On Friday, September 28, 1991, the Senate Judiciary Committee sent to the full Senate the nomination of Judge Clarence Thomas to the Supreme Court. His confirmation seemed assured. But late on October 5, a Saturday, word of what Newsday would publish in its Sunday editions made the wires: Anita F. Hill—a former employee of Thomas’s from 1981 to 1983 at both the Education Department and the Equal Employment Opportunity Commission (EEOC) and now a University of Oklahoma law professor—said that Thomas had sexually harassed her. Somebody had leaked Hill’s charge, which she had made in a confidential statement to the Judiciary Committee on September 23. On Sunday morning, National Public Radio’s Nina Totenberg, also the recipient of a leak, went on the air with the same story.
On Monday, Hill reiterated her charge at a press conference in Oklahoma, and the Judiciary Committee decided to hold public hearings. On Friday, before the committee and with a huge national television audience looking on, Hill repeated her accusation, adding new details, and Thomas categorically denied her charges. Assorted witnesses for Hill and for Thomas testified on Saturday and into the late evening on Sunday, the final day of this special hearing. The committee did not pronounce a verdict on who was telling the truth. An end to the controversy—for the moment—came on Tuesday when the full Senate approved the Thomas nomination by the extraordinarily narrow vote of 52 to 48.
Polls taken at the time showed that twice as many Americans believed Thomas’s denial as Hill’s accusation. Polls taken exactly a year later showed that 44 percent of Americans now believed Hill, and only 34 percent believed Thomas. Another poll taken at the end of 1992 found that 51 percent of women believed Thomas had harassed Hill, up from 27 percent in October 1991.
Oddly, no new facts about the merits of Hill’s allegation had surfaced between the end of the special hearing and these late-1992 polls. Indeed, as the Boston Globe commented, the matter of “who was being truthful” was “virtually boycotted by the media.” And as judicial decorum would insist, Thomas, on this matter, had been—and continues to be—as silent as the marble around him.
What may account, at least in part, for the change reflected in the new polls was the discussion of sexual harassment carried on in newspapers and on television and in countless public forums, in the wake of the Thomas hearings. Hill herself, in her many public appearances on college campuses and elsewhere, avoided discussion of the particulars of her charge and focused instead on the evils of sexual harassment in general. In this new, “more aware” environment, more women began to make claims of sexual harassment, and more women (mostly Democrats), citing sexual harassment as one of the problems they wished to address, ran for elective office.
So it could be that, with consciousness duly raised, more people conjectured that Hill must have been telling the truth. Nor did it hurt Hill that Thomas was often vilified for his judicial opinions while she was lionized in the news and entertainment media and given various awards and honors. A drive is under way to endow a chair for her at her law school.
Yet this past April, just when Anita Hill and her supporters may have thought they had won her case against Thomas, as judged by the American people, David Brock, a staff writer for the American Spectator, delivered a devastating blow to that case in the form of a book entitled The Real Anita Hill: The Untold Story.1 A runaway best-seller, Brock’s book may be causing yet another shift in public opinion on the question of whether Hill was telling the truth.
The Real Anita Hill is not about whether Thomas should have been confirmed. Nor does it seek to reform the seemingly off-track (at least under conditions of divided government) judicial-confirmation process. Nor does it join the debate over how serious an offense sexual harassment is. Brock is concerned only with whether sexual harassment occurred in this particular instance. And after much investigation and analysis, he concludes that it did not: “By any reasonable evidentiary standard,” he writes, “[Thomas] should be vindicated of Hill’s charges.”
When the book was first published, sales no doubt were helped by generally favorable reviews in many newspapers, especially the New York Times and the Washington Post. In its May 24 issue, however, in what Howard Kurtz, the media critic of the Washington Post, described as “a fierce liberal counterattack,” the New Yorker came out with a hostile review by two Wall Street Journal reporters, Jane Mayer and Jill Abramson, who themselves are scheduled to publish a rival book next year about the controversy, advertised as “the inside story of how the Bush administration sold a Supreme Court Justice to the American people.” As though on cue, liberal columnists like Anthony Lewis, Molly Ivins, and Ellen Goodman, among others, used Mayer and Abramson to denounce Brock’s book.
Brock responded to Mayer and Abramson in a single-spaced, eight-page letter, which the New Yorker refused to print. (The magazine’s fact-checkers assured the editor that Brock had scored no points.) Mayer and Abramson also refused to debate a willing Brock on the air or in any other setting. In their New Yorker piece, they hint that their forthcoming book will report new information, and perhaps it will. But in any event, judgment about the merits of Hill’s charge can never be conclusive. As Brock himself says, only two people know for sure just what, if anything, happened, and unless one of them confesses to lying, the debate will never end.
That said, the publication of The Real Anita Hill and the ensuing discussion offer an opportunity to review the remarkable events of October 1991 and what led to them. More is known today than was known when Hill and Thomas testified, and certain conclusions do seem warranted.
One of these conclusions is that Anita Hill, in making her accusation to the Judiciary Committee, did not—as was originally claimed—come forward merely of her own will but was, as Brock puts it, “drawn forward” by Senate staff members who were zealous opponents of Thomas’s nomination. Mayer and Abramson do not take issue with Brock’s discussion of the behind-the-scenes effort by these staffers, hugely assisted by the liberal interest groups that during the Reagan and Bush administrations specialized in opposing Supreme Court nominations; indeed, they write, this part of The Real Anita Hill is “the most successful.”
Even so, they continue, “the reason the reporting is so much more thorough here than elsewhere may be that it is largely based on the special counsel’s report on the leak—a document that was itself based on hundreds of interviews.”
Mayer and Abramson are suggesting that Brock did not add much to what Special Counsel Peter Fleming, appointed by the Senate to investigate the leak of Hill’s accusation, said in his 171-page report, released on May 5, 1992.
As a close reading of The Real Anita Hill shows, Brock did make use of the invaluable Fleming report, but his account also adds important new information, gleaned from his own reporting. Still, even if Brock had used only the Fleming report in demonstrating how Hill was drawn forward, he would have performed a useful public service.
For when the Senate decided to authorize an investigation into the leak, Washington journalists derided the whole idea (“a farce,” said Clarence Page; “ridiculous,” said Chris Matthews; and “stupid,” said Nina Totenberg, who, according to Fleming, destroyed a document in her possession that originated in the Senate). Then, when the report was released, it received next-day-only coverage, and the stories focused on Fleming’s bottom line, that he had been unable to identify the leaker.
Some of these stories were grossly inaccurate, and few outlets bothered to report in detail or to analyze what Fleming found.2 Indeed, the news pages of Mayer and Abramson’s own paper, the Wall Street Journal, allotted only six paragraphs to a report that describes in great detail what Mayer and Abramson themselves, in the New Yorker, now call an “unquestionably important” nexus—the one linking the interest groups, the Senate staffers, and the press.
Brock begins his account of how Hill came to make her charge against Thomas with the story of a Norwalk, California, woman named Susan Hoerchner.
It was Monday, July 1, 1991, the day Bush nominated Clarence Thomas, that Hoerchner, watching the announcement on television, told her husband, “He’s the one!”—meaning that Thomas was the man who had sexually harassed her friend Anita Hill ten years earlier when she and Hill had both worked in Washington.
That same day Hoerchner, who had not spoken to Hill in seven years, got her old friend’s number in Oklahoma and called her. Hoerchner asked whether Hill had heard the news about Thomas and said she could not believe it since he was such a “pig.” Hoerchner also asked Hill whether she would say anything about Thomas. Hill did not answer directly—a response that surprised Hoerchner. Hoerchner then requested that Hill release her from an “oath” she had taken ten years earlier never to discuss the matter with anyone else, and Hill agreed.
Fleming has none of this in his report; Brock got it from the transcript of an interview with Hoerchner by the Judiciary Committee on October 10, 1991. This document was sealed and never made public, but Brock was able to obtain a copy.
He also managed to obtain another interview that was also sealed by the committee—this one with Gary Liman Phillips, an old friend of Hill’s from law-school days (at Yale) and now a government attorney in Washington. Brock reveals on the basis of this document that Hill called Phillips three weeks after Bush had named Thomas; when Phillips asked Hill what she thought of the Thomas nomination, she told him for the first time in their relationship that she had left Washington in 1983 because Thomas had sexually harassed her. Hill also said that she was not going to tell anyone else about this matter.
It would thus appear that Hill both wanted to go after Thomas—she did release Hoerchner from her oath, and she did initiate the call to Phillips—and did not want to go after him, at least not publicly. Her intentions, at this point, are unclear. Nor is it clear whether Hoerchner spoke to anyone else about the charge. What is known, from the committee interview obtained by Brock, is that Phillips relayed what Hill had told him to two other people in Washington.
A few days later, an unidentified guest at a Washington dinner party attended by Nan Aron and George Kassouf of the Alliance for Justice—a liberal interest group that had opposed Thomas’s nomination to the federal appeals court in 1989 and was prepared to oppose his elevation to the Supreme Court—said that he had heard about a woman teaching law in Oklahoma who had worked for Thomas at the EEOC and who claimed he had sexually harassed her.
This dinner party is the point where Fleming’s report begins. Both Aron and Kassouf told Senate staffers what they had heard. Whether or not Anita Hill wanted her story to travel this far, it now “took on a life of its own,” as Brock puts it. On July 28, the Boston Globe quoted an official of one of the liberal interest groups as saying that these organizations were “withholding some damaging information about Thomas’s record, and will time its release to achieve maximum impact.” The damaging information might have been a reference to the Hill allegation. The quote itself reveals the intentions of Thomas’s opponents, although it appears certain that they did not invent but were handed Anita Hill’s story.
Aron and Kassouf were able to identify the Oklahoma law professor as Anita Hill. They passed on her name and her accusation to an aide to Senator Howard Metzenbaum, who had earlier voted against Thomas’s nomination both to chair the EEOC in 1986 and to sit on the federal appeals court in Washington, D.C., in 1989. Another Metzenbaum aide, Gail Laster, made the first known contact between Hill and the Senate on September 5. Laster did not ask whether Hill had been sexually harassed by Thomas, and Hill did not volunteer this information, although she did advise Laster to look into the possibility of sexual harassment on Thomas’s part.
Meanwhile, word of Hill’s allegation reached a Labor Committee aide to Senator Edward Kennedy by the name of Ricki Seidman (now a Clinton White House official). On September 6, Seidman also called Hill, telling her what she had heard. Three days later, in another phone conversation, Seidman became the first Senate staffer to whom Hill claimed that she had been sexually harassed by Thomas, although she did not offer many specifics.
Seidman suggested that Hill might be more comfortable discussing the matter with someone she knew—an acquaintance from her law-school days named James Brudney, who was now a Metzenbaum aide working for the Labor Committee. According to Fleming, “Hill began the conversation [with Brudney] by saying she did not wish to testify publicly.” But Brudney allowed her to believe that she could remain anonymous. He then told Hill’s story to Harriet Grant, a key aide to Senator Joseph Biden, chairman of the Judiciary Committee to which the complaint would have to be made.
Grant did not call Hill because committee procedures require that contact must be initiated by the person making the complaint. So Brudney urged Hill to call Grant. Hill did so, but insisted to Grant on anonymity—a condition not allowed by the committee.
According to Brock, Susan Hoerchner now offered herself as a corroborating witness, an essential element in making a credible harassment claim. Both Hill and Hoerchner thought that the anonymous charge, when given to the committee, would cause the nominee to withdraw, and thus Hill would not have to testify publicly.
In a series of phone conversations, Brudney, knowing that an anonymous charge could not be investigated by the committee and thus was apt to go nowhere, finally persuaded Hill to move from anonymity to confidentiality. Under that arrangement only Thomas and members of the committee could be told of her charge. Her change of mind on this point was at least in part influenced by a conversation with Susan Deller Ross, an expert in sexual-harassment law at Georgetown University Law Center; the ever-present Brudney had asked Ross to intervene with Hill.
However, when informed by Biden’s aide, Harriet Grant, that once she made her allegation, the FBI would investigate it, Hill pulled back. But then, at Hoerchner’s and Brudney’s urging, Hill finally decided to draft a statement. On September 23, she faxed it to the committee. Thomas did not withdraw. Five days later the committee voted on his nomination. And then the leak(s) to Newsday and Totenberg occurred.
Fleming concludes that Anita Hill was not one of the leakers. Brock concurs. But Brock also concludes, plausibly, that the leakers were Brudney, to whom Fleming’s report leads but whom it does not name, and Senator Paul Simon. Simon has always denied leaking, while Brudney—who quietly left Metzenbaum’s staff after Fleming’s report appeared, and now teaches law at Ohio State—has declined to speak on the matter. Whether or not one or the other or both leaked, someone—a Senate staffer or a Senator himself—did leak, and the leaker or leakers made a false statement about it to Fleming, and therefore to the Senate.3
It is to Brock’s credit that he regards the question of who leaked as worthy of journalistic inquiry. There has been a media blackout on this question, too. Totenberg and Newsday have steadfastly refused to discuss their sources, and other journalists have closed ranks in their favor and against pursuing a question that a non-journalist might think important.
That Anita Hill was drawn forward to make her accusation, and that some person or persons in the Senate leaked to the press, in violation not only of the due process which both an accuser and an accused deserve, but also of Senate rules, are, of course, irrelevant to whether Hill’s charge is valid. To repeat, short of a public confession by Hill or Thomas, we are unlikely ever to be absolutely certain of the truth. Still, thanks to David Brock, and on the basis of the information we currently have, it is possible to say that Anita Hill’s case is very weak indeed.
No eyewitnesses to the harassment alleged by Hill have ever come forward. In sexual-harassment cases, that is not unusual. Obviously, however, the alleged victim’s word alone cannot constitute proof that a crime has been committed. As Brock points out, other elements are needed as evidence: first and most importantly, witnesses who can testify that the accuser told them at the time of the alleged harassment of being harassed; second, a pattern of harassment on the part of the accused with other women; and, third, other evidence about the accused, such as a penchant for subjecting women to unwelcome talk about sex and pornography.4
As for contemporaneous corroboration, four witnesses were publicly presented during the special hearing. Yet in her interview with the FBI, Hill said that Susan Hoerchner was the only person she had ever told about the harassment by Thomas. There is no question that Hoerchner and Hill talked during 1981, or that during one of their conversations Hill mentioned to Hoerchner that she was being sexually harassed. In question are just when in 1981 this conversation took place, and whether Hill actually named Clarence Thomas as the harasser.
These issues are in question because, as Brock shows, in arguably the most controversial chapter of his book, there is what might be called a first Hoerchner and a second Hoerchner. The first Hoerchner exists until a critical point in her pre-testimony interview with the Judiciary Committee, which Brock alone among journalists seems to have in his possession; the second Hoerchner comes alive at that point and remains with us to this day.
During her pre-testimony interview, Hoerchner said that she had been uncertain, when she heard on television that Thomas had been nominated, as to whether he in fact was Hill’s harasser. She told her interviewers that on that day in July 1991, “Anita, by telephone, verified that he was the one.” For Brock, this raises the question of whether Hoerchner’s memory is accurate. As a chronology prepared by the Judiciary Committee shows, shortly before this interview, Hoerchner told Harriet Grant that it was in the spring of 1981 that Hill had told her of being sexually harassed by Thomas. But this would have been impossible, since Hill did not meet Thomas until she went to work for him in September 1981, and it was not until three months later that, according to Hill’s committee testimony, the harassment began.
Questioned in her pre-testimony interview about the date of this critical phone conversation, Hoerchner continued to locate it prior to September 1981—until, that is, one of her attorneys asked for time to speak to her off-the-record. Back on the record, the second Hoerchner emerged. Now she was unsure about when the phone conversation had taken place, but she was—and still is—sure that the call had occurred when Hill was working for Thomas.
Which Hoerchner is one to believe? By her own account she moved from Washington to California in September 1981, just when Hill went to work for Thomas. She said that the critical conversation about Hill’s being sexually harassed came in the context of weekly local calls while both she and Hill were still working in Washington, that in subsequent calls she asked about the harassment but Hill would not discuss it, and that once she moved to California she lost touch with Hill.
Examining these statements, Brock concludes that the first Hoerchner remembered correctly when the phone conversation occurred; but if this is true, it follows that Hill could not have named Thomas, and that, in 1991, Hoerchner must have been putting Thomas’s name into the blank space in an equation. (Brock raises the possibility that Hill was sexually harassed at the law firm where she was working before she went to work for Thomas at the Education Department.)
Hoerchner turned down Brock’s request for an interview. Mayer and Abramson, who believe the second Hoerchner, apparently have interviewed her. Hoerchner, meanwhile, continues to change her original story, stating most recently to Time that she did not lose touch with Hill “until much, much later, after she left the EEOC,” in July 1983. Any evaluation of Hoerchner’s credibility must reckon with the two Hoerchners, and the very changeability of her story means that she is not a compelling corroborating witness.
There are also problems with each of Hill’s other three witnesses. In neither their pre-testimony committee interviews nor in their actual appearances before the committee could John Carr and Joel Paul name Thomas as Hill’s harasser. Ellen Wells did name Thomas, but she provided no details of his alleged behavior.
According to Mayer and Abramson, Hill told more people than just the four. If so, this catches Hill in another change of story, as now she would be saying that she mentioned the harassment to not just one (Hoerchner), and not just four (Hoerchner, Carr, Wells, and Paul), but to more than four (unnamed for now). While one should be open to the possibility of new, trustworthy evidence, one should not discount the possibility of credulous and ideologically sympathetic reporters being “spun” by Anita Hill’s partisans seeking now, in the wake of Brock’s book, to create new facts to buttress her original claim.
Moving on to the second type of evidence: was there a pattern of sexual harassment by Thomas against other women? The answer is that no such pattern has ever materialized. There was Angela Wright, who worked under Thomas at the EEOC until he fired her. But, as Brock points out, Wright, who did not testify, denied in her committee interview that she was charging Thomas with harassment. Nor has any other woman made such a charge against him. Moreover, with the exception of Wright (who has serious credibility problems of her own), not one of the many other women who worked for Thomas believed Anita Hill’s story.
Nor, according to these women, did Thomas ever engage in sexually abusive or pornographic talk, the third essential element. Indeed, many who worked with Thomas said that he insisted on proper language and behavior. Pamela Talkin, a liberal Democrat who served as his chief of staff at the EEOC, told the Judiciary Committee that Thomas “has a feminist’s understanding of sexual politics. He is a man who loathes locker-room talk. This is a man who, when I had momentary lapses of language, looked discomfited and never responded in kind. This is a man who looked at his shoes when other men were craning their necks to look at a woman.”
So much for the third type of evidence. And so much for Hill’s case.
Her own credibility, moreover, is also weak. One of the most persuasive parts of Brock’s book is a chapter in which he compares what Hill said she did with the accounts of other witnesses and various third parties. Brock finds that “her sworn testimony and public statements either conflict with the facts or omit certain incidents entirely.” Mayer and Abramson do not argue with Brock’s analysis here; they even commend him for doing “a skillful job of identifying numerous inconsistencies in the public and private record of the Hill-Thomas dispute, highlighting contradictions and questioning motives.”
Hill testified that, despite being harassed, she decided to follow Thomas when he left the Education Department to go to the EEOC because, in part, she did not know that as a Schedule-A (i.e., career) attorney at Education, she would have been assured continued employment there. She also testified that she did not know who would succeed Thomas.
To check all this, Brock interviewed Andrew Fishel, head of personnel for the civil-rights office at Education during Hill’s time there. Fishel personally briefed Hill when she first came to work and he informed her that as a Schedule-A attorney she could not be fired without cause and that she could remain in her job no matter what happened to her boss. When she was leaving to go to the EEOC, Fishel asked Hill what kind of appointment she would have. It was a Schedule A. “She said she liked being a Schedule-A lawyer because she was not subject to dismissal. She clearly knew she could have kept her job at Education.”
Furthermore, in an interview with Brock, Harry Singleton, Thomas’s successor at Education, repeated what he had told the Senate in 1991 in a sworn affidavit, which was never publicly released: that Hill knew who would replace Thomas because he, Singleton, had talked to her a number of times and asked her to stay on.
Brock has other examples. FBI officials—one male, the other female—who interviewed Hill on September 23, 1991 each filed written statements with the agency pointing out discrepancies between Hill’s testimony before the committee and what she had told them. Later, a supervisory agent separately interviewed the two agents, who again said that Hill had told them a different story from the one she gave the committee on national television.
Also, under questioning by Senator Patrick Leahy about whom she shared her statement with—a question relevant to finding out who might have leaked to the press—Hill withheld from the committee the fact, established in the Fleming report, that she had faxed a copy of that statement on September 25 to James Brudney. It also appears that Hill lied when she told the committee that “no one asked me to leave the [law] firm [in 1981] in any way”: a partner at the firm, John Burke, said that he told her it would be in her professional interests to leave.
Finally, Brock has a chapter usefully debunking the myth that Anita Hill was a Republican who had been a Bork supporter. This was way off-base. When Robert Bork was nominated to the Supreme Court in 1987, Hill, who had been a student at Yale when Bork taught there, expressed disagreement both with the way he was treated by his opponents and with the substance of Bork’s legal views. Hill was not sufficiently Republican, if Republican at all, to win a Schedule-C political appointment in the Reagan administration. (She tried.) Mayer and Abramson contribute to the confusion by referring to Hill when she was working for Thomas as a “Reagan administration official.” She was nothing of the kind. She worked in the Reagan administration, as did any number of nonpolitical (and non-Reaganite) appointees like herself.
Brock also shows that in her years as a law professor, Hill has cast her lot with the political Left. And since the events of October 1991, she has become a heroine of the Left. The revelation of what Hill was and is politically suggests a motive for her willingness to be drawn forward by Brudney and company to make her charge.
The publication of The Real Anita Hill and the controversy it has provoked permit some observations about journalism, and about political liberalism. On many pages in this book Brock is criticizing the work of one journalist or another. This is not the way to win friends among colleagues, but there is no good reason why the work of journalists should be exempted from scrutiny. And in the case at hand, many of the journalistic targets at which Brock aims deserve his fire.
For his own part, Brock has shown that he can take the fire of journalists in return. The exchange between Brock and Mayer and Abramson, however, has proved unsatisfying. The New Yorker killed a dialogue by refusing to publish Brock’s response, and Mayer and Abramson have begged off a public engagement with him on the ground that they are still working on their book—a fact which did not, however, prevent them from reviewing Brock’s.
The Real Anita Hill demonstrates that in the Hill-Thomas matter, political liberalism took a beating. I do not mean by this that the Senate confirmed a judicial conservative, but rather that respect for civil liberties and formal governing procedures—once hallmarks of liberalism—did not matter to some who call themselves liberal. For many, and not just those who did the deeds, the end of stopping Clarence Thomas justified the means of “drawing forward” Anita Hill and eventually leaking her allegation. Whatever else may someday be learned about the Hill-Thomas case, that deplorable sequence of events will continue to deserve the censure of all who take seriously the morality of the means we employ as a self-governing people.
1 Free Press, 438 pp., $24.95.
2 Key exceptions were Roll Call (in a piece by Glenn R. Simpson); the editorial page of the Wall Street Journal (in a column by Paul Gigot); and the American Spectator (in a Presswatch column by me).
3 When members of the executive branch are thought to have told lies to or made false statements to or withheld information from Congress, their criminal prosecution is often demanded; a different standard appears to hold with respect to members of Congress and their aides.
4 It bears noting that under the relevant federal law, anyone alleging sexual harassment must do so within 180 days. Hill's allegation would have been a non-starter in a court of law. The court of politics, of course, is vastly different.