left denounced Bush, Reagan and all the other establishment Republicans as racist too. They caved in, and accomplished nothing. The country suffered for it
The compromising establishment Republicans failed, sold out their constituents and are rightfully on their way out
We need an uncompromising non-establishment conservative like Trump and you can invent any epithet you want to falsely smear him with. We don't care
The left is now embracing all these phonies from the withered GOP-establishment as a weapon to pummel Trump. It won't work. The country is irreparably divided due to the left's slandering of our values, theft of our property, encroachment of our liberties and corruption of our children.
Clarence Thomas was and is a good man. I suppose it is now convenient for the left to recognize that fact
2
Clarence Thomas was a cynical choice. Replacing the esteemed Thurgood Marshall with a right-wing, sexual predator, was deeply irresponsible. Sadly, he's been on the Court for almost three decades and caste his votes with the Scalia wing of the Court, decisions which have not supported citizens or the environment. A boon for corporate malfeasance.
3
Almost all the accolades for Bush 41 this week neglected to mention the schism he created with Clarence Thomas. For a guy who always professed taking the racial high road, his path with Willie Horton was yet more evidence of his innate hostility to any sort of real equality. On balance his presidency was poor. We only honor him because of the office, and the freakish comparison to the current clown.
4
The proper corrective for this haphazardness is fixed terms for Justices. Assuming nine Justices, a term of 18 years with appointment in odd-numbered years would give every Administration a predictable influence on the Court and assure that no Justice would become a superannuated fixture there.
2
The Thomas appointment to the Supreme Court was the pinnacle of republican cynicism. Only a hard-core partisan would have made this appointment.
1
I don't think the nation has adequately addressed the damage that was done to our political process by Senator McConnell during the Obama administration.
When Justice Kavanaugh addressed the Senate after Prof. Ford's testimony, he spoke of an "old-fashioned Borking".
The truth is that the Senate was investigating a matter of character involving a serious allegation that included lying before the Senate.
In the case of Justice Sotomayor, in contrast to the confirmation of Justice Kavanaugh, there were no such accusations of indecent behavior present, no questions of character, no evidence of false testimony, nor any intemperate behavior present during testimony.
In fact, even the confirmation hearings of Mr. Bork were centered around constitutional matters, including the firing of Archibald Cox.
The fact is that while it doesn't quite roll off the tongue as "Borking" does (which sounds like a puerile taunt), what happened to Justice Sotomayor, though she was barely confirmed, was the real travesty of justice, and a shameful blot on our democracy.
9
@Joseph Brown
Better stated, you might have written, "I don't think the nation has adequately addressed the damage that was done to our political process by the George H.W. Bush administration." In expanding the power of the Executive and in putting Thomas on the Supreme Court -- who was key in putting Bush Jr in the White house and ruing the corporations are people and money "speech," he led the way to the utter corruption and undermining of the Republic as well as to invasions, drone assassination and endless war.
1
Elections determine the short term and in the case of the Supreme Court the long term course of the country, which is why it's vital that the Democrats reverse their denigratory view of the working class, bring them back into the fold and hopefully win the 2020 Presidential election.
1
I used to believe that the Supreme Court was one of the best things about our country. I now consider it to be just another conservative PAC that has no interest in justice, fairness or the American values I hold dear.
10
Time to amend the Constitution to define a term limit for SC justices.
And to you "originalists" who would seek a 1790's rationale for such a change, consider that even a well-to-do white man's life expectancy wouldn't generally exceed age 60 (Benjamin Franklin, notwithstanding).
Let's say ten year terms, no renewal. There's no lack of talent and lots of room for incremental imnprovement.
6
When Clarence Thomas and Robert Bork were savaged by Ted Kennedy and the Democrats on the Supreme Court committee, the game changed. Republicans decided not to lie down and play dead any longer while Democrats controlled the narrative. Now they fight back, as they did when now Justice Kavanaugh was defamed by a woman without a single shred of proof to back up her claims of sexual harassment. They learned a hard lesson from Democrats, and they are not going to forget it. The Democrats started this mess, and they have nobody but themselves to blame now that the Court is leaning right.
5
@paul
I didn't realize that Bork and Thomas were 'savaged' by Ted Kennedy. So, in your book, asking hard questions of candidates whose ultra-right record was under scrutiny, was the responsible thing to do. No, Democrats didn't start a 'mess'. They have been doing their jobs! Your misogyny is showing, and its not pretty.
3
There were legitimate questions about the integrity of both Bork and Thomas that you overlook. Bork was instrumental in Nixon’s attempt to obstruct the investigation of Watergate. He was willing to do what two other men were not—fire Archibild Cox. This alone revealed his character to be that of biased politician rather than one of judicial integrity.
Thomas too had serious character issues, in addition to the Anita Hill question—-unlike Justice Sotomayor and of course Judge Garland. What seems evident to me is that questionable character is not a Republican concern if it in anyway furthers their agenda. Trump would be Exihibit A.
6
@Dale Merrell.
Dale, When Eliot Richardson, a Boston Brahmin, resigned the post of Attorney General rather than fire Archibald Cox, and Ruckelshaus, the deputy AG. followed suit, Richardson was not being noble but cynical--he was preserving his bona fides as an independent-minded man of integrity. The truth of the matter is that Richardson insisted that Bork who, as Solicitor General was third in command at the Justice Department, remain at his post and fire Cox, though Bork too wanted to resign. Richardson argued that if Bork also resigned, there would be no one running Justice. So Bork stayed on for the good of the country, knowing his reputation would be damaged. Of that crew of three, only Bork was a man of honor. And he fired Cox because of what all three knew--that Cox's position had no Constitutional basis and that therefore Nixon, whether his decision was wrong or right, could exercise and delegate his power to fire Cox.
Thank you for this excellent historical piece Ms. Greenhouse and for exposing to your readers another loathsome example of the deviousness and cynicism of McConnell in introducing the Republican benefactor, the N.R.A., directly into the Supreme Court confirmation process. Seen in context, McConnell’s unconstitutional thwarting of the Garland nomination was almost inevitable. Clearly there are no boundaries that he will not cross to further his agenda, regardless of the ensuing damage to the Senate’s institutional comity and reputation for bipartisanship.
1
Nominating Clarence Thomas to the Supreme Court was classic Karl Rove. They picked a black man for "Thurgood Marshall's seat," but a man who was the opposite of Marshall in every way that matters, knowing it would embarrass the Democrats who would be loath to take a strong stand against a black nominee. It was a vivid example of Bush's Machiavellian nature, and of the Democrats' self-destructive timidity (aka "pragmatism"). The whole affair disgraced both parties—and that's without taking into account the disgraceful way they treated Anita Hill.
4
They may feel conservative is better for the country, but I am now convinced that "conservative" is nothing more than a dog-whistle for racism. After all, Russians are in our house -- where's the security? The deficit is massive -- where's the fiscal restraint? The only consistency in "conservatism" is policy to suppress blacks, latinos and women (abortion rights -- infantilizing women, who can't control their own bodies). So not only do I see Mitch and conservatives doing a disservice to the country, I see them losing, badly, and being out of step with the country and our reality. So what do they do at the first sign of losing? Cheat. What a party.
5
Amid all the encomiums to the deceased Bush I, a number of things stand out. The appointment of Clarence Thomas to the Supreme Court was a disaster for the United States, and of a particular kind. Here is someone who hates his own people with a passion, and who has "last one on the boat" attitude and a ridiculously antiquated view of what this nation should be about.
4
The Democrats handling of the Thomas nomination was as disgraceful as their handling of the Cavanaugh one. As a party, and as a nation they/we should be ashamed of ourselves for this travesty. The judiciary is the last bastion of Progressive tyranny. It's a place where judges legislate from the bench regularly. In Trumps shoes, I would have defied the court on immigration, an area they have no Constitutional authority whatsoever. Trump has proven very temperate in this area..so far.
The tyranny of the left will be stopped. It will take the rest of this term and possibly his next, but it will be stopped. Knowing that they no longer hold judicial power may finally bring these radical, anti-America nut jobs to heel and force them to obey the rule of law as it is written. Those of us who support Trump are willing to let his missteps pass for this one result alone. The longer the left refuses to understand this, that the will of the American electorate will be obeyed, the stronger the support for Trump becomes. They are slowly digging their own grave.
2
Since Sen Mcconnell changed the rules to a simple majority (51) for the Supreme Court, may I suggest the same 51 votes for an impeachment vote on Pres Trump.
Then return the rules to 2/3 (67) votes on Federal Judges, mayb even 3/4 (75) for the Supreme Court and allow Holds by a Senator on Nominees for their state,
5
@swenk While you are at it, why not get rid of the Electoral College?
1
Thurgood Marshall was such a giant of the legal profession that his appointment to the Supreme Court was no “elevation”; rather, it was a lateral move.
As others have noted, Clarence Thomas was unqualified at his appointment and remains unqualified today.
5
Thurgood Marshal would be a hard act to follow. Bush and his advisors instead nominated Thomas whose only credential is that he was a right wing hack who happened to be black. McConnell is the master of zero sum politics in the Senate and all their arcane rules. It was Harry Reid who ended the Judicial filibuster because of McConnell's relentless partisan assault on the Obama Administration. Probably the most important blunder of the Democratic establishment with their insistence come hell or high water, to nominate Hillary Clinton in 2016. The death of Scalia should have been filled by Obama but McConnell managed to use the R majority in the Senate to close any nomination of Obama to be confirmed. Clinton's devastating upset loss allowed Trump an easy avenue to confirm Supreme Court justices because McConnell basically was able to hand pick them. Grassley's Judiciary Committee relentlessly fills judicial seats with safely right wing nominees.
3
Clarence Thomas is the first thing that comes to mind when I think of Bush 41, Clarence Thomas, the gift that keeps on giving. Then I remember how Anita Hill was treated. No, I don't think of points of light when I remember Bush 41.
6
Two points worth remembering:
Ms. Greenhouse has never been shy in her approval of "borking" Supreme Court nominees, so her veiled criticism of the Republicans for being willing to fight for their nominees rings slightly hollow. And,
2. The Republicans understand the Washington game far better than the Democrats as confirmed by Hillary's neglect of implications of the Electoral College vote the Republicans' abilities to come up with a federal court bench whose seats are warmed by well-qualified legal scholars, not ideologically driven social justice warriors in black robes.
Mr. Greehouse's tears, I admit, are real, and talking about the reasons for the angst is better than sulking the way most other Democrats have chosen to approach the problem.
The Dems, however, are going to be at a decided disadvantage for decades whether or not Trump is a one-term president. Their disadvantage comes for their penchant in for not acting when action is indicted and half-baking the loaf when they actually get around to doing something.
One needs only to look at the current situation regarding the 2020 presidential race where they have yet to have present a voice that is capable of leading them forward, let alone a voice that can capture the votes of the middle where elections are won and lost.
4
@The Owl But don't ya know Hillary is planning on running again. Yay. NOT.
Time for legislative override of supreme court decisions, for the next two years!
https://thinkprogress.org/the-key-to-saving-us-from-gorsuch-and-kavanugh-lies-in-an-obscure-law-signed-by-george-h-w-bush-e591232bb7f0/
3
More evidence that Bush 41's legacy is complicated. But, he acted in public with dignity, which is really easy to do, yet Trump fails at this easy task every day.
3
I was not amazed at the blanket of praise laid on GHWB after his death. It's the nature of the moment except probably when Trump dies. (How crazy will that be?) But I completely agree that the Clarence Thomas appointment has done us a huge amount of harm. As others are saying, that's Bush's real legacy and something in me seizes up whenever I think of it. Let us also not forget Dan Quayle, the Sarah Palin of 1992. Bush put the country at serious risk running with him and must have known it. If that's not lack of principle I don't know what is. It profits a man nothing to give his soul for the whole world, but for Indiana?
11
@PB: Thomas was obviously selected to be the un-Thurgood Marshall.
3
Given Justice Thomas’s ultra conservative voting record on the Supreme Court, it is amazing to reflect on the fact that he was confirmed by a Senate in which Democrats outnumbered Republicans 57-43.
10
@Fred Hutchison
Your comment about the ostensible Democratic control of the Senate at the time of the Thomas confirmation causes me to wonder: Wasn't there a "supermajority" rule in the Senate at that time requiring 60 votes for confirmation? As Ms. Greenhouse says: "The eventual confirmation vote was 52 to 48." What am I missing?
@Robert Plautz
I believe you are thinking of the 60 votes necessary to end a filibuster against a Supreme Court nominee, which existed until Mitch McConnell used the so-called nuclear option for the 2017 Gorsuch nomination. To the best of my knowledge, only a simple majority has ever been needed for confirmation.
1
The only reason the supreme court appointments have taken on such importance is because the house refused to legislate and they would rather do it through packing the supreme court. We should move to a system with 12 justices who serve rolling 16 year terms. Each presidential term 3 members rotate off and 3 new ones are appointed by the current administration. The entire membership would then turn over every 16 years, there would be no permanent stacking of the court and every administration would get to appoint 3 (or if the president wins 2 terms, 6) justices. The court would then much better reflect the will of the people. There would be no point in adding abominations like Thomas and Kavanaugh to the court in these circumstances.
7
Rig the Presidential and House votes via gerrymander, Jim Crow voter suppression and black-box-voting machines with no audit trial.
The Senate and the Electoral College are already rigged for ruby red religious regressive Republicans.
Rig the courts.
Welcome to Republistan, the newest Soviet satellite republic, where Russian-Republican oligarchy reigns supreme.
There's nothing American about the modern Republican party...it would fit seamlessly into a Kremlin conference room.
Decent Americans don't vote for or support unAmerican Republicans.
61
This country has survived far-worse Supreme Court Justices than Clarence Thomas.
Although there is a considerable competition for the prize of worst one of them all, in my book he was James Clark McReynolds, an anti-Semite, misogynist and hater-of-blacks of the very first water.
We will survive Justice Kavanaugh too.
https://en.wikipedia.org/wiki/James_Clark_McReynolds
https://thinkprogress.org/the-five-worst-supreme-court-justices-in-american-history-ranked-f725000b59e8/
1
No one suggests we won’t survive Kavanaugh. Survival isn’t the point. The point is we could have done better.
Example: no Clarence Thomas, no Citizens United.
Mill that one over a bit. Thanks, George.
1
Give your readers the information they need to make the Supreme Court better. Please give your readers an asterisk indicating the party that nominated each judge and Justice. There is a higher court - the court of informed public opinion.
To keep your readers in the dark is to perpetuate the myth that judges are apolitical. And Democracy - and people - die in darkness. See
https://www.legalreader.com/trump-administration-reshapes-judiciary/
1
Thomas just reads the constitution as written and intended and applies the law. We need eight more like him.
32
@KBronson Please re-read Bush v. Gore and tell me where in "the constitution as written and intended" it says that if George W. Bush thinks that he's won the presidency, the Supreme Court must stop a state recount to protect his election, and that the court not only has to create a new interpretation of the Equal Protection Clause to do so, but that it must limit its holding to just the election of Bush.
I'll be waiting right here.
87
Funniest thing I've yet to hear today. Thanks for the laugh.
38
@KBronson
Yea, eight more like him beholden to the 18th century,
No thank you.
FYI, the constitution does not apply the law.
40
How wonderful the NYT has such an erudite journalist. Ms. Greenhouse, so grateful you still write.
The Hagiography for GHW Bush a little much. He left a terrible legacy, aside from phoney wars that continue, the war crimes of Panama, those pesky Iran Contra lies etc. He nurtured, knowingly or not, the great divide on race, wealth distribution and the rise of the Gingrich Gang of know nothings!
After all the Bushes were the height of paternal mediocrity.
6
Every time I hear Bush 41's name is see Anita Hill. Accolades pale, he had others do his dirty work as gentlemen so often do.
9
The Supreme Court of the United States is by far the least democratic branch of our divided limited power constitutional republic of united states.
And the law is not fair nor just nor moral nor objective. Law is gender, color aka race, ethnicity, national origin, faith, socioeconomics, politics,education and history. Africans were lawfully enslaved and legally separate and unequal in America.
The way to fill any Supreme Court vacancy is to do follow the preferences of the white male European Judeo-Christian American majority.
Clarence Thomas wasn't even the most qualified black conservative Republican aka Larry Thompson. Thomas was the antithesis of Thurgood Marshall. George Herbert Walker Bush opposed all of the 1960's civil rights legislation that was pushed by a real Texan aka LBJ and civil rights activist.
Addison Mitchell McConnell, Jr and Jefferson Beauregard Sessions, III are two white supremacist bigoted sons of Confederate Alabama. Listening to the two of them you would think that the South won the Civil War. Donald John Trump, Sr, is a white supremacist New York City Yankee bigot.
While blacks are 13. 3% of Americans there have only been two black SCOTUS justices. There are currently three Jewish justices aka 2% of Americans. And there have been others Brandeis, Frankfurter and Fortas,
4
Excellent analysis.
But wasn't the Kavanaugh vote 50-48? (Sen. Murkowski voted "present", pairing her vote with an absent GOP colleague who attended his daughter's out-of-state wedding)
2
Ms. Greenhouse your insight into OUR United States Supreme Court is invaluable. Thank you for keeping us apprised of how it works.
You say, " the first President Bush, whose primary focus was on foreign policy, simply wasn’t very interested in the Supreme Court."
Shame on him. He seems to only have been interested in glad-handing and being "popular". WE THE PEOPLE are paying for his neglect.
And now we have the worst of the worst - Mitch McConnell. The article says, "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."
WE THE PEOPLE must not allow Traitor McConnell to destroy democracy in OUR United States of America. The nra doesn't own it. The federalist society doesn't own it. The Koch brothers and other inherited/stolen wealth "aristocrats" do not own it. The Con Don and his International Mafia brethren do not own it. The catholic church and evangelicals do not own it. WE own it.
WE alone can/will stop them and WE must all work together every minute of every day - in any small or large way we can - to stop them before they can further destroy OUR lives.
10
Such a good review of Bush and the Supreme Court, Bush 41, that is. Thomas has proven to be a puzzle, in some ways as he says nothing. But his opinions even w/Scalia gone hew to the original originalist ideas which I've never understood how any man of the law, or woman, could espouse. If we didn't change the original, how would we progress? Most interesting that Trump has chosen 10 law clerks "...who clerked for Thomas--more than for any other justice. The legacy continues." Provocative. Thanks LInda Greenhouse.
3
Since there is no recourse for lying under oath for SC nominees, what real difference does it make if you have 51 votes? All that needs to be done is to put on a charade and then confirm anyone regardless of qualifications. Clarence Thomas is a prime example of a stupendously unqualified candidate approved not only by lock step conservative senators but by the "white guilt" machinations of Joe Biden. Every courtesy was given to a blatant liar who played the race card ("high tech lynching") and made the dems squirm. The dems had been in power for nearly 40 years at that time and blew it totally. All they accomplished was giving Scalia two votes as he coddled his extremely challenged minion.
7
This country has survived far-worse Supreme Court Justices than Clarence Thomas.
Although there is a considerable competition for the prize of worst one of them all, in my book he was James Clark McReynolds, an anti-Semite, misogynist and hater-of-blacks of the very first water.
We will survive Mr. Kavanaugh too.
https://en.wikipedia.org/wiki/James_Clark_McReynolds
https://thinkprogress.org/the-five-worst-supreme-court-justices-in-american-history-ranked-f725000b59e8/
1
Shakespeare may have said it best in Marc Antony’s speech in Julius Caesar- The evil that men do lives after them; the good is oft interred with their bones.
139
@Steve Ell
But Brutus was an honourable man and stopped the television from being turned on for a whole day.
My father died in 2003 at age 93 but still got angry at the sight of Ronald Reagan. My father could never read or watch enough news and information. My father knew who Reagan was in the early fifties, he loved the USA and I think even back then understood the media would fall in love with was to become the worst possible President.
Trump by comparison is a breath of fresh air. He is honest to a fault in that what you see is what you get.
3
@Memphrie et Moi :Trump by comparison is a breath of fresh air." Good to know as fresh air will soon be non breathable. Global warming is upon us and even the great Trump cannot stop it nor does he want to. Honest to a fault. My foot.
1
The republicans are in this business for raw power and don't seem to give much of a fig for democratic process. My prediction: if the next election produces an democratic president and a republican senate, Mitch McConnell will come out swinging to reinstate the judicial filibuster.
3
@Paul Kolodner
What makes you think there will be another election?
Given the crass power-play by Republicans in WI and MI, all bets are off on all legal statuses.
The entire Republican Nation is pulling a "Mitch".
And I'm not betting the farm that this SC will smack them down.
1
Give me Souter any day. THomas was a cynical appointment.
3
Well, remember that Brett Kavanaugh was not on the Federalist Society's first pick list. he was a Trump nominee through and through. His appointment was solely, and only, to protect Trump. The fact that he's a right wing supporter of never applying laws to white men or corporations was just icing on the cake.
9
The replacement of Thurgood Marshall by Clarence Thomas was an insult to the Supreme Court as well as to the country, and the treatment of Anita Hill was an absolute disgrace.
"Justice" Thomas (tongue firmly in cheek) showed us who he was when he failed to recuse himself from Bush v. Gore, even though he was legally required to do so, as his wife was actually working for the Bush campaign, vetting people for a possible Bush administration.
Between Clarence Thomas and Willie Horton (Oh, and let's not forget Iran-Contra), Poppy Bush left us quite a legacy. I personally think the country would have been better off without it.
12
Appraisal of 41s appointments? Souter, ok. Thomas, abysmal.
PS - limit the term on all appts to 10 years.
6
It's amazing that the author would actually write that Dems have "shied away" from confrontation when it comes to Supreme Court nominees, given what occurred during the recent Kavanaugh hearings. It's also amazing that the author would claim that Repubs just suddenly did away with the filibuster, without giving any context as to the Dems' actions leading up to that. The author must then of course suggest some kind of racism with the failure to confirm two of Obama's black nominees to the NC district court seat; of course, this is after the author gets done repeating the false claim of the left that Thomas is not qualified on the merits to sit on the Supreme Court, but we're not supposed to see any racism there. In other words, we're supposed to be something sinister if Repubs don't confirm a liberal black nominee but it's fair game for the left to keep claiming that the sole black Justice is not qualified because he's conservative.
4
Uh, no. Thomas isn’t unqualified because he’s conservative. He’s unqualified because he’s a doofus and a repugnant liar.
Alito and Roberts and Gorsuch are conservatives. “The Left” doesn’t say they’re unqualified. Gorsuch is illegitimate, cf. Merrick Garland. Kavanaugh disqualified himself with his partisan attacks during his testimony.
As for the filibuster, I doubt you believe your own words. I think you’re mouthing a line to confuse those who haven’t been following closely.
Surely you know the Republicans elevated the filibuster from rare to routine while in the minority under Obama. Consequently they created an historic deficit of unfilled positions. As ever, party before country: they had no concern for the function of the federal courts if it meant judges appointed by Obama. So Reid lifted the filibuster rule except for the Supreme Court. Had Clinton been elected, you can be sure McConnell would have kept it that way, and perhaps returned to status quo ante, again to prevent appointments by the other side.
In 2021, I hope the Democratic senate goes a step further: to impeach Gorsuch as unconstitutionally appointed or Kavanaugh as unqualified by reason of nonjudicial temperament. Then “unpack” the court to 8 seats, thereby requiring a 6:4 majority for any decision. That keeps the court as a check on the legislature, but stops it from making far-reaching decisions by a single vote.
1
Thomas was an EEOC chair who didnt believe in the mission of the EEOC. He has contributed little to the Court beyond his infamous silence, junkets paid for by partisans who do business before the Court, and arch-right votes that hurt African Americans, and Bush's appointing him was an even more cynical act than his running the two Willie Horton ads. If that is possible. What kind of cynicism allows the nomination of both Souter and Thomas?
124
@Dave Scott
Wrong, Thomas believed in the mission of the EEOC, which was to implement the Civil Rights Act of 1964.
Thomas opposed the special interests and ideologues (many on the bench) who HIJACKED the EEOC and pushed an agenda of racial quotas and affirmative action in flagrant defiance of the mission of the EEOC.
3
@Dave Scott
If you would like to see a man play the race card to parlay it into a SCOTUS- take a look at Thomas' speech before the judiciary committee. If you want to see men play the political conspiracy card to gain a SCOTUS seat, watch the speeches of Brett Kavanaugh and Lindsey Graham.
5
@Dave Scott Was Willie Horton a convicted murderer released from prison on a weekend furlough while Michael Dukakis was governor of Massachusetts?
Did Willie Horton rape a women in Maryland and brutally assault and stab her fiance?
Was Willie Horton sentenced to life without parole by the Maryland judge because the judge feared that the authorities in Massachusetts may release Willie Horton again, on furlough?
The answer is yes to all three questions and was the basis of a fair and objective political commercial concerning the governing ability and policies of Michael Dukakis.
2
Before the whole Anita Hill controversy, the nomination of Clarence Thomas to the Supreme Court was what led me to decide to become a Democrat.
8
No where in your opinion do you explain how to protect the American people from nominees such as Sontamayer, Ginsburg, etc. Bush's greatest mistake was nominating David Souter. Hopefully, never again.
7
Let's not forget that it was the Democrats-controlled Senate that confirmed Clarence Thomas.
24
@Nagarajan
And that Sen Biden tilted the hearing toward Thomas by not receiving testimony from all the women who had complaints. See especially Angela Wright whom Biden, as chair, excluded.
10
@Nagarajan Let's also not pretend that nominating an African American who has eroded the rights of other African Americans for most of his career was not as cynical as any nomination in history.
10
@Nagarajan: That confirmation was the result of undeserved comity, misplaced respect for process, and white liberal guilt. Those mistakes will not be repeated.
8
Willie Horton and Clarence Thomas will always be in the forefront when people of color remember Bush.
3
Yet, another one of his many mistakes.
2
Re: David Souter
Over the years we have heard a lot of criticism of the Supreme Court because it features life-tenure of judges and how it is randomly undemocratic, with Richard Nixon getting four appointments in five years, whereas Jimmy Carter got 0, and Clinton, George W Bush, and Obama each got three.
Less frequently, the Supreme Court is criticized for its awesome power itself, ie, the concept of judicial supremacy that allows it to have the last word on the constitutionality of any state or federal legislation, and how the Supreme Court can gut legislation as unconstitutional when there is no consensus that it is indeed unconstitutional.
Of all the things that are undemocratic about the Supreme Court is how justices can become completely divorced from the democratic process by "evolving" to be ideologically completely different from the electorate that voted-in their appointing president.
George HW Bush was elected with 53.5% of the vote. He ran as a conservative. He appointed David Souter because he believed that Souter was a well-qualified conservative.
That Souter become a down-the-line liberal in less than a year is even more a "stolen seat" than what happened with Merrick Garland.
That liberals do not even admit that the ability of a judge to betray the electorate that ultimately-empowered him is evidence of how liberals only want to change the structure of the US government when they think changing the structure will benefit them.
3
@In NJ. North Carolina, Wisconsin, Michigan. So, who is trying to change the structure of our democratic process?
@In NJ: This pathetic cowardly court cannot even give a straight answer to what an "establishment of religion" is in the originalist meaning of the English Language at the time it was written into the first amendment, so it denies anyone standing to make it speak.
Thank you, Linda, a terrific history lesson that I'm printing out right now.
I've read the 18 Comments so far and between you and them, the universe was covered.
Except for two dark asteroids circling Pluto.
That would be the NRA and the Federalist Society, the two right-wing, Republican-run cults.
Poppy Bush never really had to deal with either one.
Neither did the signers of PNAC.
These are modern-day evolutions from the DNA of Newt Gringrich and John Boehner, the sires of Mitch.
This nation can forget any sane political action from Republicans. It has been 10 full years since Mitch McConnell sneered, "Anything he wants, we will say 'NO!'"
Ten full years.
Ten years is along time within governance.
And how many decades has it been since Newt got p.o.ed that he couldn't fly in the front of the plane and decided to shut down the entire government?
Through all of this the SC has been silent - or even worse, trying to make us believe that Scalia wasn't a unicorn chaser, but he was, wasn't he?
This country is now being run by two cults: the NRA and the Federalist Society.
The NRA is today in the pocket of Russia and the Federalist Society has PUBLICLY given up on demanding that its members give oath that they will never pass any law that endangers the existence of said Society.
No, Poppy Bush never had to deal with such cults.
Republicans still held the reins.
Well, now they don't.
I have zero belief in the SC.
And, it has earned it.
4
However, according to Ross Douthat’s wax-nostalgic opinion, it is the WASPs’ aristocratic leadership which Made America Great. Since then, Waspish “self-abnegation” ushered an American meritocracy, diversity, and secularism which failed to develop a political elite capable to effectively, if not efficiently, lead the nation.
1
@FGPalacio
Back in the 60's we had a saying: "If you're not part of the solution, you're part of the problem."
That sums up Ross. "Part of the problem."
1
Thomas got despite Anita Hill's testimony, she had nothing to gain and was vilified for coming forward.
Kavanaugh got in despite of Christine Blasey Ford's testimony , Christine also had nothing to gain and is still getting death threats.
That's how they fill Supreme Court vacancies.
8
Bush 41 inadvertently caused future problems when he nominated Thomas to SCOTUS, now that we see from the trunk of Thomas has come many branches occupying seats on federal benches. It was quite transparent that Bush was determined to replace a retiring justice (Marshall) with a person of the same skin color. But he picked the wrong one. Bush should have picked Thomas's accuser. Anita Hill would have been a stellar justice.
4
Clarence Thomas has done more damage to this country than Trump. They are enemies #1 and #2. They are both in positions that are way over their heads.
8
This article inspired me to review the careers of Clarence Thomas and Thurgood Marshall, and for that I am grateful. I had forgotten the life and good works of Marshall, including Brown V. Board of Education, and as for Thomas, one can compare the two legal careers and see the difference between a spectacular jurist and someone greedy for fame.
We need to find a different way to populate our Supreme Court than just Presidential favor.
https://en.wikipedia.org/wiki/Thurgood_Marshall
Hugh
5
I am well passed the point of being saturated with praise of GHWB. Compared to the ignorant monster that now slithers through the halls of the White House he was a decent and erudite man. That said however he came to put Thomas on the Supreme Court he did it and we all will pay the price for years to come. That is what his legacy boils down to for me.
193
"The legacy continues."
The legacy is one of Republican Party disgrace and shame. Except that while Republicans have lost the trust and respect of The People, they couldn't care less and they feel no discomfort, feel no pain, feel no shame. They are shameless in their disregard for the will of The People and the Constitution.
The Republican Party has devolved into a cabal of Repubs which scoffs at democracy, manipulates elections to gain and keep power, imposes the stark will of a authoritarian minority on the majority.
If there is any solace to be had it is that the Repubs abuse of our democratic republic can only be temporary. The majority will not long submissively endure the tyrannic shackles of a perverted despotic minority which cannot spread and promote its ideology by any means short of deceit and force.
And while McConnell and his minions are shameless, history will shame them. The cabal of Repubs which has deceived the electorate will join the ranks of other traitors to our nation. They will be properly recorded in the Chapter of Disgrace reserved for those who betrayed out nation, The People, the Constitution. Their legacy will be dishonor.
7
It is Joe Biden who bears complete responsibility for Clarence Thomas' appointment to the court.
3
“Democrats have shied from confrontation,” is not exactly true. Democratic nominees have not faced confrontation because republicans respect the process and have in general gone along with the presidents selection, with the exception of garland.
Republicans have never pulled a “Bork” nor a “Thomas” and lord never mounted the smear campaigns of all smear campaigns as was used against Kavanaugh.
Poor Avenatti won’t even be able to run as a dem after his smears.
3
@alan. Garland is a pretty big exception! Democrats have approved Republican nominees who have been reasonable. And fought those who have not been. This article alone gives that example. No one knew the path Souter would take. Two very partisan candidates were proposed by Trump. Thus resistance. The fact that Republicans can't find much to oppose Democratic nominees shows how qualified they were. The opposition to Merrick was a big middle finger to Obama and nothing more.
1
@alan
I believe that's Garland with a capital "G."
@Donna suffice it to say that a Democrat’s definition of qualified does not match a republicans.
Republicans just don’t mount smear campaigns like democrats do. Just like republicans don’t mount the “resistance” like democrats do.
Sorry but that’s the truth.
Curious that the author would emphasize McConnell’s efforts to quash the filibuster for Supreme Court nominees without mentioning what the Democratic-controlled Senate did under Harry Reid a few years earlier. Or, for that matter, placing the Thomas nomination in its true context (namely, the aftermath of the Bork and Ginsburg nominations a few short years earlier).
It’s almost as if she has an agenda that isn’t purely analytical.
4
@Hapax Legomenon. Now ask yourself why Reid did that? Republicans were being extremely obstructionist in blocking court appointments. They had enough! Where Reid went wrong was in still allowing Blue Slips. Otherwise the Democrats wouldn't have left so many openings to be filled by McConnell. So - which party has the most integrity for the process? It certainly is not the Republicans.
1
@Hapax Legomenon
Almost?
Not long after Clarence Thomas was confirmed for the Supreme Court after the famously contentious hearings, I thought up a bad-news-bad-good-news joke that I thought was pretty funny, and when I happened to meet Michael Dukakis at a Kennedy Library reception I tried out my little joke on him.
"The bad news is that when Thurgood Marshall retired from the Supreme Court and President Bush decided he just had to name a black person to fill his seat, the president realized he only knew two black people.
"The good news is, he didn't name Willie Horton."
Mr. Dukakis's smile might best have been described as "wintry."
3
All the lionizing, Iraq 1, Clarence Thomas, Willie Horton, CIA Chile, Iran Contra, on and on.
2
@jdawg
Was Thomas's appointment to take the light off voting against the Civil Rights Act?
One of the more egregious political embarrassments in the past 50 years and one for which we will pay a price for years to come. If the Thomas hearings has been held anywhere close to the #MeToo movement, Mr. Thomas would be where he belongs...adjudicating jaywalking violations in Hicksville, USA.
1
Nominating judges ought to be a coordinated move by both parties to find a just balance, representative of the wide diversity of it's population. Too bad we have a 'barbarian' named McConnell, who adamantly and intently wants to show his teeth (Ugh!), rabid-dog like, to reason, common sense and decency. Of course, having a narcissist without scruples, always hungry for the applause, to seal the deal, is 'helpful'. These United States remain a suffering democracy, due to the stupid animosity of non-representatives holding power on intolerance.
1
Politically our country has sat on a knife's edge, a balance between democratic social and republican obstructionism that only has the goal of protecting itself and such as the Koch brothers and the NRA. To that end the GOP has presented its candidates for SCOTUS as strict Constitutionalists, but have in the end only voted for Republican causes such as Citizen's United which handed our country over to rich oligarchs and supported George Bush the presidency. Republicans knowing that they can win only through subterfuge know that this is a war fought for control of the country and not its betterment.
When Democrats nominate a moderate such a Judge Garland, they are playing by the old rules of compromise which plays into the scorched earth tactics of the GOP. Will America ever return to the idea of fair play to which even some Republicans give lip service or are we just doomed to fight the old battle of self serving politics.
7
Now that we are living in the land that Mitch McConnell built (Trump is just his biggest chess piece), the replacement of Thurgood Marshall by Clarence Thomas looms all the larger. McConnell destroyed decorum and precedent to keep Scalia’s seat on the far right.
With McConnell and Trump in power, it looks more and more terrible that a seat defined by an architect of civil rights we all enjoy was filled by someone who is at best indifferent to what Thurgood Marshall built, at worse hostile to it. I suppose this was something Bush did to protect his right flank. But what a destructive part of his legacy it has turned out to be,
6
Another invaluable tutorial from Ms. Greenhouse on how we arrived at our present dilemma.
We would only add the reason 45* is "winning much more than he's losing" is due to the obstructionism of McConnell, et al to which Ms. Greenhouse referred earlier in her story.
The Rogue Republicans which McConnell leads - as if they are in some last gasp geezer buddy road trip Hollywood movie - are intent on leaving behind a Legacy Judiciary, with many aged current GOP'er Senators retiring instead of ever again facing voters. Just like 40+ of their House members who followed Pres. Mayhem for the last 2 years, but chose to retire rather than face voters again last month.
What McConnell did removing the 60-vote rule to confirm SCOTUS justices, combined with Grassley's ditching the blue slip rule for the Senate Judiciary Committee, are emblematic of sore-loser GOP'er scorched-earth actions also see in N.C., Wisc., Mich., et al where lame ducks try to 'burn it down' when they lose power.
Radicals often come to the playing field dressed in coat and tie.
"If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy." - David Frum, former Dubya speechwriter
25
Our Supreme Court is our ultimate arbitrator. If we cannot trust the neutrality and fairness of our Supreme Court, people will lose faith in our government.
People have seen policies passed by Supreme Court such as "Citizens United" which has made our system of government a lot less democratic. I do not know what the right answer is. But the current system is not good enough.
May be we need term limits for Congress, Senate as well as the Supreme Court?
8
@The Observer: The only thing US Courts are good for is bankrupting people hoping to get them to decide something.
@The Observer,
Somebody did some interesting computer simulations to develop a fairer court. Try this on for size:
https://medium.com/s/story/a-better-system-for-putting-judges-on-the-u-s-supreme-court-bce9962ef0eb
The idea is the combination of term limits spaced to allow conservatives and liberals to select justices based on voter bias. If a conservative like Reagan gets another term there is good chance he gets to select more justices because that's the way the country goes.
Of course, this assumes that elections are fair, which has become dubious in the past 20 years thanks to the GOP's willingness to lie, cheat, and steal, supposedly for a greater principle --- whatever that is.
It is important to remember that President GHW Bush appointed an awful Supreme Court Justice and that he embraced the discriminatory views of the religious right. We can praise him, but we should not forget the negatives about his presidency.
11
My central complaint regarding the tenure of Justice Thomas is that he has offered little intellectual justification for his opinions. The facts of a case appear to be of little concern, and he has yet to author any opinion which does not rest solely on the principle of originalism (as he would define it).
Therefore, he has added little to the collective wisdom envisioned by the founders (Hamilton in particular) as discussed in Federalist 78 and practiced by so many justices who have preceded him.
I will always wish that the next appointment to the Court will be a brilliant, apolitical thinker who has the capacity to understand the complexity of each issue and render an opinion reflective of that capacity.
13
@peterV
That was Souter.
And he walked.
That was our warning.
2
That's our constitution -- majority vote wins (with a few exceptions). The filibuster was an invention of politicians who wanted a minority veto. It was criticized and cut back by Democrats for blocking Obama initiatives. Now it's gone. And it's not coming back. Get over it.
2
As the republican majority shrinks they’ll be the first to advocate its return, in politics nothing is “gone” as anyone paying the remotest attention should know. “Get over it” is a meaningless throwaway line, just ask the conservative south & their confederacy loving constituents.
@RichardSupreme Court findings that hurt me will hurt you too. Get ready for it.
How can you possibly conclude that The Republican President is winning and that an "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" is due to anything other than the elimination of the filibuster?
Where is Donald Trump's hand in the selection of nominees apparent?
Donald Trump is not winning. The extreme right wing of the Republican Party is winning and Donald Trump is basking in the glow of his party's victory.
The 99% will soon learn that McConnell's efforts have set back the cause of equal justice and democracy by at least 100 years,
94
Clarence Thomas is no more qualified to sit on the U.S. Supreme Court- now; as he was when George H.W. Bush nominated him to take the place of storied Thurgood Marshall; a man who argued "Brown v. Board of Education" and founder of the "NAACP Legal Defense and Educational Fund."
Thomas was Bush's callous answer to making himself appear progressive by nominating an interchangeable minority on the Court; any *one* would do.
91
Liberals tend to prefer empathy gushing justices over constitutionalists. The reason is simple. It’s a lot harder to ammendment the constitution than it is to reason times have changed. Why bother changing the constitution, when justices can distort, or change the meaning of the written words? It’s time to require the peoples representatives to agree on legislation, rather than letting 9 unelected justices decide cases based on their intended result. At least then, votes on issues will be as important as the politicians that get elected. Abe Lincoln said, “ the best way to repeal a bad law, is to enforce it strictly”.
4
@Jay
If attribution is correct, that's a great Lincoln quote. I hadn't seen that before.
1
@Jay
May I oh so judiciously suggest that if you are going to use emotion-laden terms when describing "liberals" as preferring "empathy gushing justices," then the contrast ought not to be simply with "constitutionalists" but with "heartless justices." Fair is fair, or something like that? You certainly wouldn't want us to prejudge the case due to an obvious bias in your choice of language, would you?
5
Thomas was and is, but a token to give the appearance of being an inclusive court.
I had hoped he would have turned into a complete liberal once seated.
That he could could not care about the "southern strategy" is truly sickening.
When people writing about the details of Bush Sr.'s time, I'd like to see Willie Horton and Thomas' pictures next to each other.
41
@Stephen
Why not include Al Gore too?
1
For the sake of history and for all that is human -- and if we ever hope to charge toward the abyss, and fly into it -- we need to stick with the rules as written, so long ago.
1
@bill
I'll consider doing just that, Bill - AFTER I am made equal within the Constitution.
Not until.
2
The Court needs term limits.
35
Such an odd piece. It starts with very a very interesting discussion of 41's appointments to the court (which makes total sense in light of circumstances) and then takes a weird detour into current GOP thinking. After that, the piece sort of just ends with a quickly inserted (and nonsensical) 3 word final sentence.
7
We ought to acknowledge that the Supreme Court was a failure of the founding fathers. In any political system checks and balances are ultimately a farce, since someone has the last word. In our system that someone is the Supreme Court.
Presumably the idea was that the Supreme Court was least dangerous, since its role is ostensively non-political. Now that no one can pretend that’s true, we run the risk of being ruled by people who can do anything they want for life. They can even take initiative in bringing cases they want to decide to the court, as was done with Citizens United.
There is no relief from Court decisions, and any pretext is good.
I don’t know what the solution is, but we’ll soon find out how bad it can get.
46
@Jerryg Linda Greenhouse had a good article about a year ago re term limits allowing each president to appoint two Justices per term with 10 year terms. I thought then and still do that this makes a lot of sense.
9
@Jerryg
The Supreme Court power of judicial review is not in the Constitution. It was given birth by the Marbury vs. Madison decision¹ authored by Chief Justice John Marshall in 1803, and not contested by President Jefferson.
One "check" on Supreme Court overreach is the ability of Congress (or state legislatures) to pass Constitutional amendments. One amendment could be to strike down the power of Supreme Court judicial review. After that, if bills were thought to be faulty and there was sufficient political will, they could be either repealed or amended by Congress and signed into law by the president.
¹ Marbury vs. Madison came about because outgoing President John Adams wanted to flood the judiciary with over 50 Federalist Party circuit court judges and justices of the peace only a few days before leaving office, and one of them, Marbury did not receive his commission until after Adams had left office. Jefferson, belonging to the Democratic-Republican party, refused to honor the Marbury commission, and Marbury sued James Madison, Jefferson's Secretary of State.
1
"The election of Kavanaugh". Indeed.
This shows the GOP's inclination to use the Supreme Court, and the nomination process, as a political weapon.
But given the record number of voters who aren't old white men who turned out for the Democrats, I wouldn't think the GOP would continue this strategy.
10
@Cousy But they will. It's all they've got to rally their base while they pick their pockets. That and cheating to make sure they hold on as long as they can - see Wisconsin.
If you expect them to put the welfare of the country first, you've got another thing coming.
17
Repeating a stereotype over and over again serves no good purpose. As an old white guy who has turned out and voted for 44 years and done so as a liberal this line gets increasingly wearying. I know several white male liberals that can say the same. Trumps support alone included a lot of old white women, I’ve met them, they’re real. This is lazy tribalistic thinking and serves trump and the republicans while discouraging current and potential allies. Considering the closeness of elections can you really afford to lose support?
1
@John Chastain, yes, I find the knee-jerk stereotypes in use among millennial and younger generations increasingly disturbing. Perhaps because young people have seen relatively little discrimination and age-, sex-, race-related and other targeted forms of group oppression, they do not recognize it as invidious. Stereotypes have no use beyond making some groups falsely seem inferior so that others can feel superior. Isn't that why the Alt-right invents them? As the Rev. King would say, they distort the human personality.
This is a disturbingly widespread trait among the young, just when Trump and pals are doing everything they can to erode equal treatment as a judicial and social norm.
1
The Constitution assigns political parties no role in government. Americans with no political party affiliation outnumber both Democrats and Republicans. So presidents aren’t obligated to please political party hacks in their selection of Supreme Court nominees. The only requirement is 51 votes in the Senate.
2
@William Case
Traditionally 60 votes not 50 (majority). This would force the Senate to be bipartisan. They would have to agree w the president finding an acceptable nominee to both Parties. But McConnel runined that. First by not allowing moderate lower court judges to be voted on at all (forcing Harry Reid to do away w the filibuster for lower court judges) then McConnel doing the same for the Supreme Court. McConnel’s anti democratic anti fair “no victories for Obama” credo has helped ruin this country.
4
While its true that political parties are not assigned any constitutional role they still dominate the government and selection of federal judges.
Perhaps that’s why Washington warned us against party politics. He referred to political parties as factions, and he explained in his farewell address that:
“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty”
In similar fashion, John Adams warned us against political parties as well. He said:
“There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution”
This president nominates judges to serve the interests of republicans and the federalist society, the rest of us are irrelevant. Its naive or disingenuous to suggest otherwise
103
@Herje51
The 60-vote rule should be declared unconstitutional. The Constitution provides that all measures except impeachments, constitutional amendments and treaty confirmation require only a simply majority. However, the Senate can override the 60-vote rule.
Justice Roberts to the contrary, we have just another political body for legal decisions. McConnell stated it all. So where will we get a fair and unbiased court decision? This should concern everyone, for undermining our legal system destroys the roots of our Democracy, our sense of fair play and our trust in government. Court stacking is not new, but it must change if we wish to preserve our country.
29
@Paul Raffeld
Mitch McConnel wasn’t to be born for another five years when the court disposed of the constitution in favor of politics. The hatred of Thomas is based on his return to the constitution.
Even before the Kavanaugh circus, the confirmation process for SCOTUS nominees had devolved into a farce. As soon as a name is announced by the president, the public already knows how each side is going to vote. For goodness sakes, the GOP faulted Justice Sotomayor for having empathy! The Republicans cannot recover from the Bork hearings, so they continue seeking revenge, climaxing with the Senate's refusal to even consider the nomination of Judge Garland. At one time, the confirmation hearings were not televised and social media had not been invented; I'm all for transparency, but with bad actors like Mitch McConnell, who has done more to decimate American democracy than anyone other than Donald Trump, the process has become debauched. The Anita Hill debacle obliterated the fact that Thomas was not at all qualified to sit on the highest court in the land. His bitterness over the confirmation process has hardened his ideology and rendered him even less qualified. Perhaps the country has to continue its precipitous slide away from the democratic process before things improve. George HW Bush was a decent man, but when he strayed from his own moral center and opted for ideology instead of doing the right thing, he failed the country.
144
I agree, SNA. Since the federalist society has done such an excellent job of buying OUR U.S. Supreme Court justices it is up to the new lawmakers we hired/elected in the midterms and will hire/elect in 2020 to increase the size of OUR Supreme Court and all other Federal Courts, pack them with progressive judges and pass a law/hard rule that NO federal judge position will be filled without 60% Senate approval. That will stop these hostile takeovers of OUR justice system.
Traitor McConnell has forced us to do it. He and his Robber Baron pay masters will not destroy democracy in America. WE THE PEOPLE will see to it.
13
One of the reasons that President Trump was chosen by the voters was because he promised to put more conservative leaning judges on the bench. President Obama had chosen liberal judges and it was time for a change. The country was shifting leftward and many people objected. Hillary Clinton would have continued on this course and people were afraid for the country.
It is up to the president to make the choice of selecting the judge he feels fit to serve our country. Justice Clarence Thomas was a brilliant man and has proven to be an excellent choice for the Supreme Court. The fact that the liberals feel he is not qualified to serve proves my point. He is highly qualified and has been a credit to our judicial system. Justice Thomas' quiet demeanor is one of his many qualities. People have been finding fault with President Bush for his pick but this was one of his finest moments.
President Trump has also chosen excellent judges and his choice of Justices Gorsuch and Kavanaugh for the Supreme Court are also splendid. He will likely be able to appoint another Supreme Court justice or two and hopefully they will be as intelligent and qualified as his first two. This is what the people wanted and many of us are very pleased. The country is finally once again on the right path and less liberal. This is a welcome change.
5
@WPLMMT
“One of the reasons that President Trump was chosen by the voters”
He was not chosen by the voters; he was chosen by 306 party over country Republican Electors
Trump was rejected by a clear majority of the voters.
As for the voters wanting an extreme right wing Court? If you put the Republican Supreme Court’s Citizens United ruling to the voters, a clear majority of voters would reject that too.
42
@WPLMMT President Trump has chosen no judges. Mitch McConnell and the Federal Society has done the selecting and the push threw. Trump lost the popular vote and so one cannot truly say he was elected "by the People". There are those voters who only voted for Trump because of the Supreme Court. Shame on them. There are 350 million people in this country who deserve more thoughtfulness in the voting process. This Country is not on the right path. Abraham Lincoln, who once said "I may walk slowly, but I don't walk backwards." is crying.
30
Translation:
“Thomas, Gorsuch, and Kavanaugh are anti-abortion. I’m anti-abortion.”
2
Once again Ms. Greenhouse, to use a mixed metaphor, has hit a home run in a football game or a touchdown in a baseball game!
But what comes through loud and clear is that Mitch McConnell is the original Trumpster. Unabashedly he is ready "to go as far to the right as a bare majority will sustain." He began the process of having the NRA score the vote of elected members. He will do anything to keep his grip on the majority, even if it will hurt the country and a few people here and there.
If you are a resident of Kentucky, I hope you are reading this column and see the damage done by one of your elected representative. Will you send him back home when he is next up for reelection?
164
I have thought for some time now that anyone who thinks that the SCOTUS is not a political body is simply delusional. It should not be political, but when justices and, indeed, the judges who are the pipeline for future SCOTUS appointments, are chosen mainly for their views on political issues, it certainly is political.
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@Anne-Marie Hislop
The problem is not that it is political -- after all, it's one of the three branches of government -- but that the Republicans have deliberately made it *partisan.* That's unconstitutional, & it should be a scandal. But, as the reaction to the Kavanaugh hearing showed, around half of the American electorate seem to be okay with it.
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How blessed to have Linda G.
To shed light on staffing the S, C,,
Insights and details
How at times fairness fails
Done with impeccable lucidity.
With villains like Mitch in control
We get ultra right on the whole
Judges unfitting
For years will be sitting
Playing a fascistic role.
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@Larry Eisenberg
It is great to have such a strong, consistent liberal voice to analyze the Supreme Court. Thank you Linda for having served as the Times “objective” reporter earlier in your career. You did a great job promoting the liberal point of view while serving as a reporter.
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"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"
Isn't this basically a lie? Given the fights that the Democrats put up on Bork, on Thomas and on Kavanaugh, how can you say with a straight face that Democrats have shied away from confrontation?
When Democrats pat themselves on the back, they need to make sure that no one is watching. Democrats are not the party of peace, not by a long shot.
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@Ludwig, you obviously missed the point here. The argument is not that Democrats will not oppose nominees they find objectionable, that’s their right and duty. The point is that Democratic “presidents” have nominated relatively non controversial candidates.
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Republican’s threw the first punch by nominating such biased men.
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The wise Latina is certainly controversial. She’s as far left as any of the others are right.
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The GOP has declared that control of the judiciary for generations to come is its primary goal. The Democrats can respond, once they get control of the White House and the Congress (and they will) in one of three ways.
First, once they get control of the White House and the Congress (and they will), they can return to the "normal" process, under which it would take at least two generations of continued control to reshape the courts. Under this scenario, the courts would strike down much legislation that the Democrats passed.
Second, at that point they could "pack" the courts with new positions filled by new appointees. Although this would get the legislation through, it would destroy the legitimacy of one, two, or even three branches of government.
Third, the House could exercise its power of the purse now, and take away any funding to fill any existing or future vacancy in the executive and judicial branches, unless the house specifically approves, by name, the person proposed to fill such vacancy. Yes, this would place the House in a new role (it would be, in effect, placing itself in the relationship to the Senate that the British House of Commons has to the House of Lords), but desperate times require extraordinary remedies.
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@John Graubard
The Constitution gives the House of Representatives no say in range selection of federal judges or Supreme Court justices. Republicans would be delighted if the House refuse to fund the judicial branch. This means all judicial matters would be decided at the state level, mostly by judges appointed by Republican governors and approved by Republican legislatures.
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Ah, Ms. Greenhouse, the method for now filling a Supreme Court vacancy is not presidential choice by the whim of the Senate Majority Leader, in this case, you-know-who.
Should another vacancy occur before 2020, the choice to fill it will not be Donald Trump's, assuming he is in office. Even if he is not, Mike Pence would not be allowed to make the choice. Mitch McConnell is already running for re-election in 2020 and, from Kentucky, he's not likely to lose and neither is the Senate likely to go blue. A Republican president will accept the advice (or the hard command) of McConnell. The Federalist Society has no say in this matter, regardless of the noise surrounding Neil Gorsuch or Brett Kavanaugh.
As an aside, allow me the fantasy of positing the notion of a President Nancy Pelosi. This would only be occasioned by the removal of both Mr. Trump and Mr. Pence, neither scenario likely--but possible. So Madame President Pelosi, late in 2019 or sometime in 2020, moves to fill a vacancy occasioned by retirement or death. The Republican-majority in the Senate refuses to consider the nomination. Does the name Merrick Garland ring any bells?
McConnell won't live forever and his tactics have been duly noted. As long as the Republican Party is the one of obstruction and delay and refusal, any president's input on the Court will have to be weighed against the backdrop of bitter partisanship and acrimony, absent any intention of the good of the Court or the nation.
What's to be done?
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@Red Sox, '04, '07, '13, ‘18,
Thank you! You asked "What's to be done?"
There is a higher court - the court of public informed opinion. For way too long, the media has failed to systematically give the public the information it needs. Give the readers an asterisk indicating the party that nominated the judge and/or Justice.
To fail to give the public such crucial information is to perpetuate the myth that the judiciary is apolitical.
Democracy and people die in such ignorance. Just do it.
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@louis v. lombardo
See https://www.legalreader.com/trump-administration-reshapes-judiciary/
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Justice Clarence Thomas is not qualified to sit on the highest court in the land, and his judicial philosophy, an incoherent mix of originalism and natural rights, does not deserve serious consideration. Many writers have rightly praised President George H.W. Bush's prudence and decency in recent days, but his nomination of Clarence Thomas was wildly irresponsible, and we have all paid the price for it over the past three decades.
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@Chris Rasmussen
Not only was his nomination of Clarence Thomas wildly irresponsible, it was deeply cynical, assuming correctly that too many Democratic senators would feel honor bound to vote for a black man, even an unqualified one, to replace Justice Marshall
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@Chris Rasmussen
And if Thomas lives long enough, the American people will continue to pay the price for another 15-20 years. Add to that perhaps 40 years of Kavanaugh on the high court. Stay well, RBG.
Finally, at last Jeff Flake has stepped up to prevent a slew of unqualified right-wing Federalist Society recommended candidates from being elevated into federal judgeships in the lame duck session. Chew on that, McConnell.
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@Jeff Koshel ~
Here is Thurgood Marshall's view; too bad the Democratic Senators didn't heed his wisdom.
"In his remarks about whether his successor should be a black, he said: "My dad told me way back that you can't use race. For example, there's no difference between a white snake and a black snake. They'll both bite.""
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Besides the historical perspective Ms Greenhouse provides, the real life lesson here is that Sen McConnell has been running the judicial life of this country for years, and for years to come. He's been elected only by his state, and I believe he's wrong.
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@A. miranda
McConnell has been greatly enabled by former democratic senator Harry Reid. Reid enacted the “nuclear option,” in 2013. This reduced the number of votes needed to overcome a filibuster to a simple majority, from 60. He did this to help get through court nominees of the Obama Administration. I am surprised how few people seem to recall this. The article does not even mention it. As just one example, no Reid, no Kavanaugh.
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@SS Harry Reid had no choice. McConnell used every dilatory tactic he knew to prevent President Obama from staffing his administration, the new Consumer Financial Protection Board, and the courts. The Obama administration would have ground to a halt as Mitch McConnell tried to make good on his promise to make President Obama a one term president. I wouldn’t be surprised to find out that McConnell had been hoping that his tactics would put Reid in that position so that McConnell would have a free hand when the Republicans eventually won control of the Senate.
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@SS Perhaps, but McConnell has such chutzpah, he would have done this without Harry Reid. Remember, Harry Reid eliminated the filibuster for Presidential court nominees (with the exception of the Supreme Court) because Republicans were oppositional at every turn. In fact, McConnell's stated goal was to say "no" to anything Obama wanted. In essence, Reid's elimination of the filibuster was a result of the Repub power grab, while McConnell's elimination of the SC filibuster is the ultimate power grab.
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These two approaches--conciliatory and confrontational--both have a larger context--the American dilemma--a still unsolved problem--the presence of race, of black and white, of a legal status of second class citizenship which denied full rights to residents for more than 2 centuries--a status that weaves around both liberal and conservative politics and interpretations of law--that shapes common rights and the rights of the powerful.
The example of Clarence Thomas' appointment is the clearest illustration of how race/power/society/opportunity/merit/freedom/myth/history are embedded in every decision about court appointments and also illustrates how complicated these decisions are.
When an abstract description ("confrontation") replaces the concrete details of history (the constitutional debate over how slavery would be dealt with, but not by name or as an institution; how states were empowered to enact Black codes without federal interference; how Chief Justice Roger B. Taney's decision in Dred Scott uttered the Negro had no rights that whites need respect, a clearer outline of race as a catalyst and cause in American law emerges, esp. in appointments.
Judge Thomas was one of two African-Americans appointed to the High Court. He replaced one of the great liberal jurists, Judge Thurgood Marshall, who often took cases as a lawyer that put him at personal risk and faced frequent threats against his life.
(Part 2 follows.)
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(Part 2)
Thomas modulated these threats into a symbolic "lynching," accused of sexual misconduct. (I knew people who worked in his office; stories were legion before his nomination, esp one about a birthday party.)
In fact, Thomas was one of the "faithful," blacks after the Civil War who remained and retained the beliefs of their masters, winning support.
Seen this way, it was not a confrontation, but a continuation of efforts to stop the advance of the opportunity and merit society, as outlined in Justice Lewis Powell's famous 1971 memo, detailing how corporations could dominate democracy by leveraging the complexities of racism/socialism to control democratic institutions.
Law was/is a big part of this strategy, best described as incremental vs. fiat, gradual change/regression vs. major upheaval/coup. In both cases, the goals are the same! The difference is in degree and process, not mission or goals.
Race in America is seldom used as a clarifier. It should be used more often, esp. how its American ideas inform conservative philosophy/actions in a broad context--witness how the attacks on Ocasio-Cortez are personal and belittling, but are intended to distract from, challenge and defeat her policy initiatives, esp. a Green New Deal, for which she has already won support.
Law will be the last stand to stop this grass roots movement! The confrontation will be pitched as conciliatory--but it isn't. Its core is oppression, privilege and power. Bush abided in this.
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@Walter Rhett
As always (and much appreciated) Mr. Rhett is able to condense the complexities and contortions of American political and societal functions by pulling away the skin and exposing their basic elements: Race, Class, Power (Hypocrisy) and Privilege.
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