Bush Nominates Second African American to the Supreme Court

Date July 1, 1991

When Thurgood Marshall, the nation’s first African American Supreme Court justice, retired in 1991, President George H. W. Bush nominated another black judge, Clarence Thomas, to replace Marshall. Thomas’s confirmation hearings, contentious from the start, became truly sensational when Thomas was accused of sexual harassment by Anita Hill, a law professor who had previously worked for Thomas.

Locale Washington, D.C.

Key Figures

• Clarence Thomas (b. 1948), associate justice of the United States beginning in 1991
• George H. W. Bush (1924–2018), president of the United States, 1989-1993
• Thurgood Marshall (1908-1993), first African American to serve as associate justice of the United States, 1967-1991
• Anita Hill (b. 1956), law professor who worked for Clarence Thomas at the Equal Employment Opportunity Commission

Summary of Event

Thurgood Marshall was the first African American to serve as a justice on the U.S. Supreme Court. At the time of his appointment in 1967, he was a renowned advocate for civil rights. As counsel for the National Association for the Advancement of Colored People (NAACP), Marshall had argued thirty-two civil rights cases before the Supreme Court, winning twenty-nine, including the landmark school desegregation case, Brown v. Board of Education of Topeka, Kansas (1954). He had been a federal appeals court judge and U.S. solicitor general. He was known for his concern for racial equality and the rights of the criminally accused. When Marshall retired from the Supreme Court in 1991, President George H. W. Bush, a Republican, was under intense political pressure to replace Marshall with another African American. On July 1, 1991, President Bush nominated Clarence Thomas, an African American, for Marshall’s seat on the Court. Thomas was as conservative as Marshall had been liberal.

In 1987, President Ronald Reagan had nominated Robert H. Bork to the Supreme Court. Bork, like Thomas, was known to have a conservative judicial philosophy. Acrimonious hearings before the Senate Judiciary Committee culminated in the Senate’s rejection of Bork’s nomination by a vote of fifty-eight to forty-two. The approach taken by Bork’s opponents to attack him personally led to the coining of the term “to bork,” which is defined in the Oxford English Dictionary as follows: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office.” Four years later, abortion rights activists and other liberal interest groups mobilized for the “borking” of Clarence Thomas. They attacked on two fronts, emphasizing Thomas’s purported lack of qualifications and his ultraconservative judicial philosophy.

Announcing the appointment, President Bush called Thomas “the best person for this position.” Critics of the nomination pointed out Thomas’s slight judicial experience, only a year and four months on the U.S. Court of Appeals for the District of Columbia Circuit. His other experience included eight years as chairman of the Equal Employment Opportunity Commission (EEOC). Thurgood Marshall, by comparison, had authored ninety-eight majority decisions in his four years on the U.S. Court of Appeals for the Second Circuit. Thomas’s supporters countered that many Supreme Court justices had little or no judicial experience before they were named to the Court, including such highly esteemed justices as Joseph Story, Earl Warren, William H. Rehnquist, Felix Frankfurter, and Louis D. Brandeis. At the heart of the confirmation controversy, however, were Thomas’s views on such contentious issues as abortion rights, affirmative action, and the constitutional role of the Supreme Court vis-à-vis the legislative and executive branches of the U.S. government.

Clarence Thomas was born in 1948 in the small town of Pin Point, Georgia. He was raised by his grandparents, attended Catholic schools, and graduated from Holy Cross College in 1971 and Yale Law School in 1974. During his confirmation hearings, Thomas explained how the values imparted to him by his grandparents and the nuns who taught him led him to believe that hard work and the overcoming of obstacles, rather than preferential treatment based on race, would lead to a better life for black Americans. He expressed his beliefs that affirmative action had been of greatest benefit to middle-class rather than poor blacks and that government entitlements create a cycle of dependence and poverty, ultimately doing more harm than good for the poor. Thomas’s detractors saw him as a beneficiary of affirmative action who was hypocritically attempting to deny the same help to others.

Thomas’s confirmation hearings before the Senate Judiciary Committee began on September 10, 1991. The first attack on Thomas targeted his affinity for “natural law.” Some senators worried that such a belief might lead Thomas to subordinate constitutional principles to principles of dubious provenance, such as the notion that an unborn child has the rights of persons, a position that could lead to the overturning of abortion rights. Thomas explained that he viewed certain principles of natural law—such as equality and limited government with the consent of the governed—as guides for how properly to interpret the U.S. Constitution, so as to guard against both run-amok majorities and run-amok judges.

Thomas was asked numerous times for his views on abortion, which he resisted providing. He claimed that he had never “debated” the 1973 abortion case Roe v. Wade. This response was met with skepticism, and Thomas lost some credibility that he would need when the hearings soon took a dramatic turn.

The Judiciary Committee sent the nomination to the full Senate without a recommendation for confirmation. The Senate vote was originally scheduled for October 8, but on October 6, the existence of sensational allegations of sexual impropriety against the nominee were leaked to the press. Thomas requested a delay so that the Judiciary Committee would have time to investigate the charges before the Senate voted. On October 11, the hearings reopened, with the public’s attention firmly riveted by the sensational allegations.

The accuser was Anita Hill, a law professor at the University of Oklahoma who had worked for Thomas in the past, first at the U.S. Department of Education and later at the EEOC, when Thomas became the commission’s chair. Thomas testified first, making a statement in which he categorically denied Hill’s allegations. Hill then testified. She related that when she and Thomas worked together at the Department of Education, Thomas had repeatedly asked her out on dates; she further stated that in workplace conversations he had described acts he had seen in pornographic films and that he had bragged about his sexual prowess. Hill admitted that when Thomas left the Department of Education to take the EEOC job, she agreed to go with him. That admission cost Hill some credibility, as many observers wondered why someone who had been treated so shabbily would agree to accompany her harasser to another job.

Later that day, Thomas gave a second, highly emotional and dramatic statement in which he described the proceedings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.” Witnesses were then brought in to corroborate both Thomas’s and Hill’s testimony, but ultimately the Judiciary Committee concluded its hearings without making a determination on the charges. On October 15, 1991, the Senate voted to confirm Thomas as an associate justice of the United States by a vote of fifty-two to forty-eight, the slimmest margin in history.

Significance

Public opinion at the time of Thomas’s confirmation hearings was as closely divided as the Senate vote, and debates about who was telling the truth continued for years afterward. Some observers vilified Thomas as an Uncle Tom, a race traitor who served his (conservative) white masters. Some were embarrassed that Thomas had been portrayed in the mass media as the negative stereotype of the black man who could not control his sexual appetites. Thomas’s defenders saw him as a latter-day Booker T. Washington, a man who had pulled himself up out of poverty by his own bootstraps and who believed that progress for blacks would come from hard work and the self-esteem that one earns by overcoming obstacles, rather than from special treatment or government handouts.

Some saw Anita Hill as a feminist heroine who struck a blow against the sexual harassment of women. Others saw her as a liar who was simply determined to destroy Clarence Thomas for personal reasons or who, for political reasons, was a conspirator in the borking of a conservative nominee.

The Thomas hearings served to increase public awareness of the problem of sexual harassment in the workplace, and in subsequent years, additional scandals arose involving accusations of unwanted sexual advances by public figures. Senator Robert Packwood of Oregon was forced to resign in 1995 following complaints from several female employees, and President Bill Clinton was accused of sexual impropriety by Paula Jones and others. Thomas's confirmation hearings also came to be seen as a precursor to those of Brett Kavanaugh in 2018. Kavanaugh was accused of sexual assault by several women, but, like Thomas, was ultimately confirmed.

Bibliography

Foskett, Ken. Judging Thomas: The Life and Times of Clarence Thomas. New York: HarperCollins, 2004.

Gerber, Scott Douglas. First Principles: The Jurisprudence of Clarence Thomas. New York: New York University Press, 1999.

Hill, Anita Faye, and Emma Coleman Jordan, eds. Race, Gender, and Power in America: The Legacy of the Hill-Thomas Hearings. New York: Oxford University Press, 1995.

Mayer, Jane, and Jill Abramson. Strange Justice: The Selling of Clarence Thomas. New York: Houghton Mifflin, 1994.

Thomas, Andrew Peyton. Clarence Thomas: A Biography. San Francisco: Encounter Books, 2001.

Thomas, Clarence. My Grandfather’s Son: A Memoir. New York: HarperCollins, 2007.