Two of the nominees, Ferdinand Francis Fernandez and Guy G. Hurlbutt, were nominated after July 1, 1988, the traditional start date of the unofficial Thurmond Rule during a presidential election year.
In 1981, Reagan strongly and publicly had considered nominating Hallmark Cards attorney Judith Whittaker, who is the daughter-in-law of the late Supreme Court associate justice Charles Evans Whittaker, to a vacancy on the United States Court of Appeals for the Eighth Circuit that had been created by the decision by Floyd Robert Gibson to take senior status.
In 1982, Reagan strongly and publicly had considered nominating New Orleans lawyer Ben C. Toledano to a seat on the United States Court of Appeals for the Fifth Circuit to replace Robert A. Ainsworth Jr., who had died in 1981.
However, Toledano’s nomination was opposed by local and state chapters of the National Association for the Advancement of Colored People and a local group of African-American attorneys, who cited Toledano’s involvement in his twenties as an active supporter of racial segregation and his efforts to organize the segregationist States' Rights Party of Louisiana.
In December 1982, Reagan’s Counsel to the President, Fred Fielding, wrote in a memo that the joint White House-Justice Department working group “has identified Benjamin C. Toledano ... as a well-qualified candidate for nomination to the existing vacancy on the 5th Circuit Court of Appeals.
However, we believe the facts described below should be brought to your personal attention before further action occurs on the part of this prospective nominee.” Fielding’s memo described Toledano’s past and the opposition to his nomination by a committee of the American Bar Association.
Several days later, the White House informed Toledano that it would not proceed with his nomination, and evidence shows that Reagan himself personally made the decision.
[44] Thomas Figures, a black Assistant U.S. Attorney, testified that Sessions said he thought the Ku Klux Klan was "OK until I found out they smoked pot".
[45] In response to a question from Joe Biden on whether he had called the NAACP and other civil rights organizations "un-American", Sessions replied "I'm often loose with my tongue.