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United States courts of appeals

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{{George H. W. Bush series}}
Speculation abounded over potential nominations to the [[Supreme Court of the United States]] by [[George H. W. Bush]] even before his presidency officially began, given the advanced ages of several justices.

On July 20, 1990, this speculation became newsworthy, due to the announcement of the immediate retirement (and assumption of [[senior status]]) of Associate Justice [[William J. Brennan, Jr.]]<ref name=nyt_brennan_ret>[[Linda Greenhouse|Greenhouse, Linda]]. [https://query.nytimes.com/gst/fullpage.html?res=9C0CEEDE1F39F932A15754C0A966958260&sec=&spon=&pagewanted=all "VACANCY ON THE COURT; BRENNAN, KEY LIBERAL, QUITS SUPREME COURT; BATTLE FOR SEAT LIKELY"], ''[[New York Times]]'', July 21, 1990.</ref> President [[George H. W. Bush]] announced [[David Souter]] as Brennan's replacement just four days later,<ref name=nyt_souter_nom>[[Maureen Dowd|Dowd, Maureen]]. [https://query.nytimes.com/gst/fullpage.html?res=9C0CE5D6103FF937A15754C0A966958260 "SOUTER, NEW HAMPSHIRE JUDGE, NAMED BY BUSH FOR HIGH COURT; NO 'LITMUS TEST,' PRESIDENT SAYS"], ''[[New York Times]]'', July 24, 1990.</ref> and Souter was confirmed by the [[United States Senate]] on October 2, 1990, in a 90–9 vote.<ref name=fjc_souter>{{FJC Bio|2244|nid=1388096|name=David Hackett Souter}}</ref><ref name=roll_call_souter>[https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=101&session=2&vote=00259 U.S. Senate Roll Call Votes – Nomination of David Souter]</ref>

On June 27, 1991, Associate Justice [[Thurgood Marshall]] announced his retirement (and assumption of [[senior status]]), effective October 1, 1991.<ref name=fjc_marshall>{{FJC Bio|1489|nid=1384366|name=Thurgood Marshall}}</ref><ref name=nyt_marshall_death>[[Linda Greenhouse|Greenhouse, Linda]]. [https://query.nytimes.com/gst/fullpage.html?res=9F0CEFD71639F936A15752C0A965958260&sec=&spon=&pagewanted=all "Thurgood Marshall, Civil Rights Hero, Dies at 84"], ''[[New York Times]]'', January 25, 1993.</ref> President [[George H. W. Bush]] announced [[Clarence Thomas]] as Marshall's replacement just five days later.<ref name=nyt_thomas_nom>[[Maureen Dowd|Dowd, Maureen]]. [https://query.nytimes.com/gst/fullpage.html?res=9D0CE1DD1E3EF931A35754C0A967958260&sec=&spon=&pagewanted=all "THE SUPREME COURT; CONSERVATIVE BLACK JUDGE, CLARENCE THOMAS, IS NAMED TO MARSHALL'S COURT SEAT"], ''[[New York Times]]'', July 2, 1991.</ref> After a confirmation process filled with allegations of [[sexual harassment]], Thomas was confirmed by the [[United States Senate]] on October 15, 1991, in a 52–48 vote.<ref name=roll_call_thomas>[https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=102&session=1&vote=00220 U.S. Senate Roll Call Votes – Nomination of Clarence Thomas]</ref>

==Overview==
Throughout much of the history of the [[United States]], the [[Supreme Court of the United States]] was clearly the least powerful branch of the government, just as is often considered the Founding Fathers' intention, and nominations to that body, although important, were not the source of great political controversy as they are today. Furthermore, Bush's Supreme Court nominations came shortly after the controversial and failed nomination by President [[Ronald Reagan]] of [[Robert Bork]] to the Supreme Court in 1987.

==Politics==
Bush showed less interest in issues relating to the Supreme Court than other presidents before and after him.<ref name="toobin">{{cite book |last=Toobin |first=Jeffrey |author-link=Jeffrey Toobin |year=2007 |title=The Nine: Inside the Secret World of the Supreme Court |publisher=Doubleday |isbn=978-0-385-51640-2 |page=[https://archive.org/details/nineinsidesecret00toob/page/20 20] |url=https://archive.org/details/nineinsidesecret00toob/page/20 }}</ref> Upon Souter's nomination, Bush made clear that he had no litmus test for court appointees. "You might just think that the whole nomination had something to do with abortion," Bush told reporters upon nominating Souter. "It's something much broader than that. I have too much respect for the Supreme Court for that."<ref name=nyt_souter_nom/>

===David Souter nomination===
After [[William J. Brennan, Jr.|William Brennan]] announced his retirement on July 20, 1990, Bush moved swiftly to identify a replacement. The [[New York Times]] published a story with a long list of potential nominees whose names had been mentioned.<ref name=nyt_brennan_ret/> However, ultimately, Bush narrowed down his list on Sunday, July 22, 1990, to just five candidates, all federal appeals court judges: [[Edith Jones]], [[Laurence H. Silberman]], [[David Souter]], [[Kenneth Starr]] and [[Clarence Thomas]].<ref name="yarbrough">{{cite book |last=Yarbrough |first=Tinsley |author-link=Tinsley E. Yarbrough |year=2005 |title=David Hackett Souter |publisher=[[Oxford University Press]] |isbn=0-19-515933-0 |pages=[https://archive.org/details/davidhackettsout00yarb/page/103 103–104] |url=https://archive.org/details/davidhackettsout00yarb/page/103 }}</ref> Bush was most interested in nominating Thomas, but he and his staff struggled with four issues surrounding Thomas: 1) his short tenure as a judge up to that point (just eight months on the [[United States Court of Appeals for the District of Columbia Circuit]]); 2) the fact that Thomas' appointment at that time would mean that there would be two African-American men on a court of just nine individuals; 3) Bush was saving Thomas for Thurgood Marshall's seat when he eventually retired; and 4) both Attorney General [[Dick Thornburgh]] and Counsel to President Bush [[C. Boyden Gray]] told the president that they felt that Thomas was not yet ready.<ref name="yarbrough"/><ref name="parmet">{{cite book |last=Parmet |first=Herbert |author-link=Herbert S. Parmet |year=1997 |title=[[George Bush: The Life of a Lone Star Yankee]] |publisher=[[Charles Scribner's Sons|Scribner]] |isbn=978-0684194523 }}</ref><ref name="greene">{{cite book |last=Greene |first=John Robert |author-link=John Robert Greene |year=1999 |title=The Presidency of George Bush |publisher=[[University Press of Kansas]] |isbn=978-0700609932 |url=https://archive.org/details/presidencyofgeor00gree }}</ref> There were also challenges involving several of the other candidates on Bush's short list. Gray's favorite choice for the seat was Jones,<ref name="podhoretz">{{cite book |last=Podhoretz |first=John |author-link=John Podhoretz |year=1993 |title=Hell of a Ride: Backstage at the White House Follies 1989–1993 |publisher=[[Simon & Schuster]] |isbn=0-671-79648-8 |url-access=registration |url=https://archive.org/details/hellofridebackst00podh }}</ref> whom Bush formally interviewed for the job. However, Jones was expected to provoke a confirmation battle, given her active history in partisan politics, her frequent appearances at meetings of the [[Federalist Society]] and her work with the [[Andrews Kurth]] law firm where then-Secretary of State [[James Baker]] had been a partner.<ref name="yarbrough"/> Silberman also was thought to provoke a confirmation battle in part because his legal views were thought to be similar to those of Chief Justice [[William Rehnquist]] and Associate Justice [[Antonin Scalia]] and also because Silberman had joined a ruling overturning one of [[Oliver North]]'s convictions regarding the [[Iran–Contra affair]].<ref name="yarbrough"/>

Ultimately, Bush chose Souter on July 24, 1990, and Souter was confirmed by the [[United States Senate]] on October 2, 1990, in a 90–9 vote.<ref name=fjc_souter/><ref name=roll_call_souter/> The senators voting against the Souter nomination were [[Brock Adams]] (D-WA), [[Daniel Akaka]] (D-HI), [[Bill Bradley]] (D-NJ), [[Quentin Burdick]] (D-ND), [[Alan Cranston]] (D-CA), [[Ted Kennedy|Edward Kennedy]] (D-MA), [[John Kerry]] (D-MA), [[Frank Lautenberg]] (D-NJ), and [[Barbara Mikulski]] (D-MD). Senator [[Pete Wilson]] (R-CA) did not vote.<ref name=roll_call_souter/>

===Clarence Thomas nomination===
{{Main|Clarence Thomas Supreme Court nomination}}
After [[Thurgood Marshall]] announced his retirement on June 27, 1991, Bush considered only two choices: Thomas and [[United States Court of Appeals for the Fifth Circuit]] judge [[Emilio M. Garza]].<ref name=nyt_thomas_nom/> Bush's strategists told the New York Times that all things being equal, Bush would have preferred to choose Garza. And while White House Chief of Staff [[John H. Sununu]] strongly favored Garza, Gray and Thornburgh had argued that Garza was "not ready," given that Garza had only been on the Fifth Circuit for a few weeks.<ref name=nyt_thomas_nom/>

In addition, Thomas had been widely believed to be in the process of being groomed for an eventual Supreme Court appointment since his 1989 appointment by Bush to the [[United States Court of Appeals for the District of Columbia Circuit]].<ref name=nyt_thomas_nom/>

Ultimately, on July 2, 1991, Bush chose Thomas as Marshall's replacement. And after a contentious confirmation process that involved allegations of [[sexual harassment]] by Thomas, the [[United States Senate]] confirmed Thomas in a 52–48 vote on October 15, 1991.

==Names frequently mentioned==
Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Bush or being the most likely potential nominees for a Supreme Court appointment under Bush:

===United States courts of appeals===
[[File:US Court of Appeals and District Court map.svg|550px|Courts of Appeals]]

* [[United States Court of Appeals for the First Circuit|Court of Appeals for the First Circuit]]
** '''[[David Souter]]''' (born 1939) '''(nominated and confirmed)'''
* [[United States Court of Appeals for the Second Circuit|Court of Appeals for the Second Circuit]]
**[[Roger Miner]] (1934–2012)<ref name=nyt_brennan_ret/>
** [[Ralph K. Winter, Jr.]] (1935–2020)<ref name=nyt_brennan_ret/>
* [[United States Court of Appeals for the Fourth Circuit|Court of Appeals for the Fourth Circuit]]
** [[William Walter Wilkins]] (born 1942)<ref name=nyt_brennan_ret/>
* [[United States Court of Appeals for the Fifth Circuit|Court of Appeals for the Fifth Circuit]]
** [[Emilio M. Garza]] (born 1947)<ref name=nyt_thomas_nom/>
** [[Patrick Higginbotham]] (born 1938)<ref name=nyt_brennan_ret/>
** [[Edith Jones|Edith H. Jones]] (born 1949)<ref name=nyt_thomas_nom/><ref name=supreme_conflict>{{Cite book | last=Crawford Greenburg | first=Jan | author-link=Jan Crawford Greenburg | title=Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court | publisher=Penguin (Non-Classics) | isbn=978-0-14-311304-1 | url=https://archive.org/details/supremeconflicti00janc }}</ref>
* [[United States Court of Appeals for the Eighth Circuit|Court of Appeals for the Eighth Circuit]]
** [[Pasco Bowman II]] (born 1933)<ref>‘KC Judge Being Considered for Vacancy: Appellate Jurist Was also Mentioned for High Court Opening in 1987’; ''[[The Kansas City Star]]'', July 22, 1990, p. 2</ref><ref>‘Possible Successors’; ''[[The Cincinnati Enquirer]]'', July 22, 1990, p. A4</ref>
* [[United States Court of Appeals for the Ninth Circuit|Court of Appeals for the Ninth Circuit]]
**[[Cynthia Holcomb Hall]] (1929–2011)<ref name=nyt_brennan_ret/>
** [[J. Clifford Wallace]] (born 1928)<ref name=nyt_brennan_ret/>
* [[United States Court of Appeals for the District of Columbia Circuit|Court of Appeals for the D.C. Circuit]]
** [[Laurence H. Silberman]] (1935-2022)<ref name=nyt_thomas_nom/><ref name=supreme_conflict/>
** '''[[Clarence Thomas]]''' (born 1948) '''(nominated and confirmed)'''

===United States senators===
* [[John Danforth]] (born 1936) – Republican senator from [[Missouri]]<ref name=nyt_brennan_ret/>

===Executive branch officials===
* [[Kenneth Starr]] (1946–2022) – [[United States Solicitor General]] under Bush<ref name=nyt_brennan_ret/><ref name=supreme_conflict/>

===Other backgrounds ===
* [[Abraham David Sofaer]] (born 1938) – former [[United States federal judge|federal judge]] on the [[United States District Court for the Southern District of New York]]<ref name=nyt_brennan_ret/> and Legal Adviser to the [[United States State Department]] 1985–1990 under [[Ronald Reagan]] and [[George Shultz]].<ref>[http://www.hoover.org/bios/sofaer.html Sofaer bio] {{Webarchive|url=https://web.archive.org/web/20090131221041/http://www.hoover.org/bios/sofaer.html |date=2009-01-31 }} Hoover Institution. Retrieved 2-28-09.</ref>

==See also==
* [[United States federal judge]]
* [[Judicial appointment history for United States federal courts]]
* [[Clarence Thomas Supreme Court nomination]]

==References==
{{Reflist}}

{{Presidency of George H. W. Bush}}
{{U.S. Presidents and the Judiciary}}

{{DEFAULTSORT:Bush, George H. W., Supreme Court Candidates}}
[[Category:United States Supreme Court candidates by president]]
[[Category:Presidency of George H. W. Bush]]

George H. W. Bush Supreme Court candidates - Revision history

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