Clarence Thomas - Career - Supreme Court Nomination and Confirmation

Supreme Court Nomination and Confirmation

Justice William Brennan stepped down from the Supreme Court in July 1990. Thomas was one of five candidates on Bush's shortlist, and Bush's favorite of the five. Ultimately, after consulting with his advisors, Bush decided to hold off on nominating Thomas, and nominated Judge David Souter of the First Circuit instead.

Less than a year later, on July 1, 1991 President Bush nominated Clarence Thomas to replace Thurgood Marshall, who had just announced his retirement and had been the only African-American justice on the Court. Legal author Jeffrey Toobin says Bush and others saw Thomas as the only "plausible" black candidate who would provide a reliably conservative vote. In announcing his selection, President Bush called Thomas the "best qualified at this time."

In those days, U.S. presidents submitted lists of potential federal court nominees to the American Bar Association (ABA) for a confidential rating of their judicial temperament, competence and integrity on a three-level scale of well qualified, qualified or unqualified. Anticipating that the ABA would rate Thomas more poorly than they thought he deserved, the White House and Republican Senators pressured the ABA for at least the mid-level qualified rating, and simultaneously attempted to discredit the ABA as partisan. The ABA did rate Thomas as qualified, although with one of the lowest levels of support for a Supreme Court nominee. Ultimately, the ABA rating ended up having little impact on Thomas' nomination.

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. Both liberal interest groups and Republicans in the White House and Senate approached the nomination as a political campaign.

Attorney General Richard Thornburgh had previously warned Bush that replacing Thurgood Marshall, who was widely revered as a civil rights icon, with any candidate who was not perceived to share Marshall's views would make the confirmation process difficult. Civil rights and feminist organizations opposed the appointment based partially on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of Roe v. Wade.

Thomas's formal confirmation hearings began on September 10, 1991. Thomas was reticent when answering Senators' questions during the appointment process, recalling what had happened to Robert Bork when Bork expounded on his judicial philosophy during his confirmation hearings four years prior. Thomas's earlier writings had frequently referenced the legal theory of natural law; during his confirmation hearings Thomas limited himself to the statement that he regards natural law as a "philosophical background" to the Constitution. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.