George H. W. Bush, Grace, and Gracelessness

On criminal justice, the late president's legacy is shaped by Willie Horton and Clarence Thomas

December 3, 2018

It is possible both to appreciate the extraordinary life of public service President George H.W. Bush gave to the country he loved and also to recognize that he is linked to people and policies that left legacies of misery and frustration for countless Americans. Bush was a man of great personal grace who often employed graceless tactics in the pursuit of his political goals. Like Jimmy Carter, he was a better former president than he was a president. That’s not speaking ill of the dead. It’s speaking some truth amid all the hagiography we experienced this weekend online and on television.

Let’s focus on law and justice, and let’s begin even before Bush became president, with Lee Atwater, the political operative who gave Bush’s 1988 presidential campaign, and the world, the racist Willie Horton ad for which that campaign is known. When Atwater died at age 40 of complications from a brain tumor in 1991, Bush as president said he was “proud” to have worked with a man “who practiced the art of politics with zeal and vigor.” This came after a terminally ill Atwater apologized to Michael Dukakis, the Democratic candidate, for saying he would “make Horton his running mate.”

The racist trope of the ad — which featured a mugshot of the African-American Horton, who raped a woman and stabbed her fiancé after being furloughed from a Massachusetts prison under a program Dukakis supported — wasn’t just some one-off campaign commercial. It was a central part of a presidential campaign that focused on the fear of crime and argued, relentlessly, that “revolving door” sentencing and prison policies were to blame for the problem. As Beth Schwartzapfel recounts in “Willie Horton Revisited,” Horton’s photograph hung in Bush’s campaign headquarters, and the circumstances of his escape were always more complicated than they had been made out to be. Meanwhile, Atwater may have tried to make amends for the ad, but Bush evidently never did.

Bush was elected to the presidency at a time when violent crime rates were historically high and his administration, predictably, chose to combat the problem by endorsing short-sighted policies that fueled mass incarceration. In this he was no different from many Democratic leaders of that era, including Joe Biden and Bill Clinton, who often outdid one another in an effort to appear “tough on crime.” Take the Crime Control Act of 1990, for example, which Bush eagerly signed and which helps explain why so many drug offenders are languishing in federal prisons long after they have served reasonable sentences for their crimes. 

The remnants of these disastrous and racially divisive policies are still with us and form the basis of the Trump administration’s “American carnage” motif, a baseless charge in an era where violent crime is at or near generational lows. I saw a lot of coverage over the weekend about Bush’s cheap stunt in 1989 in which he displayed in an Oval Office speech what he said was crack cocaine purchased right across from the White House. What really happened is that DEA agents had to lure a drug dealer to Lafayette Park — including giving him directions — to make Bush’s point.  

The most significant legacy Bush leaves is on the Supreme Court. He first nominated David Souter, whose grace and self-deprecation mirrored Bush’s own, and was lashed for it by conservative Republicans who felt Souter was too moderate. Lesson learned, Bush then turned in 1991 to a little-known federal bureaucrat named Clarence Thomas to replace Thurgood Marshall, the iconic champion of civil rights on and off the court. Bush’s decision to nominate Thomas was dubious from the start. Bush’s strident defense of Thomas after the sexual misconduct allegations against him surfaced was particularly disappointing.

Indeed, Bush’s angry and dismissive response to the extension of Thomas’s confirmation hearing in order to hear Anita Hill’s claims is easy to compare to President Donald Trump’s response to the confirmation hearing of Brett Kavanaugh once Kavanaugh, too, was credibly accused of misconduct. As Timothy Phelps and Helen Winternitz recount in their fine book, “Capital Games,” which chronicled the Thomas hearing, Bush by the end was calling the confirmation process “a circus and a travesty” in which his nominee had been handled like a “burlesque show.” Sound familiar?   

Thomas survived the hearing, was confirmed by a narrow 52-48 vote (in which 11 Democrats endorsed his nomination), and in the intervening 27 years has become a conservative icon on the court. With only the rarest exceptions, Justice Thomas is waging the same war on drugs, and on crime, that Bush fought a generation ago. In case after case, Justice Thomas has fought for the broadest possible use of capital punishment, and consistently refused to hold police and prosecutors accountable even in cases of obvious and damaging misconduct. His legacy on criminal justice more broadly is mixed, but in many ways Bush’s legal legacy will be shaped by two black men, Willie Horton and Clarence Thomas, if you can imagine that.

Finally, toward the end of his presidency, after he had been defeated by Bill Clinton, and during his lame duck tenure, Bush pardoned six Reagan administration officials who were either charged or convicted during the Iran-Contra scandal. Among them was Caspar Weinberger, who served as Reagan’s Secretary of Defense for nearly seven years. “It was time for the country to move on,” Bush said as he announced the pardons on Christmas Eve, 1992. The Iran-Contra prosecutor, Lawrence Walsh, furious, responded by disclosing that Bush himself may have obstructed justice during that investigation by withholding notes. 

The nation today is rightly nostalgic about what Bush always pitched as a “kinder and gentler” time in our history. Especially when compared to the current administration, and especially the current president, the Bush White House was a model of courtesy, coherence, and competence. It was the last of the old-school Republican administrations. Which helps explain why Bush, were he in his prime today, would be even more lost in Trump’s Republican party than is his son, Jeb, or even George W. Bush, 43 to his father’s 41, who clearly is no fan of the current president and many of his policies and values.

But it wasn’t beanbag back then, either. And it wasn’t kinder and gentler for all. The truth is that George H.W. Bush hit back hard against his opponents, played dirty when he had to, eschewed accountability and transparency when it suited him, helped to broaden the nation’s racial and economic divide, and foisted on the nation a lawyer of dubious temperament whose presence on the Supreme Court today is an affront to millions. We should mourn the passing of this former president, this war hero, and be grateful for his decades of public sacrifice. We also should remember him with clear eyes for what he was, not for what we wished him to be.  

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Barry Thumma/AP)