by Anita Hill
In his opening statement Senator Biden decried the problem of sexual harassment and other forms of gender-related abuse or violence. “Sexual harassment is a serious matter,” he began. Senator Biden insisted that “any person guilty of this offense is unsuited to serve not only the Nation’s highest court, but any position of responsibility, of high responsibility in or out of government.” Pausing, he further declared that “sexual harassment of working women is an issue of national concern.” But a simple pronouncement could not make sexual harassment a national concern, much less the concern of some members of the Senate Judiciary Committee whose only objective right now was the confirmation of Clarence Thomas.
With that statement, however, Senator Biden set the stakes for the Republicans. He had declared that a harasser was unsuited for the Court. Thomas’ supporters were thus challenged to show that he was not a harasser. To do that, they would have to establish either that the acts I complained of were unoffensive or that I was simply fabricating the story. For the most part, the Republican senators chose the latter. While, on the evening before the hearing, Senator Biden had spoken about neutrality, Senator Thurmond apparently exclaimed, “Thomas is innocent, and we’re going to prove it.”
Biden was correct in his assessment of the severity of the widespread problem of sexual harassment in the workplace. Sexual harassment is a form of employment discrimination as defined in the EEOC guidelines and by case law. A party with a sexual harassment claim first files a complaint with the EEOC. That agency investigates the claim according to its own guidelines. Where warranted under the investigation, the EEOC can bring a suit against an employer or individual accused of sexual harassment. Alternatively, the agency can issue a right-to-sue letter which allows the individual to sue on her or his own behalf. For two decades prior to the hearing the problem of sexual harassment had been addressed under Title VII of the Civil Rights Act.
But as correct as Biden was in denouncing the problem, he was equally incorrect in assuming that the hearing about to convene was a proper forum for addressing it. From the sounding of the first gavel opening the hearing on October 11, the process was flawed. First, the committee had no experience in or rules for evaluating a claim of sexual harassment. Second, the committee had no rules for conducting the proceeding and chose instead to make the rules on an ad hoc basis, as the hearing evolved. Lack of experience and procedure detracted from the ability of the committee to reach a rational conclusion. Consequently, members of the committee resorted to one thing they did understand: partisan politics.
Though Senator Biden asserted that the committee had convened to hear evidence on charges of sexual harassment, he chose to deviate both from the EEOC guidelines governing investigations and findings of cause in such claims and from the procedures for hearing such claims developed in courts of law. In his opening statement Senator Biden declared first that standard rules of evidence would not apply to the hearing and second that Judge Thomas would at all times be given the benefit of the doubt. “The presumption [of truth] is with you, Judge Thomas.” This presumption meant that if it were a case of my word against his, his would always be better. The EEOC guidelines presume nothing of the kind. In fact, those guidelines direct that the parties start as equally credible and that the balance is tipped by such things as contemporaneous declarations to other parties.
As Senator Biden put it, “this [was] an extraordinary hearing.” Thus, he reasoned, the rules of law generally used for limiting questions, making speeches or statements, arguing with the witness, or even excluding irrelevant testimony would not apply. As the hearing proceeded without standard rules of evidence and guidelines for processing information, the relationship between such rules and guidelines and fairness became apparent more and more. The senators’ tendency toward ad hoc rule making weighed in heavily against fairness. So apparent was this tendency that during the first day of testimony, the chair invited me to decide for the committee what rule of evidence should apply to a certain document. I knew then that the process had collapsed.
As the ranking Republican, Senator Thurmond also had his say in an opening statement. He, too, decried the problem of sexual harassment, but only briefly. The highlight of his statement was a chronicle of the nomination process that preceded this round of the confirmation process. His commitment to the nominee was clear in his praise for Thomas’ integrity. Thurmond even asserted that not one of the witnesses had had anything bad to say about his character, though Thomas himself would later contradict Thurmond’s assessment of the process by claiming that throughout his nomination claims of personal wrongdoing ranging from “drug abuse” to “anti-Semitism” to “wife-beating” had tainted the process. Yet to overpower the effect of my allegations, Thurmond recast Thomas as a person of unquestioned character, notwithstanding every other reservation voiced about his character. Thurmond followed his praise of Thomas with an attack on my statement, asserting that I had “chose[n] to publicize” my allegations the day before the vote, falsely indicating that I had voluntarily gone to the press with a claim and that the Senate had been unaware of it before the press stories appeared.
Each opening statement perfectly reflected what was about to take place. Biden spoke of fairness and objectivity and the desire to establish a proper procedure for getting to the truth. Thurmond’s statement, on the other hand, laid out the objectives of the Republicans, which were to bolster the credibility of the nominee and to discredit my testimony. The Republicans charged ahead doing just that. Meanwhile, over the next few days, the committee’s Democratic members bent over backward to show an impartiality that seemed at times honorable and at other times, if not cowardly, then certainly oblivious to the Republicans’ tactics of misrepresentation.
While the Democrats set up a zone of neutrality between themselves and my statement, the Republicans fully embraced Thomas and all of his behavior in order to prove him not simply “innocent” but “the best man for the job.” Once the cameras rolled, tempers started to flare and any sense of decorum was soon lost, as the senators either forgot the rules or deliberately avoided them. What followed was a chaos that pretended to order, a chaos disguised only by the politeness of the titles used to address the committee members, the stated rules of order, and the timekeeping.
The very first clash about process occurred when the Republican senators sought to introduce my statement of September 25 into the record during Judge Thomas’ remarks on Friday morning, well before my actual appearance. Though contrary to Biden’s early indications, Thomas was the first to speak. I agreed to that deviation from the process, but refused to allow the statement to be used prior to my appearance. Notwithstanding the leak, it was my statement, and I wanted it introduced when I was introduced. What soon surfaced was clear evidence of the senators’ anger that “their” process was being disturbed by a woman who was of no political significance, alleging behavior that they claimed was so far outside their own experience as to be incomprehensible and perhaps irrelevant.
After listening to Thomas’ “categorical denial” of all the behavior, an irate Senator Hatch denounced the decision to delay introduction of the statement and declared that no one was going to tell him what was to be admissible evidence in the hearing or when it would be admitted. He was prepared to decide on an ad hoc basis what was fair, and fairness to him meant the protection of the nominee’s reputation from what he called “scurrilous allegations.” Biden suggested that the committee recess to discuss procedure. Hatch objected, blaming unidentified parties within the committee for the inconvenience of the hearings to begin with.
“If somebody on this committee or their staff had had the honesty and the integrity before the vote to raise this issue and ask for an executive session and say this has to be brought—nobody did, and then somebody on this committee or their staff, and I am outraged by it, leaked that report, an FBI report that we all know should never be disclosed to the public, because of the materials that generally are in them,” Hatch ne
arly ranted. The fastidious man in the dark suit with the buttoned-down collared shirt who appeared always in control now seemed anything but.
Hatch cleverly presented the sideshow of the leak perhaps in a hope that it would upstage the hearing or the claims I raised. Even more while decrying the leak and disclosure in the press, Senator Hatch himself engaged in leaking by referring to the contents of the statement and the FBI report. Without pointing to anything in particular, the senator talked about discrepancies between the two. Senator Hatch’s strategy was ingenious. He could discredit me by pointing to inconsistencies that may have been nonexistent, negligible, or explicable, claiming he was held from proving his point by the confidentiality of the documents. Senator DeConcini, who also indicated his belief in Thomas’ truthfulness, echoed Senator Hatch’s undefined allegations of inconsistencies.
From my hotel room I watched the proceedings, astounded by the absurdity of it all, yet questioning whether I could begin to be objective. Hatch’s tactics were clearly aimed at bullying the committee and the public into denouncing the claims I raised. Yet I was so shocked and overtaken by feelings of insecurity at the situation in which I found myself that I did not question the spectacle developing. Nor did Ogletree or Jarvis, who watched the opening with me. We just stared in disbelief—even Jarvis, who is never at a loss for words.
Over Senator Hatch’s protest the committee convened to consider how to proceed with the hearing. During the recess Senator Biden’s office contacted me. When the committee readjourned, Chair Biden announced that I had agreed to release my statement to the Senate at the time of my testimony. Though this had always been my understanding, Biden announced it as though it were a new development. Still, Senator Hatch remained unsatisfied, objecting that the FBI report should be open to discussion by the committee, and threatening to resign from the committee if it wasn’t. “To be fair to the nominee,” Hatch argued that the confidential document must be publicly discussed. Indeed, after the hearing adjourned, the FBI report fell into the hands of writer and conservative commentator David Brock. Brock quotes from its text in his book The Real Anita Hill, suggesting that he had access to those sealed documents.
Thus, even the first hour of the first day of the hearing revealed the truth in Biden’s observation: this was to be an “extraordinary proceeding.” Hatch declared aloud what Senator Thurmond had only implied. Order and impartiality were dispensable as the twofold Republican agenda became clear.
Having settled the quarrel about the rules, and then recovered from my family’s disorderly entry, at 11:00 A.M. Senator Biden began his questioning of me. The thirty-minute quizzing period began with general inquiries about my background and professional life. Gradually, the questions became more specific and focused on Thomas’ behavior at Education and EEOC.
“Let’s go back to the first time that you alleged Judge Thomas indicated he had more than a professional interest in you,” Senator Biden approached the subject of harassment in a matter-of-fact way. “Do you recall what the first time was and, with as much precision as you can, what he said to you?”
“It either happened at lunch or it happened in his office when he said to me, very casually, you ought to go out with me sometime …,” I recalled.
“Was that the extent of that incident?”
“That was the extent of that incident … I declined and, at that incident, I think he may have said something about, you know, he didn’t understand why I didn’t want to go out with him.…”
“Would you describe for the committee how you felt at that time when he asked you out? What was your reaction?” the senator questioned.
To describe what took place was difficult, but the emotional impact of having to recall my feelings about what had happened was monumental. I struggled to keep calm. “Well, my reaction at that time was a little surprised, because I had not indicated to him in any way that I knew of that I was interested in dating him. We had developed a good working relationship. It was cordial and it was very comfortable, so I was surprised that he was interested in something else.”
The logistics of making arrangments to travel to Washington, informing and gathering my family, friends, and advisers together, had left me little time to prepare for my testimony. Yet as the questioning began I realized that no amount of preparation could have made it easy to address the kinds of questions that, ultimately, Biden asked. Senator Biden’s tone became even more somber.
“Now I must ask you to describe once again, and more fully, the behavior that you have alleged [Thomas] engaged in while your boss which you say went beyond the professional conventions and were unwelcome to you. Now, I know these are difficult to discuss, but you must understand that we have to ask you about the …”
Perhaps to ease the impact of the intrusion into my memory, Biden asked the question differently. “Did all of the behavior that you have described to us in your written statement to the committee and your oral statement now and what you have said to the FBI, did all of that behavior take place at work?”
“Yes, it did … if you are including a luncheon during the workday to be at work, yes,” I responded, thankful for the new approach.
But further probing was inevitable, and in short time the senator asked the question which had to be asked: “Can you tell me what incidents occurred, of the ones you described to us, occurred in his office?”
“Well, I recall specifically that the incident involving the Coke can occurred in his office at the EEOC.”
“And what was that incident, again?” Biden asked.
“The incident with regard to the Coke can, that statement?” I said, perhaps hoping to avoid repeating what had so disgusted me at the time, having already described it once in the opening statement.
But Biden would not allow me to avoid the matter. He would not rely on the testimony I had given. “Once again for me, please,” he half asked, half insisted.
Gradually, something moved from the pit of my stomach and expanded until it became a tightness in my chest. “The incident involved his getting up from a work table, going to his desk, looking at this can and saying, ‘Who put pubic hair on my Coke?’ ”
At once, I was twenty-five years old again, standing in the middle of Thomas’ office. By that time I had had several jobs and worked with many different people, but never before had anyone ever uttered such an absurdly vulgar and juvenile comment to me. Disgusted and shocked, I could only shake my head and leave the office. I heard him laughing as I closed the door.
The lapse was temporary. Biden’s next question brought me back to the reality of my present situation. In its way it was equally shocking. “Was anyone else in his office at the time?” Biden asked.
“No.”
“Are there any other incidents that occurred in his office?”
“I recall at least one instance in his office at the EEOC where he discussed some pornographic material and he brought up the substance or the content of pornographic material.”
Chairman: “Again, it is difficult, but for the record,… what was the content of what he said?”
I probed my memory for the details the committee seemed to require. “This was a reference to an individual who had a very large penis and he used the name that he had referred to in the pornographic material—.”
Senator Biden: “Do you recall what it was?”
“Yes, I do. The name that was referred to was Long Dong Silver,” I recalled.
But these details of what had happened would not satisfy the committee. Senator Biden wanted more. “Can you tell us how you felt at the time?”
I collected myself in order to respond. “I felt embarrassed. I had given him an explanation that I thought it was not good for me, as an employee working directly for him, to go out with him. I thought that he did not take seriously my decision to say ‘no,’ and that he did not respect my having said ‘no’ to him.” I did not know any better words to explain to someone with power how it felt to be utterly powerless. Lik
e my grandfather Henery Elliott, confronted by his white neighbor, my race (and for me my gender) gave me no right to say no to those whose gender and/or race gave them the right to decide for you. I was no better off than my grandmother Ida Elliott, who in the retelling of the story appears never to have been consulted in the matter.
“I—the conversations about sex, I was much more embarrassed and humiliated by. The two combined really made me feel sort of helpless in a job situation because I really wanted to do the work that I was doing, I enjoyed that work. But I felt that was being put in jeopardy by the other things that were going on in the office. I was really, really very troubled by it and distressed over it.” I strained to define feelings that were so basic that defining words seemed unnecessary. Nevertheless, they were feelings so foreign to the committee members that full explanations were imperative if they were to understand.
“Can you tell the committee what was the most embarrassing of all the incidents that you have alleged?”
In the back of my mind I knew that by reciting the details of my experiences I was simply responding to those who claimed that I had overreacted to Thomas’ remarks. Perhaps even Biden himself believed that the behavior which I complained about was inoffensive. Knowing why I was being asked to repeat details of the experience did not make it any easier. Yet I tried to keep the purpose in mind as I struggled to recite more of the behavior.
“I think the one that was the most embarrassing was this discussion of pornography involving women with large breasts and engaged in a variety of sex with different people or animals. That was the thing that embarrassed me the most and made me feel the most humiliated.”
“If you can, in his words—not your—in his words, can you tell us what, on that occasion, he said to you?” the senator asked, seeking even more particulars.
Within the first hour of my appearance before the committee I was asked to repeat details of experiences which I had already forced myself to describe first to Metzenbaum and staff attorney Jim Brudney, then to the committee in my written statement of September 23, then to the FBI, and finally in my opening statement. Inherent in these demands for repetition was a fundamental hostility to the claim, as though each time what I had said before had been insufficient. “Tell us … once again … what was the most embarrassing … in order for us to determine.” The hearing had only begun and I found myself wondering, “How many times … how much detail … how vulgar did the language have to be and … how uncomfortable do I have to feel in order for [them] to comprehend what happened to me?” By the end of the day, I would conclude that no amount of detail would satisfy the committee, though at no point during the day’s questioning would I consider withdrawing.