Why Anita Hill Lost Suzanne Garment E mu_ simply have to accept, for the of the established rights of women and minority Wpresent, that no more than two people in groups. Kennedy and other Democratic Senators the world can know with certainty whether helped put off hearings on the nomination in order Clarence Thomas said to Anita Hill what she to give liberal interest groups time to organize and says he did. launch a media campaign. Among the campaign's Shortly before the U.S. Senate was CO vote on his chief target audiences were black organizations nomination to the Supreme Court in October 1991, throughout the South. This strategy was Hill charged Thomas with sexually harassing her successful: fear of displeasure in the black when she worked for him at the Department of community caused crucial Southern Democratic Education and then at the Equal Employment Senators to vote against Bork. Opportunity Commission .(EE0C), by asking her Politics in the selection of Supreme Court Jus- out and forcing her to listen to obscene talk; but tices was nothing new in this country's history, the crime of harassment, as Hill explained, often but the anti-Bork effort set a couple of precedents. has no witnesses. This central, crucial mystery did For one thing, it buried the traditional, largely not mute the debate or make the advocates any internal Senate politics of Supreme Court selection more tentative in their arguments. Instead, the under mass-communications techniques de- Hill-Thomas case became perhaps the biggest sex veloped for national political campaigns. More- scandal in American history. Combatants on both over, it was unabashed in its claim that Supreme sides attacked their opponents in an explosion of Court Justices could legitimately be rejected for resentment and hate. Hill and Thomas were forced their ideology and political views. Thus during to testify publicly to the Senate Judiciary and after the anti-Bork campaign, its operatives Committee about intimate aspects of their lives; were happy to give the press the details of their they became contending gladiators in the arena, new and successful political tactics. We learned with us in the television audience poised to turn about their organized rallies, their telephone thumbs up or thumbs down. The Senate became banks to generate mail to key Senators, their an object of general contempt, since most of the computer bulletin boards, their fundraising me- Senators on whom we depended to question thods, and their choice of "opinion-making Thomas and Hill lacked either the skill to elicit the markets" for their TV advertising. information we wanted or the moral stature to act as proper judges. tH modernSenate, without the strong The case had its roots in recent American his- 9leadership that might have resisted such tory, beginning with the battle over Robert H. tactics, showed in the Bork fight that it was Bork, whom President Ronald Reagan nominated extremely open to the new style of Supreme Court to the Supreme Court in the fall of 1987.* Bork politics. So, when Clarence Thomas was nomi- was not only a highly qualified nominee but one nated for the Supreme Court in 1991, some of the of the chief intellects of the American legal pro- organizational veterans of the Bork fight geared fession. He had become a symbol of American up, as more than one of them put it, to "Bork" legal conservatism and its challenge to the liber- Thomas as welL People for the American Way alism dominating the upper reaches of the pro- reenlisted in the fight. So did the National Lead- fession. ership Conference on Civil Rights, the Alliance for Bork's opponents attacked him with a cam- Justice, the National Abortion Rights Action paign of unprecedented scope. Senator Edward League, the National Women's Law Center, the Kennedy began it by sounding a call to arms, Women's Legal Defense Fund, the National portraying Bork as an enemy of free speech and Women's Political Caucus, and the National Organization for Women. SUZANNE GARMENT is a resident scholar at the American Enterprise Institute and the author of. most recently, Scandal: • For a fuller discussion of the Bork nomination, see my The Culture of Mistrust in American Politics (Times Books/ article, "The War Against Robert H. Bork," COMMENTARY, Random House). January 1988. 26 WHY ANITA HILL LONT tr; But their strategy did not work the second time sion than a simple plaything, and that personal around. Because Thomas was a black conservative habits like a male politician's treatment of women and an opponent of the more sweeping versions of were something the public bad every right to affirmative action. much of the traditional civil- know about. By the time of Watergate we had rights leadership harbored a special resentment developed not only a vast publicity machine ca- toward him. Yet affirmative action was a dangerous pable of spreading such personal scandals across issue to raise against Thomas, since it had become the land but a rationale that gave us, the high- such an unpopular idea among the general public. minded voters, permission to pay detailed atten- Furthermore, even in the civil-rights Soups, many tion to these salacious matters. people identified with Thomas's rise from poverty, The first consequence of this shift was an ef- and the resulting ambivalence kept these florescence of classic adultery scandals. But in the organizations from exerting the force they had mid-1980's, a more important consequence of the shown with the Bork nomination. In addition, new thinking appeared: we began to see many Thomas supporters had learned a thing or two from more scandals involving charges of sexual coer- the Bork battle and made sure that charges against cion or sex without full consent. It was only a their man did not go unanswered matter of time before such matters would assume in the media. • center stage in some confirmation drama. In this Finally, during his first confirmation hearings sense, the Thomas episode was a scandal waiting before the Senate Judiciary Committee, Thomas appeared to contradict or qualify his past conser- to happen. vative views more dramatically than Bork had done. Thomas escaped from the trap of declaring Nrra Hni. certainly seemed an indi-vidual himself one way or the other on the abortion issue Ato be taken seriously. She was, by saying that he had never debated the legal like Thomas, black. Like Thomas also, she came aspects of Roe v. Wade. The Senators of the from a rural background, having been raised on a Judiciary Committee, even as they asked Thomas farm in Oklahoma, the youngest of thirteen repeatedly about abortion, accepted his evasions children. And, like Thomas again, she had at- and denials. All parties knew, by that time, the tended Yale Law School. When Thomas was necessary steps in the post-Bork ballet. about to become Assistant Secretary of Education The Jurliriary Committee sent Thomas's nom- for Civil Rights, a mutual friend introduced the ination to the full Senate on a vote of seven-to- two of them, and Thomas offered her a job. She seven. In mid-October, on the eve of the worked with him for nine months; he then re- Senate's final vote on Thomas, his confirmation signed to become chairman of the EEOC. She looked like a sure thing. • went with him and worked at the commission Meanwhile, as the chances of defeating the until 1983, when she left to take a teaching job at Thomas nomination grew smaller, both the press Oral Roberts University in her home state. and the groups working against him grew ever In charging that Thomas had harassed her both more vigorous in their search for material to use at the Education Department and at the EEOC, against him. Employees at the EEOC reported Hill lacked any evident political motive: she was getting repeated phone calls from journalists and described as a Reagan appointee, a Bork supporter, Thomas opponents explicitly asking for "dirt." and a conservative, though it later emerged that she On Sunday, October 6, after the Senate Judiciary had had political differences with the Reagan Committee had voted to send the Thomas nom- administration from the beginning and had crit- ination to the Senate, Newsday and National icized Thomas, to the FBI in July and to the press Public Radio reported that for a month the com- in September, for his position on affirmative action mittee had had in its possession an affidavit from and the problem of black dependency. a woman named Anita Hill making charges of sexual harassment. -- A friend and former law-school classmate of This particular accusation, like the mobilization Hill's said that she had told him, within days of of interest groups against Thomas, had a recent the Thomas nomination in July, about the nom- history in American politics. inee's sexual harassment of her. Ricki Seidman, Political sex scandals have been a perennial former legal director of People for the American feature of American life, but in the past quarter- Way and now an aide to Senate Judiciary Com- century these scandals have begun to acquire a mittee Democrat Edward Kennedy (though she new character and meaning. As late as the mid- was not on the Judiciary Committee staff itself), 60's, politically active people who considered called Hill in early September to ask her about the themselves liberal tended to be relatively tolerant harassment. Hill proved willing to talk further. in matters of sec and to accept the idea that every James Brudney, an aide to Judiciary Committee individual, even a politician, had a private sphere member Howard Metzenbaum (though also not of life that was none of the public's business.