The Nine [12]
Thurgood Marshall was the least seen of the retirees. He was the only member of the Court since Warren who would have held a place in American history even if he had never become a justice. As an architect of the NAACP Legal Defense and Education Fund’s assault on segregation, he had argued and won many of the civil rights landmarks of the 1940s and 1950s, including Brown v. Board of Education in 1954. Lyndon Johnson had put him on the Court in 1967, but Marshall’s tenure had been unhappy. The causes he cared about were in eclipse for most of those years, and he spent his last years fighting ill health and trying to hang on until a Democratic president could appoint his successor. “If I die, just prop me up!” he would instruct his law clerks.
So Marshall’s resignation in 1991, a week before his eighty-third birthday, came as a surprise. “I’m getting old, and coming apart,” he explained at a freewheeling press conference the next day, where he sat slumped over in a chair, looking disheveled. He was asked whether he thought President George H. W. Bush had an obligation to appoint another minority justice in his place. “I don’t think that should be a ploy,” he answered, “and I don’t think it should be used as an excuse, one way or the other.” A reporter followed up, “An excuse for what?” Marshall’s answer seemed directed at his most likely successor. “Doing wrong,” he said. “Picking the wrong Negro…. My dad told me way back…there’s no difference between a white snake and a black snake. They’ll both bite.”
Unwritten Supreme Court protocol called for a wall of separation between the sitting justices and the confirmation process. Nominees were never so presumptuous as to make contact with the Court before they were confirmed, and justices generally refrained from commenting, even in private, about their possible new colleagues. So it was, at first, with the confirmation hearings of Clarence Thomas, which began on September 10, 1991.
There was never much doubt that Thomas would be the nominee. A year earlier he had been confirmed for the United States Court of Appeals for the D.C. Circuit, and the prospect of his replacing Marshall had been much discussed then. The dilemma facing Bush and the Republicans was clear. If Marshall left, they could not leave the Supreme Court an all-white institution; at the same time, they had to choose a nominee who would stay true to the conservative cause. The list of plausible candidates who fit both qualifications pretty much began and ended with Clarence Thomas.
On July 1, 1991, President George H. W. Bush introduced Thomas as his nominee at a press conference at his vacation home in Kennebunkport, Maine. There was awkwardness about the selection from the start. “The fact that he is black and a minority has nothing to do with this,” Bush said. “He is the best qualified at this time.” The statement was self-evidently preposterous; Thomas had served as a judge for only a year and, before that, displayed few of the customary signs of professional distinction that are the rule for future justices. For example, he had never argued a single case in any federal appeals court, much less in the Supreme Court; he had never written a book, an article, or even a legal brief of any consequence.