The President and the Supreme Court - George Bush-Clarence Thomas - Research Paper Example

 The choice of judicial nomination to advance a political agenda is not unheard of in United States politics and in fact, could be said to be an implicit presidential prerogative. President Ronald Reagan, for example, employed a litmus test to ensure that his nominees were precisely the kind of people that could be expected to take the same path that his administration was taking. Reagan used a nominee’s position in the anti-abortion issue as a barometer to gauge the latter’s potential and place in his administration. President George H.W. Bush, who was a Republican like his predecessor, took a cue from Reagan and employed a similar approach so that between the two of them, they had succeeded to fill the Court with seven justices that not only had conservative leanings but also comprised a majority. Table 1 shows the seven SC justices nominated and whose appointment were duly approved: William Rehnquist as Chief Justice in 1986 by Reagan; Sandra Day O’Connor by Reagan in 1981; Antonin Scala by Reagan in 1986; Anthony Kennedy by Reagan in 1988; David Souter by G.H.W. Bush in 1990, and; Thomas Clarence by G.H.W. Bush in 1991. The nomination of President Bush of Thomas Clarence in 1991 and the subsequent hearing in the judicial commission proved to be the most controversial in the nation’s judicial confirmation history, a controversy sparked by the sexual harassment testimony of Thomas’ colleague (Dudziak 2004). It is evident, however, that President Bush used the strategy employed by his predecessors in choosing to nominate Thomas, known for his ultra-conservative outlook, to the Supreme Court to ensure that the conservative policies of his administration will be preserved and maintained. Most of Justice Thomas’ decisions, which came to be known collectively as the legal model of Supreme Court-decision making, not only represented conservatism but radical conservatism that even his critics came to admire for their bravery and depth of legal and research basis. Table 1 SC Appointments by Reagan & G.W. Bush (Source: Supreme Court of the US Website) I President George H.W. Bush and His Agenda in Nominating Clarence The nomination of Justice Thomas Clarence to the US Supreme Court was supposed to be a shrewd political strategy, one that would not only be in keeping with the general plans of the then incumbent administration of Bush but also one that would be easy to hurdle in the judicial commission because of the underlying pressure that came with it. As author Clarence Lusane put it “With the nomination of Thomas, George Bush found himself in a win-win situation: If the nomination succeeded, then Bush would have the ultra-conservative he desired, and if the nomination failed, Bush could then justify putting virtually anyone up for nomination without regard to throwing a political bone to the Black Community” (1994). President George H.W. Bush’s presidential style and agenda were largely influenced by his background, which can be characterized as conservative leading his critics to perceive him as unwilling to bring about change. Raised by a conservative father, i.e. Senator Prescott Bush, President Bush was taught to cultivate the values of respect for hierarchy, order, duty and service rather than innovation and flair for revolutionary kind of change. This kind of outlook was evident in the way Bush handled his illustrious jobs at the various departments of the government: as Chairman of the Republican National Committee; as a Member of the House of Representative and the Senate; as an Ambassador to China; as a United Nations Ambassador; as a Central Agency Director, and; as a Vice-President. Bush’s kind of leadership can be characterized as ultra-conservative almost unassertive, one that approached with caution anything that advocated drastic change preferring to conduct positive reform gradually and carefully. However, despite his unwillingness to effect revolutionary change, Bush was noted as an excellent organization man having brought back morale to the once beleaguered CIA, among others (Barilleaux & Rozell 2004). During his years as Vice-President to Reagan, he was often lambasted as a lapdog for his too deferential attitude. One cartoonist caricatured him as an invisible man “who had placed his manhood in a blind trust.” When he ran for the presidency at the end of Reagan’s terms, one of his promises was to continue the conservative policies of the latter and after successfully elected as president, promised to use the power of his office to negate any attempt by Capitol Hill to reverse the conservative gains of the Reagan administration (Barilleaux & Rozell 2004). President Bush frankly told the public at the start of his term that he had no plans to launch grand radical changes or was nursing any particular vision of the future that would institute sweeping and dramatic changes. He was actually for the preservation of the status quo evidenced by his reappointment of many Reagan men and working closely on transition issues with the outgoing administration (Barilleaux & Rozell 2004). But while Reagan chose his appointees on the basis of the abortion litmus-test to gauge their potential, Bush gave importance to the “Bush connection:” whether the appointee was personally known to him at one time or another (Gregg 2003). His Transition Director Chase Untermeyer remarked that the President was “acquainted with every member of his Cabinet before he named them to office. They were people he had known and with whom he had worked for many years” (qtd Barilleaux & Rozell 2004). Thus, Bush’s appointees can be characterized as competent and experienced individuals rather than advocates of radical change: James Baker as Secretary of State; Brent Scowcroft as National Security Adviser; Richard Darman as Management and Budget Director; Elizabeth Dole as labor Secretary, and; Louis Sullivan as Health Secretary. On the other hand, he retained Nicholas Brady in the Treasury Department and Richard Thornburgh as Attorney General. One of his two appointees who were not of the same mold as his conservative appointees, Jack Kemp of the Housing and Urban Development eventually turned around and became a bitter critic of Bush’s too cautious approach in governance (Barilleaux & Rozell 2004). In 1991, when the only African American associate justice of the US Supreme Court Thurgood Marshall was set to retire, Bush was faced with an opportunity to nominate, for the second time, a justice to the Court. Clarence Thomas was initially perceived, before the subsequent Anita Hill affair surfaced, as an ideal and strategic nominee of the Republican Administration. Thomas was known as one with a decidedly conservative predisposition, one that would be in keeping with the conservative policies of the Bush Administration. It was naturally anticipated that any opposition to his nomination would come from the opposing camp: the Democrats. However, it was shrewdly calculated by the Bush people that a Thomas nomination rejection would be practically a thorny issue to the Democrats because of his race. This would, as one observer put it, placed the Democrats in a dilemma where they simply could not “ridicule a black nominee for his lack of learning ... [as] they might look elitist at best, and racist at worst” (qtd Feldman & Perotti 2002). Upon the retirement of Marshall, Bush ordered for a compilation of possible nominees that were not, in a sense, traditional. Two names cropped up: Emilio Garza, a Hispanic judge on the Court of Appeals, and; Thomas. Chief of Staff John Sununu reportedly favored Garza on the ground that he could help the Republicans gain Hispanic votes but Thomas was Bush’s personal choice. Bush perceived Thomas as the most conservative among the nominees and a conservative African American would be difficult to oppose by the Democrats, especially among Democrats with strong support from blacks. In addition, there were reports that Thomas would not be strongly opposed by the civil rights group as it had done against the first nominee of Bush Judge Bork. Senator Danforth, who was Thomas’ boss for a time, also promised to act as his sponsor (Vieira & Gross 1998). In fact, many civil rights groups was forced to support Thomas because of his color although they would have rallied hard against him because of his conservative stance had he not been black. On the other hand, this line of argument did not hold water for the Congressional Black Caucus Foundation who argued back “With Justice Marshall’s departure it is imperative that a Black join the Court – but not any black, at any cost” and “”The record demonstrates that what Clarence Thomas has drawn from his experience in order to shape his perspective and views is idiosyncratic and far outside the mainstream of African American perspectives” (qtd Lusane 1994). Surprisingly, the confirmation hearings of Thomas turned out to be the most divisive and controversial in history. Civil rights groups with black membership came to oppose his nomination. The National Association for the Advancement of Color People (NAACP) opposed his nomination on the ground that on the basis of his record on civil rights issue, his position was at best merely reactionary; the People for the American Way opposed it on the ground that as an EEOC Chairman and DE assistant secretary, Thomas showed a “disdain for law.” Still others cited his seeming opposition to Roe v Wade, the precedent-setting case on abortion and his tendency to invoke natural law in constitutional construction. The most controversial aspect of the hearing, however, was the testimony of Anita Hill, a University of Oklahoma professor and a previous colleague of Thomas at the EEOC. Hill claimed that she had been sexually harassed by Thomas (Gerber 1999). Nevertheless, in the end, the power of the presidential influence came through and Thomas was finally confirmed. III A Profile of Justice Thomas Clarence’s SC Decisions Justice Thomas Clarence’s first ambition was to become a priest but he was not able to fulfill this because he suffered discrimination in the all-white boys’ seminaries he attended. Instead, he pursued law in Yale and specialized in tax and anti-trust law using his knowledge in the same as part of the anti-trust division in the Attorney General’s Office in Missouri in the 1970s. He worked briefly after that as corporate lawyer in the Monsanto Company in the late 1970s and then spent the next years as a legislative aide of his former boss John Danforth at the Attorney General’s office when the latter won a seat in the US Senate. An article on him written by the Washington Post while attending a black conservatives’ conference shoved him in the limelight and caught the attention of the Reagan Administration, which promptly offered him a job at the Department of Education as an assistant secretary for civil rights. He was eventually promoted as head of the Equal Employment Opportunity Commission (EEOC) where he instituted changes, which did not sit well with many civil rights groups: elimination of timetables and numeric goals to encourage flexibility in the hiring of minorities, and; abandonment of statistical evidence of discriminatory effects as basis of class suits. Nevertheless, President George H.W Bush appointed him to the Court of Appeals for the District of Columbia in 1990 and nominated him to the US federal Supreme Court in 1991 to take the place of another African American Thurgood Marshall (OYEZ 2010). In the early stages of Thomas’ stint with the US SC, observers noted that he tended to be on the quiet side rarely speaking out his mind during oral deliberations. Most of his votes on cases decided by the Court tended to align with that of another justice Antonin Scalia, an Italian American jurist known for his colorful and sardonic wit. Both judges tended to be conservative in their positions and while Scalia usually wrote their joint views, Thomas simply appended his signature earning him the moniker “pawn” of Scalia (Biskupic 1999). It was noted that Thomas’ works in early years in the US SC can best be described as “shallow and poorly reasoned, he did little work, and he was a clone of conservative Justice Antonin Scalia with a few ideas of his own” (Gerber 1999). However, although Thomas proved to be the conservative that Bush anticipated him to be, he has evolved through the years as one with a voice of his own distinct from that of his colleagues. He had surfaced as a “right-wing intellectual force in his own right, a radical conservative capable of spinning out bold, well-researched legal essays in clear, provocative prose” (Gerber 1999). Like Scalia, Thomas tended to construe the Constitution on the basis of its wording alone and the intentions of its framers without looking beyond them or reading something into it not expressly stated. However, Thomas turned out to be a more radical conservative than the established conservatives who predated him in the Court, and held no compunction overturning past SC decisions if they, in his opinion, conflict with the Constitution. Thomas’ decisions are characterized by deference to state authority believing that constitutional authority stemmed from the authority granted by people within each state rather than by a general, undifferentiated mass. Thomas also had a willingness to probe even into history before the Constitution and tended to reject recent case law (Biskupic 1999). Thomas, together with Scalia, had come to be known as a chief advocate of the legal model of Supreme Court decision-making (Wrightsman 2006). In the cases of Hudson v McMillian 503 US 1 (1992), Hope v Pelzer 536 US 730 (2002) and Deck v Missouri 544 US 622 (2005), Thomas showed a right-wing conservative stance that many believe was generally unsympathetic to prisoners. His decisions in these cases were a courageously narrow and textual interpretation of the Constitution and related statutes, something that would cause liberals to rise up and revolt. In the first case of Hudson, in which he earned volumes of criticisms from the legal critics, Thomas dissented, together with Scalia, from the majority opinion that the use of excessive force against a prisoner constituted cruel and unusual punishment. Thomas argued that “a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal and it may even be remediable under the provisions of the Federal Constitution, but it is not “cruel and unusual punishment” (Hudson v McMillian 503 US 1 (1992). The petitioner in this case was serving a sentence at the Angola State Penitentiary and alleged that the guards moved him from cell to cell and beat him up while another guard restrained him. Thomas maintained that this did not constitute “cruel and unusual punishment” but nevertheless, criminal. Nevertheless, critics pounced on him albeit some quarters although a historian claimed that Thomas view was a classic case of federal judicial restraint. In the Hope case, Thomas dissented from the majority opinion finding that the Alabama Department of Corrections was not entitled to a defense of qualified immunity, where government employees acting in pursuance of their duties cannot be sued, where the correction officers tied a prisoner to a “hitching post,” a form of punishment, where prisoners are rendered immobilized for a period of time. Thomas dissented on the ground of deficiency of the complaint: the accused guards’ participation was not established, and; there was no allegation that the accused caused the plaintiff’s injuries. He said “The Alabama Department of Corrections regulation relied upon by the Court not only fails to provide support for its holding today, the regulation weighs in respondents’ favor because it expressly authorized prison guards to affix prisoners to a restraining bar when they were ‘disruptive to the work squad.’ Alabama prison guards were entitled to rely on the validity of a duly promulgated state regulation instructing them to attach prisoners to a restraining bar under specified circumstances” (Hope v Pelzer 503 US 1 [1992]). In Deck, the accused, charged for robbing and murdering an elderly couple, was brought into court shackled in the ankles, handcuffed and belly chained for sentencing. He filed an action contending violation of the Constitution. The majority of the SC voted in favor of Deck while Scalia and Thomas voted against. Thomas wrote his own dissent to which Scalia joined him. In voting against the issue of due process alleged by the accused to have been violated against him in shackling him while he was attending his sentencing, Thomas probed into the history of the law proscribing such practice stating that the practice only began out of consideration for the accused who suffered the burden of the load of the heavy and crude iron chains prevailing in the early period and that there is no precedent to support the finding that shackling per se violates a defendant’s rights to due process. Thomas quipped, “My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the due process clause of the 14th Amendment preclude the visible shackling of the defendant” (Deck v Missouri 544 US 622 [2005]). In the case of Campbell v. Louisiana 673 So 2d 1061 (1998), Justice Thomas wrote his own opinion, concurring in part and dissenting in part. The case is about a white man charged with second-degree murder by a grand jury in Louisiana. The accused alleged that his due process was violated because the system of selection of grand jury in the community always excluded African-Americans. The majority agreed that the accused has standing to inquire into the procedural legality of his conviction. Thomas dissented and his dissent was joined by Justice Scalia. In his dissent, Thomas criticized the case upon which the majority relied, i.e. Powers v Ohio 499 US 400 (1991) as “inconsistent with a vast body of clear statement,” “distorted standing principles and equal protection law and should be overruled.” IV Conclusion When Bush chose to nominate Thomas, what he had in mind was to kill several birds at once with just one stone, so to speak. He wanted a SC associate justice that embodied the conservative direction that his administration was taking as well as one that would easily hurdle the judicial commission. Indeed, had the Anita Hill affair did not crop up, the Thomas nomination would have gone smoothly despite the objection of some civil rights groups and the lack of depth of his legal experience. An African-American in the Supreme Court to take the place of the retiring first and only African-American jurist in the highest court of the land was just too big for the Democrats to reject. Nevertheless, the President’s influence and power came through and Thomas’ nomination was confirmed. It is to the credit of Clarence Thomas that he eventually evolved into a Supreme Court jurist with a voice and mind of his own albeit he started off with a big misstep. Although a conservative, as Bush would have liked and expected him to be, Thomas, after five years, more or less, of being perceived as putting out shallow and ill-researched decisions finally found a niche as a oxymoron jurist with a reputation for being a radical conservative and whose opinions are independent, fearless, and bounded by legalism yet stood autonomous and willing to go beyond precedents and past SC decisions. Works Cited Barilleaux, Ryan J. & Rozell, M.J. Power and Prudence: The Presidency of George H.W. Bush. USA: Texas A&M University Press, 2004, pp. 16-21. Biskupic, Joan. After A Quiet Spell, Justice Finds Voice – Conservative Thomas Emerges from the Shadow of Scalia, Washington Post, 1999 May 24. Campbell v. Louisiana 673 So 2d 1061 (1998). Deck v Missouri 544 US 622 (2005). Dudziak, Mary. “The Politics of the ‘Least Dangerous Branch’”: The Court, the Constitution and Constitutional Politics since 1945,” A Companion to Post-1945 America by Agnew, Jean-Christophe & Rosenzweig, Roy. UK: Wiley-Blackwell, 2006, pp. 399. Feldman, Leslie Dale & Perotti, Rosanna. Honor and Loyalty: Inside the Politics of the George H.W. Bush White House. Greenwood Publishing Group, 2002, pp. 277-283. Gerber, Scott Douglas. First Principles: The Jurisprudence of Clarence Thomas. NYU Press, 1999, pp. 13-15, 25. Gregg, G.L. Thinking about the Presidency: Documents and Essays from the Founding to the Present. Rowman & Littlefield, 2005, p. 123. Hope v Pelzer 536 US 730 (2002). Hudson v McMillian 503 US 1 (1992). Lusane, Clarence. African Americans at the Crossroads: The Restructuring of Black Leadership and the 1992 Elections. South End Press, 1994, pp. 75-79. “Members of the United States Supreme Court,” Supreme Court of the United States, 2010 Aug 5. http://www.supremecourt.gov/about/members_text.aspx. OYEZ. “Clarence Thomas,” US Supreme Court Media: OYEZ. 4 Aug 2010. http://www.oyez.org/justices/clarence_thomas/. Vieira, Norman & Gross, Leonard. Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. SIU Press, 1998, pp. 200-201. Wrightsman, Lawrence. The Psychology of the Supreme Court. Oxford University Press US, 2006 p. 111. Read More