The American Spectator

Special Report

In the summer of 1991, Senate Democrats had a real problem on their hands. Justice Thurgood Marshall announced his retirement from the Supreme Court; President George H.W. Bush nominated a fairly green D.C. appellate judge named Clarence Thomas to fill the vacancy. The Thomas nomination would be almost impossible to scuttle, for two reasons.

First, for positions in the Department of Education and the Equal Employment Opportunity Commission and the judgeship on the appeals court, Thomas had gone through several rounds of investigation and confirmation. Most of the senators who wanted to oppose him had voted for him in the past.

Second, opposing him would violate deeply held dogmas about diversity that Democrats were reluctant to challenge. Marshall had been the first black Supreme Court justice. His seat was seen as the designated black seat on the Court. Bush honored that understanding while issuing a public declaration that his nominee was, of course, the best candidate for the job.

Thomas represented a departure from business as usual that Senator Ted Kennedy and company badly wanted to avoid. Marshall was an old lion of liberalism. He had been the lawyer who successfully argued the school desegregation case Brown v. Board of Education and was a reliable progressive vote on a whole number of issues. Thomas, a beneficiary of affirmative action in college admissions, believed that quotas had led would-be employers to undervalue almost to the point of worthlessness his law degree from Yale.

As the head of the EEOC, Thomas cleaned up a broken bureaucracy and focused the agency on dealing with cases where actual, demonstrable discrimination had taken place -- rather than hunting for statistical anomalies in the hiring practices of American firms. Also, people suspected he was secretly pro-life.

Several senators tried to trip Thomas up. They asked him, for instance, nearly 100 times how he would rule on abortion cases. When that failed to topple him, and when the usual opposition groups proved unable to generate much excitement, someone decided to fight dirty. Word was leaked to the press about a witness who had testified before the Senate, in secret, against Thomas.

Her name was Anita Hill, as the nation would soon learn when she agreed to testify openly. She had served under Thomas at both the DOE and the EEOC, and he recommended her for a job. According to Hill (who was also black), at both the DOE and the EEOC, Thomas sexually harassed her. He asked her out several times. He had conversations about sex with her that were "very vivid," including describing his own sexual prowess and once asking her who had put a "pubic hair" on his can of Coke.

There were good reasons to suspect that Hill was lying. She had followed her alleged sexual harasser from one job to the next and talked with him on the phone after. The person she described was very different from the one that a handful of Thomas's female employees and colleagues vouched for under oath. Hill's main corroborating witness, Susan Hoerchner, proved unreliable. Moreover, in any highly-charged political hearing, the witness's biases matter, so it's worth pointing out that Hill was both pro-affirmative action and pro-choice.

Hill would have given Senators who wanted to vote against Thomas an excuse, except that Clarence Thomas shamed them. He called the hearings a "circus" and a "national disgrace."

"It is a high-tech lynching for uppity blacks who in any way deign to think for themselves and it is a message that unless you kowtow to an old order you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree," Thomas testified. It was enough to convince the senators to knock it off and confirm him.

In a recent interview on 60 Minutes that coincided with the release of Thomas's engaging autobiography My Grandfather's Son, reporter Steve Kroft asked him why he used "that language"? Wasn't "high-tech lynching" a bit much?

"If someone just wantonly tries to destroy you, if somebody comes in and drags you out of your house and beats the hell out of you. What is it?" Thomas replied.

Thomas already has articulated his own answer to that question and if the early responses are any indication, the usual players are taking up their old shopworn roles. The New York Times published an op-ed by Anita Hill insisting that she still stands by her shaky testimony and that "we have made progress since 1991." In the Washington Post, stereotypically liberal African-American columnist Eugene Robinson argued that "One of the more cogent [arguments against affirmative action] is the presence of Justice Clarence Thomas on the U.S. Supreme Court."

The latter comment is a pitch-perfect representation of one rarely-spoken legacy of the Thomas hearings. Diversity is still the cherished ideal. Sure. But, if the nominee is a conservative Republican? Well, then all of sudden we're a colorblind society.

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