Barely two years earlier, President Bush had named Clarence Thomas to the United States Court of Appeals for the District of Columbia Circuit. That appointment had been widely seen as an effort to place the young lawyer, only 41 at the time, in the launch position for the Supreme Court. It took only four days after Justice Marshall’s retirement announcement for President Bush to select Judge Thomas, describing him “the best man for the job on the merits.” The nomination was understood in ideological as well as racial terms; as head of the Equal Employment Opportunity Commission, Clarence Thomas had given a series of speeches that underscored his conservative credentials, which he attempted to disavow during his confirmation hearing.
The nomination was instantly controversial and bitterly contested well before Anita Hill’s allegations against Judge Thomas, her former boss, became public — a fact often forgotten in accounts of the nomination. Democrats who had been skeptical of the choice of David Souter, about whom they knew little, to succeed Justice Brennan, the court’s leading liberal, were aghast at the prospect of Judge Thomas, about whom they knew a good deal, being elevated to Thurgood Marshall’s seat. Before Anita Hill’s emergence, the Senate Judiciary Committee had concluded the confirmation hearing with a 7-to-7 deadlock on a resolution that would have sent the nomination to the Senate floor with a positive recommendation. (The committee moved the nomination forward without a recommendation.) The eventual confirmation vote was 52 to 48.
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. President Trump declared on his final campaign swing before the midterm elections last month that “this will be the election of Kavanaugh.” It’s impossible to imagine President Bill Clinton declaring before the 1994 midterms that “this will be the election of Stephen Breyer,” his middle-of-the-road Supreme Court nominee who was confirmed that year by a vote of 87 to 9.
President Obama expected that his first Supreme Court nominee, Judge Sonia Sotomayor, would have an easy bipartisan path to confirmation. She most likely would have except for the stated goal of Senator Mitch McConnell, the minority leader, to block the president at every turn. Senator McConnell, Republican of Kentucky, persuaded the National Rifle Association to oppose the nominee and, in a first for a Supreme Court nomination, to “score” the vote, making it a part of the potent annual report card the NRA issues for every member of Congress. As a result, Republican support for Judge Sotomayor quickly melted away, and she received only seven Republican votes.
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.
Such an aggressive program is bound to falter occasionally, as it did last week when Senator Tim Scott of South Carolina, the lone black Republican in the Senate, announced that he would vote against confirming Thomas Farr to a Federal District Court seat in North Carolina. Mr. Farr, nominated a year ago, drew sustained criticism for his connection to the racist campaigns of Jesse Helms, the former North Carolina senator, and for his legal guidance of the state Republican Party’s vote suppression strategy. The seat is the longest-unfilled judicial vacancy in the country, the Senate having refused to confirm President Obama’s successive nominations of two African-American women.
But as the Kavanaugh confirmation (50 to 48) exemplifies, President Trump is winning much more than he’s losing, with 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. Across all his federal court nominations, the president has chosen two dozen former Supreme Court law clerks, including 10 who clerked for Justice Thomas — more than for any other justice. The legacy continues.
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Source : https://www.nytimes.com/2018/12/06/opinion/bush-supreme-court-thomas.html787