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President George H.W. Bush's Supreme Court Nominations


We're going to start the program today with continued reflections on the legacy of the 41st U.S. president, George H.W. Bush. And we're going to focus today on one of the most consequential decisions a president can make - a Supreme Court nomination. Mr. Bush had two such nominations - David Souter and Clarence Thomas. We're going to speak with C. Boyden Gray about this. He served as Mr. Bush's legal counsel when he was vice president in the Reagan administration, and Mr. Gray served as White House counsel to President Bush. And C. Boyden Gray is with us now from his home in Washington, D.C.

Mr. Gray, thank you so much for joining us. And, of course, our condolences on the loss of your friend and colleague.

C. BOYDEN GRAY: Well, I appreciate that. Yes. Thank you.

MARTIN: I'd like to start by asking if President Bush had a philosophy going into the presidency. Did he have a specific point of view about what kind of person he was looking for to fill a Supreme Court vacancy if one should arise?

GRAY: He did. But it was not unusual. It was a continuation of where Reagan started and where the Republicans still go, which is, you know, you interpret the law. You don't make it. You don't make it up. You follow it. It's a relatively straight line from Reagan to the present in terms of what he wanted - people who would interpret, not make it up.

MARTIN: Is it accurate that David Souter was subsequently viewed as more moderate than he had been hoped to be? Is that fair?

GRAY: That is true. I think he was a disappointment to all of us who thought that he would be more like he was presented by both himself and others. Now, you have to remember that he was high on the list of the Reagan justice department, and had Kennedy not been the nominee, it - the next choice would have been - probably would have been Souter. So he came - we came into office inheriting the Reagan list and the Reagan research.

MARTIN: And what was the deciding factor in choosing Clarence Thomas?

GRAY: Well I think that President Bush wanted to go with Thomas the first time around - I mean, the first opening instead of - I mean, he would have if we - if he'd - if we had let him. He would have nominated Thomas for the nomination that Souter got, but both Thornburgh and I felt that he was just not ready. He hadn't been on the Court of Appeals long enough. We didn't know enough about him, just not seasoned enough. So we waited. And - but he was ready by the next opening. He was ready, and so he was nominated.

MARTIN: So two questions here - was his age a factor? Because it is no secret that the Federalist Society has been interested in having younger judges serve who presumably would have longer careers and a bigger impact. So was his age a factor in making him an attractive candidate?

GRAY: Well, sure. But that's been true for, I think, any president. I don't that's unique to Bush or to Trump or even to Obama.

MARTIN: And what about his being African-American, given that he was nominated to replace Thurgood Marshall? Was that deemed to be - was that a factor?

GRAY: It was a sort of a negative because the president didn't want to look like he was filling a quota.

MARTIN: So you're saying that the race factor came in, and that you thought - did you, the president thought that it might be negatively perceived to have an African-American candidate replacing the first African-American...

GRAY: No, no, no, no....

MARTIN: ...To sit on the court?

GRAY: ...That's...

MARTIN: No? I'm just trying to understand it. Yeah.

GRAY: Yeah. It's quite tricky. It's not the nomination of a minority would be controversial. It's that he didn't want to have the appearance that he was appointing a minority to replace a minority. You know, that was what was going on. And you have to remember that he knew Thomas before I did. He knew Thomas in some ways better than I knew him because he had worked with him in the Reagan administration, and he knew what Thomas was capable of. He knew how brilliant he was. And so he knew as much as any of us. That's unusual for a president to know a candidate that well. That's unusual.

MARTIN: So the allegations of sexual harassment must have been a shock to all of you.

GRAY: Of course it was a shock. And none of us even now believe there's a shred of truth to it.


GRAY: But it was...

MARTIN: You don't believe that there's truth to any of the complainants who came forward.

GRAY: Well, I don't believe that the charges against Kavanaugh either. But remember what Thomas was accused of is - wouldn't even meet, I think, today the definition of sexual harassment.

MARTIN: I think that others with more - well, I think others may disagree. But we're not going to litigate this, Mr. Gray. What - let me just ask you, overall, looking at the 41st president's impact on the court, from your perspective as a conservative, you feel what - that it was a wash in a way? That Mr. Souter didn't live up to your hopes but that Clarence Thomas has exceeded them? Would that be...

MARTIN: I would say...

MARTIN: How would you say it?

GRAY: I would say that we, I think, all feel that Thomas has exceeded by a much wider margin than Souter disappointed. So it's not a wash.

MARTIN: That C. Boyden Gray. He served as White House counsel to President George H.W. Bush. He's the founding partner of Boyden Gray & Associates. And he's also Ambassador Gray because he's the former ambassador to the European Union and former special envoy for Eurasian energy diplomacy.

Thank you so much for speaking with us.

GRAY: My pleasure. Transcript provided by NPR, Copyright NPR.