HILARY MACKENZIE October 28 1991


HILARY MACKENZIE October 28 1991




Battered by one of the most bruising confirmation assaults in U.S. history, Clarence Thomas emerged from his Alexandria, Va., home last week moments after the Senate had voted 52 to 48 to confirm his nomination to the Supreme Court. “No matter how difficult or how painful the process has been,” said Thomas, sheltering from an autumn rain beneath a large black umbrella, “this is a time for healing.” In fact, the legacy of an explosive, nationally televised Senate judiciary committee inquiry into allegations that Thomas had sexually harassed Anita Hill when she was an assistant of his a decade ago seemed likely not to be healing—but bitterness. Most senators decided to give Thomas the benefit of the doubt since there was no way to prove Hill’s accusations. But many female activists expressed angry disagreement. And after the vote, roughly 100 women demonstrated on the steps of the white-domed Capitol. Chanting “We’ll remember in November,” they called for a united front to contest the seats of offending senators in national elections just 13 months away. Said Kate Michelman, president of the National Abortion Rights Action League: “We must take our personal anger and organize in 1992 to be an effective political voting bloc.”

But the hostile reaction among women’s groups was just one of the consequences of the rancorous 107-day confirmation process. The leaden skies that had hung over Washington during the Senate vote last Tuesday had cleared by the time Thomas stepped forward on the White House lawn last Friday, placed his hand on a Bible and pledged to uphold the Constitution. At a second, judicial swearing-in ceremony scheduled for Nov. 1, the 43year-old black conservative appeals court judge will officially ascend to the Supreme Court and replace Thurgood Marshall, the black liberal judge who resigned in June. But some observers warned that a cloud of suspicion will continue to linger over Thomas. And many critics of the televised inquiry, including President George Bush, condemned the rivetting spectacle that preempted cartoons, soap operas and prime-time fare to reach an astonishing 20 million homes. There were widespread calls for an overhaul of the confirmation process. But the dramatic hearings also had a profound impact on the debate about sexual harassment (page 86).

In Washington, critics said that the hearings, showing bickering senators hurling accusations of racism and muckraking, had undermined the integrity of the Senate itself. In fact, late last week, in what appeared to be a determined effort to avoid a re-

peat of the bitter Thomas hearings, the Senate intelligence committee promptly recommended, by a vote of 11 to 4, that the full Senate confirm Robert Gates, Bush’s controversial nominee to head the Central Intelligence Agency.

Likely the most enduring result of the Thomas confirmation, however, will be that the Supreme Court, packed with appointees by Bush and his Republican predecessor, Ronald Reagan, will now form a 7-to-2 conservative majority as it determines major civil-rights and other social issues. Said Allan Lichtman, professor of history at Washington’s American University: “It further bolsters the ideological strength and the unity of an already conservative activist court.” Added Joel Paul, a law professor at the same university, who testified on Hill’s behalf during the inquiry: “It could become so emboldened by its super-majority that, like a one-party system, it dictates how Americans should live their lives.”

The final acts of the confirmation drama began on Sept. 3, when a Senate aide first telephoned Hill for information about Thomas. Six days later, the 35-year-old University of Oklahoma law professor complained that Thomas had harassed her when she worked with him at the department of education and later at the Equal Employment Opportunities Commission (EEOC) in the early 1980s. But the committee did not immediately question Thomas about sexual harassment. It was not until the news media published then-secret accounts of Hill’s allegations that the Senate decided to delay voting on the nomination and reopen the judiciary committee hearings.

On Oct. 11, under harsh TV fights in the redcarpeted Senate Caucus room, Hill testified that Thomas repeatedly pestered her for dates when she worked for him from 1981 to 1983. And in graphic detail, she accused him of bragging about his own sexual prowess and of discussing lewd sexual matters, including descriptions of bestiality and rape scenes that she said he claimed to have watched in pornographic movies. That same day, and in testimony throughout the next, Thomas unequivocally denied all the allegations. And in a voice that trembled with emotion, he lashed out at the nomination process, saying that it had irreparably tarnished his reputation and shattered his family.

Some Republican senators on the committee, meanwhile, suggested that Hill was either imagining the events or had invented the charges as part of a last-minute liberal plot to undermine the nomination. On Oct. 13, a panel of four witnesses sought to rebut the conspiracy theory by testifying that Hill had told them at the time of the alleged incidents that she was being sexually harassed. Susan Hoerchner, a worker’s compensation judge in California, said that Hill told her that Thomas repeatedly asked her out. Said Hoerchner: “She said he wouldn’t take no for an answer.” The committee also reviewed transcripts of an interview with Angela Wright, another former employee of Thomas’s, who claimed that he had pressed her for dates and made inappropriate “comments about my anatomy.” And Hill voluntarily took a polygraph test, which she passed. But the senators ruled that it was not admissible in the hearings.

Another panel of witnesses, however, testified that Thomas could never have stooped to such behavior. Declared Diane Holt, who was Thomas’s secretary at the EEOC: “The chairman Thomas that I have known for 10 years is absolutely incapable of the abuses described by Prof. Hill.” The witnesses also offered an unflattering portrait of Hill as a pushy junior aide who wanted to bask in the chairman’s limelight. Added J. C. Alvarez, a Chicago businesswoman and Thomas’s special assistant at the EEOC: “She definitely came across as someone who was ambitious and watched out for her own advancement.”

After 30 hours of testimony over three gruelling days, it came down to which of two articulate black Americans—Thomas or Hill— could be believed. According to public opinion polls, Americans sided strongly with Thomas. On Oct. 15, the issue came before the 98 men and two women of the Senate. During a day of rancorous debate, Republicans sought to undermine Hill’s credibility, and Senator Arlen Specter of Pennsylvania even accused her of committing perjury. Democratic Senator Edward Kennedy came to her defence. “The way Prof. Hill was treated was shameful,” he said. But in a pointed reference to Kennedy’s own reputation for womanizing, Specter retorted: “We do not need characterizations like ‘shame’ in this chamber from the senator from Massachusetts.”

In the end, most legislators voted along party lines, even the Senate’s two women. Democrat Barbara Mikulski of Maryland voted against the nomination; Republican Nancy Kassebaum of Kansas supported it. But 11 Democrats joined 41 Republicans to confirm Thomas. Many of the 11 are southern Democrats who face re-election next year and must contend with large black constituencies. Some polling showed strong support for Thomas among blacks. The pro-Thomas Democrats said that the lurid allegations had not been proven. And they argued, as Illinois Senator

Alan Dixon put it, that “Judge Thomas is entitled to the presumption of innocence.”

But survey results to be published this week in a U.S. law journal show that many of the nation’s jurists did not reach the same conclusions as the majority of senators did. The weekly National Law Journal, in a poll of 100 U.S. judges, found that only 22 of them said that they found Thomas’s testimony more credible than Hill’s—compared with 41 who reached the opposite conclusion. The other 37 said that they were unsure.

Hill herself was back in Norman, Okla., last week teaching a class in commercial law when the vote took place. But even as she struggled to resume her normal life, attacks on her credibility continued. Oklahoma State Representative Leonard Sullivan, a Republican, wrote to the president of the university urging him to dismiss Hill because, he said, millions of Americans believe that she is a “fantasizing liar.” In a news conference at the university, Hill said that she had been “deeply hurt and offended by the nature of the attacks on my character.” But she said that she had done her duty by coming forward. “I am hopeful,” she added, “that others who have suffered sexual harassment will not be discouraged by my experience, but instead will find the strength to speak out about this serious problem.”

In fact, many women’s rights activists said that Republican attacks on Hill’s motives and mental stability would discourage harassment victims from coming forward. And they expressed anger that the judiciary committee that heard her testimony was composed of 14 white men, middle-aged and older, who, they claimed, failed to understand the importance of

the issue. Declared Patricia Ireland, executive vice-president of the National Organization of Women: “Women across this country saw in a visceral way that we are not there and they don’t represent us.” Added Ireland: “Women have put on power suits, worn sensible shoes and played the game by the rules, only to find themselves the victims of sexual harassment— and they’re angry.”

Still, with public opinion polls showing that the pro-Thomas forces included many women, women’s rights groups will likely face difficulty in translating their anger into a nationwide voting bloc. Similar complexities exist within the black community. Despite popular black support for Thomas, many leaders of black organizations have opposed Thomas as a conservative who, they say, has consistently failed to support affirmative-action and civil rights legislation. Declared Ronald Walters, professor of political science at Washington’s Howard University: “Distinguished black jurists were passed over for someone with anemic credentials. His only redeeming virtue is that he is ideologically sympathetic to President Bush.” And some black leaders expressed anger that Thomas claimed during the Senate inquiry that he was a victim of racist attacks. “He played the most vicious game of racial politics,” said Emma Jordan, professor of law at Georgetown University in Washington. She added: “He descended deeper and deeper into the Pandora’s box of race as he sought to salvage his candidacy. And he stunned the committee and paralysed them from pursuing the real issues.”

Only the second black ever to serve on the Supreme Court, Thomas succeeds the first,

Marshall. And unlike the senators who confirmed Thomas, he is eligible to serve in his new role for life. He and the eight other justices will clearly have immense influence in shaping public policy through their interpretations of congressional legislation. In one of the first major tests likely to face Thomas and his colleagues, the court may soon have to consider an abortion case that could lead to the overturning of Roe vs. Wade—the controversial 1973 ruling that guaranteed American women the right to abortion. During the confirmation hearings, Thomas refused to state his position on the issue. In fact, he testified under oath that he had never even discussed Roe vs. Wade. But most analysts claim that Thomas is against abortion. Both sides in the abortion debate predict that, with a conservative-majority court, not only would Roe vs. Wade be overturned, but the justices could go even further in

establishing that fetuses have basic rights. Argued American University’s Paul: “You would then hold women responsible for unborn children and control their smoking and drinking. It may sound improbable, but who is there to check the Supreme Court when there is only one view, one perspective?”

Clearly seeking to dispel such concerns, Bush predicted late last week that Thomas will prove to be an “independent justice” who will surprise many of his critics. And although the President called the Senate inquiry “deeply offensive,” he conceded that it has at least sensitized many Americans to the issue of sexual harassment. With women’s groups pledging to fight for change, that new sensitivity could yet coalesce into a powerful force that shapes American politics long after Thomas completes his remarkable journey from boyhood poverty in Georgia to a seat on the highest court in the land.


in Washington