Thinking Out Loud: On The Personal, The Political, The Public And The Private (v5.0) (19 page)

In a 1987 speech Judge Thomas cited “natural law” as the bedrock of the American political tradition, adding, “The thesis of natural law is that human nature provides the key to how men ought to live their lives.” Yesterday Senator Biden said that natural law was the single most important issue before the committee. I hope someone will try to discover how Judge Thomas squares his belief in natural law with its historical use as a tool of discrimination, about whether natural law is just another name for personal or religious beliefs and what role such beliefs should properly play in the decisions of the Supreme Court.

The next justice of that Court should be not just competent but gifted. Judge Thomas does not have the judicial track record to make that manifest, and so the Judiciary Committee must do so now. It will not be done by pretending that the life of his mind
is classified information. That attitude was concocted to protect not the stature of the Court but the nominee, who in giving a definite answer might give one that committee members would dislike.

One refrain is that nominations to the High Court are not and should not be political. That is a preposterous notion in light of the president’s determination to nominate a conservative no matter how distinguished the liberal pool. But it also ignores the fact that politics is just another word for a way of looking at the world, and that a way of looking at our world is something we want to know about any high official whose decisions will change our lives.

The notion that nominees to the Court should not talk about matters of law assumes that what Justice Souter, at his own confirmation hearings, called “the promise of impartiality” is an absolute, and that judges come to us with a tabula rasa. The truth is that judges bring their past, their philosophy, and their political orientation to the bench. Sometimes they make decisions because of them, and sometimes in spite of them. That is their job.

The job of the Judiciary Committee, acting on our behalf, is to find out everything it can about those things, to labor mightily to reveal the mind within the man, for now and for the century ahead.

THE BLANK SLATE
September 14, 1991

Orrin Hatch seemed peevish. The Republican senator from Utah had determined that members of the Judiciary Committee had asked Clarence Thomas twice as many questions about abortion as they had asked David Souter a year ago. “You’d think from listening to what’s going on here that that’s the only issue the Supreme Court has to decide,” he said.

Right on both counts: Judge Thomas has been questioned more closely than Justice Souter on
Roe
v.
Wade
, and there are other important issues before the Court in the terms to come. It was the senator’s affect that was wrong, the way in which he seemed to suggest that the issue of abortion was a pesky fly buzzing around the room, an annoyance that should be either ignored or eliminated.

There are many issues the Supreme Court will take up come October, but none other has thrown an entire American city into turmoil this summer. None other has resulted in demonstrations
and mass arrests in communities across the country. None other addresses the bodily integrity of half our citizenry. None other has become as controversial and as important as this one has. Whether Senator Hatch wants to slap it down or not, it is not going to fade away.

Watching the confirmation hearings of Clarence Thomas has been a sobering, sometimes saddening, occasionally illuminating exercise. A year ago Justice Souter was a cipher trying to take on intellectual flesh. Judge Thomas has been exactly the opposite—an opinionated individual with a rich and contradictory past and paper trail trying to present himself as a blank slate. “Stripped down like a runner,” in his own words.

The controversial writings and pronouncements on affirmative action, natural law, discrimination—most, he suggests now, were misinterpreted, oversimplified, taken out of context. In the weeks leading up to the hearings we heard often of the strong-minded black conservative who disdained quotas and criticized his own sister for dependence on a welfare check. That man has been conspicuously missing, although from time to time behind the oh-so-intense eyes I suspect the Clarence Thomas with flammable opinions is yearning to burst loose. Then I see him sharing a few laughs with Strom Thurmond and think I am imagining things.

Nowhere has the blank slate been more unsatisfactory and unconvincing than it has been on the issue of abortion, which is, for some of us, the issue of our lives. It was not only that Judge Thomas repeatedly said he could not discuss the matter and maintain his impartiality, although he was strangely able to discuss other issues that will likely come before the Court. When he was asked to recount discussions he might have had in law school on the subject, he replied, “I cannot remember personally engaging in those discussions,” and perhaps there were even people who believed him. He also thought for a long time when he was asked whether the fetus has constitutional status as a person. “I cannot think of any cases that have held that,” he finally replied.

Quite the contrary. The operative sentence is: “The word ‘person,’
as used in the 14th Amendment, does not include the unborn.” The case is
Roe
v.
Wade
.

There is occasionally a man at that table who might be capable of addressing this issue with humanity. He is the man who has presented such a problem for liberals in recent weeks, a man who knows from experience what discrimination and disfranchisement are all about. He is the man who said on Thursday that from the window of his courthouse he could look out and see the buses transporting criminal defendants, adding, “I say to myself almost every day, but for the grace of God, there go I.”

I wish I had any confidence that he considered those of us who feel that way when we see a group of desperate women in a clinic waiting room. To watch as one of the most important issues of our times, an issue that intimately affects the lives of millions of women, is reduced to a political fandango in some cynical means-ends construct and a peevish annoyance for a senator who will never have to think twice about who holds jurisdiction over the territory beneath his skin is worse than dispiriting. It’s insulting. A man in robes who is capable of looking at men in handcuffs and seeing himself ought to recognize that.

LISTEN TO US
October 9, 1991

Listen to us.

You will notice there is no “please” in that sentence. It is difficult to be polite, watching the white men of the United States Senate and realizing that their first response when confronted with a serious allegation of sexual harassment against a man nominated to the High Court was to rush to judgment. It is difficult to be polite, knowing they were more concerned about how this looked for them, for their party, their procedures, and their political prospects than in discovering what really happened.

The gender divide has opened and swallowed politeness like a great hungry whale. Why? Why? Why? they asked. Why did Anita Hill, now a tenured law professor at the University of Oklahoma, not bring charges against Clarence Thomas when, she contends, he sexually harassed her a decade ago? Why did she stay on the job although, she says, he insisted on discussing with her the
details of pornographic movies? Why was she hesitant about confiding in the Judiciary Committee?

The women I know have had no difficulty imagining possible answers. Perhaps she thought no one would believe her, he being powerful and she not. If she was indeed humiliated by her boss in the seamy way she describes, regaled with recountings of bestiality and rape when she was fresh out of law school and new to the world of work, perhaps she decided it was best buried in her memory. Perhaps she thought the world would never believe that the man charged with enforcing sexual harassment laws as chairman of the Equal Employment Opportunity Commission would do such a thing.

From time to time I am told of the oppression of the white male, of how the movements to free minorities from prejudice have resulted in bias against the majority. Watching Judge Thomas’s confirmation hearings, I wondered how any sane person could give this credence. The absence on the panel of anyone who could become pregnant accidentally or discover her salary was five thousand dollars a year less than that of her male counterpart meant there was a hole in the consciousness of the committee that empathy, however welcome, could not entirely fill. The need for more women in elective office was vivid every time the cameras panned that line of knotted ties.

“They just don’t get it,” we said, as we’ve said so many times before, about slurs, about condescension, about rape cases.

Judge Thomas has floated on the unassailable raft of his background—impoverished boyhood to Yale Law to public position, a rise that was impossible to diminish. Professor Hill had the same climb, with the added weight of gender. It seems obvious that she has been caught between the damage she feared these charges might do to her hard-won stature and the morality of watching in silence the elevation of a man she believes is capable of harassing women.

One of the most difficult things about bringing sexual harassment charges is that it is usually one woman against the corporate
power structure, against not only the boss who says she’s imagining things but also a bulwark of male authority that surrounds him. Davids against the Goliaths. Anita Hill, poised and dignified, spoke up Monday and found herself aligned against the most powerful men in America, including the president. Who among us would have had the guts to pick up her slingshot?

Listen to us. If the Senate had trivialized the allegations of this woman by moving ahead without painstaking investigation, it would have sent a message: that no matter what we accomplish, we are still seen as oversensitive schoolgirls or duplicitous scorned women. Obviously it would have been better if Professor Hill had stepped forward earlier, content to be reviled and be suspect in the public eye.

But I understand what she feared: that what has happened would happen. That the focus would be not on what Clarence Thomas did to Anita Hill, but on what Anita Hill did to Clarence Thomas, and who leaked it to the press, and why it’s emerging now, and all the peripheral matters that make the central concern, the right to work unmolested, seem diminished and unimportant. The Senate has the opportunity, in the days to come, to prove that this is not a government by men for men. Listen to us. Listen to her. Then decide.

AN AMERICAN TRAGEDY
October 12, 1991

And he was right.

The members of the Senate Judiciary Committee sat in silence yesterday as their chairman led an obviously intelligent and thoughtful female professor of law through the first discussion of genitalia in the history of the Supreme Court confirmation process. The event was by turns seamy, surreal, and stunning, and was carried on all major networks in its entirety. It was the first time I have ever switched off the TV during a Senate hearing because my children had entered the room.