The Nine [10]
On the Court, and in much else, Bush tried to finesse the demands of the far right. To win their support in the first place, Bush had sworn fealty to the new conservative orthodoxies, including opposition to Roe v. Wade, but it was clear that his heart was never in the cause. For this reason, then, Brennan’s resignation in July 1990 was for Bush more an annoyance than an opportunity. He was preoccupied with the sudden fall of Communism and had no stomach for a fight in the Democratic Senate over a Supreme Court nominee—especially about issues that meant little to him personally. A Yankee aristocrat, Bush surrounded himself with men in the same mold, like his White House counsel, C. Boyden Gray, and attorney general, Richard Thornburgh (who as governor of Pennsylvania was the defendant in the 1986 abortion case).
As his first choice for the Supreme Court, Bush chose yet another man with a background and temperament similar to his own—David H. Souter. The appointee had spent virtually his entire career in New Hampshire state government, where he had a nearly invisible public profile. (Thurgood Marshall, in his final cranky years on the Court, still spoke for many when he greeted the news with “Never heard of him.”) John Sununu, the White House chief of staff, promised conservatives that the appointment would be “a home run” for them, but Souter’s moderate testimony at his confirmation hearing suggested otherwise. Democrats, grateful that Bush had avoided a confrontational choice, raised few objections, and Souter was confirmed by a vote of 90–9.
Even before Souter’s record refuted Sununu’s prediction (as it surely did), conservatives registered their outrage at his appointment—and their demands for Bush’s next choice. Sununu promised that the president would fill the next vacancy with a nominee so conservative that there would be “a knock-down, drag-out, bloody-knuckles, grass-roots fight.” Thus, a year later, Clarence Thomas.
Marshall resigned on June 27, 1991, almost a year to the day after Brennan, and this time conservatives insisted that Bush appoint one of their own. By this point, with Brennan also gone, Marshall was the last full-throated liberal on the Court. His seat was especially precious to his political opponents, since only two members of the Thornburgh majority from 1986—Blackmun and Stevens—remained; the replacements for the other three would all be selected by presidents who publicly opposed Roe v. Wade. The decision appeared as good as overruled.
Thomas’s confirmation hearings, of course, turned into a malign carnival of accusation and counterclaim between the nominee and his one-time aide Anita Hill. But that sideshow obscured the larger significance of Thomas’s appointment. Even though the nominee was unusually reticent in answering the senators’ questions, it was easy to infer that the forty-three-year-old judge believed in what might be called the full Federalist Society agenda: that the justices should interpret the Constitution according to the original intent of the framers, that Congress had repeatedly passed laws that infringed on executive power and violated the Constitution, and that the crown jewels of liberal jurisprudence—from Miranda to Roe—should be overruled.
The scope and speed of the conservative success was remarkable. In just about a decade, conservatives had taken ideas from the fringes of intellectual respectability to an apparent majority on the Supreme Court. Thomas’s confirmation, on October 15, 1991, by a vote of 52–48, meant that Republican presidents had appointed eight of the nine justices—and Byron White, the lone Democrat, was more conservative, and a stronger opponent of Roe, than most of his colleagues. With Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Thomas completing