Lessons of the Thomas Affair

...Ordinarily, such a process should not last more than a week...

...we pretend to agree on our norms, and to disagree only about facts—but "factual" disputes become increasingly recalcitrant, and genuine normative transformation becomes unthinkable because there are ostensibly no norms in dispute...

...The problem transcends the confirmation process, though...

...The ABA cannot really help the Senate successfully evade its long-term political responsibility...

...In the absence of an unambiguous, stable national consensus to move the country sharply to the Right, the Court, a significant political power organ, simply should not be moved sharply to the Right, and it is the Senate's job to ensure against this occurring...

...The manipulability and the sheer dishonesty of our public discourse are genuinely depressing: If round two of the Thomas hearings left any unambivalently committed (small "d") democrats in their wake, it is powerful evidence that true faith flourishes in the face of the gloomiest signs...

...But from my perspective she would be no less violated for having remained self-possessed enough to make the most she could of her life after the indignities she suffered...

...Being an African-American among this group of Supreme Court justices could easily provoke new rage, and in his adult life Thomas has certainly embraced a far wider range of ideologies than Justices Anthony M. Kennedy or David H. Souter...

...the Court already has more than enough representatives of the Republican Party's Right wing...

...I have my own answers to these questions (none of which would have helped Thomas), but I think each could be profitably debated...

...In this sense, his history of political instability should be considered a real plus by those of us worried about his current ideology...

...Supreme Court justices may be important, in the sense that they cast votes on important issues, but they are not going to rearticulate or reformulate our norms, no matter how clever they are...

...Or perhaps people able to attain public office start out, or become, incapable of thinking a subtle thought...

...Simpson presumably believes this because he doubts that she was badly hurt anyway...

...They spared no opportunity to act as if anyone who might have done the things Hill said Thomas did belonged in a mental institution, or to suggest that Hill should certainly have broken down completely in the face of such conduct...

...Mark Kelman, a new contributor to the NL, is a Professor of Law at Stanford...

...But it was a victory achieved at considerable cost...

...In a sense, that the Republicans adopted this approach might be seen as a "victory" for the women's movement...

...No one, after all, was willing to say that a sexual harasser should be allowed to serve on the Court...

...Some (not President Bush) have urged that we make the judicial appointments process more "neutral...

...If you feel I'm being unduly cavalier in dismissing Thomas' "side of the story," ask yourself the following: If you knew something terrible would befall you or a loved one should you guess wrong as to whether Thomas asked Hill out or spoke to her of pornographic movies, and you further knew the right answer would soon be revealed without doubt because tapes were found to exist, regardless of whether you interpret such approaches as wrongful or harmful to Hill, would you endorse her version of thestory or his...

...My guess is that he deals with all the ambivalence and anger he so obviously feels by imagining the world a simple place, best ordered by the sort of mechanical rules Justice Antonin Scalia perennially urges the Court to adopt...

...A persistent shift in voter ideology can ultimately affect the Court, as successive Presidents with similar ideologies make appointments...

...The forthright contention that Hill joined Thomas at the EEOC at least in part because she was ambitious, and he was the best rising star she could latch her career on to, would have been greeted with derision...

...The reason for this is simple: The Senate, since the New Deal, has generally refused to ding nominees on the grounds that they are politically unacceptable (Robert H. Bork was the great exception), so opposition must always be couched in terms of "corruption" (Douglas H. Ginsburg) or incompetence (George Harrold Carswell...

...It is not altogether clear why, but since the New Deal the Senate also has abandoned the stance that it is entitled to play a coequal role with the Executive branch in the choosing of justices, though the position makes eminent sense (whether one seeks sense in constitutional text, tradition, or policy...

...Still, there is always the chance that Thomas' next explosion will change him...

...Only when the President has presented someone ideologically tolerable to the Senate ought it even to bother exploring whether he is otherwise qualified (morally, intellectually, in terms of relevant job experience...

...That the Supreme Court tends to be seen as a relatively apolitical body is not a consequence of legal reasoning being more temperate, or interpretive, or nonideological than legislative reasoning...

...He may well fill it competently, and he could even prove something of a political wild card...

...Indeed, the process itself seems to have no fans, and that is hardly surprising...

...We were told by her supporters as well that she went along with him because she was otherwise unemployable (it's not a real choice when your option is to starve in the street), or because victims of harassment are psychologically disabled and can't take care of themselves Oust as people with colds can't help sneezing...

...Thus they set out toconvince themselves of (or at least uttered) quite preposterous propositions about Hill—precisely the sort of propositions that make it so painful to raise sexual harassment issues...

...Unless he was able to convince the Senate in a hurry that his record was solely a result of opportunistic job-seeking in the Reagan era, it should have tossed his nomination back to President George Bush with the unmistakable message that it was not waiting for a better version of the same fish...

...I see no signs that the Senate, particularly the televised Senate, is willing to do so, with the result that our public discourse is entirely ad hominem...

...It should not be forgotten either that Hill, who struck me as completely honest in her presentation of the basic events, felt pressured to use some disturbing rhetorical devices to purify her victim status...

...First, Senators (and public poll respondents) could no longer maintain that their response was "so what...

...Thirty years ago, the great New Deal activist and Legal Realist academic Thurman Arnold incisively critiqued the prevailing mainstream lawyers' wisdom as embodied in the work of Henry Hart, Harvard's foremost Legal Process guru of the time...

...But making the argument that judicial legitimacy (much less wisdom) turns in significant part on analytical sharpness or stylish craftsmanship is far more difficult than those quick to condemn Thomas' intellectual mediocrity imply...

...If you deed a private group the power to make important political decisions, and ask them to exercise it apolitically, you are asking for a level of self-control that should not be ascribed to mere lawyers...

...This might ensure technical proficiency and "law school smarts," yet it would not actually deal with the issue of the President's political free rein...

...Yet a radical shift should occur only when the "new ideology" is sufficiently entrenched to result in the election of both a string of like-minded Chief Executives and a series of cooperative Senates...

...I am sure that people differ, too, about whether and to what degree it should matter if an individual is aware of the "newer" norms—as one would expect the head of the EEOC to be...

...Second, when sexism (like racism) goes underground, it gains considerable immunity...

...Hart had denounced, with great angst, the Warren Court's failure to deliberate with adequately furrowed brows...

...The confusion since is the worst of many disgraces...

...But if the Senators made it clear that only moderates are acceptable, then a prepackaged list might well allow everyone to bask in the glow of seeming statesmanship...

...From Thomas' public record there could be no doubt that he is quite far to the Right...

...It is clear to me that in these circumstances Hill simply had to describe herself as having no choice but to follow Thomas from the Department of Education to the Equal Employment Opportunity Commission (EEOQ...

...Rather, given the justices' lifetime tenure, the composition of the Court tends to reflect a balance of the ideological beliefs held over several different administrations...

...The American Bar Associaion (ABA), for example, could draw up a list of several dozen "highly qualified" people and the President would (to quote Ricky Ricardo) have some explaining to do if he ignored it...

...Hart now appears to have been the false prophet of gloom, a snooty eccentric...

...For instance, I suspect there are genuine disputes about how harmful verbal sexual abuse is compared to other forms of wrongful behavior...

...In our political culture we seem incapable of accepting the commonsensical idea that people can be wrongly treated without being turned into wholly passive objects, acting without selfcontrol or agency...

...The strategy of the Senate Judiciary Committee's Republican members the second time around was to refuse to enunciate any of their real convictions...

...or, alternatively, he believes Thomas should be excused because he apparently did this kind of thing just once during a personally stressful period in his life...

...They got it right when they turned Bork down...

...What Senator Alan K. Simpson (R.-Wyo...

...He should have borne a much heavier burden of proof that he is not another William H. Rehnquist, Scalia or Bork...

...could feel but not say, I suppose, was that even if Thomas had spoken the words Hill says he spoke, he was qualified to serve...

...Nevertheless, we'restuckwith Thomas no w, and we're stuck as well with sorting through innumerable, totally incommensurable postmortems on the "process" of selecting Supreme Court Justices...

...The case for demanding something like great test scores of our justices depends largely, I think, on believing that much of the Supreme Court's work is both ideologically inconsequential and technically difficult to master...

...The reality, of course, is that Americans have remained schizophrenic in their Rightward drift: Despite their registering some generally conservative symbolic sentiments in Presidential elections, they persist in electing a Congress that will not tolerate many of the positions the more conservative justices might push (particularly with regard to abortion, the overturning of economic regulation and, to a lesser degree, cutting back certain forms of civil rights activism, like voluntary affirmative action in the private sphere...

...Similarly, I am sure people have conflicting views about whether the pervasiveness of such abuse negates its relevance in assessing a man's qualifications for a post, and to what extent it is reasonable to hold a "transitional" generation of job-seekers to standards that the incumbents were not held to...

...Perhaps the failure to engage in meaningful controversy is merely the sound byte / headline problem once again: Not even Senator Orrin G. Hatch (R.-Utah) could cope with a headline reading, "Hatch Defends Harassers' Rights to Serve on Court"—and anything he might say that could be interpreted that way would be interpreted that way...

...if anything, it is only marginally more plausible that serious ideas would be expressed during this process because so many outsiders attempt to get involved...

...However, on the politically explosive "big issues" that rightly preoccupy the public generally (like affirmative action, abortion), all of the socially available arguments have long since been constructed...

...Unable to articulate their views publicly, the Republican committee members chose to treat the harassment charge as a pure credibility battle...

...I find it far more troubling that Thomas sexually harassed Anita F. Hill, especially while running a government agency formally committed to combating such harassment in the workplace, and chilling that he chose to lie about it in the way that he did...

...It is bothersome that Thomas is either incapable of handling or simply uninterested in exploring difficult issues with the least bit of intellectual subtlety: A person who believes that women may not in fact receive equal pay for identical work even in competitive markets, yet at the same time finds advocacy of "comparable worth" utterly daffy and incomprehensible, is not someone I would want teaching the young...

...For while it strikes me that the matter of Thomas harassing Hill does in fact go to his fitness to serve on the Court, it is undeniable that conservatives are right in saying "liberal interest groups" scoured the country looking for scandal...

...The battles at the ABA are likely to be less about competency than about whether "enough" of the sorts of ideologues the President would like to pick from have been included on the list...

...Significantly, no participant in the second round of the hearings raised any questions about its premises...

...We perhaps expect defendants and quasi-defendants to protest their innocence, but it does not bespeak much in the way of judicial temperament, or fitness for ordinary human company for that matter, to feign outrage or to invoke images of lynching when one knows that everything one's accuser has said is fundamentally true...

...Clarence Thomas waffled throughout round one of his Senate confirmation hearings in a fashion that was demeaning, painfully dull, and illustrative of just how vacuous these sessions can be if a candidate works hard enough to make them that way...

...And the situation seems to be particularly tempting to the Democrats, who, after Watergate, gave up the pretense to vision for the brief highs of watching their opponents suffer disgrace...