Pres. George H. W. Bush nominated Clarence Thomas to the Supreme Court on July 1, 1991. Four days later, the National Organization for Women (NOW) declared war.
“We’re going to bork him,” vowed member Flo Kennedy. “We need to kill him politically.”
To “bork,” according to William Safire’s Political Dictionary, is “to viciously attack a presidential nominee, blackening his name in an all-out effort to defeat his confirmation by the Senate.” The verb stems from the name of Pres. Ronald Reagan’s ill-fated nominee Robert Bork, whose confirmation the Senate rejected, 42–58, in 1987.
By 1991, Republican presidents had appointed the last nine members of the Court (though not every nominee had proven to be conservative). Roe v. Wade had been on the books for 18 years, but its supporters were worried. Here was a black Republican — to fill the seat that Thurgood Marshall had held for 24 years, no less. And the Democrat-controlled Senate was poised to confirm him.
“We will not sit quietly by while the Democratic Senate acquiesces to this court-packing strategy,” promised Patricia Ireland, vice president of NOW.
They were anything but quiet. NOW waged a national campaign to defeat Thomas. The National Education Association joined the cause, passing a resolution expressing “grave concern” over Thomas’s position on “reproductive freedom.”
By any means, Thomas was qualified. He was a graduate of Yale Law School who had spent eight years as chairman of the Equal Employment Opportunity Commission and one year as a judge on the D.C. Circuit Court of Appeals. But perhaps his most beneficial experience was a stint as an aide to Sen. Jack Danforth (Mo.), a moderate Republican whom the Bush administration asked to shepherd his nomination through the Senate. Before the Judiciary Committee held hearings, Danforth accompanied Thomas on over 60 visits with senators.
The chairman of the Judiciary Committee, Sen. Joe Biden (D., Del.), assisted the feminists’ assault on Thomas. The Senate had confirmed the 43-year-old judge for other positions, so there was no need for a thorough investigation. Yet Biden delayed the hearings until late September.
“It was an intentional delay,” remembers former senator Hank Brown, (R., Colo.). “It was designed to accommodate the people who went after him.”
In the first round of questioning, the Democrats tried to pin down Thomas’s judicial philosophy — that is, they tried to get him to talk about Roe v. Wade. They were skeptical when he told them he had never discussed the infamous case. But in his memoir, Thomas explains, “In law school I’d been a self-styled ‘lazy libertarian’ who saw abortion as a purely personal matter. . . . Roe was handed down after I studied constitutional law.”
Mostly splitting along party lines, the committee defeated a motion to recommend his confirmation, but Thomas survived. (Only one Democrat, Dennis DeConcini of Arizona, voted in Thomas’s favor.) On Sept. 27, 1991, the committee voted to send his nomination to the floor without a recommendation. The Senate scheduled a vote on Thomas’s nomination for October 8, and Danforth believed Thomas would get about 67 votes.
Then he got a phone call from Sen. Orrin Hatch (R., Utah).
It was the night of October 5, and Danforth was watching a movie at home with his wife. When he picked up the phone, Hatch was on the line. He told Danforth that National Public Radio was running a story the next morning about a former assistant to Thomas named Anita Hill, who had alleged he had sexually harassed her.
“Oh, Orrin,” Danforth replied. “No one’s going to believe that.”
Hatch was less sanguine. “This is going to be tough,” he said.
Initially, Hill didn’t want to testify before Congress. The FBI had promised her anonymity, and the bureau had briefed the ranking members of the Judiciary Committee on her allegations.
“Biden had already signed off on the FBI report as not cause for any delay in the proceedings,” says Boyden Gray, then counsel to the president. Hill’s allegations didn’t add up: The FBI determined that “what she was complaining about had occurred — based on her own timeline — two or three months before she had ever met Thomas.” Nonetheless, “once it was leaked to the public, it started the whole thing all over again.”
Hatch tells National Review Online he knows who leaked the report to the media. It was an “extremely liberal staff member for one of the members of the committee” who wanted to destroy Thomas’s chances for getting on to the Court.
That staffer was almost successful. After the story broke, Danforth went to console Thomas. “He was awful,” Danforth says. “Just dissolved in tears. Everything that he was as a person had been sullied.”
Feminist groups demanded that Democrats reopen the hearings, and Biden complied. What followed was a circus: days of testimony in which Hill enumerated Thomas’s supposed sexual transgressions and senators, awkwardly, asked Thomas to discuss them.
To this day, Danforth recoils at the hatred that the feminist groups felt toward Thomas. “It was unacceptable to put a black man who was pro-life on the Court. They couldn’t tolerate it, so they had to defeat him.”
And Hill’s allegations made their goal easier. “He was supposed to be a stand-in for every man who had been cruel to women,” Danforth says.
But the dignity with which Thomas handled himself reaffirmed the Republican caucus’s confidence in him.
“He was miraculous in how he handled it,” says Sen. Chuck Grassley (R., Iowa), who sat on the committee. “He handled it in a way that looked responsible.”
Hatch, a friend of Thomas, wasn’t surprised. “I believed Clarence Thomas,” Hatch says. “He is a very honest man.”
And Hatch knew Thomas could defend himself. When Sen. Ted Kennedy and he were once interrogating Thomas at a hearing on the EEOC, Thomas grew so irritated with Kennedy that he slammed his fist on a table and said, “Senator, I was born in poverty. I was raised by my grandparents. It was a tough time, but they taught me values. And in our living room were pictures of three people: Jesus Christ, Martin Luther King, and John F. Kennedy. Senator, I think if President Kennedy is watching these proceedings now, he can’t very well be pleased.”
“I wanted the same Clarence Thomas,” Hatch says.
And he got him. On October 11, Thomas told the senators precisely how he felt about the hearings:
This is a circus. It’s a national disgrace.
And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.
“I knew at that point we were not going to lose this battle,” Hatch says. Other White House staffers agreed with him. When doubts about Hill’s veracity started mounting, Biden closed the hearings. Even the news media backed off.
“I knew things were getting better once our position in the evening news wasn’t position one, wasn’t position two — maybe we were even after the commercial break,” says Fred McClure, then chief of the Office of Legislative Affairs.
“I think the senators were collectively ashamed of what happened in the Thomas hearings,” says Dick Thornburgh, Bush’s attorney general.
On Oct. 15, 1991, the Senate confirmed Thomas by the razor-thin margin of 52–48. The vote needn’t have been so close. “At least two of the top members on the Judiciary Committee told me they believed Thomas, but that they were going to vote against him. I was very disappointed,” Hatch says. In addition to those two, he avers, “Senator Kennedy knew Thomas was innocent. I believe he knew it.”
Now, Thomas has been on the court for 20 years, and during that time, he has been the strongest practitioner of originalism — sometimes writing a lone dissenting opinion to cite this conservative judicial philosophy.
The men who helped him through the confirmation hearings appreciate his jurisprudence. “I think he’s writing some of the best opinions on the Court right now,” Hatch says.
“I hope he stays on there till he’s 95 years old,” Grassley adds.
And despite the trouble it took to put Clarence Thomas on the Supreme Court, Bush’s former chief of staff, John Sununu, has no regrets: “Clarence Thomas has been such a great Supreme Court justice; it was worth all the battle we had to go through.”
— Brian Bolduc is a reporter for National Review Online.