The Real Anita Hill: The Untold Story
Recall the scene before the Senate Judiciary Committee in the fall of 1991, when a nationwide television audience heard two irreconcilable accounts describing what happened between Anita Hill and Clarence Thomas. Hill testified that Thomas had made sexual overtures to her and had talked of pornography when she worked for him a decade earlier, first at the Office of Civil Rights at the Department of Education and later at the Equal Employment Opportunity Commission, of which he was the director. He had spoken to her, she said, of sex scenes from pornographic films—“sex with animals,” “group sex,” “individuals with large penises,” including “Long Dong Silver,” and “individuals with…large breasts.” She testified that he had once asked, “Who has put pubic hair on my Coke?” And she testified that he had told her “graphically of his own sexual prowess,” “referred to the size of his own penis as being larger than normal,” and spoken “of the pleasures he had given to women with oral sex.”
Thomas “unequivocally, categorically” denied that he ever “had conversations of a sexual nature or about pornographic material with Anita Hill,” or ever “had a personal sexual interest in her.” “This is a person I have helped at every turn in the road since we met,” he testified, and their relationship had been strictly cordial, civil, and professional. When asked where her allegations might have come from, he said he had “been racking my brains” and “eating my insides out” trying to imagine but had no clue. Airing such unfathomable charges before television cameras, he said, was a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”
At the time of the hearings, most of those polled—men and women, black and white—said they believed Thomas and not Hill. Thomas was narrowly confirmed by the Senate and now sits on the Supreme Court for life. But within a year the polls shifted: more people said they believed Hill than Thomas. Hill’s supporters at the time of the hearings had asked rhetorically what motive a former Reagan administration lawyer, from a rural, conservative Baptist background, could possibly have had to come forward under oath before a national television audience and lie. The shift in the polls suggested that most people thought she did not lie after all. This April David Brock published his book claiming that she did lie, and it soon became a national best seller.
In writing The Real Anita Hill: The Untold Story, Brock sifted through the public record of the hearings and of the subsequent Senate investigation of who leaked the Hill story to the press. He also interviewed various witnesses and other sources himself (pro-Thomas witnesses cooperated, pro-Hill witnesses generally did not). He concludes that Anita Hill did not tell the truth. He argues in laborious detail that her case had gaps and inconsistencies that created more than a reasonable doubt in Thomas’s favor. But he does not rest with the negative case. He wants not just to deconstruct Anita Hill’s testimony but to reconstruct “the real Anita Hill.” In his view, she is not the rural conservative Baptist Reaganite the Senate hearings made her out to be, but rather a liberal feminist Democrat who fabricated her charges against Thomas as part of an elaborate political conspiracy to block his appointment to the Court.
Brock has a hard time throughout the book choosing between two different hypotheses to account for Hill’s supposed fabrication: fantasy or perjury. In the most sensational parts of the book, he picks fantasy. In the March 1992 American Spectator article from which the book grew, Brock described Anita Hill as “a bit nutty, and a bit slutty.” He has since recanted this line; appearing on CNN’s Crossfire on June 16, 1993, he said, “Frankly, I regret the word choice there,” and “apologize for that use of language.” But that cannot erase the residue of sexual innuendo in the book.
To take a few examples: Brock quotes a former Oral Roberts University law student who said he had found public hairs in a paper Hill returned to him. He claims that Hill made a pass at a male student at Oral Roberts University, who recalled her as “the world’s kinkiest law professor,” and he quotes an anonymous former visiting law professor at Oklahoma University as claiming that Hill was “obsessed with oral sex,” and fond of talking around the faculty lunch table about “the size of men’s penises,” “firm butts,” and the latest pornographic films. In Brock’s account, Hill was not a prim and proper young woman who needed Clarence Thomas’s unwanted overtures in order to learn about pornography; she was fully capable of calling images of Long Dong Silver forth from her own sex-obsessed imagination.
Labeling women accusers crazy or delusional is a common defense strategy in sexual harassment cases. The senators had a late-night colloquy with a witness, John Doggett, who had known Anita Hill casually and speculated about her possible “erotomania.” But Brock does not dwell on this hypothesis; the salacious passages in the book are comparatively brief. The dominant thesis in the book is more ambitious: that a rational, calculating and even Machiavellian Anita Hill committed conscious perjury deliberately to bring Clarence Thomas down.
Brock’s elaborate perjury theory can be briefly stated. First, Hill had a motive. The seemingly poised and articulate law professor was in fact, Brock asserts, a professional incompetent—someone who was hired on several occasions as a result of affirmative action and who repeatedly found herself out of her professional depth. When she failed at her jobs, Brock claims, she fabricated sexual harassment charges as a cover-up to avoid the shame of acknowledging her inadequacy. For example, when a partner in the now disbanded Washington law firm of Wald, Harkrader & Ross suggested that in view of her unpromising record she would do best to leave her job as an associate, she told friends she was leaving because she had been sexually harassed. Thomas, because a mutual friend (since deceased) had asked him to look after her, rescued her from her failure at the Wald firm by giving her a job at the Department of Education. There, Hill worked closely with Thomas and thought they had a special bond. But when they moved together to the larger and more demanding office at the EEOC, Hill once again, Brock writes, proved to be “not a very good lawyer.” Thomas gave her “grunt work,” and awarded the promotion she coveted to another woman, Allyson Duncan. Thus Brock sketches out a chaste office version of Fatal Attraction, in which not a scorned woman but a scorned protégé is primed for revenge.
Brock adds to this scenario a political motive for revenge as well. Contrary to the press’s misleading portrayal of Hill as a conservative Reaganite—and Hill’s own testimony in answer to Senator Howell Heflin’s friendly questions that she was not a civil rights “militant,” “martyr,” or “hero”—she was in fact, according to Brock, a liberal, feminist Democrat who was a “zealot for the cause of civil rights.” To this “real Anita Hill,” Brock writes, the increasingly conservative, quota-bashing, welfare-baiting EEOC Chairman Thomas appeared to be a “traitor to his race,” a “hypocrite who had profited from affirmative action and then tried to eliminate these preferences for others,” a man “who had turned his back on his own disadvantaged roots and knowingly undermined the cause of civil rights at the EEOC.” Life among left-leaning colleagues at Oklahoma University Law School helped to sharpen Hill’s resentment and to intensify her ideological vendetta.
Then, in Brock’s version, came Hill’s moment of opportunity. When Thomas was nominated in July 1991, Hill’s old friend and Yale Law School classmate Susan Hoerchner, a workers’ compensation judge in California, telephoned Hill and asked her if Thomas wasn’t the “pig” who, Hill had confided, had harassed her back in 1981. Hoerchner’s memory was confused, says Brock. When she later repeated her story to Senate investigators, she dated her conversation with Hill about harassment to the spring of 1981. But that was several months before Hill had started working for Thomas. If Hill had told Hoerchner in spring 1981 that she was being harassed, Brock writes, then it must have been by some other man than Thomas—or maybe Hill, in telling of harassment, was referring only to the phony cover story she had made up in order to avoid admitting she had been asked to leave Wald, Harkrader & Ross.
Hill, according to Brock, should have known that if Hoerchner had the right date she had the wrong man. But she did not try to correct Hoerchner’s suggestion. Why? Either her tendency to blame her professional problems on sexual harassment had made it “hard for her to keep her stories straight in her own mind” or she had come to depend on Hoerchner as a handy contemporaneous witness who could corroborate her plotted fabrication.
The final element in Brock’s elaborate theory is an alleged conspiracy by members of a liberal-left power elite to drag Hill’s sexual-harassment story to public light. Who are the conspirators? “A loose coalition,” Brock writes, “of special-interest lobby groups, zealous Senate staffers, and a scandal-hungry press corps” which he calls “the Shadow Senate.” This group, determined among other things to block conservative nominees to the Court, had come to power by “borking” Judge Robert Bork in 1987 and now was trying to “bork” Clarence Thomas too. Frustrated by their inability to bring down Thomas on the merits, its members sniffed for scandal, and hit paydirt with Anita Hill.
Hill’s story that she had been harassed by Thomas, according to Brock, was floated in Washington on the liberal cocktail-party circuit, where Nan Aron of the Alliance for Justice, which was lobbying against Thomas, picked it up from a “still-unidentified guest.” She passed the story on to Senator Edward Kennedy’s aide Ricki Seidman and Senator Howard Metzenbaum’s staffer James Brudney, a Yale Law School classmate of Hill’s, who tried to persuade Hill to talk. Brudney supposedly used his close friendship and “special influence” with Hill to lure her into telling her story to the Senate—first by misleading her by telling her she could do so anonymously, and then by having two feminist lawyers induce her to write a signed statement which she faxed to the committee. Finally, Brock alleges, “the confidential charges were leaked to the media by Senator [Paul] Simon and Jim Brudney, the true villains of the piece.” (Brock purports to draw this conclusion from documents in the public record, even though Peter Fleming, the Senate’s own independent counsel in charge of an exhaustive investigation of the leak following the hearings, declined to reach such a conclusion.) Newsday‘s Tim Phelps and National Public Radio’s Nina Totenberg broke the story in the press. Thus, Brock’s perjury theory concludes, Hill’s vengeful fib snowballed unexpectedly into a command performance on national TV.
How can we evaluate Brock’s theory? It is tempting to begin with Ockham’s razor, and to say that the simpler explanation must be the more believable. On this view, Brock’s theory is too complicated by half. First, consider the book’s pivotal moment, Hoerchner’s phone call to Hill recalling their conversation about harassment in 1981. Wouldn’t it be far simpler, as many have suggested, to suppose that Hoerchner got the date wrong, not the identity of the man? Ten years is a long time to remember dates with precision but not the name of a fairly well-known government official whose actions had upset a friend. And what triggered her memory was hearing Thomas’s name on television, not any discussion about the year 1981. And if Hill really had wanted to fabricate a sexual harassment story about Thomas, as Brock suggests, why wouldn’t she plant the right date with her ally Hoerchner, rather than let her wander into the Senate vulnerable to immediate impeachment? Only the truth could be as messy as the story Brock describes as false.
Second, none of Brock’s elaborate hypotheses erases one simple basic fact: if Hill was lying, she was taking an enormous gamble by perjuring herself on national television. It is important to remember that she had no reason to suppose she would later become what Brock archly calls “The Woman of the Year.” That she would be “canonized” as the “Rosa Parks of sexual harassment” could not have been predicted in advance; the political outcry for reopening the hearings took the Senate and the nation by surprise. At the moment she stepped under the lights, she had everything to lose. In the law of evidence, the fact that a statement is against self-interest is usually considered strongly probative of its truth. Brock dismisses this line of argument by saying that she never meant to go on television; she thought she could pull off a coup behind the scenes. But if that were so, why wouldn’t she have more quickly and firmly declined to tell her story in public, before it went so far?
Ockham’s razor aside, the very same critical methods used by David Brock can be applied to his own book. One method would be to subject each gap and inconsistency in his own factual construction to the same intense scrutiny he applied to Anita Hill’s case. This task has been undertaken by Jane Mayer and Jill Abramson, two Wall Street Journal reporters who are writing their own book on the Clarence Thomas nomination, entitled Strange Justice: The Selling of Clarence Thomas. In “The Surreal Anita Hill,” an article in the May 17 issue of The New Yorker, Mayer and Abramson convincingly dispute a number of Brock’s factual inferences.
Here are only a few of the many points in Brock’s reasoning that Mayer and Abramson undercut. As to the story of a student of Hill’s that he found public hair in his paper, Brock’s witness, Lawrence Shiles, told them he had not come forward on his own but had been dragged from a hunting trip by Republican Senate staff members one Sunday morning to sign an affidavit. And Brock’s supposed corroborating witness, Jeff Londoff, told Mayer and Abramson that the public-hair story had been a joke (“The lady’s black, you know; she’s got kinky hair”). As for John Burke, Brock’s key witness for the claim that Hill was fired from Wald, Harkrader & Ross, Mayer and Abramson show he was not himself responsible for supervising Hill’s work; they suggest he may have mixed up Hill in his memory with another young black first-year woman associate who they know had difficulty at the firm that year. As to Hill’s supposedly close relationship with Jim Brudney, Mayer and Abramson’s research shows they had no social relationship while they were both in Washington, having “bumped into” each other only once. Brock’s sources were surely wrong in saying Hill spent weekends at Brudney’s apartment “in Foggy Bottom,” for he lived in Adams Morgan, several neighborhoods away.
Of course, to demonstrate such weaknesses in Brock’s evidence is not to prove that everything he said is false. But Mayer and Abramson echo Brock himself when they argue that the accumulation of many small inaccuracies raises doubt about the veracity of the whole. Their review in The New Yorker set off a series of exchanges, whose proliferating detail begins to rival that of the book itself. On May 20, Brock sent an eight-page single-spaced letter of complaint to The New Yorker, which declined to print it. On June 14, The New Yorker fact-checking department outdid Brock by issuing a twenty-three-page memo supporting Mayer and Abramson on every point. Tina Brown sent that memo on to Brock’s publisher with a cover letter expressing confidence that the review was “factually sound” as well as “fair and accurate.” Rebuffed by The New Yorker, Brock then revised his rebuttal for publication in the August issue of The American Spectator under the title “Jane and Jill and Anita Hill.”
In this last round, Brock has made one formal retraction and beaten a few small informal retreats. The retraction concerns Catharine MacKinnon; Brock now admits, under pressure not only from Mayer and Abramson but also from MacKinnon and her lawyer, that the law professor whom he calls “a leading activist in the feminist crusade” did not, after all, advise Hill during the Senate hearings. Brock also appears to admit that “the extent of the acquaintance” between Hill and Jim Brudney might not have been as great as he suggested. He concedes Mayer and Abramson’s point that Angela Wright—the “other woman” who was prepared to testify that Clarence Thomas talked dirty at the office, but never appeared before the committee—did, contrary to his previous claim, swear to the truth of her statements to the Senate, and did speak to the FBI. He also backs off his earlier claim that Judge Patricia Wald of the DC Circuit was “close to” Senator Simon and thus must have been the conduit through whom the liberal conspiracy suppressed the history of Hill’s record at the firm in which her husband, Robert Wald, was the senior partner.
Faced with Mayer and Abramson’s claim that Wald and Simon had “never met,” Brock in his first rebuttal memo held fast (“Might they have spoken on the telephone?”) but in his revised rebuttal for The American Spectator drops the point, retreating to the suggestion that maybe Wald whispered these things to Senator Kennedy instead. Although Brock has been forced to acknowledge some mistakes, perhaps the only clear outcome of this controversy is that it will sell more books; Brock echoes the Free Press advertisements when he urges readers “to examine my book, their article, and decide for themselves.”
A second way to evaluate the book that we might, again, borrow directly from Brock is to engage in “the search for a motive”—this time Brock’s, not Hill’s. Why did Brock resurrect this story? His answer is simply that he wants to tell the truth. The same answer was also Anita Hill’s. One other possible motive might be to vindicate Justice Thomas’s reputation, although one may wonder whether stirring up the ashes of this debate really does him any favor.
If we look at Brock’s own politics with as much suspicion as he looked at Hill’s, however, we may conclude that some other motive underlies the book: namely, to carry out an ideological vendetta. Much has been made of Brock’s association with right-wing organizations: the Heritage Foundation, The American Spectator, The Washington Times, the Olin Foundation, whose chair headed a lobbying group supporting the Thomas nomination. Some have argued that these associations cast doubt on his claim to have approached the Anita Hill story with “an open mind.” Brock has cried foul here, and he has a point; such ties do not prove bias. Liberal journalists would surely object if such stereotypes were used to discredit their own work. But one need not search Brock’s résumé for evidence of his political views—one need only read his book.
The Real Anita Hill often reads less like a work of investigative journalism than a tract in a cultural war. It is peppered with stock phrases from the vocabulary of the current cultural right wing: liberal groups favor “abortion on demand”; Hill’s former colleagues insist on anonymity when they criticize her because in academic circles supporting Hill has become “politically correct”; feminists call themselves liberal but are “really deeply hostile to the Western liberal tradition,” and so forth. More important than its rhetoric is its central thesis: the real target of the book is not so much Anita Hill as the “left-liberal” establishment. Indeed, Brock goes out of his way on many occasions to minimize Hill’s guilt and responsibility for what happened, suggesting that she, too, was a “victim” or a pawn of the liberal conspirators who were the “true villains of the piece.” This attempt to show that others besides Hill were responsible for her testimony makes the plot line of Brock’s book less coherent but reveals his real concern.
Brock portrays this supposed left-liberal-feminist establishment as made up of zealous and intolerant enforcers of a “politically correct” agenda, willing to pursue its ends by any means. What are its ends? First, to preserve “three decades” of judicial victory for “liberal social policies.” Anyone challenging this orthodoxy, according to Brock, was to be “borked.” (Free Press publisher Erwin Glikes noted in a recent letter to the editor in The New York Times that The Real Anita Hill was originally titled The Borking of Clarence Thomas.) Brock’s book seeks to vindicate Thomas’s claim that he was “lynched” for his “uppity” conservative views. Brock is unmistakably sympathetic to Thomas’s position opposing affirmative action; for example, he writes patronizingly of Hill as “a victim” of “preferential admissions and hiring policies”—she is for him a casualty of affirmative action scarred with a negative “self-image” and “a permanent chip on her shoulder” by her failure to perform adequately in Thomas’s meritocratic shop. Brock seems now and then even to identify himself with Thomas; while he hasn’t charged that he is himself the victim of a “high-tech lynching,” he has complained that the liberal-dominated press and television have tried to suppress his views as politically incorrect. He complains in his forthcoming American Spectator piece, for example, that “apparently I may not appear on television unless accompanied by someone who will brand my book a lie at the very moment it is being presented to the public.”
Brock overstates his case. The liberal establishment he conjures up is hardly as monolithic or powerful as he makes out. Putting Anita Hill’s charges aside, the Senate itself, after all, voted for Clarence Thomas after hearing testimony from him that might be thought to call into question his judicial qualifications. He claimed, for example, that he had in all his years as a public official never discussed the decision in Roe v. Wade.1 Brock also fails to mention the powerful conservative counterparts of his liberal Shadow Senate: the coalition of conservative lobbyists and press commentators, for example, who recently blocked the appointment to a post in the Justice Department of President Clinton’s nominee Lani Guinier. As for Brock’s own claims that he’s a victim, how does he explain the generally positive reviews he has received (and otherwise seems pleased to cite) in The Washington Post and The New York Times?
The liberal-left juggernaut, Brock continues, now pursues a second end: to “redefine the legal and social relations between the sexes.” The Hill-Thomas hearings, he writes, unleashed a torrent of women’s fury into the election campaigns of 1992. Women candidates came to power in record numbers, campaigning explicitly or implicitly on the platform that the white male senators “just didn’t get it.” And Anita Hill’s testimony caused a “sea change” in American consciousness about sexual relationships at work.
Brock’s book is meant to challenge these developments by alleging that they were born in sin—that they were the result of a fabrication that Hill and her co-conspirators could “justify…on the utilitarian grounds that they advanced the larger causes” of helping victims of sexual harassment, whether or not Clarence Thomas was chewed up and spat out along the way. In his epilogue, Brock warns of an encroaching feminism in which “all men are seen as rapists,” so that “it does not matter whether Hill actually proved her case against Thomas or not.” In view of such rhetoric, it is at least worth considering the possibility that Brock is ideologically driven to depict Anita Hill as a liar, no matter whether he actually proves his case against her or not.
Brock constructs his version of the Hill-Thomas story by seeking to answer the question why Hill might appear under oath and testify that Clarence Thomas did something he actually did not do. A truly impartial consideration of the case, however, would at least pose the opposite question: Why might Clarence Thomas appear under oath and testify that he did not do something he actually in some sense did? Brock essentially assumes the truth of Thomas’s testimony and emphasizes that the witnesses “who knew both Thomas and Hill”—fiercely loyal former assistants to Thomas—all “believed Thomas, not Hill.” He thus never explores the possibility of an alternative account.
Suppose Thomas did say to Hill roughly what Hill said he said. What might explain, then, the evident conviction of his angry and powerful televised denial? One subtle possibility was put forward just after the hearings by Orlando Patterson, an African American professor of sociology at Harvard, in a controversial op-ed piece in The New York Times. Brock dismisses Patterson in a single sentence, but his hypothesis deserves more than that.
Patterson speculated as follows. Sexual banter in the workplace is taboo according to the “neo-Puritan” rules of gender relations enforced by “elitist” feminists and the “white upper-middle class.” But “the mass of the white working class and nearly all African Americans” know that “raunchy things” are said in the work-place all the time. Strong women just talk back. Thomas, Patterson surmises, adhered in public to the “elitist” white feminist gender code, just as Brock describes. But on occasion he privately let “his mainstream cultural guard down” when he thought the setting was safe. He thought it was safe with Anita Hill because she was “esthetically and socially very similar to himself.” In what he thought was their shared “psycho-cultural context,” regaling her “with his Rabelaisian humor” was a “way of affirming their common origins.”
Such sexual banter, Patterson writes, would have been “completely out[side] of the cultural frame of his white, upper-middle-class work world, but immediately recognizable” as a common and unmalevolent language “to Professor Hill and most women of Southern working-class backgrounds, white or black, especially the latter.” Now, it turns out, Thomas “misjudged” Hill when he said “what he is alleged to have said”—she did not like it, or take it to be normal, even though she did not talk back or otherwise complain about it at the time. Thus her testimony at the hearings was a shock to him, even though it was not false.
Is there anything in the record that supports Patterson’s speculation? Three sources are suggestive. First is Thomas’s own initial statement to the committee the morning the hearings reopened—a statement he wrote himself, with “no handlers, no advisers”:
I cannot imagine anything that I said or did to Anita Hill that could have been mistaken for sexual harassment. But with that said, if there is anything that I have said that has been misconstrued by Anita Hill or anyone else to be sexual harassment, then I can say that I am so very sorry and I wish I had known. If I did know, I would have stopped immediately and I would not, as I’ve done over the past two weeks, [have] had to tear away at myself trying to think of what I could possibly have done.
But I have not said or done the things that Anita Hill has alleged.
By evening, after a day of Anita Hill’s testimony, that nuanced view had hardened into the statement that he unequivocally, categorically” denied Hill’s allegations. But most of the original statement is consistent with Patterson’s account.
The second major piece of evidence supporting this alternative theory is the statement of Angela Wright, a former EEOC director of public affairs whom Thomas had fired for reasons that remain in dispute (some say she called another employee a “faggot”; she denies it). Wright—often referred to in the press at the time as “the other woman”—had told Senate investigators that she had had experiences with Thomas resembling Hill’s testimony. In Capitol Games: The Inside Story of Clarence Thomas, Anita Hill and a Supreme Court Nomination,2 Timothy Phelps and Helen Winternitz report that Wright—whom they describe as “a young, very attractive, single black career woman who had worked for Clarence Thomas at a time when his life was in turbulence”—said that Thomas had “made comments about my anatomy” and the prospect of their dating. She said that “Clarence Thomas made comments about women’s anatomy quite often,” that this was “a thing that, you know, pretty much pops out of Clarence Thomas’s mouth.”
Wright never testified at the hearings, but her written statement was admitted into the record. Brock dismisses Wright as wholly incredible, suggesting that she was just out to “settle this score” with Thomas for firing her. True, her possible bias raised obvious questions about her credibility, and indeed may have been the reason the Democrats declined to have her testify. But Brock’s dismissal of Wright might have been too hasty. He claimed that her written statement in the record was unsworn. But Mayer and Abramson show that she did in fact swear to its truth on a form sent to the Senate, as Brock now admits in the August American Spectator. Mayer and Abramson also correct Brock’s assertion that she was never questioned by the FBI; her lawyers confirm that she was.
If Wright’s statement is viewed as credible, she gives support to Orlando Patterson’s account. Her statements to Senate investigators suggest that she understood Thomas’s remarks as part of the psycho-cultural context Patterson describes, one in which the remarks were considered repartee rather than verbal assaults: “I want you to understand that I am not sitting here saying to you that I was sexually harassed by Clarence Thomas. I am a very strong-willed person and at no point did I feel intimidated by him.”
Anita Hill’s feelings may well have been quite different from Angela Wright’s. She may have been both more offended by similar remarks and more intimidated by them. But Thomas may have been utterly unaware of her different reaction because, as his opening statement emphasized, she had never told him how she felt. Thus Hill and Thomas may have ascribed different meanings to the same behavior. If Thomas spoke about sexual matters to Anita Hill thinking she did not seriously object to what he was saying, then he may have meant it when he said he did not do “what she alleged.”
Hill may have been quite conscious that her failure to convey her sense of discomfort to Thomas posed a problem for her, as a third source from the record suggests—her own statement to the Senate Judiciary Committee. Hill did not, in fact, testify that she had been “sexually harassed”; the charge of “sexual harassment” was ascribed to her by her interrogators and the press. Indeed she was sometimes at pains to remind the senators that she was not charging technical sexual harassment in the legal sense. Why not? Sexual banter is not “sexual harassment” when both parties consent to its being used; conventional legal definitions of sexual harassment generally specify that the sexual behavior that exacts a quid pro quo or creates a hostile environment must be “unwelcome.” It is at least possible that the lawyerly caution in Hill’s description reflected her sense that by failing to make her feelings clear to Thomas at the time, she had created, legally speaking, an uphill or perhaps impossible sexual harassment case. According to Patterson’s interpretation, she had led Thomas to believe that “in context” his remarks were safe.
If this account is closer than Brock’s to what happened, then pieces of the puzzle Brock finds suspicious fall into place. Thomas considered Hill a friend, not an enemy, right up to the eve of the hearings, never knowing that his trust in their mutually understood “context” had been misplaced. Hill came forward reluctantly, and then provided only flatly stated clinical details rather than sweeping characterizations of Thomas’s behavior; she knew how difficult it would be to establish a claim that she had been “harassed.”
It remains, however, to ask why, if this is how it happened, Thomas would deny that Hill’s allegations were true. What rationalization could he possibly have had? To Orlando Patterson, the answer is straightforward: testifying before the white, upper-middle-class senators, he realized that categorical denial was the only way out. The Hill-Thomas hearings had
lifted a verbal style that carries only minor sanction in one subcultural context and thrown it in the overheated cultural arena of mainstream, neo-Puritan America where it incurs professional extinction.3
If Thomas had said he had made the innocent mistake of thinking she was on the same wavelength, the senators, Patterson says, wouldn’t “get it”; no communication was possible across the cultural divide. Still, why not tell the factual truth and take the consequences? Because, Patterson argues, the penalty of losing his appointment was grossly disproportionate to what he had done and the process grossly unfair. Just as juries sometimes nullify the facts before them to avert unjust verdicts, so did Thomas’s denial nullify Hill’s case.
The shift in the polls—according to Brock, yet another creation of the liberal press and television—can be more easily explained by this alternative hypothesis. At the time of the hearings, when more people said they “believed” Thomas than Hill, some of them might well have meant “he did it, but so what?” To lose a Supreme Court seat over the unprotested events of ten years earlier would be disproportionate and unfair. With Thomas securely on the Court, however, even those sympathetic to Thomas are safe to say that they believed Anita Hill.
Of course, this version of what happened cannot be proved. Moreover, it raises deep moral and political questions of its own. Patterson says that according to his interpretation, Thomas “was justified in denying making the remarks, even if he had in fact made them,” because truth is relative across our national “psycho-cultural” divide. Others would argue that the truth about whether statements were in fact made cannot be called relative; and it is for the relevant tribunal to decide what weight and justification to give statements such as those ascribed to Thomas. How could the concept of perjury survive, and how could legislators rely on testimony, if witnesses can decide for themselves that the facts of what took place can legitimately be denied?
Furthermore, Patterson dismisses out of hand the injury many women, including Anita Hill, claim to feel when men make rough sexual remarks in the workplace. He also abruptly dismisses their claim that they feel too powerless to follow his advice that they talk back boldly to the men who annoy them. Patterson divides the world into “psycho-cultural contexts” according to race and class but not according to gender; he fails to notice that many women—black or white—may not consider sexual remarks at work to be “Rabelaisian humor” or “down-home…courting” but rather understand them to be abusive.
However speculative or controversial, Patterson’s hypothesis at least puts Brock’s equally speculative account into relief. Brock purports to resolve the “Rashomon-like standoff” between Clarence Thomas and Anita Hill, but in doing so, he misses Rashomon‘s point. Sometimes no version of events is authoritative; what happened is sometimes a matter of the perspective from which they are viewed. Patterson’s interpretation suggests how perspective can alter the meaning two people can give the same events. But Rashomon reminded us that narrators too are trapped in a world of partial perspectives. Brock claims to have transcended partial perspective and found the truth, but instead of the truth he gives only his own perspective. The more closely it is examined, the more distorted it appears.
—July 15, 1993
See Ronald Dworkin's article on Thomas's views, "Justice for Clarence Thomas," The New York Review, November 7, 1991.↩
Reprinted in Court of Appeal: The Black Community Speaks Out on the Racial and Sexual Politics of Thomas VS. Hill, edited by Robert Chrisman and Robert L. Allen (Ballantine, 1992).↩
See Ronald Dworkin's article on Thomas's views, "Justice for Clarence Thomas," The New York Review, November 7, 1991.↩
Reprinted in Court of Appeal: The Black Community Speaks Out on the Racial and Sexual Politics of Thomas VS. Hill, edited by Robert Chrisman and Robert L. Allen (Ballantine, 1992).↩