Supreme Court Justice nomination hearings are never dull. But few observers expected the issue of whether Clarence Thomas should serve on the highest court of the land to become a firestorm—and a national referendum on sexual harassment.
That all changed on October 11, 1991, when a university professor named Anita Hill took the stand. Her testimony against Thomas is now seen as a watershed moment in the fight against sexual harassment in the workplace. But at the time, her explosive allegations were doubted, exposing her to public mockery and humiliation.
Who is Clarence Thomas? A justice in the making.
Born in segregated Georgia to a domestic worker and a farmer, Thomas lived in poverty throughout much of his childhood. When a house fire made him homeless, he moved in with his grandparents, who raised him in Savannah.
Thomas studied English literature in college, continuing on to law school at Yale. Throughout his young life, his success in school was often credited to affirmative action—a biased misconception that would come to play a role later in his career.
After practicing law in Missouri, Thomas was an Assistant Attorney General of Missouri, eventually moving into the private sector. During the 1980s, he served in the Reagan administration, becoming the eighth Chairman of the U.S. Equal Employment Opportunity Commission (EEOC). In 1989, he was nominated by President George H.W. Bush to a federal judgeship on the U.S. Court of Appeals for the District of Columbia. After Justice Thurgood Marshall announced he was retiring from the Supreme Court in 1991, Bush nominated Thomas to replace him—and the confirmation process that followed became an epic struggle with an unexpected twist.
The controversial confirmation hearing of Clarence Thomas.
Thomas’ nomination was immediately tinged with controversy— because of his race. Had Bush nominated an African American just to preserve the racial makeup of the bench? Was Thomas, who had been a federal judge for just 16 months and had never argued a case before the Supreme Court, qualified to serve on the nation’s highest court? As those questions raged, concerns about Thomas’ political stances followed. Those who opposed the nomination accused Thomas of being anti-choice and anti-affirmative action.These issues dominated the early days of Thomas’ hearings.
Then, on October 11, 1991, Anita Hill took the stand. Hill’s testimony astonished onlookers. A University of Oklahoma law professor and former assistant of Thomas’ during his tenure in the EEOC, Hill accused Thomas of sexual harassment.
Thomas, she claimed, had made unwanted sexual advances, asking her out and speaking to her about pornography and sexual acts. Hill’s testimony was supported by other women who made similar statements to the committee, never testifying in public.
Anita Hill’s testimony brought sexual harassment to the forefront.
Though Hill’s accusations were not made in a court of law and Thomas was not charged in a criminal case, they were the most prominent sexual harassment accusations to date, and they catapulted the little-known concept into the national consciousness.
But Hill wasn’t the first woman to accuse a colleague of sexual harassment. Since the term was first coined in the 1970s, harassment had been litigated and even recognized by the Supreme Court.
Hill endured hours of questioning by Senators who made it clear they doubted her testimony. “Are you a woman scorned?” asked Senator Howell Heflin during a memorable moment in the confirmation hearing. “Do you have a martyr complex?”
Despite all this Hill believed in her cause. “Telling the world is the most difficult experience of my life,” Hill testified. “It would have been more comfortable to have remained silent.”
How Hill’s testimony affected Thomas.
Though Hill’s accusations were credible and corroborated by other women, they did not affect the outcome of Thomas’ confirmation hearings. When Thomas himself spoke before the committee, he called Hill’s allegations and the tenor of the hearings “a high-tech lynching for uppity Blacks.” He vigorously denied harassing Hill. As media attention to the hearings swirled, he was confirmed by a 52-48 vote.
Suddenly, the idea of sexual harassment was front-page news—and so was Hill. The repercussions were immediate: She was mocked and parodied in the press and accused of trying to bring down Thomas. Her life was threatened, and angry members of the public barraged the University of Oklahoma, demanding that she lose her job.
“The backlash was as horrific as it was predictable,” says Karla Holloway, a Duke University expert in gender and law and author of Codes of Conduct: Race, Ethics, and the Color of Our Character. “I do not think this was as much about racism as it was sexism. Those who anointed Thomas were men who would not be corrected.”
Now a household name, Hill was excoriated. She was even the subject of a book that claimed she was a liar and mocked her as “a little bit nutty and a little bit slutty.” (Its author, David Brock, later apologized and admitted to libeling Hill.)
Anita Hill changed the conversation around sexual harassment.
Hill’s accusations of harassment changed the way America thought about harassment. Within just five years of her hearing, reports CNN’s Julia Carpenter, the EEOC saw sexual harassment complaints double. Companies began to train employees on sexual harassment.
Women felt increasingly empowered to report the misconduct of high-profile men. Men like Thomas—and, later, President Bill Clinton—were now on notice that their sexual misconduct would no longer go unreported or overlooked. The once obscure concept had now gone mainstream.
#MeToo brought Anita Hill back into the spotlight.
In the 2010s, the #MeToo movement prompted a reassessment of Hill and her legacy. “Do you believe her now?” wrote Jill Abramson in New York Magazine in early 2018. Since Thomas’ confirmation, she writes, not only have other women accused him of harassment, but the women who had observed his behavior before the hearing, along with witnesses who had seen the inappropriate behavior, were never called to the stand to testify. “It’s time to raise the possibility of impeachment,” she writes. “It’s because of the lies he told, repeatedly and under oath.”
As Hill’s case was reconsidered in light of a national movement to expose and prosecute sexual harassers, she used her voice to fight harassment. And the world seemed more willing to listen. “The energy and even anger of this moment says we are ready to end sexual harassment,” Hill said in a November 2017 speech. “We are ready to take on the deniers and enablers and ready to share our truth.”
For Holloway, recognition of that truth hasn’t come a moment to soon. “She has been so extraordinarily generous and gracious as the public has accomplished its own very necessary evolution in coming to understand her truth and our complicity in that moment,” she says. “I have always wanted to thank Anita Hill.”
Anita Hill’s legacy continues in new HBO movie
Twenty-five-years ago, Anita Hill testified about sexual harassment she said she experienced from then-U.S. Supreme Court nominee Clarence Thomas.
A new HBO film, “Confirmation,” starring Kerry Washington as Hill, dramatizes the high-profile debate that gained national attention and Senate hearings held late into the night.
In 1991, Hill challenged Thomas’ nomination by President George H.W. Bush on grounds that he had sexually harassed her when she worked for him at the Equal Employment Opportunity Commission. The hearings were the first of their kind.
Sexual harassment had received little public attention up to this point and the confirmation hearings brought the issue into the national spotlight. Twenty million Americans watched the hearings on television. Thomas called it a “high tech lynching.”
“I would do it again,” Hill said, despite the barrage of criticism she received from politicians and the public during and years after her Senate testimony. Other members of the public stood in support of Hill.
The Democratically-controlled Senate Judiciary Committee delayed a floor vote on Thomas’ confirmation after it had approved him on a party line vote in order to hold additional hearings. Thomas was eventually confirmed by a narrow majority of 52 to 48.
Hill went on to become a law professor at Brandeis University and advocate for women’s rights. She noted the importance of sharing this story, especially with young people given that women and men still frequently face powerful resistance to sexual harassment and assault claims.
“I have to credit some very, very brave young women and men for taking this on, on college campuses,” Hill said.
Sexual harassment — harassment in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks
confirmation hearing — meetings held by the Senate to gather information about candidates for federal office nominated by the president of the United States
party line vote — a vote in which a substantial majority of members of a political party vote the same way
Warm up questions (before watching the video)
- Who is Anita Hill?
- What do you know about U.S. Supreme Court Justice Clarence Thomas?
- How are Supreme Court justices chosen?
Critical thinking questions (after watching the video)
- Why was Anita Hill’s testimony notable at the time of the hearings and today?
- Why do you think Hill received so much backlash for her sexual harassment claims against Thomas?
- Why does sexual harassment continue to be a frequent topic seen in the news today?
Extension activity: High school students may want to read and comment on Gwen Ifill’s column: Gwen’s Take: shocker then, shocker now for a primary source perspective on the confirmation hearings of Clarence Thomas.
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Anita Hill, in full Anita Faye Hill, (born July 30, 1956, Lone Tree, Oklahoma, U.S.), American attorney and educator who garnered national attention for her testimony in the 1991 Senate confirmation hearings for U.S. Supreme Court nominee Clarence Thomas, whom she accused of sexual harassment.
Hill, the youngest of 13 children, grew up on a farm in Oklahoma. After studying psychology at Oklahoma State University (B.A., 1977), she earned a law degree from Yale University in 1980. Shortly thereafter she joined a law firm in Washington, D.C., but she left in 1981 to work at the U.S. Department of Education’s Office for Civil Rights, where she served as legal adviser to Thomas, who was assistant secretary. During that time she claimed that Thomas began to make unwanted sexual advances. According to Hill, he frequently discussed sex, such as graphically describing pornographic films, and he repeatedly asked her on dates despite her refusals. Hill claimed that the harassment later ended, and, when Thomas was made chair of the Equal Employment Opportunity Commission in 1982, she followed him. However, she alleged that the harassment restarted, with Thomas discussing his own anatomy and commenting on her clothing, among other claims.
Finding her work environment increasingly intolerable, Hill left in July 1983 to accept a teaching position at Oral Roberts University. Three years later she joined the faculty of the law college at the University of Oklahoma (OU), where she became (1989) the first tenured African American professor at the institution.
In 1991 Pres. George H.W. Bush nominated Thomas to replace Thurgood Marshall on the Supreme Court. In October of that year Hill testified before the Senate Judiciary Committee, where she recounted Thomas’s alleged sexual harassment. The hearings, which were televised, created a media circus and propelled Hill into the spotlight. During her questioning, a number of senators accused her of lying and raised doubts about her sanity. Thomas later denied the allegations, accusing the committee of a “high-tech lynching.” Although other women reportedly could have supported Hill’s testimony, they were never called by the committee. In the end, Thomas was narrowly confirmed, 52–48.
The hearings polarized Americans. Some believed that Hill was simply a scorned woman or an attention seeker, while others found her treatment by the Senate committee demeaning and sexist. The scandal motivated a number of women to enter politics, and 1992 became known as the “Year of the Woman,” as a historic number of female politicians were elected to Congress their seats in the Senate and House basically doubled to 6 and 47, respectively. Hill’s testimony was also credited with raising awareness of workplace sexual harassment.
Although she turned down interview requests, Hill became a sought-after speaker, especially on sexual harassment. She remained on the faculty at OU, but, amid continued calls for her resignation, she left the university in 1996. Two years later she became a visiting scholar at Brandeis University, eventually rising to university professor (2015). In addition to numerous articles, Hill wrote the autobiography Speaking Truth to Power (1997) and Reimagining Equality: Stories of Gender, Race, and Finding Home (2011).
For some 20 years after her Senate testimony, Hill maintained a relatively low profile. In 2010, however, she returned to the news after Thomas’s wife, Ginni, left her a phone message in which she asked for an apology from Hill, who refused. Hill later participated in the documentary Anita (2013), which focused on the scandal. In 2016 Kerry Washington portrayed Hill in the HBO TV movie Confirmation.
Brett Kavanaugh Isn’t the First Supreme Court Nominee Accused of Sexual Misconduct. Here’s What Happened Before
T he revelation on Sunday that psychologist Christine Blasey Ford is the woman who accuses Supreme Court nominee Brett Kavanaugh of sexual assault has opened a new phase in a confirmation process that had been drawing to a close.
But, with her lawyer saying that Ford is willing to testify about the alleged incident, the news has also opened up an old wound.
Ford’s allegations of assault at a high-school party in the 1980s were relayed in a letter to Sen. Dianne Feinstein and began circulating publicly last week. The idea that she might speak to the Senate Judiciary Committee &mdash and Monday evening’s news that she and Kavanaugh are scheduled to do so on Sept. 24 &mdash inevitably called to mind a moment from more than 25 years ago. That was when another woman accused a Supreme Court nominee of sexual misconduct.
On Oct. 11, 1991, when she testified to the Senate Judiciary Committee, Anita Hill became the face of what was arguably the biggest sexual harassment case ever seen in the United States up to that time.
Hill, then a 35-year-old University of Oklahoma law professor and commercial law expert, told the committee that 43-year-old Supreme Court nominee Clarence Thomas had ambushed her with unsolicited dirty talk when they had worked together at the Department of Education and the Equal Employment Opportunity Commission (EEOC) in the early 1980s.
As TIME pointed out in summarizing her eight hours of “virtually uninterrupted” testimony about his conduct at work, the details of her allegations were shocking in their specificity:
“He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals, and films showing group sex or rape scenes,” she alleged. “He talked about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts. On several occasions Thomas told me graphically of his own sexual prowess.”
The most charged moments came when she offered specific details about Thomas’ alleged behavior. One of the “oddest episodes,” she said, involved an exchange in Thomas’ office when he reached for a can of Coke and asked, “Who has put pubic hair on my Coke?” (Later, Hatch accused Hill of stealing the story from a work of fiction. Holding aloft a copy of the book The Exorcist, Hatch quoted, “There seems to be an alien pubic hair in my gin.”) On other occasions, Hill maintained, “he referred to the size of his own penis as being larger than normal” and spoke of the pleasure he had “given to women with oral sex.”
Urged by Biden to recall her most embarrassing encounter with Thomas, Hill responded, “His discussion of pornography involving these women with large breasts and engaged in a variety of sex with different people or animals.” Under questioning, she also recalled an exchange in Thomas’ office where Thomas alluded to the large penis of an actor in a pornographic film by referring to the character’s name.
“Do you recall what it was?” pressed Senator Biden.
“Yes, I do.” Hill, permitting herself a rare display of emotion, wrinkled her nose in disgust. “The name that was referred to was Long Dong Silver.” Hatch, who emerged as one of the panel’s most aggressive interrogators, later dug up a 1988 decision by a federal appeals court in Tulsa, citing an obscene photograph of a character by that name. Hatch suggested it was this court case that had brought the name to Hill’s attention &mdash not Clarence Thomas.
Hill said that, because they worked together at the time, she feared that if she spoke up or resisted, she might lose her job. Hill also told the committee that Thomas had once told her that he knew that “if [she] ever told anyone of his behavior, that it would ruin his career.”
Thomas denied everything and at one point characterized the hearing as “a high-tech lynching for uppity blacks,” which he said played “to the worst stereotypes we have about black men in this country.” Describing the experience of having reporters comb through his private life as “Kafkaesque,” he implored the Senators to vote one way or the other in order to end the hearing. When they did vote, the Senate confirmed Thomas 52-48, on Oct. 15. He now sits on the Supreme Court.
“Her word against his,” TIME concluded. “Neither Hill nor Thomas was able to bring decisive evidence before the committee last week to support their widely differing versions of their dealings in the past. Thus the evidence of character counts all the more heavily. But even that appeared to weigh equally on both sides.”
Even though Hill’s testimony failed to keep Thomas from being confirmed, it did change the national discourse about sexual harassment in the workplace and elsewhere.
The indelible image of Hill remaining “cool and unflappable” as the 14 white male Senators on the committee questioned her sparked a stronger reaction outside that hearing room. In the world of the Senate, “it is hard to empathize with someone worried enough about her career that she would overlook offensive conduct until it became literally a federal matter. Senators don’t interact with women as colleagues &mdash they have only two &mdash and most of the other women they come in contact with are subservient,” TIME pointed out in an article that noted how the men on the committee were “slow to grasp” how much the issue of sexual harassment mattered. Many of those watching the televised hearings had no such trouble.
Hill’s testimony is thus credited with everything from inspiring more women to run for public office to helping to change the legal possibilities for assault and domestic-violence survivors. In the years that followed, the Supreme Court would further clarify the definitions of and laws on sexual harassment, for example by ruling same-sex harassment at work is illegal. And last year, former Vice President Joe Biden, who was chairman of the Senate Judiciary Committee in 1991, said that he owed Hill an apology for the way she was treated during the hearings.
And yet, in the era of #MeToo and #TimesUp, it’s clearer than ever that issues surrounding sexual assault and harassment are far from settled.
That’s part of the reason why, in the years since her testimony made her a household name, Hill has remained one of the most prominent public faces of the fight against those problems. Speaking to TIME in 2016 for the release of the HBO movie inspired by her story, Hill, now a professor at Brandeis University, said she didn’t mind continuing to talk about what she went through back then, because she knew it could provide “new inspiration” for victims.
“I do think we don&rsquot do necessarily a great job about teaching people a history about how they got to where they are, but that&rsquos different than taking things for granted. I think they&rsquove got real strong ideas about how they want to be treated in the workplace. They may not realize the obstacles that will come their way exactly, but they have strong feelings about fairness and equity,” she said. “And that&rsquos the legacy that I want them to remember. They don&rsquot necessarily need to know my name, but to take that away.”
Read the full 1991 issue about Anita Hill and Clarence Thomas, here in the TIME Vault:Sex, Lies & Politics
Hill details accusations, then must repeat them
Ms. Hill, who was then 35, first testified before the committee on Oct. 11, 1991. Speaking in a calm, even tone, she detailed her accusations of sexual harassment by Judge Thomas, who oversaw her work at the Department of Education and the Equal Employment Opportunity Commission.
Ms. Hill said that Judge Thomas had repeatedly asked her to go out with him in a social capacity and would not take no for an answer. She said he would talk about sex in vivid detail, describing pornography he had seen involving women with large breasts, women having sex with animals, group sex and rape scenes.
Judge Thomas would also talk about his own “sexual prowess” in workplace conversations, Ms. Hill said. And he once mentioned a pornographic film whose star was called “Long Dong Silver,” which turned into an infamous name in American political lore.
“It would have been more comfortable to remain silent,” she said. “But when I was asked by a representative of this committee to report my experience, I felt that I had to tell the truth. I could not keep silent.”
After Ms. Hill’s opening statement, Senator Joseph R. Biden Jr., the Delaware Democrat who was then chairman of the committee, began questioning her on the specific locations of her harassment allegations. She mentioned the “incident of the Coke can,” which — as she had described a half-hour earlier — involved Judge Thomas asking her who had put pubic hair on his can of cola.
Mr. Biden asked, “Can you describe it, once again, for me please?”
Anita Faye Hill
A little-known law professor testifying before a U.S. Senate committee in 1991 became a cause célèbre when she accused a respected U.S. Supreme Court nominee of SEXUAL HARASSMENT. Anita Faye Hill became a household name during the televised confirmation hearings of U.S. Supreme Court candidate CLARENCE THOMAS, the second African American in U.S. history to be tapped for the High Court. Hill, who is also African American, was calm and articulate as she withstood an intense grilling by the all-male, all-white SENATE JUDICIARY COMMITTEE. Despite skepticism and open hostility from some of the senators, Hill stood firm on her account of sexually explicit remarks and behavior by Thomas, her former boss. Conservatives reviled Hill, feminists revered her&mdashand by the end of the hearings, U.S. citizens of all political persuasions had a keener awareness of the problem of sexual harassment in the workplace.
Nothing in Hill's background prepared her for the unremitting media attention she received during and after the Thomas confirmation hearings. The youngest of Albert Hill and Erma Hill's 13 children, she was an extremely private person. Hill was born July 30, 1956, and raised on a struggling family farm near Morris, Oklahoma. Her religious parents emphasized the importance of hard work, strong moral values, and education. Intelligent and disciplined, Hill was valedictorian of her high school class and an honor student at Oklahoma State University, in Stillwater, where she graduated in 1977 with a degree in psychology. After college, Hill attended Yale University Law School on a scholarship from the National Association for the Advancement of Colored People (NAACP).
Hill graduated from law school with honors in 1980, and worked briefly for the Washington, D.C., law firm of Wald, Harkrader, & Ross. In 1981, she left private practice to become special counsel to the assistant secretary in the U.S. Department of Education's Office of Civil Rights. The assistant secretary was Thomas. It was during this time that Thomas asked her out and, according to Hill, sexually harassed her. In 1982, Thomas was appointed chair of the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), and Hill moved to the EEOC with her boss in what she felt was a necessary career step.
"WE NEED TO TURN THE QUESTION AROUND TO LOOK AT THE HARASSER, NOT THE TARGET. WE NEED TO BE SURE THAT WE CAN GO OUT AND LOOK AT ANYONE WHO IS A VICTIM OF HARASSMENT &hellip AND SAY, 'YOU DO NOT HAVE TO REMAIN SILENT ANYMORE.'"
In 1983, Hill decided to leave Washington, D.C., to became a law professor at Oral Roberts University. In 1986, she accepted a teaching position at the University of Oklahoma. Although full professorship and tenure are normally granted at Oklahoma after six years, Hill achieved both in just four years.
Hill's transformation from legal scholar to feminist icon came about after Thomas was offered the career opportunity of a lifetime. President GEORGE H. W. BUSH nominated Thomas, then a federal appeals court judge, to fill an opening on the U.S. Supreme Court. During the mandatory Senate investigation of Thomas, Hill disclosed in private sessions the alleged incidents of sexual harassment by Thomas. Reports of Hill's private testimony were leaked to a National Public Radio reporter. When Hill's allegations became public, they stood as a potential roadblock to Thomas's confirmation.
During a live broadcast of the Senate hearings, Hill's personal motives, character, and politics were scrutinized relentlessly. Both Hill and Thomas brought in witnesses to support their separate versions of events. Thomas angrily denied Hill's charges and accused the senators of conducting a media circus and a "high tech lynching." Hill stood by her story, despite the accusations of some senators who suggested that she was delusional. Her testimony was detailed and graphic. In a clear, dispassionate manner, she described Thomas's alleged interest in pornographic films and bragging comments about his sexual performance. She steadfastly denied that she was lying or prone to fantasies.
Despite Hill's damaging testimony, Thomas weathered the hearings and received Senate confirmation by a narrow margin on October 15, 1991. Hill returned to the University of Oklahoma Law School and tried to resume her quiet private life.
Immediately after the Hill-Thomas hearings, only 24 percent of the registered voters who responded to a Wall Street Journal&ndashNBC News poll indicated that they believed Hill 40 percent thought Thomas was telling the truth. Just one year after Thomas's confirmation, public opinion had changed. In a 1992 Wall Street Journal&ndashNBC News poll, 44 percent of the people interviewed sided with Hill and 34 percent believed Thomas. One possible explanation for this shift in loyalties was the nation's year-long posthearing examination of the nature and effects of sexual harassment. Perhaps as more people became aware of the problem and more women revealed their own encounters with sexual harassment, Hill's credibility increased.
To some, the Hill-Thomas hearings illustrated the almost insurmountable difficulty in bringing a sexual harassment claim to others, they showed how vulnerable men are to false accusations by women with ulterior motives. Although some women were discouraged after witnessing Hill's treatment by the Senate panel, others found the courage to file their own sexual harassment complaints after watching Hill's example.
Hill left the University of Oklahoma in 1996. She served as a visiting professor at the University of California's Institute for the Study of Social Change before accepting a position as a professor at Brandeis University's Heller School for Social Policy and Management. She has published extensively in the areas of international COMMERCIAL LAW, BANKRUPTCY, and civil rights, and has engaged in a number of speaking engagements and other presentations. Hill also has offered commentary in such publications as Newsweek, The New York Times, and The Boston Globe. In 1997, she authored Speaking Truth to Power, in which she recounts her experiences as a witness in the confirmation hearing for Clarence Thomas.
Judge Clarence Thomas
Nominated by President George H.W. Bush to replace retiring Justice Thurgood Marshall, Judge Thomas was on the federal Court of Appeals for the District of Columbia Circuit. He grew up poor in Jim Crow-era Georgia and moved in with his grandparents in Savannah when he was 7, the first time he lived in a house with a toilet.
Judge Thomas credits his grandfather for his success in encouraging hard work and his continuing education. He attended the College of the Holy Cross and Yale Law School.
Judge Thomas worked in the Reagan administration, first in the Department of Education and then at the Equal Employment Opportunity Commission.
Judge Brett Kavanaugh
President Trump selected Judge Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, who retired in July. Judge Kavanaugh, whose mother was also a judge, attended Georgetown Preparatory School, an elite all-boys high school in the Washington suburbs, and then Yale University for his undergraduate studies and law school.
Pages from Judge Kavanaugh’s 1982 calendar, which he released in response to Dr. Blasey’s claims, show his summer days were often spent at the beach, going to movies, working out or hanging out with his friends.
He was a member of the team, led by Ken Starr, that investigated President Bill Clinton for his affair with Monica Lewinsky and later worked in President George W. Bush’s administration. Like Judge Thomas, Judge Kavanaugh was appointed to the United States Court of Appeals for the District of Columbia Circuit.
[Rewind That Black] Anita Hill’s Supreme Court Hearing Testimony
As the impasse over Judge Merrick Garland’s nomination to the Supreme Court prepares to enter its second month, HBO is shining new light on one of the most controversial nomination battles in history. The network’s feature-length drama, “Confirmation,” which premieres this weekend starring Kerry Washington and Wendell Pierce, tells the story of the confirmation hearings of Justice Clarence Thomas and the testimony of Anita Hill that Thomas was sexually inappropriate with her while he served as her supervisor.
The network’s fresh take on the scandal is well-timed, because the controversy surrounding Anita Hill’s testimony continues to bear important lessons about race, gender and power today.
Anita Hill’s public testimony about her experiences with Justice Thomas received intense media coverage in the fall of 1991, following President George H. W. Bush’s nomination. As a high school student at the time with aspirations of pursuing a career in the law, I was fascinated by Hill’s poise under pressure, her ability to speak frankly about topics of sexuality that were taboo at the time but confused by conduct that seemed out of place in a legal setting.
At that time, feminism was perceived as a movement driven largely by White women and harassment of women was something confined to the back rooms of factories and warehouses. But Hill shattered those myths. Here was a Black woman testifying on a national stage about issues that lie at the intersection of gender, power and race. Anita Hill helped make plain the meaning of sexual harassment, empowering a generation of women with a new understanding of the law and emboldening women to report unlawful conduct wherever it occurred.
Anita Hill’s testimony continues to shape our society’s conversations about the ways in which sexual harassment can create a hostile work environment for women in the workplace. Before Hill’s testimony, many women suffered in silence. Following her testimony, sexual harassment charges filed with the EEOC increased by 71 percent.
Thomas’s nomination to the Court came about following a vacancy left by Justice Thurgood Marshall, a renowned civil rights attorney who eventually went on to serve as the court’s first African American justice. Because Thomas had only been a judge for a year when he was nominated, advocates pointed to what they felt was his moral character as one of his primary qualifications for a seat on the Supreme Court. Thomas proceeded swiftly through his Senate hearings, with support from people such as Maya Angelou, and appeared to be well on his way to a confirmation vote.
That perception was shattered when statements Anita Hill made to the FBI about Thomas during a private interview were leaked to the press. The Senate Judiciary Committee—chaired at that time by then-Senator Joe Biden—reopened Thomas’s confirmation hearings and summoned Hill to testify about her experiences with Thomas. Over several days of publicly televised testimony, Hill recalled numerous instances in which Thomas allegedly behaved in a sexually inappropriate manner while he was her supervisor over the course of two years, first at the Department of Education and then at the Equal Employment Opportunity Commission. According to Hill, Thomas repeatedly pressured her for dates, frequently discussed pornography in the office, and bragged about his sexual prowess.
Thomas flatly denied the accusations before the all-male Senate Judiciary Committee, and Hill became the target of virulent criticism from skeptics. Many questioned why Hill would follow Thomas from the Department of Education to the EEOC if he had indeed engaged in the conduct she alleged. (For her part, Hill claimed that she desperately wanted to work in the civil rights field and that she believed Thomas had stopped being inappropriate at the time.) A smaller subset of commentators expressed their opinion that Hill, as a Black woman, should remain silent rather than endanger the nomination of a Black man to the nation’s highest Court. On the other side, many feminists took up Hill’s cause as that of the working woman in America, sporting T-shirts that declared “I Believe Anita Hill.”
Fear of a Black Landowner
Other women who worked under Thomas also lined up to corroborate Hill’s testimony. The public never got to hear their stories, however. In an unexpected twist, the Senate Judiciary Committee decided not to call any further witnesses after Hill, leaving only her word against Thomas’s denials. Thomas was reported out to the Senate floor, where he was confirmed by a vote of 52-48—by far the narrowest confirmation margin in nearly a century. HBO’s modern dramatization notwithstanding, the scandal’s participants have largely moved on with their lives. Anita Hill is now a well-respected law professor at Brandeis University in Massachusetts. Thomas, of course, is now an Associate Supreme Court justice, where he has frequently voted against the interests of civil rights plaintiffs.
But the controversy surrounding Justice Thomas’s confirmation hearings underscores the central role that the Supreme Court plays in our democracy. The Supreme Court is tasked with resolving some of the most complex and important controversies in our nation and its justices hold their seat for life. The Thomas confirmation hearings remind us of the importance of holding public hearings for Supreme Court nominees. That is why every nominee in the modern era has gotten a hearing before the Senate in accordance with the Constitution, and that is why those members of the Senate now opposed to giving Judge Merrick Garland, nominated almost a month ago to fill a vacancy on the Court, should abide by the Constitution and give Garland a hearing too.
Kristen Clarke is President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. Follow her on Twitter @votingrights.
Who Is Anita Hill? The Real-Life Story Behind HBO's Confirmation
This weekend, nearly 25 years after the events themselves, Anita Hill&aposs story will be brought to life in the HBO film Confirmation, with Kerry Washington taking on the role of the law professor who accused Supreme Court Justice Clarence Thomas of sexual harassment.
For those of you who didn&apost tune in the first time – or those who simply need a refresher – here&aposs everything you need to know about Hill&aposs groundbreaking testimony that rocked the country and changed the way America handles allegations of sexual harassment.
Who is Anita Hill?
Hill was a law professor at the University of Oklahoma when she came forward during the Senate Judiciary Committee&aposs confirmation hearings for eventual Supreme Court Justice Thomas and claimed that he had sexually harassed her while she was working for him as an aide at the Department of Education and at the Equal Employment Opportunities Commission.
How did the saga begin?
When Justice Thurgood Marshall – the first-ever African-American to be appointed to the Supreme Court – decided to retire in 1991, it fell on then-president George H.W. Bush to replace him. He chose Thomas, an African-AmericanÂ federal judge.
During Thomas&apos confirmation hearings, Hill submitted a confidential statement to the Senate Judiciary Committee alleging the judge had sexually harassed her. The FBI, which had already investigated Hill&aposs allegations, came up with an "inconclusive report," which it gave to the committee.
The committee chose not to pursue the matter – but two days before Thomas&apos appointment was expected to be officially confirmed, Hill&aposs statement was leaked to the press, causing an instant frenzy. Under increasing pressure from the Democrat-controlled Congress as well as women&aposs rights organizations, Hill was allowed to testify. She did so in October 1991, during a hearing that was televised to millions.
What was the reaction to her testimony?
Many people who were in support of Thomas&apos appointment doubted Hill&aposs credibility, especially because they had worked together twice (at the Department of Education and again at the Equal Employment Opportunities Commission). The length of time between the alleged incidents and her testimony (10 years) also fueled their doubts.
Hill passed a polygraph test on her sexual assault allegations. Thomas, on the other hand, refused to take one, a decision Bush supported.
Thomas vehemently denied the accusations throughout the hearings. "This is a circus. It&aposs a national disgrace," he said during the hearings. "It is a high-tech lynching for uppity blacks who in any way deign to think for themselves and it is a message that unless you kowtow to an old order you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."
What do people remember from Hill&aposs testimony?
Hill claimed that during her two years working under Thomas, he made all sorts of sexually charged comments to her. These included Thomas discussing his penis size, saying it was "larger than normal," and his talent for pleasuring woman through oral sex. In addition, Hill said he asked her out "several times." (They were both unmarried at the time.)
His comments, she said, made her increasingly uncomfortable, and led her to fear for her job, and that Thomas would intentionally try to harm her career prospects.
"I began to feel severe stress on the job," Hill said. "I began to be concerned that Clarence Thomas might take out his anger with me by degrading me or not giving me important assignments. I also thought that he might find an excuse for dismissing me."
Without a doubt, the most infamous moment from Hill&aposs testimony was also a most inconceivable one – involving a Coke can.
Hill told the committee of Thomas: "He got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, &aposWho has put pubic hair on my Coke?&apos "
Did her testimony change anything?
In terms of Thomas&apos appointment, not really. He was confirmed, but in the closest vote in Supreme Court confirmation history: 52-48.
But in terms of making a lasting impact on the way America views sexual harassment, the change was substantial. Many credit Hill for furthering nationwide awareness about sexual assault in the workplace, as well as opening up the conversation on the subject. Within just five years of her 1991 testimony, the number of sexual harassment cases doubled, starting at 6,127 in 1991 and growing to 15,342 in 1996. Awards to victims quadrupled in the same five years, from $7.7 million to $27.8 million.
Hill didn&apost just change the way the country viewed sexual harassment, but also the makeup of American politics. In the year following her testimony, women won five new seats in the Senate and 24 in the House of Representatives. During Hill&aposs testimony, women accounted for just 2 percent of the Senate.
"Women clearly went to the polls with the notion in mind that you had to have more women in Congress," Washington D.C. Congressional delegate Eleanor Holmes Norton told The Washington Post in 2011.
While conditions have undoubtedly improved for women in the workplace over the last 25 years, Hill says the process for reporting sexual assault is still far from perfect. "I think people are well aware that they have a right to come forward," she told MSNBC. "But many people have a fear that the processes will not give them a fair hearing."
Despite the "circus," as Thomas called it, Hill never doubted her decision to speak her mind.
On the night of Thomas&apos confirmation, she was asked if she regretted stepping forward. Her response? "I&aposm not sure if I could have lived with myself if I had answered those questions any differently."
Why Anita Hill Lost
We will simply have to accept, for the present, that no more than two people in the world can know with certainty whether Clarence Thomas said to Anita Hill what she says he did.
Shortly before the U.S. Senate was to vote on his nomination to the Supreme Court in October 1991, Hill charged Thomas with sexually harassing her when she worked for him at the Department of Education and then at the Equal Employment Opportunity Commission (EEOC), by asking her out and forcing her to listen to obscene talk but the crime of harassment, as Hill explained, often has no witnesses. This central, crucial mystery did not mute the debate or make the advocates any more tentative in their arguments. Instead, the Hill-Thomas case became perhaps the biggest sex scandal in American history. Combatants on both sides attacked their opponents in an explosion of resentment and hate. Hill and Thomas were forced to testify publicly to the Senate Judiciary Committee about intimate aspects of their lives they became contending gladiators in the arena, with us in the television audience poised to turn thumbs up or thumbs down. The Senate became an object of general contempt, since most of the Senators on whom we depended to question Thomas and Hill lacked either the skill to elicit the information we wanted or the moral stature to act as proper judges.
The case had its roots in recent American history, beginning with the battle over Robert H. Bork, whom President Ronald Reagan nominated to the Supreme Court in the fall of 1987. 1 Bork was not only a highly qualified nominee but one of the chief intellects of the American legal profession. He had become a symbol of American legal conservatism and its challenge to the liberalism dominating the upper reaches of the profession.
Bork&rsquos opponents attacked him with a campaign of unprecedented scope. Senator Edward Kennedy began it by sounding a call to arms, portraying Bork as an enemy of free speech and of the established rights of women and minority groups. Kennedy and other Democratic Senators helped put off hearings on the nomination in order to give liberal interest groups time to organize and launch a media campaign. Among the campaign&rsquos chief target audiences were black organizations throughout the South. This strategy was successful: fear of displeasure in the black community caused crucial Southern Democratic Senators to vote against Bork.
Politics in the selection of Supreme Court Justices was nothing new in this country&rsquos history, but the anti-Bork effort set a couple of precedents. For one thing, it buried the traditional, largely internal Senate politics of Supreme Court selection under mass-communications techniques developed for national political campaigns. Moreover, it was unabashed in its claim that Supreme Court Justices could legitimately be rejected for their ideology and political views. Thus during and after the anti-Bork campaign, its operatives were happy to give the press the details of their new and successful political tactics. We learned about their organized rallies, their telephone banks to generate mail to key Senators, their computer bulletin boards, their fundraising methods, and their choice of &ldquoopinion-making markets&rdquo for their TV advertising.
The modern Senate, without the strong leadership that might have resisted such tactics, showed in the Bork fight that it was extremely open to the new style of Supreme Court politics. So, when Clarence Thomas was nominated for the Supreme Court in 1991, some of the organizational veterans of the Bork fight geared up, as more than one of them put it, to &ldquoBork&rdquo Thomas as well. People for the American Way reenlisted in the fight. So did the National Leadership Conference on Civil Rights, the Alliance for Justice, the National Abortion Rights Action League, the National Women&rsquos Law Center, the Women&rsquos Legal Defense Fund, the National Women&rsquos Political Caucus, and the National Organization for Women.
But their strategy did not work the second time around. Because Thomas was a black conservative and an opponent of the more sweeping versions of affirmative action, much of the traditional civil-rights leadership harbored a special resentment toward him. Yet affirmative action was a dangerous issue to raise against Thomas, since it had become such an unpopular idea among the general public. Furthermore, even in the civil-rights groups, many people identified with Thomas&rsquos rise from poverty, and the resulting ambivalence kept these organizations from exerting the force they had shown with the Bork nomination. In addition, Thomas supporters had learned a thing or two from the Bork battle and made sure that charges against their man did not go unanswered in the media.
Finally, during his first confirmation hearings before the Senate Judiciary Committee, Thomas appeared to contradict or qualify his past conservative views more dramatically than Bork had done. Thomas escaped from the trap of declaring himself one way or the other on the abortion issue by saying that he had never debated the legal aspects of Roe v. Wade. The Senators of the Judiciary Committee, even as they asked Thomas repeatedly about abortion, accepted his evasions and denials. All parties knew, by that time, the necessary steps in the post-Bork ballet.
The Judiciary Committee sent Thomas&rsquos nomination to the full Senate on a vote of seven-to-seven. In mid-October, on the eve of the Senate&rsquos final vote on Thomas, his confirmation looked like a sure thing.
Meanwhile, as the chances of defeating the Thomas nomination grew smaller, both the press and the groups working against him grew ever more vigorous in their search for material to use against him. Employees at the EEOC reported getting repeated phone calls from journalists and Thomas opponents explicitly asking for &ldquodirt.&rdquo On Sunday, October 6, after the Senate Judiciary Committee had voted to send the Thomas nomination to the Senate, Newsday and National Public Radio reported that for a month the committee had had in its possession an affidavit from a woman named Anita Hill making charges of sexual harassment.
This particular accusation, like the mobilization of interest groups against Thomas, had a recent history in American politics.
Political sex scandals have been a perennial feature of American life, but in the past quarter-century these scandals have begun to acquire a new character and meaning. As late as the mid-60&rsquos, politically active people who considered themselves liberal tended to be relatively tolerant in matters of sex and to accept the idea that every individual, even a politician, had a private sphere of life that was none of the public&rsquos business.
The women&rsquos movement changed all that. From the late 60&rsquos onward, we heard from movement writers that sex was more often a tool of oppression than a simple plaything, and that personal habits like a male politician&rsquos treatment of women were something the public had every right to know about. By the time of Watergate we had developed not only a vast publicity machine capable of spreading such personal scandals across the land but a rationale that gave us, the high-minded voters, permission to pay detailed attention to these salacious matters.
The first consequence of this shift was an efflorescence of classic adultery scandals. But in the mid-1980&rsquos, a more important consequence of the new thinking appeared: we began to see many more scandals involving charges of sexual coercion or sex without full consent. It was only a matter of time before such matters would assume center stage in some confirmation drama. In this sense, the Thomas episode was a scandal waiting to happen.
Anita Hill certainly seemed an individual to be taken seriously. She was, like Thomas, black. Like Thomas also, she came from a rural background, having been raised on a farm in Oklahoma, the youngest of thirteen children. And, like Thomas again, she had attended Yale Law School. When Thomas was about to become Assistant Secretary of Education for Civil Rights, a mutual friend introduced the two of them, and Thomas offered her a job. She worked with him for nine months he then resigned to become chairman of the EEOC. She went with him and worked at the commission until 1983, when she left to take a teaching job at Oral Roberts University in her home state.
In charging that Thomas had harassed her both at the Education Department and at the EEOC, Hill lacked any evident political motive: she was described as a Reagan appointee, a Bork supporter, and a conservative, though it later emerged that she had had political differences with the Reagan administration from the beginning and had criticized Thomas, to the FBI in July and to the press in September, for his position on affirmative action and the problem of black dependency.
A friend and former law-school classmate of Hill&rsquos said that she had told him, within days of the Thomas nomination in July, about the nominee&rsquos sexual harassment of her. Ricki Seidman, former legal director of People for the American Way and now an aide to Senate Judiciary Committee Democrat Edward Kennedy (though she was not on the Judiciary Committee staff itself), called Hill in early September to ask her about the harassment. Hill proved willing to talk further. James Brudney, an aide to Judiciary Committee member Howard Metzenbaum (though also not on the Judiciary Committee staff), and another former Yale Law School classmate of Hill&rsquos, called her and continued the conversation. The FBI finally began investigating Hill&rsquos charges on September 23 and reported back to the committee on the 26th, a day before the scheduled vote on whether to send the Thomas nomination to the full Senate. Thus the committee had little time to consider the accusations.
Thomas supporters protested the introduction of a new charge against him, after so many other accusations had been leveled and failed, on the very eve of the confirmation vote. Thomas opponents said that because not much was known about the charges, the vote should be postponed and Hill&rsquos story given a more thorough airing.
But the opponents said a great deal more as well. They claimed that the Senate, by its treatment of Hill, had already demonstrated men&rsquos outrageous indifference to the welfare of women and the fundamental incapacity of male elected officials to give proper political representation to their female constituents. If the Senators went ahead with their floor vote on Thomas as scheduled, they would compound the insult.
The anger of Thomas&rsquos critics drove out respect for procedural traditions and niceties. The Judiciary Committee had considered Hill&rsquos charges privately, in agreement with Hill&rsquos expressed wishes but someone on some Senate committee staff decided that he or she was morally justified in overriding these rules of confidentiality and leaking Hill&rsquos affidavit, either directly to the press or to an intermediary, and subjecting both Hill and Thomas to a public airing of the issue.
After the leak, Thomas&rsquos supporters said that because he was to be effectively put on trial, he should be given the presumption of innocence: Hill should have to come up with some solid corroboration of her claim. Thomas&rsquos opponents dismissed this idea, explaining that since sexual harassment often took place in private, an absence of corroborating evidence was only to be expected. Asking for the conventional presumption of innocence under this circumstance would be nothing other than a fancy version of &ldquoblaming the victim.&rdquo
The opponents evidently calculated that by bathing the whole affair in the light of publicity, they could undo the Judiciary Committee&rsquos verdict. And indeed, at first they seemed to succeed. But in the end, they succeeded too well. They forced a public event that featured Hill and Thomas facing off against each other directly and individually. They provided Hill with a phalanx of lawyers to match Thomas&rsquos White House handlers. They created, in other words, a forum that strongly resembled a criminal trial.
No, it was not an actual criminal trial the Thomas hearings were meant to investigate a character question broader than issues of criminal guilt, and the rules were looser&mdashso loose, it later turned out, as to seem nonexistent. But the hearing and its stakes were trial-like enough so that onlookers tended inexorably&mdashlike good products of a liberal society&mdashto apply &ldquopresumption of innocence&rdquo standards as they watched the proceedings. This feature made Thomas measurably harder to dislodge.
In addition, Thomas&rsquos opponents may have underestimated just how big an audience they would attract. The comparison with the Bork nomination is instructive: what most citizens knew of the earlier struggle came to them through television news, which had its own distinct biases. Watching the Hill-Thomas face-off, by contrast, was a mass activity.
People may have begun by tuning in the hearings for entertainment, but they stayed on to make sober judgments, and these judgments turned out to be radically different from those of the anti-Thomas activists who had first insisted on bringing the controversy out into the open.
To see how the huge audience engaged by the public hearings finally formed its opinions, we must first look to the center of the storm and the story Anita Hill told for, in one of the many asymmetries of the case, it was Hill and not Thomas whose account became the focus of the controversy. The questions asked by the Senators helped shape what information Hill gave, of course, and the press influenced the way we saw her. Still, the public had a huge amount of direct access to Hill and what she said, and there is little reason to think that this public failed to make up its own mind.
The most detailed version of Hill&rsquos case appeared in the opening statement she delivered on October 11 at the Judiciary Committee&rsquos first public session investigating her charges. In it she explained that three months after she had gone to work for Clarence Thomas at the Department of Education in 1981, he asked her out. She said no. He kept asking and started talking to her about sex. &ldquoHe spoke,&rdquo said Hill,
about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involving various sex acts. On several occasions, Thomas told me graphically of his own sexual prowess.
This talk, said Hill, then ended. When Thomas was made chairman of the EEOC, he invited her to follow him, and she did. There he resumed the sexual conversations and overtures. Once, in Hill&rsquos presence, he looked at a Coke can from which he was drinking and remarked, &ldquoWho has put pubic hair on my Coke?&rdquo He talked about the size of his penis and about oral sex. She began looking for other employment and finally left the EEOC in 1983 when she found her teaching job at Oral Roberts University. Since that time, she had seen Thomas only twice and had minimal phone contact with him. She had not spoken publicly about the harassment until she was asked about it by Senate staffers investigating the Thomas nomination.
She told her story to the Senators in a calm and composed way. During the intense questioning that followed, she did not stumble or contradict herself in talking about the words that she claimed had passed between Thomas and herself.
Her testimony, however, did have inconsistencies. Some of these were of the sort one would expect from any account, even a truthful one, by a reluctant witness remembering events that took place years ago. For instance, during questioning Republicans pointed to the fact that Hill&rsquos charges against Thomas had changed over time, becoming more detailed from her first FBI interview (in July 1991) through her affidavit and second FBI interview in September to her considerably more elaborate testimony to the Judiciary Committee. While these variations could point to inventiveness on her part or openness to suggestions from the Senate staffers who had first contacted her, such changes can also take place as an individual remembers progressively more about a past event. They are not necessarily the result of lies.
On the other hand, most of the inconsistencies and conflicts in and around Hill&rsquos testimony and statements were not of this random sort they fell into a pattern. These conflicts, which might have seemed small or accidental or the product of animus if taken one by one, became more important because they so closely echoed one another. The inconsistencies all revolved around two questions: How personally and professionally ambitious was Hill? And how well did she usually look out for her own welfare and interests?
The first such problem arose in Hill&rsquos story of how it was that she came to give her information to the Judiciary Committee in the first place and of why the committee had delayed for almost a month in considering her charges. &ldquoI was approached by the Senate Judiciary Committee in early September,&rdquo she said in the press conference she gave after her story became public. But it was not until September 20 &ldquothat an FBI investigation was suggested to me. . . .&rdquo
&ldquoI suggested to the committee throughout,&rdquo Hill emphasized, &ldquothat I wanted to make this information available to every member of the Senate committee for their consideration. . . .&rdquo
She later said, &ldquoReliving this experience has been really bad for me, . . . especially with the frustrations that I have felt with trying to get the information in the right hands.&rdquo
A journalist asked, &ldquoDid you at some point offer to make these allegations by name? Did you discuss the removal of your request for confidentiality, and at what point did that occur?&rdquo Hill replied:
The extent of my confidentiality was never to keep the committee members from knowing my name. The extent of my confidentiality was making sure that the names were not released to the public. . . . So at all times the Senate knew my name, the committee knew who I was. So that wasn&rsquot ever an issue.
Senator Joseph Biden, chairman of the Judiciary Committee, promptly issued a statement saying that the delay was not the committee&rsquos fault, the staff had been &ldquoguided by Professor Hill&rsquos repeated requests for confidentiality.&rdquo The Biden statement provided a detailed chronology, based on documentation, of the committee&rsquos dealings with Hill. It asserted that Hill did not make her first contact with the committee until September 12. A committee staffer told Hill then that her charge could be kept confidential, but that the investigation could go no further unless her name and accusations were given to Thomas so that he would have an opportunity to respond. &ldquoProfessor Hill specifically stated,&rdquo said the chronology, that &ldquoshe did not want the nominee to know that she had stated her concerns to the committee.&rdquo
A week later, on September 19, according to the committee staff, Hill called again:
For the first time, she told full committee staff that she wanted all members of the committee to know about her concerns, and, if her name needed to be used to achieve that goal, she wanted to know. She also wanted to be apprised of her &ldquooptions.&rdquo
The next day the staff called Hill to explain again that before her accusations went to committee members, Thomas would have to be given her name and a chance to respond in an FBI investigation.
Hill, according to the chronology, said she wanted to think about it and phoned the next day to say that she would not agree to the FBI investigation. Two days after this refusal, though, she contacted the staff and agreed to the investigation. Three days after the FBI finally got to interview Hill, it finished its report.
Hill&rsquos account thus asserted that she had always been willing to use her name in any way necessary to bring her concerns to the committee members&rsquo attention. But only late in the game, according to her, did committee staffers inform her that she had to let the FBI investigate and let Thomas know her name before committee members could be told of her story.
In Senator Biden&rsquos version, by contrast, Hill was told from the beginning that in order to go forward and get her story to the committee members, she would have to give Thomas her name. She said no. She changed her mind and called the committee a week later&mdashbut when she was again told the conditions, she again said no. Then she changed her mind once more and finally agreed to the FBI investigation.
These two conflicting stories draw two quite different pictures of Anita Hill. In Biden&rsquos account, Hill decides to go to the committee but learns, only after making contact, that in order to pursue her charge she must confront her accuser and face the consequences&mdashemotional, moral, and professional. She wrestles with this problem, under pressures whose nature we do not know, for almost ten days. She finally lets the investigation go forward, but at a late date that greatly lessens the chances of the committee&rsquos giving substantial consideration to her concerns.
This picture that the Biden staff drew of Anita Hill does not portray her as particularly dishonorable. After all, the decision she had to reach was not easy, and the fact that she weighed her actions carefully does not necessarily make her a mendacious witness. Still, the Anita Hill in Biden&rsquos story, even while coming forward as a good citizen to aid the committee in its task, prudently protects her own interests. As a result, she is partly responsible for the delay that she criticized and that women&rsquos groups cited as evidence of the committee&rsquos dismissive attitude toward her.
The Anita Hill of her own account is quite different. She is not so smart as Biden&rsquos Anita Hill, not so quick to grasp legal and political complexities, not so capable of giving deliberate, cautious thought to the personal consequences of the actions she contemplates, and more exclusively moved by the simple, uncomplicated desire to tell the truth and do her civic duty.
The very same conflict emerged when one of the Judiciary Committee&rsquos Republicans, Senator Arlen Specter, cross-examined Hill during her public testimony about her dealings with Senate aides in the days before she sent her statement to the Judiciary Committee.
According to a USA Today story published at the time of her testimony, Hill had been assured by one staffer that merely telling Thomas about the existence of her charges would make him withdraw, and that Hill would not have to come forward publicly. In other words, the story implied, Hill was playing a somewhat less heroic role than it might appear.
&ldquoDid anyone ever tell you,&rdquo Specter asked, &ldquothat by providing the statement that there would be a move to press Judge Thomas to withdraw his nomination?&rdquo
&ldquoI don&rsquot recall any story about pressing&mdashusing this to press anyone,&rdquo she answered.
Specter tried again: &ldquoWell, do you recall anything at all about anything related to that?&rdquo
&ldquoI think I was told,&rdquo she said, &ldquothat my statement would be shown to Judge Thomas, and I agreed to that.&rdquo
&ldquoBut was there any suggestion, however slight,&rdquo Specter asked a third time, &ldquothat the statement with these serious charges would result in a withdrawal so that it wouldn&rsquot have to be necessary for your identity to be known, or for you to come forward under circumstances like these?&rdquo
&ldquoThere was no&mdashnot that I recall,&rdquo she said. &ldquoI don&rsquot recall anything being said about him being pressed to resign.&rdquo
&ldquoI would ask you,&rdquo Specter continued, &ldquoto press your recollection as to what happened within the last month.&rdquo
&ldquoAnd I have done that, Senator,&rdquo she said, &ldquoand I don&rsquot recall that comment.&rdquo
&ldquoI&rsquom asking you now,&rdquo Specter finally said, &ldquoonly if it did happen whether that would be the kind of statement to you which would be important and impressed upon you [so] that you could remember in the course of four or five weeks.&rdquo
Hill said, &ldquoI don&rsquot recall a specific statement, and I cannot say whether that comment would have stuck in my mind. I really cannot say this.&rdquo
But in the afternoon session of the same day, without being asked the question again, Hill, talking generally about how she had come forward to the Judiciary Committee, offered the information that one of her conversations &ldquoeven included something to the effect that the information might be presented to the candidate and to the White House. There was some indication that the candidate, or, excuse me, the nominee, might not wish to continue the process.&rdquo
Later Specter pressed further: &ldquoSo Mr. Brudney [Senator Metzenbaum&rsquos aide] did tell you Judge Thomas might not wish to go forward with his nomination if you came forward?&rdquo
Specter later claimed that Hill&rsquos morning testimony, had she not contradicted it, would have been &ldquoflat-out perjury.&rdquo Hill supporters were outraged by the accusation, calling her misstep only a minor inconsistency. What is more certain than either of these interpretations is that Hill&rsquos corrected testimony in the afternoon session presented a picture of her that was congruent with the portrait in the Biden chronology: this was a woman who knew, discussed, and cared about her &ldquooptions,&rdquo and who gave thought to the means by which she could accomplish her goal while avoiding personal risk. Nothing in this was necessarily pejorative. So it is especially interesting to see how persistently Hill omitted this element from the picture she gave of herself during the morning&rsquos five successive rounds of questioning on the subject.
The same discrepancy was more pronounced in other parts of Hill&rsquos speech and testimony&mdashin the matter, for example, of why she went to work for Thomas at the EEOC. Hill contended that Thomas had harassed her in her first job with him, at the Department of Education yet when he moved to the EEOC chairmanship in the spring of 1982, she chose to go along with him. In her initial press conference Hill explained this oddity. &ldquoThere was a period&rdquo at the Education Department, she said, &ldquo[during] which the activity stopped.&rdquo &ldquoFurthermore,&rdquo she went on,
at that time I was twenty-five years old. . . . If I had quit, I would have been jobless: I had not built a résumé such that I could have expected to go out and get a job. And you&rsquoll recall that in the early 80&rsquos, there was a hiring freeze in the federal government. I wanted to stay in civil rights. I thought I had something to add.
Later, in her testimony to the Judiciary Committee, she said:
The work [at the EEOC] was interesting, and at that time it appeared that the sexual overtures which had so troubled me had ended. I also faced the realistic fact that I had no alternative job. While I might have gone back to private practice, perhaps in my old firm or at another, I was dedicated to civil-rights work and my first choice was to be in that field. Moreover, at that time, the Department of Education itself was a dubious venture. President Reagan was seeking to abolish the entire department.
She told Chairman Biden in later questioning, &ldquoMy understanding from [Thomas] at that time was that I could go with him to the EEOC, that I did not have, since I was his special assistant, that I did not have a position at the Office for Education.&rdquo She also said, &ldquoI was a special assistant of a political appointee, and therefore I assumed and I was told that that position may not continue to exist.&rdquo And she said about the Education Department as a whole, &ldquoThe Department of Education at that time was scheduled to be abolished. There had been a lot of talk about it, and at that time it was truly considered to be on its way out.&rdquo
Biden said he had been informed that Hill herself was not a political appointee at the Department of Education: she was a Schedule-A attorney, with job protection. Couldn&rsquot she have stayed at the department? &ldquoI believe I was a Schedule-A attorney,&rdquo she said, but &ldquoI was the assistant to the Assistant Secretary of Education&rdquo &ldquoI had not been interviewed by anyone who was to take over that position for that job I was not even informed that I could stay on as a Schedule-A attorney.&rdquo
&ldquoAs a Schedule-A attorney,&rdquo Biden persisted, &ldquoyou could have stayed in some job.&rdquo
&ldquoI suppose,&rdquo Hill answered, &ldquoas far as I know, I could have. But I am not sure, because at the time, the agency was scheduled to be abolished.&rdquo
I didn&rsquot know who was going to be taking over the position. I had not been interviewed to become the special assistant of the new individual. I assumed that they would want to hire their own, as Judge Thomas had done.
In telling why she had followed Thomas to the EEOC, Hill got herself into a certain amount of evidentiary trouble. Believing that a Yale Law School graduate did not know anything about her Schedule-A job protection was as hard as thinking that a Yale Law School graduate would not have understood that the Judiciary Committee would require her to confront her accuser. As for Hill&rsquos going to the EEOC in order to stay in the civil-rights field, that was the field in which she was already working at the Department of Education and in which she could have remained. As for Hill&rsquos belief that she would not be kept on by Thomas&rsquos successor at the Department of Education, she could easily enough have asked: this successor was a friend of Thomas&rsquos, and Hill also had independent access to the new official through a mutual friend. And as for Hill&rsquos seriously thinking the Department of Education was &ldquoscheduled&rdquo to be abolished (it still exists), there cannot have been three people in the federal government who did not know that it would have taken a year and a half just to get the moving labels on the furniture.
These contradictions were used to good account by Hill&rsquos enemies, yet they could easily have been resolved. Hill did not have to go to the EEOC in order to stay in the civil-rights field, but she did have to go there if she wanted to be at the center of the civil-rights action and keep herself hitched to the rising star of her boss, Clarence Thomas. Working for Thomas&rsquos successor or staying on in some Schedule-A position at the Education Department might have seemed like a perfectly good job to some, but it was not so good if one thought of it as being left behind instead of going on to a much better professional opportunity. Thus, Hill&rsquos reason for following Thomas to the EEOC in spite of harassment was perfectly plausible&mdashif one only added, as Hill did not in her accounts, the notion that she was moved by the ambition to advance her career.
But Hill did not speak of her own ambition. As a result, in her account of her move to the EEOC she sounded as if she were offering too many reasons making too little sense.
She fell into the same kind of trouble when she talked about her relationship with Thomas after she left the EEOC in 1983 to teach at the law school of Oral Roberts University. Here is the way Hill, in her testimony, described how she got her job at Oral Roberts: &ldquoI participated in a seminar, taught an afternoon session in a seminar at Oral Roberts University. The dean of the university saw me teaching and inquired as to whether I would be interested.&rdquo She said, &ldquoI agreed to take the job in large part because of my desire to escape the pressures I felt at the EEOC due to Judge Thomas.&rdquo She said she told Thomas in July that she was leaving. &ldquoI got that job on my own,&rdquo she asserted, explaining that she had asked Thomas for a recommendation only after she had landed the job and &ldquoonly because the process required some kind of letter from an employer.&rdquo
Here, in contrast, is what Thomas testified about the subject:
In the spring of 1983, Mr. Charles Kothe contacted me to speak at the law school at Oral Roberts University in Tulsa, Oklahoma. Anita Hill, who is from Oklahoma, accompanied me on that trip. It was not unusual that individuals on my staff would travel with me occasionally. Anita Hill accompanied me on that trip primarily because this was an opportunity to combine business and a visit to her home. As I recall, during our visit at Oral Roberts University, Mr. Kothe mentioned to me the possibility of approaching Anita Hill to join the faculty at Oral Roberts University law school. I encouraged him to do so and noted to him, as I recall, that Anita Hill would do well in a teaching position. I recommended her highly, and she eventually was offered a teaching position.
Charles A. Kothe, then dean of the O.W. Col-burn School of Law at Oral Roberts, said it was at Thomas&rsquos invitation that Hill attended the afternoon seminar she mentioned in her testimony. Kothe said that when he learned Hill was from Oklahoma, he expressed interest in hiring her, asking Thomas what he thought of the idea. Thomas said, Kothe remembered, that Hill would make a good teacher.
In Hill&rsquos testimony, Thomas and his role are missing&mdashhis taking her on the Oklahoma trip in the first place, his inviting her to the Oral Roberts seminar, and his early role in recommending her for her new job. If Hill had included any of these things, they would not necessarily have shown her charges against Thomas to be false: a woman with job aspirations or professional ambitions might well decide to endure harassment to get something back from the harasser in the form of contacts or recommendations, just as such a woman might put up with disagreeable treatment for the benefit of an upward move. A woman making this type of trade-off would be, of course, one with personal and professional aims well beyond the need to put bread on the table. It was this sort of ambition that Hill&rsquos acount excised.
The same discrepancy appears elsewhere. A former Oral Roberts law professor said that Hill had suggested Thomas as a speaker for an employment-discrimination conference at the school Hill denied that she had wanted Thomas there. Thomas said that when he did visit the school, Hill drove him to the airport, and Dean Kothe remembered that she had offered to do so. Hill disputed the recollection:
I really don&rsquot recall that I voluntarily agreed to drive him to the airport. I think that the dean suggested that I drive him to the airport and that I said that I would. But at any rate, one of the things I have said is that I intended&mdashI hoped to keep a cordial professional relationship with that individual and so I did him the courtesy of driving him to the airport.
Specter asked, &ldquoWas it simply a matter that you wanted to derive whatever advantage you could from a cordial professional relationship?&rdquo
&ldquoIt was a matter that I did not want to invoke any kind of retaliation against me professionally,&rdquo Hill made the distinction. &ldquoIt wasn&rsquot that I was trying to get any benefit out of it.&rdquo
&ldquoWell,&rdquo Specter followed, &ldquoyou say that you consulted with him about a letter of recommendation. That would have been a benefit, wouldn&rsquot it?&rdquo
&ldquoWell,&rdquo Hill resisted, &ldquothat letter of recommendation was necessary. The application asked for a recommendation from a former employer.&rdquo
This tussle over the presence or absence of deliberative ambition as a force directing Anita Hill was waged most dramatically over the issue of the phone logs. Diane Holt, Thomas&rsquos secretary at the EEOC, remembered that Hill had phoned Thomas a number of times after leaving the agency. In fact, a hunt through Holt&rsquos phone logs revealed ten calls from Hill, including one to congratulate him on his marriage. Hill responded by telling the Washington Post that the phone logs were &ldquogarbage.&rdquo She said she had called Thomas once in 1990 to make sure he had received an invitation initiated by others at the University of Oklahoma law school, her professional home after Oral Roberts, to speak at commencement. Apart from that, she said, &ldquoIf there are messages to him from me, these are attempts to return phone calls.&rdquo She went on: &ldquoI never called him to say hello. I found out about his marriage through a third party. I never called him to congratulate him.&rdquo
The logs became a major subject of controversy during the hearings. In her testimony, Hill explained her calls to Thomas by saying, &ldquoI have, on at least three occasions, been asked to act as a conduit to him for others.&rdquo When this happened, said Hill, she would speak to Thomas&rsquos secretary, &ldquoand on some of these occasions undoubtedly I passed on some casual comment to then-Chairman Thomas.&rdquo She added:
In August of 1987, I was in Washington, D.C., and I did call Diane Holt. In the course of this conversation, she asked me how long I was going to be in town, and I told her. It is recorded in the message as August 15. It was in fact August 20. She told me about Judge Thomas&rsquos marriage, and I did say &ldquoCongratulate him.&rdquo
She claimed that what she had called &ldquogarbage&rdquo to the Washington Post was not the authenticity of the phone logs themselves but the use of the logs to attack her. She denied the Post story that quoted her as saying she had initiated no calls to Thomas.
But when Holt testified, she said that in addition to the uncompleted calls recorded in the logs, Hill had made still other calls&mdashperhaps five or six&mdashto Thomas. Holt said that the calls recorded in the logs were not returns of Thomas&rsquos calls, and they were not calls to Holt herself in which a message to Thomas was tacked on.
On the issue of the logs, Hill was forced to do some public backtracking. As with the questions about her Oral Roberts job, the question of whether and why Hill had initiated all those calls did not speak directly to the truth of her charge about Clarence Thomas and the obscenities he allegedly spoke. Thomas was Hill&rsquos mentor and a professionally rising star, and she clearly benefited from being known as someone connected to him. Advances and obscenities or no, a professional woman under these circumstances might well have thought it prudent to take even elaborate steps to make sure the relationship stayed alive. Once again, all we need to reconcile her phone calls with her charges against Thomas is to assume that Hill was a woman of some ambiton but this is the picture that Hill denied.
Toward the end of the hearings, one of Hill&rsquos attorneys announced that she had taken and passed a polygraph test. Nevertheless, the Americans who followed the Thomas controversy told New York Times/CBS pollsters after the hearings that by a ratio of more than two-to-one, 58 percent versus 24 percent, they found Thomas more believable than Hill. This was about the same ratio of those who had favored confirming Thomas throughout the nomination process. After all the talk in the press about the unrepresentative nature of the &ldquoall-white, all-male Senate Judiciary Committee&rdquo that had made the original decision to vote on Thomas despite Anita Hill&rsquos charges, there was little difference, in the end, between men and women or between blacks and whites in their opinions.
There are, by now, scores of explanations of how this lopsided majority was built clearly, people&rsquos answers to the question &ldquoWhom do you believe more?&rdquo were made up of many considerations. It is odd that we have seen virtually no after-the-fact polling that might help us distinguish among such theories.
The reason for the pro-Thomas verdict, one explanation went, was that Thomas had won the battle of images. Hill&rsquos performance had been too &ldquocool&rdquo for the American public Thomas&rsquos passionate delivery style had simply played better to the audience. But looking at Hill&rsquos testimony suggests that &ldquocool&rdquo was not quite the word for the disquieting quality that she displayed. Not only the Senate questioners but a series of witnesses portrayed Hill as a somewhat ambitious and calculating woman, certainly more ambitious and calculating than she let on. Her testimony on the subject seemed to show a lack of candor, and this fact alone may have been a basis for mistrusting her. But the problem lay deeper: Hill&rsquos perceived ambitiousness probably led many people to reject her description of herself as a victim of sexual harassment.
In the feminist view, such a proposition is cause for anger. After all, why couldn&rsquot Hill be both an ambitious professional and a woman humiliated and disempowered by sexual harassment? Wasn&rsquot failure to admit this possibility just another way of denigrating the importance of sexual harassment? But most people seem not to have shared this attitude, and we can get a clue as to why not by taking a look at the stories of sexual harassment that filled mass-circulation magazines like Time, Newsweek, and People during the crisis.
Some of these tales would curl your hair, and legitimately so. A female laborer and dump-truck driver for a municipal sewage department had to face persistent questioning by her supervisor about her sex life and her husband&rsquos anatomy. A restaurant manager who protested when her boss asked her to perform oral sex in front of another employee was tailed by a private detective and fired for not ringing up drinks correctly. A secretary had a supervisor who threatened to fire her if she did not sleep with him. A public-information officer at a state corrections department had a boss who made lewd comments about her and her one-year-old daughter and had her fired when she complained.
There can be disputes aplenty about the facts behind such charges, but the accusations themselves are clearly serious. They were made by working-class or lower-middle-class women occupying ordinary jobs rather than high professional positions. These women&rsquos situations involved firing or explicit threats of firing. Even when the accusations were of verbal rather than physical assaults, the attacks were aimed quite frontally at the women who were forced to listen.
In Anita Hill&rsquos case, there was no physical grabbing. Thomas&rsquos alleged obscene and pornographic words described himself and a set of movies, not any attributes of Hill herself or sexual acts to be performed by her. Hill&rsquos supporters noted that she was at the young and still-vulnerable age of twenty-five when the alleged offenses took place but in the types of jobs held by many of the women who told their stories to the magazines, a twenty-five-year-old was nobody&rsquos baby. Such women were often extremely vulnerable to their supervisors&rsquo personal judgments, while Anita Hill had considerable employment protection. These women had limited job choices, while Anita Hill had a Yale law degree. To women like these, retaliation meant dismissal, or demotion, or bad reports, while when Anita Hill told the Senate about the retaliation she feared, she said she was afraid of not getting good enough assignments, being denied a letter of recommendation after she had left the EEOC and was already working in another job, or being cut off from a cordial, professional relationship.
Federal law on sexual harassment says that such harassment can exist without any physical assault or explicit threat. It can occur when a supervisor or co-worker creates a &ldquohostile environment&rdquo for the victim by actions &ldquosufficiently severe and pervasive&rdquo to &ldquoalter the conditions of employment and create an abusive working environment.&rdquo When it comes to judging whether or not the environment is hostile, the courts have even ruled that the matter should be viewed from the point of view of the &ldquoreasonable victim.&rdquo If the victim is a woman, that means judging the case from the perspective of a &ldquoreasonable woman.&rdquo
The ideas of a &ldquohostile environment&rdquo and the &ldquoreasonable woman&rdquo have caused controversy: they seem to suggest that any woman will be able to collect damages from any man who speaks words that she finds offensive, even though he may not think them offensive at all. Certainly in the Thomas case some of Hill&rsquos supporters assumed that if Thomas spoke the words Hill said he did, he had clearly harassed Hill, humiliated her, and damaged her.
But the dispute between Hill and Thomas was referred to a jury more than half made up of &ldquoreasonable women,&rdquo the great majority of whom were less advantaged than Hill. Viewed from their situation, as from the situation of the &ldquoreasonable men&rdquo of the jury, Hill had a great deal of protection from Thomas&rsquos whims&mdashso that any offensive language from him was less the threatening cause of a &ldquohostile environment&rdquo in a legally significant sense than an invitation to tell the creep to get lost.
And what about the implied threat Hill felt to the progress of her career? The answer, in this same view, is that such a threat does not have a comparable moral significance or capacity to do psychological damage as the threat to deprive someone of all or part of her livelihood. If Hill decided to stay and move on and up with Thomas, it was out of calculation, not out of fear. In this sense, it follows, ambition made Hill acquiescent or complicit in the continuation of Thomas&rsquos alleged obnoxiousness. In her statements Hill herself, when she repeatedly omitted evidence of an ambition that other witnesses saw at work, seemed to recognize this distinction.
If sexual harassment consists of both the actions of the aggressor and the economic and psychological damage done to the victim, Hill seemed not to have given a true picture of the second half of the formula. So the words of Anita Hill&rsquos story give us a fairly clear idea of what could have made people uneasy with her account of Thomas&rsquos behavior and prompted them to reject it.
Some pro-Hill activists said after the hearings that Anita Hill&rsquos testimony would have looked better were it not for the Democratic Senators on the Judiciary Committee. According to these critics, the Democrats not only sat in silence during the hearings while Republicans viciously attacked Anita Hill, but failed to subject Thomas to anything like the same type of cross-examination. The Democrats&rsquo poor performance was said to have been caused not just by a lack of skill but by bad conscience and political vulnerability. Edward Kennedy was so notorious when it came to women that he could hardly open his mouth during the hearings. Joseph Biden had been charged with plagiarism during the 1988 presidential campaign. Dennis DeConcini was one of the Keating Five involved in the savings-and-loan scandal and, as such, had recently sat in Clarence Thomas&rsquos place during public hearings of the Senate Ethics Committee. It was no wonder they went easy on Thomas, the critics concluded and this asymmetry between Republican and Democratic behavior had permitted him to avoid his just deserts and showed again the need for more women in positions of power.
Such asymmetry was at work, all right, but it came from more than personal failings and foibles: it also stemmed from the public quasi-criminal trial into which the Senate had allowed the proceedings to be cast. Anita Hill had charged Clarence Thomas with crimes to which she said there had been no witnesses. The normal courtroom defense to such charges is to try to even the score by eliciting details that damage the accuser&rsquos credibility and by testing various theories of her motivation. This chance to attack the accuser is a protection meant to balance the relative ease of making false charges in such &ldquono-witness&rdquo cases. Thus the unequal situations of Hill and Thomas were to some extent part and parcel of this type of charge, not something created by Democratic weakness.
In addition, in order to give the concrete details of her charges, Hill had to provide the committee with a great deal of information about the short-term and long-term circumstances under which the alleged acts had occurred. It was this information that gave the Republican cross-examiners material to work with&mdashto probe, pick at, and examine for inconsistencies.
Clarence Thomas, by contrast, did not offer an alternative account of the incidents described by Hill. He did not say anything like, &ldquoYes, I asked her out, but I never said those things to her.&rdquo He did not answer, &ldquoYes, I said those words, but I meant them as a joke.&rdquo Instead, he defended himself by just saying &ldquoNo.&rdquo Thomas pointed out during the hearings that this position put him at a disadvantage: &ldquoYou can&rsquot prove a negative,&rdquo he said. But the same posture gave him one very large advantage: &ldquoNo&rdquo is a very small target for a cross-examiner to shoot at. The possibilities for inconsistency and internal contradiction are much more limited than they are in a statement like Hill&rsquos. This difference, too, made the cross-examining asymmetrical in a way that needs no resort to Democratic wimpery to explain.
But, said some critics of the hearings, the Democrats need not hve restricted themselves to the narrow story that Clarence Thomas denied. For instance, Hill had charged Thomas with talking to her about pornographic movies. Why not ask Thomas whether he had ever rented such movies? And, to help assess Thomas&rsquos general credibility, why not ask Hill whether the two of them had ever discussed Roe v. Wade in their years of working together?
The short answer is that Democratic committee members certainly knew, once they raised these questions, what kind of response they would get from the Republican side: why can&rsquot we probe more deeply into Anita Hill&rsquos past and psyche to see whether she might indeed be delusional? And why can&rsquot we get some Senate staffers before the committee under oath, to see whether they might have suggested to Hill some of the juicy details of her charges?
Any of these questions might be deemed relevant under some rules of evidence. The problem is that the Senate has no such rules. It is not set up like a courtroom, in which professionals from each side would have questioned both Thomas and Hill before an impartial judge&mdashand, it must be said, questioned both of them much more intensely than happened during these hearings. Neither did this Senate hearing operate with the benefit of anything like a grand jury, which sifts through raw data and decides which information is good enough to serve as a legitimate basis for further government action. More informal procedures than those of the courtroom are fine for some types of hearings. But in public hearings on issues of individual guilt and innocence, the absence of rules means that the contest is drenched in free-floating poison. The odds are even slimmer than usual of ever finding a semblance of the truth.
After the Senate vote on Thomas, he took his seat on the Court. His wife Virginia gave a cover interview to People, explaining how her religious faith had seen her through the ordeal. Anita Hill received an enthusiastic ovation from a conference of female state legislators when she &ldquoissued a ringing call to arms,&rdquo according to the New York Times, on the issue of sexual harassment. Meanwhile, politicians and journalists who had seen the Senate&rsquos disarray during the controversy talked about improving &ldquothe process.&rdquo It was a convenient phrase, for it allowed the speaker or writer to express revulsion at the hearings without taking a position in behalf of either Thomas or Hill. Some took their worries about &ldquothe process&rdquo quite seriously: the Judiciary Committee has decided not only to hire outside counsel to investigate the leak of Hill&rsquos affidavit but to allow the FBI into the case. Chairman Biden has said he intends to hold hearings about how the process can be fixed so that a mess like this does not occur again.
But it was not faulty procedures that brought us this problem it was, instead, the spirit in which some of the players used the procedures. Someone was so partisan and so certain of the righteousness of his or her opposition to Thomas as to feel fully justified in overriding those morally deficient elected officials in the Senate and leaking Hill&rsquos affidavit. And once it leaked, there were liberal organizations in Washington and feminists in the national media willing to treat the massively ambiguous news as a clear and patent outrage.
When it comes to the issue of staffing the federal courts, there is certainly enough partisanship to go around. Yet the spirit that manifested itself at the beginning of the Thomas scandal, the type of factional leftist partisanship that insisted on saddling our institutions with an impossible burden and putting the country through what we saw in those hearings despite clearly serious questions of fact, was truly breathtaking. Even in the bitter politics of federal judicial nominations, these people deserve special worry.
We should also worry about the politicians and journalists in the capital who proved so ready to fall into the now-settled routine of scandal politics, for it was this compliance that enabled the scandal&rsquos creators to capture the national agenda. Leaks have become such an ordinary way of doing business that a congressional staffer who has lost an internal battle will not think twice about continuing the fight by making it public. Few journalists will hesitate to publish unconfirmed charges. Those who hear the resulting news story simply assume that a cover-up has been narrowly averted. Politicians will do whatever they must to avoid being associated with this dread cover-up. No one in the system seems to have the power to say &ldquoNo&rdquo and stop the machine.
This time around, with the Thomas scandal, Americans saw the process taking place with a compressed intensity. People managed to make their way through the chaos to some serious conclusions, but they were also forced to watch the scandal sausage being made, and they did not like either the product or the sausage-makers. Even in Washington there were small signs of revulsion. In the midst of the Hill-Thomas fight, the Washington Post reported, with an unusual skepticism, on the &ldquoincreasingly symbiotic relationship between committee staffers, liberal interest groups, and the news media&rdquo in &ldquoa role once played almost exclusively by the Senate.&rdquo Since the final vote, it has been reported that senatorial offices are, at least for the moment, no longer so friendly as they once were to some of these groups. The groups themselves are not coming forward, as they did after their Bork experience, to brag about and explain their tactics and strategies. They have not merely lost they are in bad odor.
Unfortunately, this setback in reputation will not bother them. Having won the Bork fight, they exulted in the way the will of the people had been brought to bear in the battle having lost the popular contest over Thomas, they will adopt other arguments and work via other means, including a continuing, assiduous use of the confirmation process, to gain what they have consistently failed in recent years to win at the polls.
1 For a fuller discussion of the Bork nomination, see my article, &ldquoThe War Against Robert H. Bork,&rdquo COMMENTARY, January 1988.