A case not made

At the time of the Clarence Thomas confirmation hearings in 1991, I was much less conservative than I am today. However, my opinion with respect to Anita Hill’s allegations that Thomas engaged in various acts of inappropriate behavior is the same today as it was then. That’s as it should be, in the absence of new facts. This dispute was purely factual in nature and should be resolved without reference to ideology.
My view then and now is that Hill and the Democrats who placed her on the stage did not make a persuasive case that Thomas did the things Hill accused him of. That’s not the same thing as saying that Hill lied. Only Thomas and Hill know whether she did that. This was truly a case of “he said, she said.” Both sides in the proceedings tried to get beyond that, but at the end of the day, neither side really succeeded as an evidentiary matter. The burden of persuasion was on Hill and the Dems as the accusers, and they failed to meet it.
Thomas’s supporters note that Hill waited ten years to complain (other than, allegedly, to her friends, as discussed below). That’s some evidence that Thomas didn’t do anything that bothered her much. However, Thomas’s autobiography suggests that Hill was an opportunist who wanted to ride his success. Thus, it’s possible that Hill chose not to derail Thomas so he could continue to advance her career. Thomas has a well-earned reputation for generosity towards former subordinate employees and, in fact, was generous to Hill.
Thomas’s supporters also point to the testimony of close associates who say they never saw Thomas behave inappropriately and that they can’t imagine him acting in the way Hill alleges. This evidence too has weight. But as a lawyer who has litigated sexual harassment cases and as an observer of human behavior, I know that people sometimes act “out of character” in this context.
It’s also the case, however, that men who act crudely towards one woman will almost certainly act crudely towards other women (though not necessarily lots of women). The evidence regarding Thomas in this regard was mixed. Once the hearings reached full cry, two women appeared to say that Thomas had behaved crudely towards them. However, both were employees he had fired. There were other attractive employees who worked with Thomas at the EEOC, including one who was universally considered far more attractive than Hill [note-I worked at the EEOC until shortly before Thomas arrived]. None testified that Thomas behaved inappropriately towards them. The woman I just referred to didn’t testify at all.
Hill’s best evidence was the testimony of three friends who said she had complained to them about Thomas at one time or another. As I recall, these alleged complaints had mostly to do with Thomas asking Hill out, rather than making crude remarks. In any case, in order to reach a conclusion in Hill’s favor based on this testimony one would have to conclude (a) that these witnesses were telling the truth (remember, by the time they testified this was a highly politicized power struggle) and (b) that Hill told them the truth. Given the other evidence, it I never seemed to me that this testimony tipped the balance in Hill’s favor.
No allegations of misconduct on Thomas’s part have surfaced since his confirmation. Indeed, on a personal level one hears nothing but good things about him. However, it’s clear from his autobiography that Thomas was in “a different place” emotionally in the early 1980s than he is today, and not just because he wasn’t married then. Thus, while it’s tempting to do so, one can’t really reach any conclusions about the early 1980s based on the period since 1991.
The conclusions I reach are (1) hoping to prevent Thomas’s confirmation, the Democrats did everything in their power, and more than was proper, to bring forth charges they hoped would destroy him, (2) the Democrats failed to prove their case, and (3) the Supreme Court and the nation are better off because they failed.
JOHN adds: As usual, your approach is more cerebral than mine. At the time, my reaction to Hill’s testimony, based in part on my many years of courtroom experience, was that she was lying.
UPDATE: Ed Morrissey has been reading transcripts of the Thomas hearing. He takes a trip down memory lane, and reminds us of the smears that the Democrats on the Judiciary Committee directed not only at Clarence Thomas, but also at John Doggett, who testified on his behalf. The detestable Howard Metzenbaum violated any sense of fairness or due process in his effort to discredit Doggett, who didn’t take it lying down. One can only wonder, too, whether the Democrats’ use of the same unfounded but stereotypical smears against both Thomas and Doggett was evidence of racism on their part. Ed’s post is worth reading.
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