Looking Back At The Thomas Era

September 17, 2018 1:18 pm

This comment doesn’t go to the core questions we’re wrestling with today with the Kavanaugh nomination – substantive, ideological or political. But it’s a fascinating glimpse at the big changes that have happened in the process over the last quarter century – and ones that could have a major impact over the coming weeks. I suspect the first President Bush may have been particularly responsive to Senators in the way that is described below. But broadly speaking this is a real change.

From TPM Reader JB, a GOP senate staffer at the time …

As the Kavanaugh confirmation process recalls certain aspects of Clarence Thomas’s during the first Bush administration, I thought I’d offer a recollection about the latter.

In 1991, we didn’t have a Federalist Society vetting nominees to the federal bench, or a President to whom Supreme Court nominations were of vital political importance. What we did have was a President used to listening to senior Senators of his own party. This was a big reason GHW Bush had nominated David Souter, a close New Hampshire political associate of Warren Rudman’s. Conservatives came to loathe Souter, who while Republican often took liberal positions on the Court — his tenure was one reason groups like the Federalist Society were created in the first place.

It was also a big reason Bush nominated Thomas. Thomas had been a staffer for Missouri Senator John Danforth, an heir to the Ralston-Purina fortune and Episcopal priest who got along well with the Episcopalian Bush. Danforth had supported Thomas’ career after he moved to the Reagan administration and afterward. As Souter had been a “Rudman guy,” Thomas was seen as a “Danforth guy”; he was to some extent able to draft off his patron’s considerable reputation for righteousness during the confirmation process. He might not have been confirmed without it, given the nature of the allegations against him.

Kavanaugh does not have, as far as I know, a specific Senate sponsor. The process has changed; factors external to the Senate are more important now, and the Senate itself, less. This is something that confused me at the start of the Kavanaugh confirmation. A judicial moderate could slip through in 1990, in part because a powerful Republican Senator vouched for him; a nominee accused of pretty serious misconduct in 1991 made it through, in part because some Senators were disposed to defer to a respected colleague. Kavanaugh is a product of GW BushWorld with solid partisan credentials; he was thoroughly vetted as a conservative. But so were a lot of other judges. Why him?

Maybe this was just a personal choice by Trump. In any event, Republicans had ample time and opportunity to nominate someone just as conservative as Kavanaugh, without the baggage. They didn’t.

To be clear, the Federalist Society did exist in 1991. I believe it was founded in 1982. But it had nothing like the influence, really dominance over the process it does today. In the sense we know it today, even in the sense it existed in the aughts, it did not exist.

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