The Clarence Thomas Exception

Anita Hill’s accusations against the Supreme Court nominee launched the first #MeToo moment 26 years ago, but the justice has faced little renewed scrutiny amid the current reconsideration of sexual harassment.

Anita Hill testifies to the Senate Judiciary Committee.
Anita Hill testifies to the Senate Judiciary Committee. (Greg Gibson / AP)

Updated on December 20 at 3 p.m.

Before Alex Kozinski, before Harvey Weinstein, before Bill Clinton, there was Clarence Thomas.

The 1991 hearings for Thomas’s confirmation to the Supreme Court became the first major moment of national attention on sexual harassment in the workplace, after allegations of past harassment lodged by Anita Hill, a former colleague, were leaked to the press. Thomas was ultimately confirmed, narrowly, but it’s difficult to imagine his nomination surviving the same accusations today. As allegations of harassment and abuse bring down powerful men in media, entertainment, and politics, Thomas has also been curiously immune to fresh scrutiny, despite the multiple, detailed accusations against him.

Thomas has always denied any misconduct and has remained silent recently, though that’s hardly unusual for him. His case is part of a peculiar pattern in which men publicly accused of misconduct before the Weinstein allegations seem inoculated against the current backlash. Thomas, unlike some of the men forced from their positions, also enjoys lifetime tenure. But the abrupt resignation Monday of Kozinski, a prominent judge on the Ninth Circuit Court of Appeals who was accused of harassment, shows that lifetime appointments do not render their holders invincible.

Meanwhile, Thomas’s story keeps intersecting in peculiar ways with the current news cycle. Joe Biden, who led the Senate Judiciary Committee when Thomas was confirmed and seems interested in a third attempt at the presidency in 2020, has been harshly criticized for his handling of the case and has apologized publicly to Hill. Hill herself has been named the head of a post-Weinstein Hollywood anti-harassment push. Ginni Thomas, the justice’s wife, this month bestowed an award for “defense of liberty” on James O’Keefe, the conservative provocateur whose organization was recently caught trying to hoax The Washington Post with fake sexual-harassment allegations.

Hill’s accusations emerged during confirmation hearings for Thomas, who was nominated by President George H.W. Bush, and who seemed to be headed for easy confirmation as the second black justice in Supreme Court history. The Senate Judiciary Committee had completed its work when reports of Hill’s allegations against Thomas emerged. Hill, like Thomas, was an African American graduate of Yale Law School. She first worked for Thomas, eight years her senior, at the Department of Education’s Office of Civil Rights and then at the Equal Employment Opportunity Commission.

She said Thomas had repeatedly asked her out, but she turned him down. He discussed sexual topics, she said, including “acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts.” She said he’d discussed his own “sexual prowess” and, in the most enduring and bizarre image from the hearings, had once walked up to his desk and then asked her, “Who put pubic hair on my Coke?”

The allegations were awful—Ted Koppel called them “grotesquely riveting”—but they were also challenging for anyone watching or listening, as many Americans did. (Long before the golden age of cable news, many outlets carried the hearings live.) For viewers at home, it looked like a typical he-said, she-said sexual-harassment case, in which it was nearly impossible to determine who was in the right. Believing Hill required believing that a federal judge on the verge of Supreme Court confirmation would perjure himself; believing Thomas required believing that Hill would have fabricated vivid allegations out of whole cloth.

This appearance of irresolvable conflict was neither wholly accurate nor accidental. Four friends of Hill’s testified that she had told them about the harassment at the time, lending more credibility to the claims. Three other women were willing to testify about being harassed by Thomas, too. But Biden chose not to allow one of them, Angela Wright, to testify publicly, instead releasing a transcript of a phone interview with her. Strange Justice, a 1994 book by reporters Jill Abramson and Jane Mayer, concluded the Judiciary Committee had failed to follow up leads on allegations against Thomas and had conducted only a cursory investigation. Whether such testimony would have been adequate to convict Thomas in a court of law is unclear, but perhaps also beside the point. It was as strong or stronger than the evidence that has toppled several members of Congress, including Senator Al Franken.

When apprised of Hill’s accusations, Senator Howard Metzenbaum, the Ohio Democrat, said, “If that’s sexual harassment, half the senators on Capitol Hill could be accused.” With 26 years of perspective, new data on congressional settlements, and testimony from women in politics, it seems Metzenbaum was right, though not for the reasons he believed.

Thomas denounced the proceedings as a “high-tech lynching for uppity blacks,” but Hill came out at least as badly bruised as him, with Republican senators among her assailants. Senator Orrin Hatch called her the tool of “slick lawyers.” Senator Arlen Specter flatly called her a perjurer. Senator Alan Simpson said, “I really am getting stuff over the transom about Professor Hill. I’ve got letters hanging out of my pocket. I’ve got faxes. I’ve got statements from Tulsa saying: Watch out for this woman.” Other observers questioned why Hill had continued to work for Thomas and moved to the EEOC with him despite her allegations.

In tone and in content—questioning Hill’s motives, and casting doubt on her career moves—these attacks echo those lodged against women who have accused men like Weinstein and former Fox News CEO Roger Ailes. These defenses have not worked as well recently. There is a more of a default to believe accusers, in part because so many accusations have proven true. The dilemma faced by an underling who depends on a powerful boss’s mentorship while also hating his harassment is better understood. While attacks on women who make public accusations have not disappeared by any measure, they are more likely to earn a rebuke today.

Thomas’s confirmation and the attacks on Hill did produce a quick political backlash. With new visibility, sexual-harassment complaints to the EEOC—ironically, Hill’s and Thomas’s former employer—spiked. The following year, a large crop of women ran for Congress, inspired in part by the specter of aging white men grilling Hill, and four were elected to the Senate.

Hill went on to a successful career as a law professor. Thomas, of course, was ensconced on the court, where he has become an important and reliable vote for the conservative bloc. There have been almost no new allegations against him since his confirmation, but it’s tough to know who would report new allegations. In 2016, a woman accused Thomas of groping her at a dinner party in 1999. Friends of the woman, Moira Smith, recalled her telling them of it at the time. Thomas denied that accusation as well, calling it “preposterous.”

Thomas’s current workplace is very different from EEOC. Supreme Court justices hire a crop of law clerks every year, and clerks on every level, though especially the Supreme Court, are tight-lipped about what happens in chambers. Heidi Bond, who accused Kozinski of harassment, wrote that the judge’s strict conception of omertà held her back from speaking about his behavior. “I’d assumed that what he said about judicial confidentiality was correct, that I had no choice but to hold onto my silence,” she wrote.

In the post-Weinstein moment, Biden’s handling of the Thomas hearing has exposed him to renewed criticism. The former vice president appears to be testing the waters for a 2020 race in the wide-open Democratic presidential field, and his approach in 1991 is once again an issue for him. A group of current and former Democratic lawmakers spoke to The Washington Post and said Biden had been part of the problem. Biden told Teen Vogue in December that he believed Hill and was saddened by the hearings.

“My one regret is that I wasn’t able to tone down the attacks on her by some of my Republican friends,” he said. “I mean, they really went after her. As much as I tried to intervene, I did not have the power to gavel them out of order. I tried to be like a judge and only allow a question that would be relevant to ask.”

There are straightforward reasons this would be a bigger problem for Biden than Thomas. Biden would be seeking elected office, whereas Thomas is already confirmed; Biden would also have to face a Democratic primary electorate, which polling shows is more concerned about sexual harassment than other voting group. Yet there’s an obvious disproportionality, too: Biden’s handling of the confirmation hearing is one thing, but it pales in comparison with what Hill alleged about Thomas.

Supreme Court justices operate largely as they wish. They can be impeached, but that hasn’t happened since Samuel Chase in 1805, and he was acquitted by the Senate. Even the notoriously caddish William O. Douglas got away with his skirt-chasing, though he was twice threatened with impeachment for other reasons. Progressives have on occasion demanded that Thomas recuse himself for conflicts of interest related to his wife’s political activism; those demands have been met with Thomas’s typical taciturnity. There have been fringe efforts to push for Thomas’s impeachment, but they’ve never gone anywhere. So far, Thomas has escaped serious new scrutiny on the Hill allegations, as well as those of the other women who were prepared to testify against him.

In a baffling October 2010 incident, Thomas’s wife left Hill a voicemail asking her to apologize for her accusations in 1991.

“Good morning Anita Hill, it’s Ginni Thomas,” she said. “I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband. So give it some thought. And certainly pray about this and hope that one day you will help us understand why you did what you did. OK, have a good day.”

Hill was astonished. “I appreciate that no offense was intended, but she can’t ask for an apology without suggesting that I did something wrong, and that is offensive,” she told The New York Times.

Ginni Thomas explained that she had called Hill “in hopes that we could ultimately get past what happened so long ago.” It’s understandable that she would feel upset about accusations against her husband, if a little less understandable that she would call Hill. The memories of the hearings must have remained very real and recent for the Thomases and for Hill. But there isn’t yet any indication that the public at large will revisit the episode.