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. 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.
Toward the end of the confirmation hearings, behavior allegations by Anita Hill, a law professor who had previously worked under 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 about sexual harassment, and further investigations. Televised hearings were re-opened and held by the Senate Judiciary Committee before the nomination was moved to the full, Democratic-controlled, Senate for a vote. Thomas was confirmed by a narrow majority of 52 to 48.
Justice William Brennan stepped down from the Supreme Court in 1990. Thomas was one of five candidates on Bush's shortlist and was the one Bush was most interested in nominating. Bush's staff made three arguments against nominating Thomas at the time: Thomas had only served eight months as a judge; Bush could expect to replace Thurgood Marshall with Thomas in due time; and multiple senior advisors told Bush that they did not feel that Thomas was ready. Bush eventually decided to nominate Judge David Souter of the First Circuit instead, who was easily confirmed.
White House Chief of Staff John H. Sununu promised that Bush would fill the next Supreme Court vacancy with a "true conservative" and predicted a "knock-down, drag-out, bloody-knuckles, grass-roots fight" over confirmation. On July 1, 1991, President Bush nominated Clarence Thomas to replace Marshall, who had recently announced his retirement. By then, Thomas had been a federal judge for 16 months. He had not previously argued before the Court, though that has not been a traditional requirement.
Marshall had been the first African American Justice on the Court, and while the appointment of Thomas would preserve the existing racial composition of the Court, it was seen as likely to move its ideological balance to the right. Attorney General Richard Thornburgh had previously warned Bush that replacing Thurgood Marshall, who was widely revered as a civil rights icon, with any candidate who was not perceived to share Marshall's views would make the confirmation process difficult. Civil rights and feminist organizations opposed Thomas's appointment, partially citing his criticism of affirmative action and also because they were suspicious that Thomas might not be a supporter of Roe v. Wade.
In the second half of the 20th century, Supreme Court nominees were customarily evaluated by a committee of the American Bar Association (ABA) before being considered by the Senate Judiciary Committee. Anticipating that the ABA would rate Thomas poorly, the White House and Republican Senators pressured the ABA for at least the mid-level "qualified" rating, and simultaneously attempted to discredit the ABA as partisan.[nb 1] Ultimately, on a scale of well-qualified, qualified, or unqualified, 12 members of the Standing Committee on the Federal Judiciary voted that he was "qualified", one abstained, and the other two voted "not qualified", for an overall vote of qualified. This vote represented one of the lowest levels of support for Supreme Court nominees. Although the ABA vote was viewed as a "significant embarrassment to the Bush administration", it ultimately had little impact on Thomas's nomination.
Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from African-American activist attorney Florynce Kennedy at a July 1991 conference of the National Organization for Women in New York City. Referring to the failure of Ronald Reagan's nomination of Robert Bork, she said of Thomas, "We're going to 'bork' him." The liberal campaign to defeat the Bork nomination served as a model for liberal interest groups opposing Thomas. Likewise, in view of what had happened to Bork, Thomas's confirmation hearings were also approached as a political campaign by the White House and Senate Republicans.
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Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on Roe v. Wade, or had any conversations with anyone regarding the issue.
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'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 his book, Epstein argues 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?"
Allegations about sexual commentsEdit
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 making unwelcome sexual comments to her when the two worked together at the Department of Education (DOE) and EEOC. In the same FBI report, Thomas testified that he had once promoted Allyson Duncan over Hill as his chief of staff at the EEOC.
Anita Hill testimonyEdit
On October 11, 1991, Hill was called to testify during the hearing. She said she was testifying as to the character and fitness of Thomas to serve on the high court and was ambivalent about whether his alleged conduct had in fact risen to the level of being illegal sexual harassment.
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 with Thomas to serve as his special assistant until she quit in mid-1983. Hill alleged in her 1991 testimony that it was during her employment at ED and EEOC that Thomas made sexually provocative statements.
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." 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."
Hill 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?'"
Statements in support of Hill's allegationsEdit
Two women, Angela Wright and Rose Jourdain, made statements to Senate staffers in support of Hill. Ultimately, however, Wright and Jourdain were dismissed by the Judiciary Committee without testifying. The reasons why Wright was not called (or chose not to be called) to testify are complex and a matter of some dispute; Republican Senators wanted to avoid the prospect of a second woman describing inappropriate behavior by Thomas, while Democratic Senators were concerned about Wright's credibility and Wright herself was reluctant to testify after seeing the Committee's treatment of Hill, including Pennsylvania Senator Arlen Specter stating that he felt Hill's testimony was perjurious in its entirety. During the Thomas nomination proceedings, Wright and Hill were the only people who publicly alleged that then-Judge Thomas had made unsolicited sexual advances, and Hill was the only one who testified to that effect.
Wright, who was one of Thomas's subordinates at the EEOC until he fired her, told Senate Judiciary Committee staff that Thomas had repeatedly made comments to her much like those he allegedly made to Hill, including pressuring her for dates, asking her the size of her breasts, and frequently commenting on the anatomy of other women. Wright said that after she turned down Thomas for a date, Thomas began to express discontent with her work and eventually fired her. Thomas said that he fired Wright for poor performance and for using a homophobic epithet.
Rose Jourdain also did not testify but corroborated Wright's statements, saying Wright had spoken to her about Thomas's statements at the time they were allegedly made. Jourdain stated that Wright had become "increasingly uneasy" around Thomas because of his constant commentary about her body and looks, and that Wright once came to Jourdain's office in tears as a result.
Another former Thomas assistant, Sukari Hardnett, did not accuse Thomas of sexual harassment, but told the Judiciary Committee staff 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."
Clarence Thomas testimonyEdit
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."
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 "high tech lynching":
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.
The hearings were notable for their sexually explicit content, particularly Anita Hill's claim, made for the first time at the hearings under questioning from Sen. Biden, that Justice Thomas had discussed a porn star by the name of Long Dong Silver in her presence and had also referred to a pubic hair on a Coke can. Senator Orrin Hatch (R-UT) asked Justice Thomas his response to those claims by inquiring: "[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."
Testimony and statements in support of ThomasEdit
Several witnesses testified in support of Clarence Thomas and rebutted 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.
Among those testifying on behalf of then-Judge Thomas was J.C. Alvarez, a woman who for four years was Thomas' 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.”
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. Also Diane Holt, Thomas' 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." 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". Berry-Myers said that her "impression" was that Professor Hill desired a greater relationship with Judge Thomas than "just a professional one".
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." 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.
In 1991, public opinion polls showed that the vast majority of those polled believed Thomas over Hill. 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. Vice President Quayle presided over the vote in his role as President of the Senate, partly in case his vote was needed to break a potential 50-50 tie for confirmation. The final floor vote was not strictly along 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) later (I-VT) and Packwood (R-OR)) voted to reject the nomination; John Glenn was particularly vituperative in his rejection. Ironically, Packwood himself would later be engulfed by sexual harassment allegations which ended his Senate career.
Thomas was sworn in on October 23, 1991, by Justice Byron White as the 106th Justice of the Supreme Court. Chief Justice William Rehnquist was to have sworn Thomas in a ceremony initially scheduled for October 21, but was postponed until October 23 due to the death of Rehnquist’s wife. The ceremony would have been postponed longer but was held on October 23 at the request of Thomas. The swearing-in cut short continued journalistic investigation into Thomas' private life.
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. Some people 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. Some also called these women the "Anita Hill Class".
Michael Isikoff claimed the case influenced the coverage of the allegations of sexual harassment against Bill Clinton in the 1990s.
Authors skeptical about Hill's allegationsEdit
David Brock wrote an article titled "The Real Anita Hill" for the 1992 The American Spectator magazine, which argued against her veracity. He also wrote a 1993 book of the same name. However, he would later denounce these works in a 2003 book titled Blinded by the Right: The Conscience of an Ex-Conservative.
Ken Foskett, an investigative reporter for the Atlanta Journal-Constitution, wrote a book about Justice Thomas in 2004. 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." 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."
Authors supporting Hill's allegationsEdit
Jane Mayer and Jill Abramson, reporters for The Wall Street Journal, wrote an article for the May 24, 1993 issue of The New Yorker challenging David Brock's assertions. The two authors would later conclude 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. Mayer and Abramson say Biden abdicated control of the Thomas confirmation hearings and did not call Angela Wright to the stand. They report that four women traveled to Washington, D.C., to corroborate Anita Hill’s claims, including Wright and Jourdain.
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." These reporters had eyewitness testimony and video rental records showing Thomas' interest in and use of pornography. 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. The book by Mayer and Abramson was subsequently made into a movie.
Strange Justice was a finalist for the National Book Award in 1994 and received an extraordinary amount of media attention. Conservatives like John O’Sullivan panned the book, while liberals such as Mark Tushnet praised it, saying it established "that Clarence Thomas lied" during the hearings. Richard Roeper of the Chicago Sun-Times called the book character assassination: "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."
Autobiographies by Hill and ThomasEdit
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.
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. 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."
- Senior Republicans claimed that while Thomas was well-qualified, the ABA would not support him because they asserted that the ABA had been politicized. The White House attempted to preemptively discredit the ABA as partisan, and Republican Senators threatened to bar the ABA from future participation if it gave Thomas anything less than a "qualified" rating.
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- Profile at the Biographical Directory of Federal Judges, a Public domain publication of the Federal Judicial Center. Accessed November 1, 2011.
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- "The Thomas Nomination; Excerpts From Senate's Hearings on the Thomas Nomination", The New York Times (1991-10-12):
"In my opinion, based on my reading of the law, yes, it was [sexual harassment]. But later on, immediately following that response, I noted to the press that I did not raise a claim of sexual harassment in this complaint. It seems to me that the behavior has to be evaluated on its own with regard to the fitness of this individual to act as an Associate Justice. It seems to me that even if it does not rise to the level of sexual harassment, it is behavior that is unbefitting an individual who will be a member of the Court."
- Braver, Rita. "Inappropriate Conduct", CBS News (1999): “Hill herself did not accuse Thomas of outright harassment, but did say that he had made unwelcome advances toward her and used language that embarrassed her."
- Pollitt, Katha. Subject to Debate: Sense and Dissents on Women, Politics, and Culture, page 161 (2001): "The question Hill's testimony placed before us was not whether Thomas was guilty of a legally actionable offense (she herself was unsure if his behavior added up to sexual harassment) but whether he belonged on the Supreme Court."
- Travis, Carol. "Casting Simple Louts as Lawbreakers", St. Petersburg Times (June 11, 1997): "Although Thomas was never accused of illegal behavior – merely of behavior thought unseemly in a Supreme Court nominee – in the public mind the case conflated obnoxious actions with illegal harassment."
- "The Thomas Nomination; Excerpts From Senate's Hearings on the Thomas Nomination", The New York Times (October 12, 1991).
- "Testimony of Anita F. Hill, Professor of Law, University of Oklahoma, Norman, OK" (PDF). US Government Printing Office. October 11, 1991. p. 37. Archived from the original (PDF) on November 27, 2007. Retrieved October 3, 2007.
- "Opening Statement: Sexual Harassment Hearings Concerning Judge Clarence Thomas", Women's Speeches from Around the World
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- Graves, Florence (October 9, 1994). "The other woman: Remember Angela Wright? Neither do most people". The Washington Post. Retrieved November 1, 2011.
So why didn't Angela Wright testify? It's a simple question that should have a simple answer. But interviews with dozens of participants in the hearings produce no clear explanation, and several disparate theories.
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- Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court Archived September 13, 2013, at the Wayback Machine, Electronic Text Center, University of Virginia Library, October 11, 1991.
- Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court, Electronic Text Center, University of Virginia Library, October 12, 1991.
- Senate Judiciary Committee Hearing, October 11, 1991
- Thomas hearings Archived June 30, 2012, at Archive.today, October 13, 1991.
- Thomas hearings Archived June 30, 2012, at Archive.today, October 13, 1991.
- Thomas hearings Archived June 30, 2012, at Archive.today, October 13, 1991.
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- "The Thomas Nomination; Questions to Those Who Corroborated Hill Account", The New York Times (October 21, 1991): “And I ask you, why then after she left his power, after she left his presence, after she left his influence and his domination or whatever it was that gave her fear, and call it fear of revulsion, or repulsion, why did she twice after that visit personally with him in Tulsa, Oklahoma, had dinner with him in the presence of others, had breakfast with him in the presence of others, rode to the airport alone with him in the presence of no one. And we have eleven phone calls initiated by her from 1984 through the date of Clarence Thomas's marriage to Jenny Lamp.... I'm afraid that that will remain a puzzlement for me forever as to how that can be, where one would continue a relationship with a person that had done this foul, foul presentation of verbiage, verbal garbage to him or her. And I shall never understand that. It remains one of my great quandaries.”
- Jan Crawford Greenburg (September 30, 2007). "Clarence Thomas: A Silent Justice Speaks Out: Part VIII: Rebuilding a Life". ABC News. Retrieved October 18, 2008.
By the end of the hearings, polls showed the vast majority of Americans believed Thomas and disbelieved Hill.
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- "Anita Hill Class", see for example October 13, 1992, Ellen Goodman, "Today it's a Victory for Hill", The Blade, Toledo, via https://news.google.com//www.newsweek.com/id/147281 Newsweek], November 1, 1992. See also Jill Abramson / Jane Mayer, 'Strange Justice', p. 352, 1994, ISBN 0-395-63318-4 and Abramson, Jill (July 19, 2009). "Women on the Verge of the Law: From Anita Hill to Sonia Sotomayor". The New York Times.
- Isikoff interview on the Charlie Rose show. "you have to remember the context" – referring to the time that The Washington Post decided whether to investigate the Paula Jones case. 8:50 into the interview as published at "Archived copy". Archived from the original on September 10, 2012. Retrieved February 28, 2010.CS1 maint: Archived copy as title (link)
- Mr Brock's 2003 book has an entire chapter (Chapter 5) devoted to describing his experience writing The Real Anita Hill article and book in the early 1990s. See Blinded by the right: the conscience of an ex-conservative, by David Brock, Random House, Inc., 2003, ISBN 978-1-4000-4728-4.
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- Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, September 17 and 19, 1991. Part 2 of 4 parts. J-102-40. Printed for the use of the Committee on the Judiciary; US Government Printing Office (1993); ISBN 0-16-040836-9
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