Speaking Truth to Power

by Anita Hill

  Clearly, illegal behavior and evidence of illegal behavior should not be excluded from the scrutiny of an advisory committee when a nomination or candidacy for high office is at stake. Although the reviewing committee is not a court of law competent to adjudicate a claim or mete out a sanction, it must not exclude the information as private or personal. It is relevant to the question of the nominee’s qualifications and character. Moreover, the committee should not distinguish between types of illegal behavior by suggesting that certain illegal behavior is private rather than public behavior when deciding whether to consider the information. The committee must be willing to explore evidence that supports the allegation that the behavior is illegal. For example, where an allegation of racial discrimination is made involving a refusal to hire a person because of race, information about racial animus that shows a propensity to discriminate must be considered. An advisory body should consider the evidence, though it may not show that the particular decision resulted from racial bias. It is relevant to support the claim of the particular incident alleged. More important, it is relevant to the character and competency of the nominee.

  Evidence which has not been ruled to be a violation of the law by a court (such as the evidence presented in Ms. Baird’s nomination hearing) but which raises a colorable question of a violation or suggests a disregard for the law also must be considered. This is especially so when a committee is passing on a person seeking a law enforcement position, such as a position on the Supreme Court or in the Justice Department. Often, absent a court ruling, a person offering evidence of illegal activity cannot establish with certainty that the information that they are seeking to present represents a violation of the law. Placing the burden of obtaining a court ruling or otherwise establishing a violation with absolute certainty does not serve the public interest in making a thorough determination about the nominee. Moreover, a requirement that someone coming forward establish a violation of the law in many circumstances is unreasonable. As one letter writer asserted in responding to the hearing, Thomas’ behavior “indicated an attitude toward women which is not only offensive but which I fear will be harmful to all of us as we seek equality.” Another declared that Thomas’ confirmation “sent a clear message to those in our society who are prone to abuse the human dignity of others that it is indeed permissible to do” so. Thus, the information about his behavior was relevant regardless of whether it fit within the definitions of behavior which was outlawed. In addition, violations of public trust and evidence of such should not be excluded as relevant to the nomination of an individual to high office. Likewise, such violations are not personal information because they reflect on how an individual comports oneself in a position of authority and guardianship. As such, evidence of the behavior of Professor Ginsberg, Ms. Baird, and Judge Thomas was not private.

  Consequently, certain behavior by its nature is public, not private, when a person is being considered for a high office. Illegal behavior and evidence of it must be considered regardless of whether the source of the law which makes the behavior illegal is civil or criminal in nature. Colorable claims of illegal behavior must also be considered, as should violations of public trust or evidence thereof, because the latter relates to the handling of a position of civic responsibility. These activities by their nature are public, not private. Actions which by their nature are private but which the nominee has introduced into the public arena such as the workplace or in congressional gatherings are subject to review in considering a nominee as well.

  Again we must not overlook the context from which these reviews arise. A federal judicial appointment is a life-term placement subject only to removal by impeachment. Judicial appointments, which occur at the conclusion of nomination proceedings, are independent of the democratic process and should be, if they are to serve and to protect the rights of the majority as well as the minority. Such a nomination or an appointment is a prize, not an entitlement. Even presidential selection for a position does not give one the right to be confirmed to such a post. Two key factors argue in favor of heightened scrutiny of the nominee’s background and qualifications—the standard often applied in the past. First, appointment to high office is a plum whose award is nearly impossible to retract. Second, the public has a profound interest in the integrity of the courts aside from the politics of any nomination. Absent a clear invasion of private matters which do not relate to the law or the ability of a person to carry out his or her role as arbiter of disputes and protector of rights, much latitude has to be given to review information about the nominee.

  Presidential nominations to other than lifetime posts must to a lesser extent be subject to scrutiny as well. These nominations and subsequent appointments are subject to the will of the president, who in turn every four years is subject to the will of a popular vote. Nevertheless, the fact that they are prizes and not entitlement dictates that they, too, must be scrutinized. Actions of public officials, even seemingly private ones, may have public consequences, and a nominee who violates the law can blame only him- or herself.

  During the hearing, Senator Paul Simon asked that I or someone at my academic institution provide the Senate with some guidance on how to “deal with a charge that someone makes, that is a substantial charge, but that person says, … ‘I don’t want the charge made publicly.’ ” Two things are of utmost importance: a thorough and fair investigation and application of the proper standard of evaluation.

  Even before an investigation takes place a person seeking to provide information to the Senate should be advised of the process by a competent staff person. Secrecy about the process resulted in my own insecurities and perhaps delays in the investigation. Nevertheless I proceeded. However, others may be discouraged altogether from engaging in a procedure about which they are told they are entitled to no information. If the committee expects a citizen to participate in the process with this kind of information or information of any kind, the committee must extend the citizen the courtesy and benefit of knowing what the process is.

  The investigation should be handled by a nonpartisan body or individual in the role of a neutral fact finder, experienced in investigating sexual harassment matters. In investigating sensitive issues follow-up interviews should be the norm, not the exception.

  As the circumstances surrounding the hearing proved, the investigator’s neutrality is crucial. The FBI proved not to be a neutral fact finder in investigating my complaint. As part of the executive branch there is, at the very least, an appearance of alliance to the president whose nominee is being investigated. The danger in this alliance was realized later as the FBI was ordered to review my testimony for the purpose of spotting additional information or inconsistencies. The bureau received no such orders with regard to Thomas’ testimony. The conflict of interest is apparent: not only were the agents trying to defend their investigation but they were acting at the direction of a party whose interest was in seeing that the nomination went forward. Even though the use of the FBI in this manner was unusual, its occurrence illustrates the problem of relying on an investigator who may not be neutral or who can be utilized to serve an interest other than the fair resolution of the complaint. Secondly, the FBI has little formal experience in the handling of sexual harassment claims and no apparent knowledge of the law of employment discrimination. The agency’s expertise lies in criminal investigations and background checks. Sexual harassment is a social and a legal problem—a civil rights violation. The FBI agents may be aware of the legal definitions involved but may not be aware of how to elicit adequate information about a claim.

  The standard for sexual harassment information should be no different than for other information about the nominee. Thus, the claim need not present a violation of the law to be considered relevant to the nomination process. The committee should consider competent information which negatively reflects on the competency and fitness of the nominee and the ability of the nominee to fulfill his obligations to the Court. This requirement and stan
dard of review give credibility to the process and help prevent concerns about political manipulation of such issues.

  A written report with a recommendation on whether the committee should pursue the information should result from an investigation. The committee should then determine whether the information should be kept private or made public. The entire handling of my statement in this manner could have been concluded in a week to ten days. Under this time frame, had I been advised of the procedure on September 9, when I confirmed the rumors about harassment to Ricki Seidman, Senator Kennedy’s investigator, or on September 12, when I contacted Harriet Grant of Senator Biden’s nomination staff, the matter might have been concluded by September 23, which was the date on which I sent a statement to the committee. More important, had the matter been handled promptly and in the manner I describe, you might have avoided the leak of the information to the press. Fewer people would have known about the information and there would likely have been greater satisfaction with the process internally among the staffers.

  I make these suggestions for the sake of the process and others who may have information relevant to a future nomination. I have made peace with the action I took in my own claim and have only one thing to ask of the committee. Many of you have extended to women your regrets for your insensitivity in handling my claim. Others have apologized to the American public for your poor showing in the hearing. On a personal note, I would like to remind you that none of you have apologized to my parents. At the time of the hearing they were nearly eighty years old. They have worked hard all their lives and attempted to raise their children to fear God, seek the truth, and to respect the authority of the government. Six of their seven sons served in the armed forces over the course of nearly twenty years. Putting aside my bias, I know and their community knows that they are individuals of the highest character. Your malicious indictment of me was an indictment of them and all that they have taught me. At a time in their lives when they should be enjoying carefree days of leisure activities, they still fear for my safety and well-being. At the very least, they deserve a public apology from each of you.

  In keeping with your responsibility to represent all of your constituency in the best interest of the country, you owe to each of us the assurance that you did indeed learn from the experience of 1991 and the promise that you will fulfill your future obligations in a more sensitive and enlightened manner.

  YOURS VERY TRULY,

  ANITA F. HILL

  ACKNOWLEDGMENTS

  It is impossible to acknowledge all of the people who contributed to this book and the variety of ways that each did so. But I will begin where the book begins by thanking my family. My parents, to whom this book is dedicated, and my Uncle George Elliott were sources of inspiration and invaluable information for this book. As they have throughout my life, my sisters and brothers, Elreatha, Albert, Alfred, Winston, Bill, Doris, Allen, Joyce, Carlene, John, Ray, and JoAnn gave immeasurable support during the time I was writing this book. In addition, their telling of family stories contributed to making this book not just my story but ours. My cousins Willie Faye Parker, Berniece O’Guinn, and Eddie and Lois Hill were great sources of love and support. And Eric Hill, whose misfortune it was to live the hearing and three years following along with me, gave me amazing perspective on it all that not only enriched the book but also enriched my life.

  In addition to being about family, this book is about integrity and friendship. The greatest lessons came from those people who participated with me during the hearing, making sure that my story was heard not only because of their commitment to me but also because of their commitment to the integrity of the confirmation process. Susan Hoerchner, Ellen Wells, John Carr, and Joel Paul, the four corroborating witnesses, come to mind first and foremost. I thank them for their honesty and willingness to take tremendous risks for what they believed in. Behind the scenes others worked toward the goals of exposing the truth and honoring the spirit of the process. I owe an immense debt to Shirley Wiegand, David Swank, Randy Coyne, Leisha Self, Sue Ross, Emma Jordan, Charles Ogletree, Sonia Jarvis, Kim Thompson, John Frank, Jerry Parkinson, Ray and Leslie McFarland, Janet Napolitano, Kimberle Crenshaw, Judith Resnick, Warner Gardner, Michelle Roberts, Joy West, Angela Davis, Ann Majorca, Don Green, Teree Foster, Rick Tepker, Mike Scaperlanda, Ron Allen, Gary Phillips, Keith Henderson, and Andy Coats. As well, I thank Susan, Ellen, John, Joel, Shirley, and David each for broadening my comprehension of what it meant to live the experience and thus strengthening the book.

  Finally, this book is about courage—not as a single act but as a way of life. Since the hearing, the lessons I learned about bravery, endurance, and dignity in my youth have been reinforced by friends, supporters, and professional colleagues. I want to thank Ann Swank, Fred Bray, Lyn Entzeroth, Wayne Wiegand, Leon and Evelyn Higginbotham, Marie and Wayne Alley, Karolyne Murdock, Bob and Pat Richardson, Teresa and Lloyd Bingman, Tammy Kemp, Pat Kern, Mark and Libby Gillett, Bill and Terry McNichols, Frank and Edna Elkouri, Peter Kutner, Mac Reynolds, Beth Wilson, Keith and Diane Bystrom, Judith Maute, Tom Hill, Dan and Carol Gibbens, Tania and Floyd Norris, Carole Faricy, Gloria Segal, Ann Moore, Lillian Lewis, Ovetta Vermillion, Stephen Carter, Enola Aird, Drew and Kathy Kershen, Sandy Ingraham, Nina Roland, Alice Bruce, John and Wilma McFarland, John and Junetta Davis, Susan Faludi, Russ Rymer, Callie Khouri, Dewey and Katherine Selmon, Deb Parkinson, Marsha and Rod Uphoff, Andy Hall, Wandra Mitchell, Ivy McKinney, Gene and Rose Kuntz, Jim and Rita Holder, and Anne and Michael England.

  In the production of this book, technical support has never been simply technical. It has included believing in the book and my right to tell my story. John Breglio, my attorney, gave excellent legal advice leading to the contract for this book and helped present to the publisher an idea for a book of which we could all be proud. Joy Johannessen read the first words of the very rough manuscript and not only gave superb editorial advice but taught me about voice and helped me to believe in my own. I would not have had the confidence to begin this memoir without her. Rose Elugardo, my personal assistant, was a partner in the production of this book as she has been in most of my professional accomplishments since the hearing. She not only typed and printed the manuscript but she also read and questioned the content and coddled and cajoled me as needed. Rob McQuilkin’s red pencil and keen awareness of the work as a whole helped turn the manuscript into a book. Finally, Martha Levin’s editorial observations were always excellent and well stated. Moreover, she prodded me when I needed it and allowed me to find my own space and time to write the book when that was required. I could say many more positive things about Martha but will conclude by saying that without her I never could have completed this book.