Bench Memos

Law & the Courts

Washington Post Runs Column by Obscure “Conservative” Who Says Justice Thomas Should Resign

Jay Kaganoff, a freelance writer and self-described conservative, wrote in yesterday’s Washington Post that in this “new environment” of recognition of the severity of sexual harassment, Justice Clarence Thomas should resign. Not because of any new allegation involving the justice, but because he believes the allegations Anita Hill made against him during the Senate Judiciary Committee’s notorious nomination hearings of 26 years ago. The allegations themselves went back to the period between 1981 and 1983 when Hill worked under Thomas, first at the Department of Education and later at the EEOC.

I don’t know who Jay Kaganoff is—some have suggested he doesn’t actually exist—but I do know Justice Thomas. I worked with him closely for a year as his clerk, and Hill’s testimony is completely at odds with the man I know. But her story is implausible for a host of other reasons, from internal inconsistencies, to contradiction by contemporaries, to outright perjury. Since Kaganoff has brought up this slander again, I wanted to take the opportunity to respond.

By his own account, Kaganoff’s epiphany was not recently deciding he believed Hill—all along, he writes, he did not doubt her—but believing that what she alleged mattered in the wake of Harvey Weinstein, Louis C.K., Roy Moore, and Kevin Spacey. That these men offer an inapt comparison should be obvious—not just by the severity of the accusations against them, but by the sheer volume of credible evidence they faced.

Kaganoff might appreciate this if his review of the evidence were not so superficial. He describes Hill’s testimony with a one-sentence reference to a leaked affidavit she initially had prepared for the Senate Judiciary Committee in September 1991 alleging that Thomas had asked her out on dates and made sexually charged comments. In the next sentence, he summarily notes with no elaboration that after she “gave her testimony, she was viciously smeared,” as if her committee testimony flowed seamlessly from her earlier statements.

In fact, she had preceded her committee testimony with the affidavit and a September 23 interview with the FBI that differed so much from her later testimony, both interviewing FBI agents produced affidavits detailing what one of them called “comments that were in contradiction with” her earlier statement. In short, they attested that none of Hill’s specific, headline-grabbing charges about Thomas during the hearing—allegations of lurid references to himself, to a pornographic movie character, and to an indecipherable description of a Coke can—had been made during their interview despite their request for any such information. To the questioning senators who were wondering why they were hearing these allegations for the first time, Hill testified that an interviewing agent advised her that she did not need to discuss subjects that were too embarrassing. Both FBI agents also repudiated this part of Hill’s testimony, stating in their affidavits that the interviewer had asked her to provide specifics of all incidents.

Even more telling, every witness who knew both Thomas and Hill stated they believed Thomas. A dozen women who worked with Thomas testified to the Senate Judiciary Committee (one by affidavit) with strong statements defending his character, such as describing the allegations against him as “unbelievable” or “totally preposterous” or deeming him “absolutely incapable of the abuses described by Prof. Hill.”

Not one coworker of Hill supported her allegations. Indeed, in weighing the evidence, Thomas is the inverse of Harvey Weinstein et al.: his defenders are about as numerous as the real predators’ accusers.

Incredibly, Kaganoff is either unaware of or chooses to ignore the entire throng of witnesses for Thomas and makes mention of supposed witnesses only for Hill: “[S]he had witnesses whom the chairman of the Judiciary Committee, Sen. Joe Biden of Delaware, did not call up.”

That is an uncharitable summary of Biden’s interest in hearing from witnesses given that he called all four witnesses Hill claimed to have spoken to about her allegations during the relevant time period. Her chief corroborating witness was law school classmate Susan Hoerchner, who had earlier spoken to committee staff both by telephone and by a transcribed interview. She had offered vague, inconsistent recollections of a single conversation she repeatedly testified occurred months before the time Hill alleged Thomas’ misconduct would have begun—and in fact before she even began working for him. She changed that testimony to claim uncertainty as to the time frame after Hill’s attorney, Janet Napolitano, called for a break to speak with her. Although Hill had initially claimed Hoerchner as her only corroborating witness in her FBI interview, she later claimed she told three other witnesses, none of whom could recall Hill mentioning any sexually graphic details, and two of whom could not recall her naming the supervisor she mentioned to them.

The search for adverse testimony from others who worked under Thomas yielded statements to the committee from two other women, Angela Wright and Sukari Hardnett, but both stated that they were not accusing Thomas of harassment. Wright, the only woman to make allegations of specific comments from Thomas comparable to Hill’s allegations, has been cast in retrospect by many Hill defenders as the “second woman” denied a place at the hearing. (That was also how she was depicted in HBO’s 2016 movie Confirmation, a grossly misleading hatchet job that has been thoroughly discredited here, here, here, here, and here, among other places.)

The truth is that Biden, who was happy to air during prime time the spectacle of Hill’s testimony and would vote against Thomas, realized Wright had little credibility. Thomas had fired her for using a homosexual slur against a coworker; she had said she wanted to “get him back;” and she had made baseless accusations of racism to tank the nomination of a former supervisor who had authorized her termination from another job. Indeed, Senator Arlen Specter, a member of the Senate Judiciary Committee who took a leading role in questioning the Thomas hearing witnesses, wrote in his memoir Passion for Truth that some of his Republican colleagues wanted Wright to testify because “[h]er credibility was so poor that it would tar Hill and help Thomas.” Biden instead had her transcribed interview entered into the record unrebutted.

Kaganoff does not acknowledge a single one of the above factors, as one would expect him to in any careful weighing of evidence. He attempts in one sentence to discredit Thomas: “[I]f he was dishonest about the [pornographic] videos, it’s conceivable that he lied about the rest, too.” His premise is a reference to a post-hearing investigation by journalists of Thomas’ personal consumption of pornography, a subject about which he could not have lied because he was never asked about it. (By not broaching the subject, the Committee salvaged a morsel of its dignity.) Kaganoff’s conclusion makes no sense.

But he is correct in his broader premise that if a witness lies under oath on one matter, it can undermine the credibility of the witness’ other testimony. If only Kaganoff attempted an analysis of Hill’s testimony with this in mind.

During the hearing, Specter asked Hill about a USA Today article reporting that Senate staffers told her that producing an affidavit alleging sexual harassment would “quietly and behind the scenes” compel Thomas to withdraw his name. Although the conversation would have happened within approximately one month of her testimony (in contrast to her allegations of a decade earlier), she repeatedly denied recalling any mention of Thomas’ withdrawal—or even that such a “comment would have stuck in my mind.” As Specter recounted, Chairman Biden reacted to this exchange by calling an early lunch recess, at which point he told his chief of staff, “Go down and tell her lawyers that if her recollection is not refreshed by the time she gets back, I will be compelled to pursue the same line of questioning the senator [Specter] did. Because it seems to me, she did what he said.”

After Specter resumed his questioning following the recess, Hill, apparently alarmed at the prospect of losing the committee’s Democratic chairman, not to mention being contradicted by other testimony, backtracked with an awkward admission that the discussions at issue included “some indication” that Thomas “might not wish to continue the process” as a result of her allegations. As late as 1998, Biden told Specter regarding her evasions, “It was clear to me from the way she was answering the questions, she was lying.” To be sure, Biden would distance himself from the spectacle over which he chaired and publicly claim to believe Hill; to do any less would be to defy the base of the Democratic Party, which quickly turned her into a totem of workplace harassment.

Other credibility problems stemmed from the fact that Hill followed Thomas from the Education Department to EEOC when he became chairman there. When asked why, she falsely testified she was in jeopardy of losing her job when in fact she was a protected employee and was asked by the incoming director to stay. Her attempt to skirt that contradiction was to testify she did not know of that protected status or who would replace Thomas, which put her word against that of former coworkers who contradicted her on both points. Hill also initiated contact with Thomas for years after she left EEOC, first denying it when asked but later backtracking when confronted with telephone logs documenting eleven such calls over eight years. Specter called Hill’s testimony “flat-out perjury.”

Yet Kaganoff asserts that “Hill . . . had no reason to lie and had supporting evidence.” On the latter point, he overlooks not only her difficulties with corroborating witnesses, but also her testimony that although she took notes documenting every assignment at work, she never maintained any written record of what she alleged about Thomas.

Without more information, it might be as speculative to close the door on possible personal motives as it would be to consider them. Political consequences, however, swirl around every nominee to the Supreme Court and other positions of national significance, leaving truth in constant peril of being sacrificed to partisanship.

In 1998, Hill went to bat for President Clinton on Meet the Press. When host Tim Russert asked about White House volunteer Kathleen Willey’s allegation the president had groped her, Hill agreed with Gloria Steinam’s argument that the allegations did not amount to sexual harassment: Willey was not “claiming that this behavior was severe and ongoing or pervasive enough that it became a condition of her employment” or that “she suffered any disadvantage because of this incident.” So “we aren’t talking about sexual harassment . . . even if we assume that what she said in her interview and the depositions are true.” It was a surreal moment, because Hill had just laid out the very argument that would preclude characterizing her allegations as sexual harassment.

Russert pressed on: “So we dismiss the president’s alleged behavior?” One could imagine Hill responding with outrage toward someone who faced allegations of outright assault—well beyond anything she alleged against Thomas—but no. Her response instead meandered through the sexual misconduct of past presidents and added, “I think what Ms. Steinem also says is that we have to look at the totality of the presidency and how has he been on women’s issues generally? Is he our best bet, notwithstanding some behavior that we might dislike? I don’t think that most women have come to the point where we’ve said, ‘Well, this is so bad that even if he is better on the bigger issues, we can’t have him as president.’”

Russert immediately followed, “Is that a double standard for a liberal as opposed to a conservative?” Hill responded that “it is a reality that we have to deal with. We live in a political world, and the reality is that . . . there are larger issues, larger issues other than just individual behavior.” In other words, yes. That may explain Hill’s glibness about allegations against Clinton. She expressed little of the empathy or credence for the allegations of Clinton’s multiple accusers she expected for herself.

I respect that Kaganoff identifies as a conservative and makes a conscious effort to avoid the trap of the political or ideological double standard. But his sources appear to be a product of that vice, with unfortunate consequences for those who rely on them in good faith.

Kaganoff recognizes that Hill’s evidence may not be “enough to stand up in the court of law”—and he is correct that the standard of proof in assessing a Supreme Court nominee need not be as high as in a criminal prosecution—but what an understatement! It would be an interesting exercise to see which count is higher: the number of credible witnesses for Thomas or the number of holes in Hill’s testimony. Either way, by the modest evidentiary standard of preponderance of the evidence, the case against Thomas did not come close to being made.


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