On this episode… Merrick Garland’s submits a questionnaire nobody technically asked for, and continuing our series on the ghosts of nominations past: Clarence Thomas 1991.
Welcome SCOTUSblog readers! Episode 8 was mentioned in the SCOTUSblog round up, and we’re grateful for the mention. For new listeners, we refer you to our origin story in episode 1 (no radioactive spiders or Amazon warrior island upbringings, sorry) for more on who we are, what the show is, what it is not and anything else you might be wondering about.
After a boomlet of activity last week, we’ve settled back into the same spot as before: Democrats are noting the ticking clock and comparing the delay to nominations past, and Republicans are fiddling away as their party deals with the circus clown they’ve hitched their wagon to for the fall elections.
The White House submitted Judge Garland’s questionnaire answers (PDF), which is a normal part of the nomination process. What’s different this time is the Senate Judiciary Committee didn’t draft it and has yet to schedule a hearing, which is unusual or perhaps unprecedented by this point in modern SCOTUS nomination history.
Read Huffpo on Judge Garland never being overruled by SCOTUS (and compare to last week’s deep dive into the Bork nomination and how that was a big deal for GOP Judiciary committee members).
Senate meetings scheduled this week for Judge Garland on the Meet and Greet Tour:
- Tuesday: Sens. Ron Johnson R-WI and Brian Schatz, D-HI
- Wednesday: Sens. Barbara Mikulski, D-MD., Ed Markey, D-MA, and Tom Carper, D-DE
- Thursday: Sen. Jon Tester, D-MT
More at NBC News.
“Dahlia Lithwick Fan Club” Segment
DAN: Just a few hours before we recorded tonight, Slate’s Dahlia Lithwick – who is being honored this week as an American Constitution Society Champion of Justice – published an article bemoaning the challenges of covering something as incredibly hugely massively important as the Garland nomination while (a) nothing of substance is happening – and may never happen, and (b) America and our media are consumed with Donald Trump’s baby-hands and bluster-bombs. It’s a great piece and you should read it – there’s a link in the shownotes – and here’s how Dahlia sums it up:
Slate: No News Is No News; Why it’s virtually impossible to cover Merrick Garland (Dahlia Lithwick)
“There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands. Even the fact that ‘everybody yawns’ when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.”
Meanwhile, at 1 First St NE…
Just as we’ve been chatting about on past eps of Advice & Consent…
Ghosts of Nominations past revisted
Continuing our Ghosts of Nominations past series (see Ep 7 for Adam’s brilliant Rehnquist coverage, and Ep 8 for my rapid fire Bork piece).
First… a followup on a question Lena posed to Adam in Ep 7 regarding the length of time it took for the Rehnquist process.
ADAM: Rehnquist took 49 days, which was actually too short. Important parts of his record didn’t come out until after the hearing. And speaking of the da`22ngers of not taking long enough to vet a nominee
This week… our “Kiss Solo Album” series continues with our third edition (We’ll go with the Paul Stanley album), brought to you by Lena Zwarensteyn: the Clarence Thomas nomination of 1991…
Clarence Thomas 1991
My Disclaimer/My Party Factoid: In law school I had to take a theater class and for the final I had to pick a monologue. I chose Anita Hill’s testimony. My professor and I had creative differences regarding my presentation, but thankfully it was pass/fail and I (probably just) passed.
I chose it because I distinctly remember tuning into parts of Justice Thomas’ hearing, and hearing parts of Anita Hill’s testimony. Awkward, dorky and on the cusp of my teens, it struck me and clearly it stuck with me.
So, this is the first confirmation process we’re tackling that involves a Justice currently sitting on the Supreme Court. With respect I continue…
Justice Thomas’ Confirmation: Yes, I watched the movie. And Yes, there’s so much to say. So many different rabbit holes we could go down.
In 1991, Justice Thurgood Marshall, the first African American appointed to the Supreme Court announced his retirement after serving for 24 years (appointed by D President Lyndon Johnson in 1967). Justice Marshall, who led the NAACP’s litigation fight against racial segregation in Brown v. Board of Education and became a national civil rights leader.
President George HW Bush was responsible for nominating the next Justice and he chose Clarence Thomas.
- Obviously, the President was NOT trying to seek to fill the role with someone with a similar proclivity toward the law. And he chose a very ideologically conservative and wildly controversial (esp. w/civil rights community) nominee
- Notable b/c there was a Democratic majority in the Senate (57 Ds – 43 Rs). Not notable in terms of history – long history of ideological switches (think O’Connor/Alito for next week!)
- This was, in many ways, a signal that filling the seat was the President’s prerogative
- However, it was a very deliberate choice to select an African American nominee to replace Justice Marshall; and someone who would, by some measures at least, seem to quell concerns from the civil rights leaders and organizations who were very much watching what was happening, especially after the Bork hearings.
Quick tangent for some backstory: President George HW Bush served only one term, but had 2 Supreme Court nominees confirmed. The first was Justice Souter. On July 20, 1990, Justice William Brennan announced his immediate retirement.
- There had been news that Bush was seriously considering 5 candidates: 5th Cir. Judge Edith Jones, D.C. Cir. Judge Laurence H. Silberman, 5th Cir. Judge David Souter, Fmr SG and D.C. Cir. Judge Kenneth Starr and D.C. Cir. Judge Clarence Thomas.
- Bush really wanted to nominate Thomas, but they held back.
- 4 days later, David Souter was announced, and he was confirmed on October 2, 1990 in a 90-9 confirmation vote.
- Souter was a disappointment to conservatives, and so when they next vacancy arose there were some demands for a more reliable
So when Justice Marshall announced his retirement a year later, George HW Bush could finally get his pick of Clarence Thomas. Now to bring it back to last week, Thomas had been nominated in October 1989 to fill the seat on the U.S. Court of Appeals for the D.C. Circuit judge that was vacated by Robert Bork. In March 1990, he was confirmed in a pretty uneventful process.
So here we are though, with Justice Marshall. It’s June 28, 1991 and Justice Marshall announces his retirement (pending confirmation of a replacement). On July 1, President Bush announces Clarence Thomas to be his nominee.
So there is Clarence Thomas, who had been:
- Asst AG of Missouri;
- Attorney for Monsanto;
- Staff to Sen. John Danforth (R-MO) (until 1981);
- Asst. Sec. for Civil Rights in the Dept. of Education (1 year);
- Chair of US Equal Employment Opportunity Commission (8 years; until 1990);
- Judge on D.C. Circuit for 1 year until nominated by President George HW Bush.
Automatically, it’s clear there would be a fight:
- This would be the 9th Supreme Court Justice appointed by a Republican President. There were clear signs that a conservative movement was afoot and the President was trying to usher in as many ideologically conservative Justices as possible. Unreliable Souter, aside.
- His credentials were a bit lackluster, he was very young at 43 and didn’t have a significant amount of judicial experience from which to evaluate how he might be as a judge or rule. And he would be on the bench for a very very long time most likely.
- He had enough of a paper trail that hit on clear issues regarding his views on things like affirmative action and Roe v. Wade.
So the 2 major themes that overlapped in many ways but can also be seen independently:
ABA: American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.”
- Senator Danforth (R-Mo.): Thomas’ former boss; went to 60 courtesy visits with Thomas
- Ken Duberstein
- 7/1/1991: Nominated to Supreme Court
- About 2 months later, 9/10/1991: Confirmation hearings begin in Senate Judiciary Committee
- Committee Make Up: 8 Ds (Biden Chair) and 6 Rs (Thurmond, RM); only remaining Senators who were on the Committee then and still in office: now RM Leahy (D-Vt.), now Chairman Grassley (R-Iowa), Sen. Hatch (R-Utah)
Ds in Majority
- Biden, Chair – final 7th No vote
- Kennedy (MA)
- Metzenbaum (OH)
- DeConcini (AZ) – voted w/RsLeahy (VT) – led vote against him
- Heflin (AL) – conservative southerner, considered key
- Simon (IL)
- Kohl (WI)
- Thurmond, RM
- Hatch (UT)
- Simpson (WY)Grassley (IA)
- Specter (PA)
- Hank Brown (CO)
- The Committee, based on this alone, could’ve tanked the whole process. BUT THEY DIDN’T.
- Reasons for Concern:
- Justice Thomas’ hearing made the Democrats increasingly uncomfortable because of his 1) lack of significant and substantive experience, 2) answers about things like his conservative speeches and writings; his answers to things such as if he ever thought about the constitutionality of Roe v. Wade (where he basically said that he’d have to sit down and write the decision to know how he’d feel about it – despite saying he agreed at one point with the theory that there’s a natural law based right to life).
- Most of the hearing revolved around Justice Thomas’ view of natural law
- Sen. Leahy asked Thomas about Roe v. Wade since it was decided when he was in law school; Thomas couldn’t recall discussing b/c he was married and didn’t spend much time debating cases. Leahy asked if he ever talked about Roe “only in a very general sense” where you listen but didn’t debate
- Some Senators rejected the White House’s strategy for Justice Thomas’ answers – which was to evade all answers, go back to his upbringing.
- 9/27/1991: Senate Judiciary Committee Vote deadlocks in 7-7.
- Despite this, the Committee decided to still send him nomination to the floor just without recommendation of the Committee
- 7-7 vote split by party, with 1 D (Sen. DeConcini of AZ voting with Rs)
- Keep in Mind, the Senate was TRYING to settle this before the start of the Supreme Court’s October Term
Nomination went to Senate Floor
- Floor vote was scheduled for 10/8/1991. But on 10/5/1991, NPR story broke
- 10/6/1991: 2 days before the Senate vote scheduled; FBI report leaked to press that included private conversations/reports: Professor Anita Hill had to then tell the Senate Judiciary Committee that Justice Thomas sexually harassed her when they worked together at the Dept. of Education and EEOC – asking out on dates, inappropriate statements about rape/sex with animals/group sex, described sexual interest.
This led to a delayed floor vote b/c Thomas asked time to clear his name; get support for his nomination. They weren’t sure they’d have the votes without time to rebut.
Basically, MORE HEARINGS – AFTER THE COMMITTEE VOTE – happened. Not a normal process at all, but one that was made at the nominee’s request and really was wrenching on so many levels.
- 10/11/1991: Anita Hill called to testify in front of Committee
- Committee held 3 days of hearings.
- Hill gave excruciating detail; all public because the details and specificity seemed to matter in convincing people she could be believed
- She really wanted to stay silent; didn’t want to make a sexual harassment claim
- Others did come forward, but they didn’t end up testifying
- Even submitted to a polygraph test, that verified her statements
- Thomas adamantly denied
- Said he was being subjected to a “high-tech lynching for uppity blacks” by white liberals who were seeking to block a black conservative from taking a seat on the Supreme Court.
- Also declined the polygraph test
- In reflection, Clarence Thomas’ 2007 autobiography, My Grandfather’s Son.
- Called Hill his “most traitorous adversary” and saying that pro-choice liberals used the scandal against him.
- Tried to again discredit Anita Hill as “a left-winger who’d never expressed any religious sentiments whatsoever…and the only reason why she’d held a job in the Reagan administration was because I’d given it to her.”[
- Hill denied the accusations in an op-ed in the New York Times saying she would not “stand by silently and allow [Justice Thomas], in his anger, to reinvent me”.
- 10/15/1991: U.S. Senate confirms Clarence Thomas by the narrowest margin in the 20th century: 52 to 48.
- 10/23/1991: Sworn in as associate justice of the Supreme Court.
- Despite being barraged by a Committee of all men, Americans got to see this, and workplace harassment was acknowledged, seen by many as very real (don’t ask Sen. Hatch, however; his questions to Anita Hill were, to be kind, offensive, which is a side outcome of how public victim-blaming was/is. From plagiarism to mistaking her source when talking about the name of a porn star Thomas mentioned). Still, it wasn’t considered “THAT BAD.” For many around the country, especially women, however, there was a sigh of relief that someone was publicly talking about workplace sexual harassment, describing common experiences, and not standing down.
- Reports of sexual harassment to EEOC increased.
- Not a single woman on that Committee: Inspired women and people who support women to run for office; voices mattered – more women ran for office
- PUBLIC Hearings – Americans got to see the whole thing and make judgments on their own
- Process and timing:
- Thomas has described how demeaning the process was: “No job is worth what I’ve been through — no job. No horror in my life has been so debilitating. Confirm me if you want. Don’t confirm me if you are so led.”
- Justice Thomas talks about how horrible the process was, how grueling it was for him to spend about 100 days going through this process. Right now, we’re doing that and more for Chief Judge Garland.
Adam: Washington Post article describing Justice Thomas’ testimony embracing a right to privacy, Senator DeConcini’s reliance on that testimony, and then Justice Thomas’ opinion rejecting the right to privacy in Lawrence v. Texas.
Tim: SNL’s blistering take lampoons the all male Judiciary Committee as being more concerned about Clarence Thomas’ pickup techniques… this was super edgy and just blistered a group of men being the arbiters of sexual harassment.
Highlight performances by:
- Chris Farley as Howell Heflin
- Dana Carvey as Strom Thurmond
- Phil Hartman as Ted Kennedy
- And future member of the Judiciary committee Al Franken as Paul Simon!