Associate Justice Clarence Thomas

The hearings to confirm Clarence Thomas to a seat on the United States Supreme Court ended with a vote to confirm The social aftermath of the hearings may go on for years. The Republican strategists seemed quite gleeful that they have produced a major rift in the black community and that they have again thwarted the aspirations of women and are trying to figure out how to best use these division to their advantage, (Washington Post Friday October 18, 1991).

There were two entirely distinct aspects to Clarence Thomas' hearings. First there was the hearing to determine his fitness to serve on the Court. That hearing ended with no clear picture of the nominee and with an inconclusive vote, 7 to 7. The tie vote insured that his nomination would be referred to the whole Senate without a recommendation, good or bad.

The second part of the hearings were to hear the allegations of Anita Hill that Clarence Thomas sexually harassed her during the time she the worked for the him at the Department of Education and the Equal Employment Opportunity Commission.

While the first part of the hearings were humdrum and a bit boring, the second part were explosive and gripping. Anita Hill in asserting that Clarence Thomas sexually harassed her presented herself as an obstacle to the President's appointment of Thomas and so doing she unleashed the full force of the power of the Presidency upon herself. The Whitehouse orchestrated the attack on Professor Hill and one would have to suppose they wrote the Clarence Thomas part for him to play on television. Alan Simpson Senator from Wyoming said it best when he said, "One woman. Of all the people in the world, one woman comes forth and torpedoes this man."

Like many people who heard her, I believe Clarence Thomas did not have a chance to be confirmed after her testimony.

The second part of the confirmation hearings were also divided into two parts. First there was Professor Hill's testimony and that of the witnesses who corroborated her story. Then there was Clarence Thomas' denial, the witnesses for him and the attacks on Anita Hill's character by Senators Orrin Hatch the of Utah and Arlen Specter of Pennsylvania.

There were repeated comments, during the Anita Hill part of the hearings that the Senate was not a court of law. For Clarence Thomas' sake he could well thank his lucky stars that it was not a court of law.

The charges Anita Hill made were ten or more years old. The statute of limitations on sexual harassment in the Federal Government where she worked is thirty days, so there could not be any thought that the charges could have any legal standing today. But the charges if true were serious enough to deny Clarence Thomas a seat on the Supreme Court. Anita Hill had four corroborating witness, each of whom had been informed of the instances of sexual harassment charged by Miss Hill. Each witness had been told of the alleged conduct in a timely fashion contemporaneous with their happening. Clarence Thomas defense was first, not to listen to her testimony, and then flatly deny it. A number of Thomas' co-workers testified to his character. Senators Specter Hatch did the rest. Specter argued the that she lied, fantasized and perjured herself. Orrin Hatch for his part lionized Thomas, commiserated and sympathized with him. Hatch charged that she read about "Long Dong Silver" in a Oklahoma law case and that he comments about the public hair on the coke can came from the Exorcist and that she must have fantasized them. Both Senators by sensationalizing their charges must have known they were playing for the TV audience and not the cause of good government since the news programs presented only edited the versions of their testimony—the damning part.

Senator Specter made a big deal out of Miss Hill's alleged commission of perjury, but, he did it in altogether disingenuous way. He made the statement that he thought Miss Hill committed perjury. He said that testimony she gave in the morning she demolished in the afternoon. He went onto say in a lower voice, that since she recanted her morning testimony in the afternoon during the same hearing that she technically did not commit perjury, but then he said in a louder voice, I think she committed perjury. The news programs showed only the few seconds where he said, "I think she committed perjury."

Clarence Thomas' assertion that he was being lynched struck a raw nerve. The term "lynch" is a despicable and horrible term in American history and it indicates raw extralegal power to produce submission in an oppressed people by killing selected members who are deem to have transgressed some unwritten code of behavior. Many of us remember the Emmit Till tragedy and that happened in the New South. There were thousands and thousands of lynchings. People were killed, murdered, never to be heard from again. To claim lynching was indeed making an appeal to irrational emotion. If Clarence Thomas had been denied a seat on the Court, he would have returned to his old job of Associate Judge of the Court of Appeals of the District of Columbia, a job with life time tenure. He himself described the comfortable middle class life he would revert to if her were denied the seat. The term "lynch" was theater, grotesque theater.

Thomas claimed that Miss Hill's charges represented the worst aspects of the stereotype of the black male. Orrin Hatch seized upon that idea and proceeded to read Miss Hill's charges to him, not in her "vile" language but in rather "tamer" terms. He asked Thomas if groups of men and women having sex evoked the stereotype of the black male? He said, "No." "Did women with large breasts invoke the black male stereotype?". Thomas, "No." "Did women having sex with animals?" "No." Oh. What about Long Dong Silver?" Thomas, "Yes that could be a stereotype of a black male."

It so happens that Long Dong Silver is the "stage" name of a black porno actor—a real person—so it can not be a stereotype. The TV bits carried Thomas statement that he was stereotyped.

If all the theater, particularly the performances of Arlen Specter, Orrin Hatch and Alan Simpson, were removed from the proceedings and only the charges by Miss Hill, the corroborating witnesses and Thomas' statement of his innocence plus his character witness remained, the chances are good that a judge and a jury in a courtroom would have found him the guilty. I can't imagine a judge permitting Thomas histrionics and I can't believe his allegation of lynching, high tech or otherwise would be acceptable behavior in a court of law. Clarence Thomas is indeed lucky the United States Senate sat in judgement on him rather than a judge and a jury.

What is the ecological significance of the Thomas hearings? There are a number of conclusions.

1. Gang buster emotional attacks are effective. Alexander Hamilton once explained why he was afraid of the mob—large group of people guided not by reason but emotion. "The people, Sir," he said, "are a great beast. What worked with Willie Horton for George Bush and what worked for Jesse Helms was racism. With Thomas the racism involved a black man attacking a black woman with the help of some white Senators and a white President. (The Whitehouse coordinated the attack on Miss Hill. The Washington Post October 18, 1991.

The ecological lesson here is when bigotry enters the political arena, reason leaves. The politics of emotion and bigotry embraces animal morality.

2. There is a simple way to measure status in our society. Who got the vote when. White men (some but not all of them) always, had the vote. Black men got it next and women got it last. Given that women have always been treated as inferiors to men and white has been superior to black, we have a hierarchy that goes: white men, black men, white women, black women. White women had a position scarcely better than slavery when slavery was in fashion. And our male dominated society is only very grudgingly giving power to women, white or black. (A friend tells me that salaries in a notable school of social work follow that pattern.)

3. The President and his men trashed a black women, to put a black man on the Supreme Court to trash black and white women. When the ERA failed the Republicans came to believe that women were not a force to be afraid of. President Reagan made them mad with his stand on abortion with no effect. President Bush has continued the abortion position of Reagan again with no countermove from women. Now President Bush is going to push them all the way, since the Clarence Thomas affair has proved again that women do not have power.

4. Our government is sadly divided with the Congress and the President at loggerheads. The President is ruling by veto, the Congress is being whipped by their constituents, and defections in their ranks. The Congress can't rule and the President can't lead. Since the tactics of the Whitehouse are to divide the nation and divide the Congress as the way to press its will only negative things happen, and with rancor and animosity. We have a sorry spectacle of a government and a nation that is suffering acutely from bad governance. If the Republicans do not care about the domestic problems of the nation and the Democrats can't do anything about them, the nation drifts with no accountability and no progress on anything. When decision time comes around the Republicans pull out all the emotional stops, resort to racism or patriotism if necessary and bulldoze ahead.

5. The Senate hearing process was not at fault, the people doing it were at fault. (Guns don't kill people do.) The Senate is not at fault for the mess of the hearing a few Senators were since they used the hearings as a political platform to advance the cause of their nominee, at the expense of justice and fair play. Given the format there was nothing Chairman Biden could do to restrain the mad dog attacks on Miss Hill. At this point I would make a suggestion to Chairman Biden.

When the hearings moved from the consideration of the nominee's qualifications to be a Supreme Court justice to the consideration of previous wrong doing of the nominee, the format should have changed. Examining the question of judicial suitability was rightly the job of the committee. Examining the charges brought by Miss Hill could be done fairly, to both sides (Republican and Democrat and Hill v Thomas) only by a neutral examiner. The main examination of Clarence Thomas and Miss Hill should have been done by someone like Arthur Lyman or the committee counsel. The members should have sat there like a jury, they should not have acted as prosecutors. No one on the Republican side was interested in anything but finding fault with Miss Hill. There was nothing in the procedure that said she should get a fair hearing. The Democrats were criticized for not "defending" Miss Hill. There was nothing they could do given the format of the hearings. Without a neutral examiner, there was nothing left for the advocates of Mr. Thomas but to give political speeches. It was their prerogative under the rules and they took advantage of it. To provide a balance the Democrats would have had to propose Miss Hill for a seat on the court, an option they didn't have. The next time and there will be a next time given the government we have, the Chairman should insist on a neutral examiner when the proceedings go from qualifications to ascertainment of wrong doing.

Finally, I believe the American Bar Association should examine the hearing record. They should excise all irrelevant portions. They should then convene a group of at least 100 hundred trial lawyers and judges all expert in sexual harassment cases and ask them if Miss Hill and her witnesses presented enough to convict and whether or not Mr. Thomas provided an adequate defense of his position. They should vote by secret ballot. The American Bar Association has a special privilege. in passing on the fitness of Supreme Court nominees. I think they should earn that privilege. The American people have a right to know if they bought a pig in a poke.

...Ted Sudia...

© Copyright 1991
Institute for domestic Tranquility