When I say “conflict,” I am speaking narrowly and exactly about conflict between the accounts of Professor Hill and soon-to-be Justice Thomas as to what happened when they worked together at the Education Department and EEOC. That, not the broader question of his professional acceptability as a justice, was what was at issue, and though the question was narrow, its implications were and remain stupendous. On it everything rode, including the broader question of Thomas’s acceptability, since he stood to be demonstrated (by her account) a bully and a perjurer, just as she stood to be demonstrated (by his) both a perjurer and a malicious destroyer of a man’s reputation.
If you believe, as I do, that it was incumbent on the Senate to try to establish the truth or falsity of the charge, then you will probably agree that the way this conflict was handled before the open hearing began was deficient-at best clumsy, perfunctory and incomplete. But the handling afterward, when seeking the truth of the matter had become pivotal to the ultimate judgment on Thomas, was truly grotesque. An absolutely wrong forum and setting were created for achieving what the Senate professed to want to achieve. The thing had the look and the implicit objective of a trial, or at least of an investigation, with practically none of the conditions that make either a trial or an investigation successful in getting at the truth. It was not obliged to come to a conclusion. And, above all, it asked for precisely the kind of trouble it got when the decision was made to have this sort-of hearing / sort-of inquiry conducted in public.
In almost all government matters I tend to favor open over closed, in-the-record over the anonymous source. But this was an exception. It should have been closed, not, as President Bush has suggested, because of the naughty words being aired (does he have cable?), but rather because in the open, on the air and without settled rules or a fixed objective, the hearing was bound to be transformed in character. It was not a setting conducive or even hospitable to inquiry; it became a setting for performance, This was no concerted effort to arrive at a truth. The senators were performing and so were the witnesses-Hill and Thomas and the others. I say “performing,” not necessarily lying or even dissembling, although there must have been plenty of both. And this led to the next disaster.
People tended to judge the participants on the basis of their performance. She seemed sincere-points to Anita Hill. He, a little later, seemed righteously indignant-points to Clarence Thomas … the senators begin to waver, but not on the basis of any new information, only on the basis of appearance and tone and, importantly, the presumptive impact of all this on their viewing constituents. Everyone was on stage and the quality of the performances would determine the outcome and they all knew it. The poll results and the telegrams, as with Oliver North’s original performance, started pouring in. It is no surprise that one of the big arguments in the wake of the proceedings is whether the Thomas people got an unfair advantage in the allotment of prime time.
Into this juridical void, more TV drama than inquiry, we all were free to move with our own principal biases, interests, worries. The senators could hash up the evidence and credit only the parts they liked. We viewers could complain about (or praise) their tone and bearing, as if that disposed of (or redeemed) what these senators had said. And we could judge the proceedings in any framework we wished.
There were two principal ones. From one point of view, Anita Hill stood for all sexually misused women; her very bringing of the charges required that they be credited and prevail; if they were not accepted, it would be a sign that such harassment was not taken seriously and that women who had the courage to come forward would again be misused. Women told stories of dreadful men who had gotten away with dreadful acts against them. All this could only be expiated if this particular man got his due. From the other point of view, no less intensely felt, Thomas stood for all victimized, defamed public people, subjected to an uninspected and unadjudicated charge of the worst sort. Every time his attackers pointed out that protections accorded a defendant in a trial need not prevail in a congressional hearing, some heard an echo of old McCarthy days. If he were to be defeated on this count, given the lack of conclusive supporting evidence or testimony, it would be a travesty of fundamental fairness.
These are not lightly held or casual sentiments. And they were further inflamed by the frustrating inability to bring the conflict to any conclusion or even to impose order and coherence on its unfolding. At a certain point it simply stopped. I believed that given this circumstance, the charge had not been sufficiently proven and that the presumption thus had to stay with Thomas. But I sure didn’t believe we had found out the truth. And I still think we should.
A lot of people are looking for a blurred way out: “Well, probably something happened between them,” they say, " who knows?" Or there is the theory that “two equally fine people” got done in by the awful process. Both solutions are too convenient. Journalists and political people will surely pursue this story. I think some kind of investigators ought to, too. At least one of the witnesses lied. If it is Thomas he should be thrown off the court. If it is Hill she should be unmasked as a fraud. And then there is, in either case, perjury. The fact that we didn’t get an answer to this question in a forum that couldn’t conceivably have produced one doesn’t mean there isn’t an answer or that it can’t be found.
