Law & the Courts

This Day in Liberal Judicial Activism—February 22

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

Law & the Courts

More on USCCB Amicus Brief in Public-Sector Union Dues Case

((Yuri Gripas/Reuters))

Two weeks ago, I criticized the USCCB’s amicus brief in Janus v. AFSCME on three grounds: First, it does not actually make a legal argument but instead is nothing more than special pleading on behalf of the supposed position of “so many bishops.” Second, it does not remotely support its claim that the American bishops have “widely held” the position that right-to-work laws in the public sector are unjust to government workers. Third, it invites the dangerous misperception that the bishops consider right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do.

Last week, I highlighted Bishop Thomas John Paprocki’s forceful repudiation of the USCCB brief, and I separately responded to a critique of my post by the National Catholic Reporter’s Michael Sean Winters. Without engaging my responses, Winters has launched another critique in which he contends that I “seem[] to mistake both Catholic social doctrine and the facts of the case.” Alas, his critique is rife with errors from top to bottom.

In fairness to Winters, let me note at the outset that the two posts of mine that I link to in the preceding paragraph temporarily disappeared during NRO’s transition to a new blogging platform. So even though I had tweeted my responses to him when I first posted them, I can understand that he didn’t have them at hand when he wrote his latest and thus wasn’t in much of a position to engage my arguments. That said, I find it very odd that he didn’t contact me directly to obtain the posts. Instead, he “called over to National Review and asked why the post was taken down, but no one called me back”—and then he went ahead and wrote a critique that he knew did not engage the responses I had already made.

I’ll highlight here six large errors in Winters’s critique:

1. Contending that “Whelan seems unclear about the facts in this case,” Winters asserts that the agency fee that Mark Janus is required to pay to his public-sector union “represents his share of the costs of negotiating a contract and enforcing it, nothing more or less.” Winters seems to imagine that I think that Janus is complaining only about the political donations that his union makes. (Never mind that he doesn’t even try to quote a passage of mine that reflects such a misconception.) He further contends that the fungibility of money isn’t an issue in this case because Janus’s fee is just his share of the total amount that his union spends on “representation of the workers” and does not include the costs of the union’s political activities.

Winters is flat wrong on the fungibility point. Evidently he doesn’t realize that the union’s total expenditures on representation of employees include allocated amounts of the union’s joint and common costs of all of its operations. (See Note 3 at the end of this SEIU notice for an illustration: chargeable expenses “are allocated … based on … the allocation of personnel costs which have been determined through a time study.”) In other words, the costs of various union employees are divided between their chargeable representation work and their non-chargeable political work. Janus is thus paying part of the salaries of various union employees who engage in political activities. If he weren’t, the union would have to come up with other funds to pay their salaries. In sum, money is fungible, and Janus is being forced to subsidize political activities he objects to. (USCCB’s brief thus undercuts its fungibility argument against funding of Planned Parenthood.)

More broadly, Winters’s fairy-tale account of how the agency fee is determined ignores that the union has broad leeway to classify contestable expenditures as representational and that it is nearly impossible for an employee to obtain effective review of the union’s classifications. As the amicus brief submitted by the Competitive Enterprise Institute documents, Janus has been compelled to “associate with and subsidize political and ideological advocacy on a host of topics, many of them quite surprising” to those unfamiliar with union ways:

The labor union at issue in this case, an affiliate of the American Federation of State, County and Municipal Employees (“AFSCME”), has in the past year used agency fees to pay for advocacy on such issues as: right-to-work statutes, infrastructure spending, government privatization and contracting, the minimum wage, voter-identification laws, tax policy, immigration reform and enforcement, gun control, D.C. statehood, marijuana legalization, “racial justice,” and Supreme Court nominations, among many others. It has spent agency fees to conduct an “AFSCME FOR HILLARY” rally at its annual convention, to instruct members on political organizing and voter registration, and to organize and carry out a “direct action” against a hotel affiliated with then-candidate Donald Trump. [CEI brief at pp. 2-3; see also more extensive details and citations at pp. 5-10.]

Does Winters really not understand this everyday reality?

Winters’s fairy tale also ignores Janus’s broader argument that for public-sector unions the line between bargaining and political speech is an imaginary one.

2. Winters repeats his charge that I improperly failed to treat statements of staff bureaucrats as the positions of American bishops. I’ll restate my response: I recognize that the bishops have (unwisely, in my judgment) often delegated to unsupervised or poorly supervised staffers the authority to speak on their behalf. But I don’t accept the often highly implausible fiction that statements made by those staffers in fact reflect the considered positions of the bishops. Bishop Paprocki’s statement shows that I am right to reject this fiction.

3. Winters contends that the USCCB didn’t “run amok” on the brief and that its processes were the usual ones. If so, that might simply mean that the USCCB bureaucracy has institutionalized bad practices. Winters even goes so far as to complain that “Paprocki wants to do what Janus wants to do, overturn a group decision he did not like.” Well, insofar as the USCCB bureaucracy is purporting to present the supposed position of the bishops, it’s entirely legitimate for Bishop Paprocki to disassociate himself from a position that he rejects and to exercise his own teaching authority.

4. Winters invokes an op-ed by Bishop David Zubik of the Diocese of Pittsburgh in which Bishop Zubik asserts (in a passage that Winters endorses) that “if the Supreme Court rules that union political advocacy violates the free speech rights of someone who has agreed to do a union job, that ruling will threaten any organization that takes a stand on any issue.” Bishop Zubik somehow imagines that a ruling would threaten the ability of a Catholic institution to insist that its employees be faithful to Catholic teaching. But Zubik’s claim is a massive non sequitur, an empty assertion. The proposition that government employees have First Amendment rights not to have their employment conditioned on supporting speech they object to says absolutely nothing against the First Amendment (Free Exercise and Free Speech) rights that Catholic institutions possess.

5. In response to my argument that public-sector unions are the enemies of the Catholic church and of working families, Winters concedes my point on abortion and school choice but ignores my broader charge that the bloated salaries and pensions that public-sector unions so often extract are often at the expense of working men and women in the private sector, whether in the form of higher taxes or diminished public services.

Even on abortion, Winters tries to minimize the massive alliance between Big Labor and abortion supporters, as he contends (without deigning to offer any support for his claim) that union donations to Planned Parenthood “are for voter files, campaign organizers, and the like” (whatever that means). Never mind Big Labor’s broader support for continued government funding of Planned Parenthood. Never mind, for example, the American Federation of Teachers’ resolution declaring that it “stands with Planned Parenthood” (just one part of the convention expenses that AFT determined to be entirely chargeable to nonmembers—see CEI brief at 12-13).

6. More broadly, Winters never acknowledges that the sorry state of America’s public-sector unions must be factored into any prudential judgment about whether they deserve the bishops’ support. Pardon me for repeating myself: In Rerum Novarum, Pope Leo XIII warned Catholic workers not to join unions that “are managed on principles ill-according with Christianity and the public well-being,” and he insisted that “working men’s associations” must “look first and before all things to God” and “must pay special and chief attention to the duties of religion and morality.” In Populorum Progressio, Pope Paul VI emphasized that unions forfeit the justification for their existence when they adopt “a materialistic and atheistic philosophy” that “shows no respect for a religious outlook on life, for freedom or human dignity.”

Winters, rather than engaging this long line of Catholic teaching, instead retreats to the abstract principle that “workers have the right to organize.” One can fully embrace that principle, as I do, and also recognize that today’s public-sector unions are not the unions that Catholic teaching envisions. The difficult prudential question is not whether Catholics must support the public-sector unions in the Janus case—the answer to that ought to be an easy no—but rather whether it is even permissible for them to do so. I will happily assume that it is permissible, but the prudential case for that position rests on arguments that the USCCB, Winters, and Bishop Zubik (who seems blinded by nostalgia for the 1950s “union household” he “grew up in”) have not even begun to make.

Winters tells us at the end of this piece that tomorrow he “will return to the issue of why, as Catholics and as Americans, we should all be hoping the unions prevail in this case and why the bishops’ brief hits the nail on the head.” Let’s see if he corrects the many errors in his analysis between now and then.

Law & the Courts

When Is a Union Agency Fee Like a Tax?

(Photo: Nick Cannella/Dreamstime)

Eugene Volokh, summarizing an amicus brief he has written with Will Baude, writes that in Janus v. AFSCME the Court should uphold the imposition of “agency fees” on non-members of public-sector unions, in order to defray the costs of collective bargaining from which all employees putatively benefit.

His reasoning is that on the management side of public-sector collective bargaining, expenses are paid by the extraction of funds from persons perhaps equally unwilling to contribute to the enterprise — namely taxpayers. But everyone concedes that taxes are constitutional even when used to fund activities of which taxpayers disapprove. Hence, by parity of reasoning, the state should be able to compel its own employees to contribute to unions of which they disapprove.

Volokh’s argument is too clever by half. The fact that taxpayers fund the management side of the public employer-employee relationship should be of no moment in the Janus case. Taxes are paid to fund the public interest, which in the case of schools is represented by school boards, which are typically also elected by the public (which thereby gains some leverage over how their taxes are spent). If Volokh wants to argue that teachers’ unions represent the public interest equally as much as do school boards, his argument should be for taxpayer funding of union bargaining expenses, not for the compulsory employee funding of those expenses. And then, of course, the public should elect the union officers.

Law & the Courts

This Day in Liberal Judicial Activism—February 21

1996—In Fierro v. Gomez, a Ninth Circuit panel, in an opinion by Judge Harry Pregerson, rules that California’s method of execution by lethal gas violates the Eighth Amendment.

2017—Defying the Supreme Court’s landmark Second Amendment ruling in Heller v. District of Columbia (2008), the en banc Fourth Circuit rules by a 10-to-4 vote (in Kolbe v. Hogan) that Maryland’s ban on so-called “assault weapons” and high-capacity magazines is constitutionally permissible. (Read Charles Cooke and David French for extensive critiques of the Fourth Circuit’s evasions and errors.)

Law & the Courts

This Day in Liberal Judicial Activism—February 20

1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

Law & the Courts

Marcia Coyle Exposes a Jill Abramson Falsehood

(Photo: Nick Cannella/Dreamstime)

By the time Marcia Coyle weighed in on Jill Abramson’s piece about Justice Thomas, I had already written a five-part series rebutting most of Abramson’s claims. (See Parts 12, 3, 4, & 5)

I am weighing in again because Coyle’s piece includes a damning piece of evidence that completely undermines Abramson’s credibility.

Abramson’s piece included allegations against Justice Thomas by a reporter named Nancy Montwieler, who, according to Abramson:

confided that Thomas had also made weird, sexual comments to her, including describing porn and other things he found sexually enticing. Montwieler, who considered Thomas a valuable source and didn’t think he was coming on to her, had invited him to a black-tie Washington press dinner, where he also made off-color remarks.

Except . . . Montwieler says none of that ever happened. According to Marcia Coyle:

Montwieler, reached by the NLJ after the publication of Abramson’s story, said she sent a message to New York magazine on Monday that read in part: “I knew Clarence Thomas in a professional capacity and never experienced any type of inappropriate behavior from him. Moreover, despite allegations in the article, I do not recall any conversations with Justice Thomas regarding inappropriate or non-professional subjects.”

Maybe Abramson should try reinventing herself as a fiction writer.

Law & the Courts

Jill Abramson Smears Justice Thomas, Again. Part 5: ​Brock and Cooke

Jill Abramson’s hit piece on Clarence Thomas remarkably relies on David Brock and Fred Cooke, although Brock himself rebutted Abramson’s own work on Thomas and has highlighted Cooke as a problematic source. Here are the facts.

After Jill Abramson and Jane Meyer published their book about Justice Thomas, Strange Justice, David Brock wrote a lengthy and detailed rebuttal of the book. Here is how he summarized his findings, which could also be used to summarize this latest piece by Abramson:

Mayer and Abramson have made these accusations on the basis of accounts from sources who tell me they were either flatly misquoted or misrepresented, or refused to confirm information attributed to them. The list of these people who say they were misquoted includes the only woman whose allegations against Thomas have not been previously reported — and refuted — in prior books or articles. In addition to relying on fake evidence, doctored quotes, and unsupported hearsay, the book is brimming with anonymous and discreditable sources. Key figures were never interviewed. Where evidence does not fit the authors’ point, it is ignored entirely. And a whole array of alleged facts — small and large — are simply wrong.

Regarding Barry Maddox and Fred Cooke, Brock wrote:

The case that Thomas exhibited an interest in pornography after his student days rests on the accounts of two people: Barry Maddox, the proprietor of a Washington, D.C. video rental shop, and Frederick Cooke, a Washington attorney. [A third source, Kaye Savage, who claims to have information linking Thomas to Playboy magazine, is discussed later in this review.] Mayer and Abramson write:

“But the interest in pornography that Thomas first exhibited at Yale apparently continued through the early 1980s, when Long Dong Silver was a well-known figure among fans of X-rated movies. According to Barry Maddox, the proprietor of Graffiti, a video rental and equipment store just off Dupont Circle, a few blocks from the EEOC’s headquarters, the store began to rent pornographic videos in 1982. Not long afterward, Maddox recalled, Thomas became a regular customer.”

There are several problems with this account, including that the EEOC’s headquarters at 18th and L Streets NW, a few blocks south of the Dupont Circle area, did not open until August 1989. Thomas worked at that location for only a matter of months, and during the entire time he was in the middle of a brutal confirmation fight for a seat on the D.C. Circuit Court of Appeals, which he won in March 1990. In the early 1980s, when Maddox claims Thomas was a regular customer, the EEOC’s headquarters were at Columbia Plaza at 24th and E Streets NW — nowhere near Dupont Circle or Graffiti.

National Public Radio’s Nina Totenberg has punched a far bigger hole in Maddox’s account. In response to a question after giving a speech at Stanford University in the spring of 1992, Totenberg said:

“Let me take first the primary rumor that I’ve heard about Justice Thomas. And that is that he was a regular renter of pornographic movies including ‘Long Dong Silver’ movies, and that various news organizations have a list of the movies that he rented from a Washington video store and have suppressed it. As far as I know, this isn’t true. There is an individual who called first me and then I think other news organizations telling us that Judge Thomas had rented pornographic videos at a particular store in Washington, that the owner of the store would corroborate that, and that they liked to talk about the details of the movies, and that they had, that the owner of the store, I talked to the owner, he denied remembering renting any particular pornographic videos to Judge Thomas who he did remember as a customer of the store, Thomas with his son, and in addition to that the owner of the store told me, and I corroborated this elsewhere, that the store routinely destroys its computer records of rentals every thirty days. So none exist. So that story evaporated like the morning mist.”

I called Totenberg to find out if she had been referring to Barry Maddox of Graffiti in these remarks; she confirmed that she had. She further explained, “I got this tip, I think right after Thomas was confirmed. And I called the guy [Maddox] and he indicated on the phone that he may have rented pornographic videos to Thomas. But when I went into the store to talk to him, he kept changing his story. He denied it. So I didn’t have a story. I wouldn’t have used it anyway without written records — and as you know Graffiti doesn’t keep records — because I thought the guy was scuzzy, not reliable.”[4.]

Next, I called Maddox directly, who came to the phone and said simply: “I was misquoted in the book. I’m not talking to reporters. I was misquoted. That’s it.” He refused to answer other questions, but did confirm that he had been interviewed by Totenberg a few years ago on the subject.

About Frederick Cooke, the only other witness who purportedly could testify about Thomas’s interest in pornography after the Yale Law School film society days, the authors report:

“It was also in Graffiti that Frederick Douglass Cooke, Jr., a Washington attorney and the former D.C. corporation counsel, saw Thomas at the cashier’s counter in the late 1980s with another ‘freak-of-nature’ kind of film. Cooke thought it pretty amusing to run into the chairman of the EEOC, whom he had met once or twice on a social basis, standing with a triple X videotape entitled The Adventures of Bad Mama Jama.”

These sentences appear on page 107 of the book, where, though he is not quoted directly, it appears as if Cooke himself has told the authors what he supposedly saw. There is no note indicating otherwise. Not until flipping to a note for page 330, where efforts by Thomas opponents to extract damaging information from Cooke are discussed, do we learn, “Reached on two separate occasions, Cooke would neither confirm nor deny the account.”[5.]

In an interview with me, Cooke confirmed that he had been contacted twice by the authors, who had traced the source of the Mama Jama rumor back to him, but that he declined to confirm or deny anything. “They called and I told them just what I’m telling you. I’m not discussing anything with the media. I didn’t tell them what you just read to me.”

(See Parts 123, & 4.)

Law & the Courts

Jill Abramson Smears Justice Thomas, Again. Part 4: Statements from Women Who Have Worked for Thomas

(Chip Somodevilla/Getty)

Helgi Walker, 1995 Term

“In the twenty-six-plus years since he was confirmed, Justice Thomas has been doing tremendous service for the law and for our nation. There’s a quote from ‘Mr. Smith Goes to Washington’ that always makes me think of him: Justice Thomas has ‘plain, decent, every day, common rightness. And this country could use some of that.’ As in the movie, there will always be people who try to tear down those who lift up new ideas that challenge the prevailing orthodoxy, but to the legions of us who know and love him it’s just background noise.”

Sigal P. Mandelker, 2001 Term

“Justice Thomas is the wisest person I know. He is enormously kind and incredibly generous with his time and advice. He has inspired generations of law clerks to public service, to treat others with great respect, and to always be intellectually honest. A man from humble roots, he epitomizes the American Dream and what can be accomplished through hard work and integrity.”

Kate Comerford Todd, 2000 Term

“I am blessed to call Justice Thomas my mentor, my role model, and my friend. He leads his chambers by his example — working hard, striving for excellence, and never wavering from principle, while always making time for his wife, his faith, his family, and his friends. He has a huge heart and loves the human story, and so for him being kind to everyone comes naturally. No distant detractor could walk next to this man and fail to appreciate his infectious warmth, love of the human spirit, and profound respect for the men and women he encounters.”

Jennifer L. Mascott, 2008 Term

“The time I spent as a law clerk to Justice Thomas has been one of the highlights of my life. The Justice’s integrity, intellect, and humility are an invaluable asset to the country. There could not be nicer, more generous, or more dedicated public servants than Justice and Mrs. Thomas.”

Michelle Stratton, 2011 Term

“In the wake of the #metoo movement, including sexual misconduct allegations against a prominent federal judge, I privately thanked Justice Thomas for providing me with a work environment at the Supreme Court that was marked by integrity. I’d now like to thank him publicly. Thank you, Justice Thomas, for consistently wielding your power and influence for the good of your clerks, your colleagues, and your country.”

Jennifer B. Dickey, 2014 Term

“Justice Thomas is one of the most humble, kind, fundamentally decent human beings I have ever known. It was the honor of my life to work for him at the Supreme Court, to see the respect with which he treats everyone around him and the seriousness and intellectual honesty with which he approaches his job. He is a man of integrity and, in my view, an American hero.”

Rebekah Ricketts, 2013 Term

“Justice Thomas is a great American. He is a mentor and a hero to me — and to so many others — not only because of the deep integrity and intellectual rigor he brings to the job, but also because of the fundamental respect and decency he shows to everyone around him.”

Haley Proctor, 2014 Term

“I have always admired Justice Thomas for his brilliant and honest jurisprudence, but since I have had the honor of clerking for him, what I have come to admire most about him is his fundamental decency. Anyone who has had the privilege of crossing paths with Justice Thomas knows him to be a man of generosity, kindness, and above all, integrity, who treats every human being with respect and warmth.”

Taylor Meehan, 2016 Term

“Justice Thomas has left an indelible mark on the Court’s work in his 25 years on the bench. Tell him that and he would respond that he was just doing his job. For all of us who have had the privilege to call the Justice our boss, he has instilled in us his humility, his stick-to-itiveness, his love of country. We are better for it, and so is the Court.”​

(See Parts 123, & 5)

Law & the Courts

Jill Abramson Smears Justice Thomas, Again. Part 3: Moira Smith’s Allegations Debunked

(Alexei Novikov/Dreamstime)

“I was stunned to read in the news that a woman had accused Justice Clarence Thomas of groping her at a dinner party that I attended in 1999 and remember very well. It remains in my memory because the dinner party was held the night before the awarding of the first annual Stevens Award in memory of my late husband who died in December of 1998. . . . When I read the news item, my first thought was  — “that couldn’t have happened.” Justice Thomas was never alone — he was guest of honor. In addition to that, the house was not large — the dining area was at one end of the living room, not a separate room, and the dining room table was in full view through the kitchen door where Louis Blair and his assistant were cooking. It was a wonderful, happy evening, apparently enjoyed by all.”
— Statement of Norma Stevens, 10/28/16

“Smith is a registered Democrat married to the former Alaska Democratic Party chair who was forced to withdraw from a 2008 congressional race after it was revealed that his campaign was responsible for creating fake web sites targeting a rival. Her former husband worked for President Obama, and one of her former housemates, Laura Fink, that backed up her story did work for Hillary Rodham Clinton and posed for a photo with Bill Clinton.”
— Paul Bedard, Washington Examiner, 10/27/16

“Louis Blair, who was then head of the Truman Foundation and hosting the dinner at his home in northern Virginia, told the journal he had neither seen nor heard of Smith’s allegation. He said he was busy in the kitchen preparing the dinner and that he was ‘skeptical that the justice and Moira would have been alone.’ ”
— David Savage, Los Angeles Times, 10/27/16

“Mr. Blair, who hosted the party, told the Law Journal that Ms. Smith never told him what happened, and he questioned whether Justice Thomas ever would have been alone with a dinner guest.”
Washington Times, 10/26/16

“The only other source to go on the record was Smith’s ex-husband, Paul Bodnar, a former senior director for energy and climate change in the Obama administration’s National Security Council.”
– Carrie Severino, National Review, 10/29/16

“Smith herself has been closely associated with partisan causes for more than two decades, including working for a Democratic state legislator, giving money to Senator Mark Begich (D., Alaska), and serving as national committeewoman for the Young Democrats of Alaska. Smith’s current husband, Jake Metcalfe, was chairman of the Alaska Democratic Party until he stepped down to run for Congress. He withdrew from that race during the primary after his campaign was revealed to be responsible for several fake websites attacking one of his rivals. Metcalfe has worked for unions, too, including the Alaska affiliate of the public-sector employee union AFSCME.”
— Carrie Severino, National Review, 10/29/16.

“Former Alaska Democratic Party Chairman Jake Metcalfe on Wednesday abruptly dropped out of the race for U.S. House, citing a distraction caused by fake Web sites that sought to trash a party rival. … The source of the bogus Web sites remains unclear. Metcalfe’s former campaign manager, Dana Krawchuk, claimed that his political adviser, Bill Scannell talked about such a scheme last year in front of her and Metcalfe. Scannell has denied establishing the fake Webs sites but he resigned last week, saying the allegations were hurting Metcalfe.” — Dan Joling, Juneau Empire, 5/8/08.

(See Parts 124, & 5)

Law & the Courts

Jill Abramson Smears Justice Thomas, Again, Part 2: Anita Hill

Anita Hill testities in the Clarence Thomas hearings in 1991 (CPAN/YouTube)

Since Jill Abramson (and others) seem to have forgotten the many reasons Americans overwhelmingly believed Clarence Thomas over Anita Hill after watching the hearings themselves, here is a summary of some of the biggest holes in her story:

The FBI deemed Anita Hill not credible.

— Two FBI agents interviewed Anita Hill with respect to her charges prior to her committee testimony, asking her to provide the specifics of all incidents. But her testimony to the committee added new lurid headline-grabbing charges not in her FBI testimony or a similar pre-testimony affidavit. One agent said her new testimony included “comments that were in contradiction with” her earlier statement.

Anita Hill’s charges were never corroborated or substantiated.

— Hill’s charges that Thomas made crude remarks to her or pursued her to date him were inconsistent and unreliable. When first contacted by Senate staffers, Hill was evasive and did not provide information about Thomas’s alleged conduct. Then, when she made her allegations, she wanted complete anonymity. She repeatedly refused to be interviewed by the FBI. She later relented but then lied about the FBI interview in later testimony.

–Not one co-worker of Hill’s testified in support of her allegations. Many of Thomas’ female employees, some of whom had been victims of sexual harassment themselves in other jobs, testified to his “scrupulous” treatment of women and extraordinary sensitivity.

–Even the friend Hill said could corroborate her allegations couldn’t do so, because the conversation she remembered having with Hill occurred before she worked for Thomas.  Three more friends called at the last minute had only unhelpfully vague recollections.

No other accusers came forward to testify.

— Unlike most cases involving sexual harassment, including the recent #MeToo revelations about major media figures, Anita Hill is the only person to testify under oath that Clarence Thomas sexually harassed her.

— Two other women identified by Thomas opponents as potential accusers, Sukari Hardnett and Angela Wright, both said Thomas did not harass them. Wright, who claimed Thomas had pursued her but didn’t harass her, was not a strong witness even to that minor claim (even though HBO and now Jill Abramson treat her as a smoking gun). She had been fired by Thomas for using an anti-gay slur and had said she would seek revenge. Although committee Republicans wanted her to be allowed to testify to illustrate the weakness of the case against Thomas, Democrats entered her testimony into the record only so there would be no opportunity to rebut it.

 Every witness who knew both Thomas and Hill believed Thomas.

 — Twelve women who had worked with Thomas testified on his behalf before the committee. They described the allegations against him as “unbelievable” or “totally preposterous” and considered him “absolutely incapable of the abuses described by Prof. Hill.” Not one coworker of Hill corroborated her allegations, and even the two coworkers she looked to for support said Thomas was not guilty of harassment.

Anita Hill stayed in touch with Clarence Thomas after her alleged incidents took place. 

— Anita Hill’s charges stem from her work with Justice Thomas when they both worked at the EEOC. But after she left the EEOC, and after the time period during which she alleged that Justice Thomas made sexual remarks to her, Hill called Thomas several times over several years. Additionally, when Hill arranged for Thomas to give a speech in Oklahoma she eagerly joined Thomas for breakfast at a friend’s home and offered to drive Thomas to the airport.

Clarence Thomas vigorously defended himself before the committee and referred to events as a “high tech lynching.” 

 — “I would like to start by saying unequivocally, uncategorically, that I deny each and every single allegation against me today that suggested in any way that I had conversations of a sexual nature or about pornographic material with Anita Hill, that I ever attempted to date her, that I ever had any personal sexual interest in her, or that I in any way ever harassed her.”

— “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. — U.S. Senate, rather than hung from a tree.”

Hill probably perjured herself during her Judiciary Committee testimony.

— Senator Arlen Specter asked Hill about a report that she had been told offering an affidavit alleging harassment would induce Thomas to withdraw his nomination “quietly and behind the scenes.” When Hill denied any memory of this conversation, Chairman Joe Biden called a lunch recess and suggested her lawyers should speak with her, knowing, as he later told Senator Specter, that she was lying. After lunch, her story changed and she remembered “some indication” that Thomas “might not want to continue the process” if she made charges.

— Hill claimed to have followed Thomas to a later job despite the alleged harassment because she was afraid she would have been fired from the Department of Education by the new director, and then she claimed not to have known that her position was protected and that the incoming director had already asked her to stay. Former coworkers contradicted her testimony on both points.

— Hill claimed not to have continued contacting Thomas after leaving EEOC, but then later recanted when faced with telephone logs showing eleven such calls over eight years. Senator Specter called this testimony “flat-out perjury.”

Polls at the time showed that the American people believed Clarence Thomas’s vigorous denial of Hill’s allegations.

— A 1991 CBS News/NY Times poll found that, more than two to one, the American people believed Clarence Thomas.

— 58 percent percent of Americans believed Thomas, while 24 percent believed Anita Hill.

New York Times report: “The poll, taken Sunday night, shows that a majority of Americans remain skeptical of the accusations made against Judge Thomas by his former aide, Anita F. Hill. More than half of those surveyed said they believed that the account of sexual harassment offered by Ms. Hill, now a law professor at the University of Oklahoma, was ‘probably not true.’”

(See Parts 134, & 5)

Law & the Courts

Jill Abramson Smears Justice Thomas, Again. Part 1: Jill ‘Ahab’ Abramson

Supreme Court justice Clarence Thomas (Reuters photo: Jonathan Ernst)

Jill “Ahab” Abramson is at it again. Her obsessive quest to try and destroy Clarence Thomas (and pull her career out of free fall) has resulted in another 4,200 words of warmed-over, long-ago debunked, and perjurious allegations.

Abramson begins with a rehashing of the utterly implausible recent allegations by Moira Smith that decades before she had been groped by Justice Thomas while at a dinner party during which other witnesses said they were never alone.  She then rehashes the tired allegations that, as she herself put it, have already been “tried at the highest level.”  The American people who, like her, watched the whole disturbing spectacle from start to finish overwhelmingly believed Thomas. But by her lights that’s only because even the Democrats intentionally undercut their case against confirmation by hiding the key evidence.  Except there’s no real evidence that she points to either, beyond a few people who said (contrary to every witness at the hearings who knew both Hill and Thomas) that they thought Hill’s description of Thomas was plausible.

Abramson’s career has been spiraling down since being fired in 2014 from her job as executive editor of the New York Times for lying to both the Times’ publisher and its chief executive, as well as for the public mistreatment of her colleagues. It was an edifying confirmation of what many of us have known for quite some time: Abramson has a problem with veracity and civility.

Then, for a brief moment last fall, the #MeToo movement looked like a promising path to revive her flagging career (having been reduced to columnist for a left-wing British paper). She kept very busy, for example, advocating that Al Franken and Bill Clinton shouldn’t be held responsible for their transgressions because … wait for it … they’re liberals. No, really, that was her reason. As she quite bluntly put it: “In theory, I’m all for zero tolerance of sexual misconduct. But in practice … Well, it turns out in Abramson’s practical world, justice for victims is limited to when the perpetrator isn’t a liberal politician. Even more bizarrely, her New York magazine screed praises modern liberals for being willing to take on the Al Frankens of the world — even after she had encouraged them to go easy on him.

Although Abramson was ready to give a pass to liberal politicians herself, she was quite willing to take on predators in the media. Perhaps her enthusiasm was driven by a guilty conscience. Just last October, the Washington Post revealed that she herself had been an enabler for the New York Times’ very own sexual predator — their former Washington bureau chief Michael Oreskes. Abramson was his deputy at the Times and was aware of his misbehavior in at least one instance, but she did nothing about it. Confronted with the story, she confessed “If I had to do it again, I would have told him to knock it off.” A real profile in courage.

New York magazine has given Jill Abramson plenty of space for (let’s hope) her swan song. That it comes, once again, at the expense of truth, is her real legacy.

(See Parts 234, & 5)

Law & the Courts

This Day in Liberal Judicial Activism—February 18

1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

Law & the Courts

This Day in Liberal Judicial Activism — February 17

(Photo: Kuzma/Dreamstime)

1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2 that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

Law & the Courts

This Day in Liberal Judicial Activism—February 16

Harry Reid on Capitol Hill in 2016 (Reuters photo: Yuri Gripas)

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.

Law & the Courts

Some Senators Know How to Consult

On Monday, the White House rolled out its eleventh wave of judicial nominees. As Carrie noted earlier this week, the latest slate of nominees continues the Administration’s established practice of selecting highly qualified, conservative nominees for the federal appellate bench. Although there have been a few hiccups, the Trump Administration’s overall record on judicial nominations remains stellar — and much better than some of us anticipated.

One thing that’s particularly interesting about the latest slate of nominees is that it includes three picks for the circuit courts of appeals from states with two Democratic Senators — Mark Bennett from Hawaii for the U.S. Court of Appeals for the Ninth Circuit and Michael Scudder and Judge Amy St. Eve of Illinois for the U.S. Court of Appeals for the Seventh Circuit. Even more interesting is the fact that all three of these nominees have been endorsed by their home-state Senators. Hawaii Senators Hirono and Schatz praised the Bennett pick, and Illinois Senators Durbin and Duckworth praised the Scudder and St. Eve picks. What’s going on?

A cynic might suspect that the Democratic support for Trump’s latest nominees reflects that the Administration has turned away from picking conservative nominees, but that’s not the case. The latest nominees are in line with prior appellate nominees from states with Democratic Senators — including David Stras (Eighth Circuit), Joan Larsen (Sixth Circuit), and Joel Carson (Tenth Circuit), just to name a few. They are highly qualified, able jurists that are hard for home-state Senators to oppose on the merits.

These nominations are also the product of good faith consultation between the White House and Senate offices. Contrary to some suggestions in the press, the White House is not refusing to consult with Democratic Senators on judicial nominations. To the contrary, it is actively seeking good-faith input from home state Senators of both parties.

This is worth keeping in mind when one considers that there remain a significant number of appellate vacancies in states with one or two Democratic Senators, including California, Ohio, and New York, some of which have been designated judicial emergencies. It may also explain why, if nominees for some of the seats are eventually forthcoming, Senator Grassley might ignore the lack of a blue slip from particularly intransigent Senators.

The latest nominations show — perhaps surprisingly — that the White House is willing to consult with Senate Democrats on judicial nominations in good faith. Insofar as some Senators are unwilling to play along, I suspect there is a limit to how long this will be allowed to hold up the process. Eventually the White House will tire of waiting for good-faith consultation that never comes, and I doubt Senator Grassley will allow intransigent Senators to use blue slips to block highly qualified nominees.

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