More Than Just He Said/She Said

October 25, 2010
Guest Post

By Sherrilyn Ifill, Professor of Law, University of Maryland School of Law
Last week, most of the mainstream media seemed anxious to move on from the story of Virginia Thomas' bizarre early morning phone call to the office of Professor Anita Hill, in which she invited Hill to apologize to Thomas for "what you did with my husband." But The Washington Post's subsequent, explosive interview with Clarence Thomas' former girlfriend who has corroborated much of Anita Hill's 1991 testimony before the Senate Judiciary Committee, has laid to rest the idea that this story is over. And indeed this episode is deserving of more attention. It's important because there are so many people who have no real memory of the Thomas confirmation hearings, or why they were so important. In their attempt to get past addressing Mrs. Thomas' bewildering conduct, some media outlets had dismissed the Thomas hearings as a mere "he said/she said" exchange of accusations. In fact, the Thomas hearings - both before and after the statements raised by Anita Hill were made public - constituted an important watershed moment in confirmation hearings, in our understanding of sexual harassment in the workplace, and even in our racial discourse. The temptation by the media to treat this as a non-story or to minimize its significance should be resisted.

And in fact that's part of the story. Perhaps in part because the Thomas hearings were so painful, so ugly, so disturbing, Justice Thomas is often given a pass by the press. Some of his most inflammatory decisions on the Court - often in concurrence or dissent - are rarely remarked on by Supreme Court writers and bloggers. As I've suggested, even the problematic nature of some of Mrs. Thomas' political activities have been soft-pedaled by court watchers. But we should not soft-pedal history. These were the hearings at which Thomas assured the Committee that once confirmed he would hold no allegiance to the conservative views he'd advanced as a conservative darling and former member of the Reagan Administration. Long before Chief Justice John Roberts promoted the image of the "umpire" judge who just "calls balls and strikes," Thomas introduced us to another empty sports metaphor - promising that he would "strip down like a runner" and shed his earlier ideological views to be an impartial justice. Thomas also sought to reassure the Judiciary Committee and the public, that despite his earlier harsh words about civil rights leaders, and his own less than stellar stewardship of the Equal Employment Opportunity Commission (EEOC), that he felt empathy (yes, empathy) for those less fortunate. He insisted that when from his office he could see a bus of prisoners in Washington, D.C., he felt, "there but for the grace of God, go I."

But it was the hearings after Anita Hill's statements came to light that truly riveted the nation. Hill had worked for Thomas at the EEOC. Both were conservatives. Thomas had been serving on the D.C. Circuit Court of Appeals for little over a year when he was tapped by President George H.W. Bush who implausibly called the unremarkable Thomas, the "best candidate" for the job.

When Hill was interviewed by the FBI as part of the security vetting for the new nominee, she told about Thomas' conduct in the workplace. Her statements to the FBI were leaked to the media. When called before the Committee, Hill testified that when she worked for him, Thomas would, unprovoked, talk about pornographic movies, make lewd comments, and describe his sexual prowess. Her testimony was calm, credible and compelling. Thomas' was angry, powerful and compelling. He denied every allegation made by Hill. He described the Committee hearing as a "high tech lynching" of an "uppity black man." Either he was a liar, or she was crazy. And nothing, nothing about Anita Hill or her testimony seemed crazy.

An array of panels of witnesses supporting the credibility and character of both Hill and Thomas testified. Republican senators shamelessly attempted to assassinate Prof. Hill's character, engaging in psychological speculation and stereotypes to discredit her. In the end, Thomas was confirmed by a 2 vote margin - the narrowest in the history of the court.

Anita Hill had never used the words "sexual harassment" to describe Thomas' conduct. But after the vote, the country knew more about what sexual harassment in the workplace looks like. Watching the all-male Judiciary Committee stumble through the hearings, provoked voters to elect a record number of women to Congress in the next election. The first African American United States Senator, Carol Moseley Braun (D-Il.) was elected. In the years following the hearings, several U.S. Congressman were compelled to resign after their sexually inappropriate workplace conduct was made public. And we all waited to learn what kind of Justice Clarence Thomas would become.

What we know is this. Thomas did not strip down like a runner. Instead, he became the most conservative justice on the Court, adhering to positions that had been the staple of Reagan administration ideology. Empathy proved to be hard to find in Thomas' jurisprudence as well. Whether for the accused or the convicted (like those men on the bus Thomas referenced at his hearing) or for school students who've been strip-searched, or students seeking to exercise First Amendment rights, Thomas has proved himself distinctly lacking in empathy.

We learned more about Hill's allegations as well. Investigative reporter and director of the Schuster Institute for Investigative Journalism, Florence Graves provided detailed information in 1994 on Angela Wright. She was the other witness- the one who had her own story of similarly inappropriate conduct by Thomas in the workplace. She was prepared to testify that Thomas talked about and complimented her body. She also stated that Thomas repeatedly asked her out on dates, even showing up at her apartment uninvited one evening. Wright was confident, attractive and articulate. She was the "corroborating witness" that might have turned the hearings around. Graves reported that although Wright wanted, and was prepared to testify, senators on the Committee, both Democratic and Republican for a variety of reasons -- none of them having to do with a search for the truth -- wanted the hearings to end.

A book by journalists Jane Mayer and Jane Abramson revealed in 1994 that yet another EEOC employee had written a letter to the Judiciary Committee offering to testify about her decision to resign in protest of what she described Thomas' sexualized conduct towards black, female employees. She was also not called to testify. The video store owner who was prepared to testify that he rented pornographic videos to Thomas was also never called to testify.

Within a year of the hearings, public opinion polls that had been split at the time of the hearings, now showed that more Americans believed Hill than Thomas. African American men and women argued about sexism, lynching, and the limits of "race loyalty." Civil rights organizations that had been split in their opposition to Thomas based on his record, learned that they could not and indeed should not support nominees - whatever their race - whose records demonstrate hostility to the legal rights of African Americans.

That Thomas and his wife Ginni were deeply scarred by the hearings is apparent. But it was nevertheless alarming to read in Thomas' 2007 memoir My Grandfather's Son, how very present each slight and humiliation still seemed to him. There was no sense that time had helped Thomas grapple with the past. Now we know that Mrs. Thomas has also maintained her anger.

Given the recent revelations in The Washington Post, it's hard to tell what may finally come of this. But already we are learning more about what seemed certain to many of us who watched those hearings. The confirmation process was shaped to tell us only so much. A committee filled with lawyers took a most unlawyerly approach to uncovering the truth in a process that would confer a lifetime appointment to the highest court in the most powerful country in the world.

It's unclear what Ginni Thomas thinks Anita Hill "did with [her] husband." But the confirmation hearings did more than treat America to a prurient "he said, she said" spectacle. And it's Mrs. Thomas, by raising the issue again with her phone call to Anita Hill, who has invited us to remember it.