Clarence Thomas Supreme Court nomination

On July 1, 1991, President George H.W. Bush nominated Clarence Thomas for the Supreme Court of the United States to replace Thurgood Marshall, who had announced his retirement.^[1] The nomination proceedings were contentious from the start, especially over the issue of abortion, and many women's groups and civil rights groups opposed Thomas on the basis of his conservative political views, as they had also opposed Bush's Supreme Court nominee from the previous year, David Souter, on the same grounds.^[2] Toward the end of the confirmation hearings, allegations by Anita Hill, a law school professor who had previously worked with Thomas at the United States Department of Education and then at the Equal Employment Opportunity Commission (EEOC), were leaked to the media from a confidential FBI report. The allegations led to a media frenzy and further investigations. Televised hearings were re-opened and held by the Senate Judiciary Committee before the nomination was moved to the full Senate for a vote.^[3] Thomas was confirmed by a narrow majority.

Contents 1 Nomination 1.1 Background 2 Early hearings 3 Controversy over allegations of sexual harassment 3.1 Anita Hill testimony 3.2 Testimony and statements in support of Hill's allegations 3.3 Clarence Thomas testimony 3.4 Testimony and statements in support of Thomas 4 Senate confirmation 5 Cultural impact 6 Books 6.1 Authors supporting Hill's allegations 6.2 Authors skeptical about Hill's allegations 6.3 Autobiographies by Hill and Thomas 7 See also 8 Notes 9 References

Nomination

Background

When Justice William Brennan stepped down in 1990, Bush wanted to nominate Thomas as Brennan's replacement; he felt that replacing Brennan with Thomas could imply that Thomas received the appointment due to tokenism, but he then decided that Thomas had not yet had enough experience as a judge after only months on the federal bench.^[4] Bush therefore nominated New Hampshire Supreme Court judge David Souter instead.^[4]

On July 1, 1991, President George H.W. Bush nominated Thomas to replace Thurgood Marshall, who had since announced his retirement.^[1] Marshall was the first African American justice on the court. While the selection of Thomas preserved the existing racial composition of the court, it was seen as likely to move the ideological balance to the right.

President Bush said that Thomas was the "best qualified [nominee] at this time."^[4] The American Bar Association's (ABA) rating for Judge Thomas was split between "qualified" and "not qualified." The ABA, however, has no official standing in the nomination or confirmation process, and Thomas had been a federal judge for only a year. He had never argued a case before the high courts, though others had previously been appointed without Supreme Court experience.^[5]

Far Liberal organizations including the NAACP, the Urban League and the National Organization for Women opposed the appointment based on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of the Supreme Court judgment in Roe v. Wade, as they also had a year previously with Bush's other Supreme Court appointee, Souter.^[2]

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from activist Florynce Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to the failure of Robert Bork's nomination, she said of Thomas, "We're going to 'bork' him."^[6]

Early hearings

Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision.^{[nb 1]}

At one point in the beginning of the proceedings, Senate Judiciary Committee chairman Joe Biden asked Thomas if he believed the Constitution granted any sort of property rights to individuals as described in Richard Epstein and Stephen Macedo's book Takings: Private Property and the Power of Eminent Domain, which had been published by Harvard University Press in 1985. Biden held the book up for Thomas to see and denounced its contents. In their book, Epstein and Macedo argue that the government should be regarded with the same respect as any other private entity in a property dispute. The Cato Institute later paraphrased Biden's general line of questioning in the hearing as, "Are you now or have you ever been a libertarian?"^[7]

Epstein later said, "I took some pride in the fact that [Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."^[8]

Controversy over allegations of sexual harassment

Toward the end of the early hearings, NPR's Supreme Court correspondent Nina Totenberg received a leaked Judiciary Committee/FBI report that a former colleague of Thomas, University of Oklahoma law school professor Anita Hill, accused him of sexually harassing her when the two worked together at the Department of Education (DOE) and EEOC.^[9][10][3] In the same FBI report, Thomas testified that he had once promoted Allyson Duncan over Hill as his chief of staff at the EEOC and that Hill disliked Ronald Reagan.^[3]

Anita Hill testimony

On October 11, 1991, Hill was called to testify during the hearing. Ten years earlier, in 1981, Hill had become an attorney-adviser to Clarence Thomas at the United States Department of Education (ED). When Thomas became Chairman of the U.S. Equal Employment Opportunity Commission (EEOC) in 1982, Hill went to the EEOC with Thomas and his then-secretary, Diane Holt, to serve as his special assistant until mid-1983. Hill alleged in her 1991 testimony that it was during those two periods (i.e., during her employment at DOE and EEOC) that Thomas made sexually provocative statements.^[11]

Although Hill was a career employee (Schedule A) and therefore had the option of remaining at the Department of Education, she testified that she followed Thomas to EEOC because, "[t]he work, itself, was interesting, and at that time, it appeared that the sexual overtures . . . had ended."^[11] She also testified that she wanted to work in the civil rights field, and that she believed that "at that time the Department of Education, itself, was a dubious venture."^[11]

Hill said that she did not want to make the legal claim of sexual harassment, and instead was speaking in layman's terms.^[12] She also alleged lurid details about her time with Thomas at the Department of Education: "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....On several occasions, Thomas told me graphically of his own sexual prowess." Hill also said that the following incident occurred later after they had both moved to new jobs at the EEOC: "Thomas was drinking a Coke in his office, 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, 'Who has put pubic hair on my Coke?'."^[13]

Testimony and statements in support of Hill's allegations

Four individuals (Ellen Wells, John W. Carr, Judge Susan Hoerchner, and Joel Paul) testified that Hill had been upset at the time she worked for Thomas about what she had said was sexual harassment by him.^{[citation needed]} Two individuals, Angela Wright and Rose Jourdain, made statements to Senate staffers in support of Hill, but they decided not to testify at the hearing.^[14][15] Wright, who was another of Thomas' subordinates, stated that she had also been sexually harassed by him, and Rose Jourdain stated that Wright had been upset at that time about what she had also said was sexual harassment by Thomas.^[16]

Wright, who worked with Thomas at the EEOC before he fired her,^[17] told staff of members of the Senate Judiciary Committee during an interview that Thomas had repeatedly made comments to her, much like those he allegedly made to Hill, including pressuring her for dates and commenting on her body.^[18][19] Wright said that Thomas made comments about her and other women's anatomy "quite often."^[19] Wright told several senators' staff that Clarence Thomas asked her the size of her breasts.^[18] Wright said that after she turned down Thomas for a date, Thomas began to express discontent with her work and eventually fired her.^[18] Thomas said that he fired Wright for poor performance and for using a homophobic epithet.^[17] As chair of the Judiciary Committee, Sen. Joseph Biden communicated with Wright about possibly giving public testimony, and Wright decided not to testify at the public hearing, perhaps believing that her testimony might be perceived as "sour grapes" because Thomas had fired her.^[14][15]

Rose Jourdain also did not testify^[14] but corroborated Wright's statements, saying Wright had spoken to her about Thomas at the original time of the events.^[20] Jourdain spoke of Thomas's "increasingly aggressive behavior" and Wright's becoming "increasingly upset and increasingly unnerved."^[20]

Another former Thomas assistant, Sukari Hardnett, made further charges against him. Although Hardnett made it clear she was not accusing Thomas of sexual harassment, she provided the Judiciary Committee with sworn testimony that "if you were young, black, female, reasonably attractive and worked directly for Clarence Thomas, you knew full well you were being inspected and auditioned as a female."^[21][22][23]

Clarence Thomas testimony

Thomas testified that the accusations against him were false and that, "I deny each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill, that I ever attempted to date her, that I ever had any personal sexual interest in her, or that I in any way ever harassed her."^[24]

Clarence Thomas also stated that, "This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee. It was then leaked to the media. And this committee and this body validated it and displayed it in prime time over our entire nation." He called the hearing a type of lynching:^[24]

“

This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.[24]

”

The hearings were notable for their sexually explicit content, particularly Senator Orrin Hatch's (R-UT) questions "[D]id you ever say in words or substance something like there is a pubic hair in my Coke?" and "Did you ever use the term Long Dong Silver in conversation with Professor Hill?". Thomas firmly denied having said either, as well as denying having read The Exorcist, in which the character Burke Dennings says at a party, "There appear[s] to be an alien pubic hair floating around in my gin."^[25]

Testimony and statements in support of Thomas

Several witnesses testified in support of Clarence Thomas and refuted Hill's testimony. Phone logs were also submitted into the record showing contact between Hill and Thomas in the years after she left the EEOC.^[26]

Among those testifying on behalf of then-Judge Thomas was J.C. Alvarez, a woman who for four years was Thomas's special assistant at EEOC. Alvarez said that "[t]he Anita Hill I knew before was nobody's victim." Alvarez went on to say that Thomas "demanded professionalism and performance." According to Alvarez, Thomas would not tolerate "the slightest hint of impropriety, and everyone knew it." Alvarez asserted that Hill’s allegations were a personal move on her part to advance her own interests: “Women who have really been harassed would agree, if the allegations were true, you put as much distance as you can between yourself and that other person. What's more, you don't follow them to the next job—especially, if you are a black female, Yale Law School graduate. Let's face it, out in the corporate sector, companies are fighting for women with those kinds of credentials.”^[27]

Another witness who testified on behalf of then-Judge Thomas was Nancy Fitch, a special assistant historian to Thomas at EEOC, who said "[t]here is no way" Thomas did what Hill alleged. "I know he did no such thing," she declared under oath.^[28] Also Diane Holt, Thomas's personal secretary for six years, said that, “At no time did Professor Hill intimate, not even in the most subtle of ways, that Judge Thomas was asking her out or subjecting her to the crude, abusive conversations that have been described. Nor did I ever discern any discomfort, when Professor Hill was in Judge Thomas' presence.”^[29] Additionally, Phyllis Berry-Myers, another special assistant to Thomas, said that he "was respectful, demand[ing] of excellence in our work, cordial, professional, interested in our lives and our career ambitions." Ms. Berry-Myers said that her "impression" was that Professor Hill desired a greater relationship with Judge Thomas than "just a professional one."^[30]

Nancy Altman who worked with Hill and Thomas at the Department of Education testified that, "It is not credible that Clarence Thomas could have engaged in the kinds of behavior that Anita Hill alleges, without any of the women who he worked closest with—dozens of us, we could spend days having women come up, his secretaries, his chief of staff, his other assistants, his colleagues—without any of us having sensed, seen or heard something."^[31] Senator Alan K. Simpson was puzzled by why Hill and Thomas met, dined, and spoke by phone on various occasions after they no longer worked together.^[32]

Senate confirmation

After extensive debate, the U.S. Senate narrowly confirmed Thomas by a vote of 52-48.^[33]

In 1991, public opinion polls showed that a vast majority of those polled believed Thomas over Hill;^[34] 47% of those polled believed Thomas, while 24% believed Hill.^{[citation needed]}

After extensive debate, the Committee sent the nomination to the full Senate without a recommendation either way. Thomas was confirmed by the Senate with a 52 to 48 vote on October 15, 1991, the narrowest margin for approval in more than a century.^[35] The final floor vote was not along strictly party lines: 41 Republicans and 11 Democrats (Dixon (D-IL), Exon (D-NE), DeConcini (D-AZ), Robb (D-VA), Hollings (D-SC), Fowler (D-GA), Nunn (D-GA), Breaux (D-LA), Johnston (D-LA), Boren (D-OK), and Shelby (D-AL) now (R-AL)) voted to confirm while 46 Democrats and 2 Republicans (Jeffords (R-VT) and Packwood^[36] (R-OR)) voted to reject the nomination.

Thomas was sworn in on October 23, 1991 by Chief Justice William Rehnquist as the 106th Justice of the Supreme Court. That ceremony had initially been scheduled for October 21, but was postponed until October 23 due to the death of Rehnquist’s wife, and it would have been postponed longer but for a request by Thomas.^[37][38] The swearing-in cut short continued journalistic investigation into Thomas’s private life.^[39]

Cultural impact

Public interest in, and debate over, Hill's testimony is said by some to have launched modern-day public awareness of the issue of sexual harassment in the United States.^[3] Some also link this to what is known as the Year of the Woman (1992), when a significant number of liberal women were simultaneously elected to congress.^[3]

Books

Authors supporting Hill's allegations

Jane Mayer and Jill Abramson, reporters for the Wall Street Journal, concluded in an investigative book on Thomas that “the preponderance of the evidence suggests” that Thomas lied under oath when he told the committee he had not harassed Hill.^[40][14] Mayer and Abramson say Biden abdicated control of the Thomas confirmation hearings and did not call Angela Wright to the stand, though Biden actually did offer to let Wright take the stand.^[14][15] They report that four women traveled to Washington DC to corroborate Anita Hill’s claims, including Wright and Jourdain.^[14]

According to Mayer and Abramson, soon after Thomas was sworn in, three reporters for The Washington Post “burst into the newsroom almost simultaneously with information confirming that Thomas’ involvement with pornography far exceeded what the public had been led to believe.”^[41] These reporters had eyewitness testimony and video rental records showing Thomas’ interest in and use of pornography.^[42] However, according to Jeffrey Toobin, because Thomas was already sworn in by the time the video store evidence emerged, the Washington Post dropped the story.^[41]

Richard Roeper of the Chicago Sun-Times commented as follows about the revelations in the book by Mayer and Abramson:

What bothers me the most about the "evidence" presented in the book is that it consists mostly of character assassination and irrelevant allegations....I don't care if Clarence Thomas had an inflatable doll on his sofa and a framed autograph from Long Dong Silver on the wall. Just because a man has an immature interest in dirty stuff doesn't mean he harassed anyone.^[43]

The book by Mayer and Abramson was subsequently made into a movie.

Authors skeptical about Hill's allegations

Ken Foskett, an investigative reporter for the Atlanta Journal-Constitution, wrote a book about Justice Thomas in 2004.^[44] Foskett concludes that, "Although, it was plausible that Thomas said what Hill alleged, it seems implausible that he said it all in the manner Hill described." Foskett elaborates:

“

Bullying a woman simply wasn't in Thomas's nature and ran contrary to how he conducted himself around others in a professional environment. And if the context wasn't as Hill alleged, was it fair to turn private conduct into a political weapon to defeat his nomination?

”

Scott Douglas Gerber wrote a book in 1998 about the jurisprudence of Justice Thomas, and came to the following conclusion about the Anita Hill allegations: “Frankly, I do not know whom to believe.”^[45] Gerber also wryly noted the reaction when an author (David Brock) who had criticized Hill did a U-turn: "the left maintains that it proves that Hill was telling the truth, while the right contends that it simply shows that Brock is an opportunist trying to sell books."^[45]

Autobiographies by Hill and Thomas

In 1997, Anita Hill penned her autobiography, Speaking Truth To Power, and she addressed why she filed no complaint at the time of the alleged harassment in the early 1980s:

“

I assessed the situation and chose not to file a complaint. I had every right to make that choice. And until society is willing to accept the validity of claims of harassment, no matter how privileged or powerful the harasser, it is a choice women will continue to make.[46]

”

In 2007, Clarence Thomas published his memoirs, also revisiting the Anita Hill controversy. He described her as touchy and apt to overreact, and described her work at the EEOC as mediocre.^[47] He wrote:

“

On Sunday morning, courtesy of Newsday, I met for the first time an Anita Hill who bore little resemblance to the woman who had worked for me at EEOC and the Education Department. Somewhere along the line, she had been transformed into a conservative, devoutly religious Reagan-administration employee. In fact, she was a left-winger who'd never expressed any religious sentiments whatsoever during the time I'd known her, and the only reason why she'd held a job in the Reagan administration was because I'd given it to her.

”

In an op-ed piece written by Anita Hill, appearing in the New York Times on October 2, 2007, Ms. Hill wrote that she "will not stand by silently and allow [Justice Thomas], in his anger, to reinvent me."

See also

• George H. W. Bush Supreme Court candidates

Notes

1. ^ It is routine for nominees, at all levels of the Federal judiciary, to refuse to discuss cases during their confirmation hearings that might come before them if they are confirmed. Clinton appointed Associate Justices Ruth Bader Ginsburg and Steven Breyer both refused to discuss Roe before the Judiciary Committee, even though Ginsburg has worked for years for the ALCU defending it. Despite this nearly universal refusal of nominees to discuss hot button issues such as Roe, members of the Senate Judiciary Committee nearly always try to draw the nominee's view out during confirmation hearings.

References