The content of character
Had it not been for Anita Hill’s reluctant testimony in 1991, we might never have scanned Clarence Thomas’ character for moral fissures.
But Hill did come forward because, she said, she felt an ethical responsibility as an attorney to testify that the man nominated for the Supreme Court had sexually harassed her when he was chair of the Equal Employment Opportunity Commission and she worked there as an adviser to him. She claimed Thomas had repeatedly asked her out, and when she turned down his advances consistently turned workplace conversations to the subject of sex and pornography.
Her testimony was unprecedented, and the committee of 14 white men, chaired by then-Sen. Joe Biden, who grilled her in a televised live hearing, seemed to take her allegations as an affront.
Biden initially told Hill she would testify before Thomas, then changed his mind and allowed the indignant nominee to go first.
“As far as I’m concerned, 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,” Thomas thundered. “You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”
Biden did not allow three—possibly four—women who had similar stories to testify. He allowed the hearing to proceed as a he said/she said deal, which gave the committee members permission to disregard her allegations. Maybe she was telling the truth, but what if she wasn’t? Should the testimony of a woman possibly scorned or hysterical be allowed to derail the career of a bright young jurist?
Besides, Sen. Arlen Specter (R-Pa.) pointed out that discussing “large breasts” in the workplace was just something red-blooded American males did.
Over three days, the law professor from the University of Oklahoma was ushered before the klieg-lit Senate Judiciary Committee and compelled to tell her fantastic story. Watching the likes of Orrin Hatch, Ted Kennedy, Specter and Biden examine and cross-examine witnesses, could one not help but be disgusted?
What those hearings revealed more than anything else was that the U.S. Senate was populated by shabby men who cared less for excellence and truth than for the furtherance of their own careers. They adopted the temper of lords and simulated piety and love of country as they engaged in partisan gamesmanship.
And what nobody said at the time but what was apparent to all who paid attention was that neither Hill nor Thomas made terribly credible witnesses. And their inquisitors did nothing other than to seek to buttress already arrived-upon opinions. No one was looking for the truth; they were looking for an angle. Somehow, just 32 years ago, that seemed shocking.
I remember at the time writing that I believed Hill, but given the debacle of the hearings, I could understand voting to confirm Thomas in the absence of any collaborating evidence. Thomas was not anything but a political nominee—he was neither a remarkable lawyer or distinguished judge—but he was a Black by-thenumbers conservative who opposed abortion rights and (though he had benefited from the programs himself) affirmative action, so for President George H.W. Bush he was the perfect choice to to succeed Thurgood Marshall on the nation’s highest tribunal.
When he hit on Thomas as a potential nominee, Bush may have felt a little like Sam Phillips when a young Elvis Presley showed up at Sun Studios to cut a record for his mama’s birthday: Thomas was the million-dollar Black man who could sound convincingly white. He could pass muster at the country club, he could say what big business and the hard-shell right wanted to hear, yet—simply by virtue of his blackness—he could be insulated from attacks by civil libertarians and Democrats.
During the hearings, Bush expressed “total confidence” in his nominee.
The committee subsequently sent the nomination on to the Senate without a recommendation. And the Senate confirmed Thomas 52-48, the narrowest margin for approval of a Supreme Court justice in more than a century.
It is interesting to note that the vote was not strictly along partisan lines; the Democrats held the majority in the Senate, but 11 of them joined 41 Republicans in voting to confirm Thomas. Meanwhile two Republicans, Jim Jeffords of Vermont and Bob Packwood of Oregon, voted to reject the nomination. Thomas never distinguished himself on the court. Reportedly brooding and bitter, he rarely writes or speaks except to partisan crowds for big checks. He was for decades auxiliary to the brash and brilliant Antonin Scalia.
But mediocre judges have been elevated to the court before, and presidents have rarely overlooked political considerations when choosing a nominee. We mustn’t be too Pollyanna-ish; this Republic lurches on, from one crisis to the next, propelled mainly by the private appetites of petty people for power and money.
Only the tension provided by competing interests and the elegant code of the Constitution allow us to believe in the fundamental rightness of our system of government.
Still, it is sad to see Thomas back in the headlines, accused of bad character and bad judgment. I do not expect he has done anything for which he might be criminally prosecuted (though there will be those who will try). But his relationship with billionaire Harlan Crow is troubling, not because a Supreme Court justice can’t be friends with a billionaire, but because a Supreme Court justice ought to have a highly evolved sense of ethics and propriety.
Some gifts can’t be accepted. Some deals shouldn’t be done. Do we really have to point out that judges shouldn’t go around with their hands out all the time?
In this political climate, it is highly unlikely that Thomas will face any real consequences for either accepting favors from his billionaire friend or the attempted disruption of the democratic process by his radical wife, who apparently sincerely believes that Biden’s victory in the presidential election of 2020 was, as she’s written in text messages, the “greatest heist of our history.”
Which is ironic, given that Joe Biden is one of the people most responsible for Associate Justice of the Supreme Court Clarence Thomas.