COMMENTARY: HBO movie reopens raw wounds of ’91 SCOTUS fight

The upcoming HBO movie “Confirmation” endeavors to portray the events of Clarence Thomas’ 1991 Supreme Court nomination hearing in an accurate manner.

Still, the emotions which were so out of control a quarter-century ago have hardly quieted down in the duration since. From Senate Judiciary Committee Chair Joe Biden to President George Bush to Thomas himself, no one was left untarnished by the bruising confirmation fight.

One reason for the pitched fever that accompanied the Thomas nomination was the person he was replacing, Thurgood Marshall. A giant of the liberal wing, Marshall was the first African American to serve on the U.S. Supreme Court. President Bush reasoned that the vacancy created by Marshall’s retirement should be filled by a black jurist.

Dr. Samuel B. Hoff

Dr. Samuel B. Hoff

Bush’s nomination of Clarence Thomas was accompanied by a warning by Attorney General Richard Thornburgh that Thomas’ conservative views on issues like affirmative action and abortion would cause friction among Democratic senators. He got that right, as a majority of Democratic senators opposed the Thomas nomination.

Another explanation for the heightened tension which came with the Thomas nomination to the Supreme Court had to do with politics of the period. President Bush nominated Thomas on July 1, 1991, at a time when Bush’s popularity began a steep decline. Further, the 1992 presidential campaign was starting to heat up, and several senators at the time were considering their options, including Biden.

Questions over Thomas’ qualifications for the Supreme Court post were raised at the time of his nomination. While the American Bar Association gave Thomas a qualified rating, some suggested that he was not ready while others compared him to Robert Bork as far as his judicial philosophy was concerned. Bork, nominated for the high court in 1987, was rejected by the Senate due to his extreme views.

GOP senators remembered how Bork was treated by the Judiciary Committee and vowed not to allow a repeat of that fiasco.

The most serious challenge to Thomas’ confirmation came from one-time Department of Education and Equal Employment Opportunity Commission co-worker Anita Hill, who accused Thomas of making unwelcome sexual comments.

Although Hill testified, other witnesses on her behalf were not permitted to do so. The treatment of Hill by Republican senators was less than respectful, while, conversely, Thomas himself complained about a “high-tech lynching.” In the end, Thomas was confirmed by a 52-48 vote, the closest vote in more than a century for a Supreme Court nominee.

Twenty-five years later, Justice Clarence Thomas has stayed true to his ideological roots, demonstrating a consistent conservative approach to cases. Until very recently, Thomas was known for his habit of remaining silent during oral arguments.

Like his late colleague Antonin Scalia, Thomas is known for his dissents more so than his majority opinions, a trend which will likely increase if a Democrat is elected president in 2016.

Watching “Confirmation” will no doubt bring back bad memories for many involved in the 1991 nomination controversy. But if there is value in returning to that time, it is that the machinations then help to explain the present predicament in dealing with SCOTUS nominations.

EDITOR’S NOTE: Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science and Law Studies director at Delaware State University. He served in three staff positions with the U.S. Congress between 1978 and 1986.

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