KC Johnson

Constitutional Controversies: The 1990s

Then-Judiciary Committee chairman Joe Biden questions Clarence Thomas, after Thomas’ former deputy, Anita Hill, accused him of sexual harassment:

The most charged Thomas response:

Pennsylvania (then-)Republican senator Arlen Specter attacks the credibility of Hill:

Constitutional debates over race were less of a wedge issue in the 1990s than, say, in the 1970s; few school districts any longer employed busing, and Bill Clinton’s commitment to reform welfare largely removed the issue from partisan play. But affirmative action remained controversial, perhaps most spectacularly in one of the most famous attack ads in US history, run by Republican senator Jesse Helms (North Carolina) against his African-American opponent, former Charlotte mayor Harvey Gantt.


Today’s moot court is Romer v Evans, the  key gay rights case from the 1990s. Below is the syllabus of the decision, plus a portion from Justice Scalia’s dissent:


Syllabus: Argued October 10, 1995 — Decided May 20, 1996

After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum “Amendment 2” to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court’s grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2’s enforcement, and the State Supreme Court affirmed.

Held: Amendment 2 violates the Equal Protection Clause. Pp. 4-14.

(a) The State’s principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado’s Supreme Court–which establishes that the amendment’s immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment–and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions. Pp. 4-9.

(b) In order to reconcile the Fourteenth Amendment‘s promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312, 319-320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens’ freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State’s interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Pp. 9-14.

Kennedy, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.

Scalia dissent:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons–for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct–that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable . . .

There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternate life style.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality . . .

Amendment 2 sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before . . .

Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.


Finally: one of the most famous exchanges of the Thomas-Hill hearings, with Specter, a former Philadelphia district attorney (he switched from the Democratic Party to the Republicans to run for the seat), engaging in a withering cross-examination of Hill. Specter’s tactics almost cost him reelection in 1992, but, at the time, they revealed the more aggressive approach to the hearings taken by the committee’s Republicans.

SENATOR SPECTER: Thank you, Mr. Chairman.

Professor Hill, I have been asked to question you by Senator Thurmond, the ranking Republican, but I do not regard this as an adversary proceeding.

MS. HILL: Thank you.

SENATOR SPECTER: My duties run to the run to the people of Pennsylvania, who have elected me, and in the broader sense, as a United States Senator to constitutional government and the Constitution.

And my purpose, as the purpose of the hearing, generally, is to find out what happened.

MS. HILL: Certainly.

SENATOR SPECTER: We obviously have a matter of enormous importance from a lot of points of view. The integrity of the Court, it is very important that the Supreme Court not have any member who is tainted or have a cloud. In our society we can accept unfavorable decisions from the Court if we think they are fairly arrived at.

SENATOR BIDEN: Senator, excuse me for interrupting but some of our colleagues on this end, cannot hear you. Can you pull that closer? I know that makes it cumbersome.

SENATOR SPECTER: I have tried that carefully to avoid that.

SENATOR BIDEN: Well, it worked.

SENATOR SPECTER: You can hear me all right, can you not, Professor Hill?

MS. HILL: Yes, I can.

SENATOR SPECTER: Okay. But I was just saying about the importance of the Court where there should be a feeling of confidence in fairness the decisions, as we parties can take unfavorable decisions if they think they are being treated fairly. I think this hearing is very important to the Senate and to this committee, because by 20-20 hindsight we should have done this before. And obviously it is of critical importance to Judge Thomas, and you, whose reputations and careers are on the line.

It is not easy to go back to events which happened almost a decade ago to find out what happened, very, very difficult to do. I would start, Professor Hill, with one of your more recent statements, at least according to a man by the name of Carl Stewart, who says that he met you in August of this year, ran into you at the American Bar Association Convention in Atlanta, where Professor Hill stated to me in the presence of Stanley Grayson, “How great Clarence’s nomination was, and how much he deserved it.”

We went on to discuss Judge Thomas and our tenure at EEOC for an additional 30 minutes or so. There was no mention of sexual harassment or anything negative about Judge Thomas, he stated during that conversation and there is a statement from Stanley Grayson corroborating what Carlton Stewart has said.

My question is, did Mr. Stewart accurately state what happened with you at that meeting?

MS. HILL: As I recall at that meeting, I did see Carlton Stewart and we did discuss the nomination. Carlton Stewart was very excited about the nomination. And said, I believe that those are his words, how great it was that Clarence Thomas had been nominated. I only said that it was a great opportunity for Clarence Thomas. I did not say that it was a good thing, this nomination was a good thing.

I might add that I have spoken to newspaper reporters and have gone on record as saying that I have some doubts and some questions about the nomination. I, however, in that conversation where I was faced with an individual who was elated about the probabilities of his friend being on the Supreme Court, I did not want to insult him or argue with him at that time about the issue. I was very passive in the conversation.


MS. HILL: I was very passive in the conversation.

SENATOR SPECTER: So that Mr. Stewart and Mr. Grayson are simply wrong when they say, and this is a quotation from Mr. Stewart that you said, specifically, “how great his nomination was, and how much he deserved it.” They are just wrong?

MS. HILL: The latter part is certainly wrong. I did say that it is a great opportunity for Clarence Thomas. I did not say that he deserved it.

SENATOR SPECTER: We have a statement from former dean of Oral Roberts Law School, Roger Tuttle, who quotes you as saying that, laudatory comments about Judge Thomas, “is a fine man and an excellent legal scholar.” In the course of three years when Dean Tuttle knew you at the law school, that you had always praised him and had never made any derogatory comments. Is Dean Tuttle correct?

MS. HILL: During the time that I was at Oral Roberts University I realized that Charles Kothe, who was a founding dean of that school, had very high regards for Clarence Thomas. I did not risk talking in disparaging ways about Clarence Thomas at that time.

I don’t recall any specific conversations about Clarence Thomas in which I said anything about his legal scholarship. I do not really know of his legal scholarship, certainly at that time.

SENATOR SPECTER: Well, I can understand it if you did not say anything, but Dean Tuttle makes the specific statement. His words are, that you said, “The most laudatory comments.”

MS. HILL: I have no response to that because I do not know exactly what he is saying.

SENATOR SPECTER: There is a question about Phyllis Barry who was quoted in the New York Times on October 7th, “In an interview Ms. Barry suggested that the allegations”, referring to your allegations, “were the result of Ms. Hill’s disappointment and frustration that Mr. Thomas did not show any sexual interest in her.”

You were asked about Ms. Barry at the interview on October 9th and were reported to have said, “Well, I don’t know Phyllis Barry and she doesn’t know me.” And there are quite a few people who have come forward to say that they saw you and Ms. Barry together and that you knew each other very well.

MS. HILL: I would disagree with that. Ms. Barry worked at the EEOC. She did attend some staff meetings at the EEOC. We were not close friends. We did not socialize together and she has no basis for making a comment about my social interests, with regard to Clarence Thomas or anyone else.

I might add, that at the time that I had an active social life and that I was involved with other people.

SENATOR SPECTER: Did Ms. Anna Jenkins and Ms. J.C. Alvarez, who both have provided statements attesting to the relationship between you and Ms. Barry, a friendly one. Were Ms. Barry would have known you, were both Ms. Jenkins and Ms. Alvarez co-workers in a position to observe your relationship with Ms. Barry?

MS. HILL: They were both workers at the EEOC. I can only say that they were commenting on our relationship in the office. It was cordial and friendly. We were not unfriendly with each other, but we were not social acquaintances. We were professional acquaintances.

SENATOR SPECTER: So that when you said, Ms. Barry doesn’t know me and I don’t know her, you weren’t referring to just that, but some intensity of knowledge?

MS. HILL: Well, this is a specific remark about my sexual interest. And I think one has to know another person very well to make those kinds of remarks unless they are very openly expressed.

SENATOR SPECTER: Well, did Ms. Barry observe you and Judge Thomas together in the EEOC office?

MS. HILL: Yes, at staff meetings where she attended and at the office, yes.

SENATOR SPECTER: Let me pick up on Senator Biden’s line of questioning. You referred to the “oddest episode I remember” then talked the coke incident. When you made your statement to the FBI, why was it that that was omitted if it were so strong in your mind and such an odd incident?

MS. HILL: I spoke to the FBI agent and I told them the nature of comments, and did not tell them more specifics. I referred to the specific comments that were in my statement.

SENATOR SPECTER: Well, when you talked to the FBI agents, you did make specific allegations about specific sexual statements made by Judge Thomas.

MS. HILL: Yes.

SENATOR SPECTER: So that your statement to the FBI did have specifics.

MS. HILL: Yes.

SENATOR SPECTER: And my question to you, why, if this was such an odd episode, was it not included when you talked to the FBI?

MS. HILL: I do not know.

SENATOR SPECTER: I would like you to take a look, if you would, at your own statement in the first full paragraph of page five, on the last line and ask you why that was not included in your statement to the FBI?

MS. HILL: Excuse me, my copy is not–would you refer to that passage again?

SENATOR SPECTER: Yes, of course.

Referring to page five of the statement which you provided to the committee, there is a strong allegation in the last sentence. And my question to you is, why did you not tell that to the FBI?

MS. HILL: When the FBI investigation took place I tried to answer their questions as directly as I recall. I was very uncomfortable talking to the agent about that, these incidents, I am very uncomfortable now, but I feel that it is necessary. The FBI agent told me that it was regular procedure to come back and ask for more specifics if it was necessary. And so, at that time, I did not provide all of the specifics that I could have.

SENATOR SPECTER: Professor Hill, I can understand that it is uncomfortable and I don’t want to add to that, and if any of it–if there is something you want to pause about, please do.

You testified this morning, in response to Senator Biden, that the most embarrassing question involved–this is not too bad– women’s large breasts. That is a word we use all the time. That was the most embarrassing aspect of what Judge Thomas had said to you.

MS. HILL: No. The most embarrassing aspect was his description of the acts of these individuals, these women, the acts that those particular people would engage in. It wasn’t just the breasts; it was the continuation of his story about what happened in those films with the people with this characteristic, physical characteristic.

SENATOR SPECTER: With the physical characteristic of–

MS. HILL: The large breasts.

SENATOR SPECTER: Well, in your statement to the FBI you did refer to the films but there is no reference to the physical characteristic you describe. I don’t want to attach too much weight to it, but I had thought you said that the aspect of large breasts was the aspect that concerned you, and that was missing from the statement to the FBI.

MS. HILL: I have been misunderstood. It wasn’t the physical characteristic of having large breasts. It was the description of the acts that this person with this characteristic would do, the act that they would engage in, group acts with animals, things of that nature involving women.

SENATOR SPECTER: Professor Hill, I would like you now to turn to page 3 of your statement that you submitted to the committee, that we got just this morning. In the last sentence in the first full paragraph, you again make in that statement a very serious allegation as to Judge Thomas, and I would as you why you didn’t tell the FBI about that when they interviewed you.

MS. HILL: I suppose my response would be the same. I did not tell the FBI all of the information. The FBI agent made clear that if I were embarrassed about talking about something, that I could decline to discuss things that were too embarrassing, but that I could provide as much information as I felt comfortable with at that time.

SENATOR SPECTER: Well, now, did you decline to discuss with the FBI anything on the grounds that it was too embarrassing?

MS. HILL: There were no particular questions that were asked. He asked me to describe the kinds of incidents that had occurred as graphically as I could without being embarrassed. I did not explain everything. I agree that all of this was not disclosed in the FBI investigation.

SENATOR SPECTER: Was it easier for you because one of the FBI agents was a woman, or did you ask at any time that you give the statements to her alone in the absence of the man FBI agent?

MS. HILL: No, I did not do that. I didn’t ask to disclose. I just–I did not.

SENATOR SPECTER: Well, I understand from what you are saying now that you were told that you didn’t have to say anything if it was too embarrassing for you, but my question to you is, did you use that at any point to decline to give any information on the ground that it was too embarrassing?

MS. HILL: I never declined to answer a question because it was too embarrassing, no. He asked me to describe the incidents, and rather than decline to make any statement at all, I described them to my level of comfort.

SENATOR SPECTER: Well, you described a fair number of things in the FBI statement, but I come back now to the last sentence on page three in the first full paragraph, because it is a strong allegation, and now you have said that you had not omitted that because of its being embarrassing or you might have said even something embarrassing to the female agent. My question to you is, why was that omitted?

MS. HILL: Senator, at the time of the FBI investigation, I cooperated as fully as I could at that time, and I cannot explain why anything in specific was not stated.

SENATOR SPECTER: Professor Hill, you testified that you drew an inference that Judge Thomas might want you to look at pornographic films, but you told the FBI specifically that he never asked you to watch the films. Is that correct?

MS. HILL: He never said, “Let’s go to my apartment and watch films,” or “go to my house and watch films.” He did say, “You ought to see this material.”

SENATOR SPECTER: But when you testified that, as I wrote it down, “We ought to look at pornographic movies together,” that was an expression of what was in your mind when he–

MS. HILL: That was the inference that I drew, yes.

SENATOR SPECTER: The inference, so he–

MS. HILL: With his pressing me for social engagements, yes.

SENATOR SPECTER: That that was something he might have wanted you to do, but the fact is, flatly, he never asked you to look at pornographic movies with him.

MS. HILL: With him? No, he did not.

SENATOR BIDEN: Will the Senator yield for one moment for a point of clarification?

SENATOR SPECTER: I would rather not.

SENATOR BIDEN: To determine whether or not the witness ever saw the FBI report. Does she know what was stated by the FBI about her comments?

SENATOR SPECTER: Well, Mr. Chairman, I am asking her about what she said to the FBI.

SENATOR BIDEN: I understand. I am just asking that.

Have you ever seen the FBI report?

MS. HILL: No, I have not.

SENATOR BIDEN: Would you like to take a few moments and look at it now?

MS. HILL: Yes, I would.

SENATOR BIDEN: Okay. Let’s make a copy of the FBI report. I think we have to be careful. Senator Grassley asked me to make sure it doesn’t pertain–maybe you could continue–only as it pertains to her. We are not at liberty to give to her what the FBI said about other individuals.

SENATOR SPECTER: I was asking Professor Hill about the FBI report.

Obviously because the portion I am questioning you about relates to their recording what you said, and I think it is fair, one lawyer to another, to ask about it.

SENATOR BIDEN: No, I would continue, because you are not asking her directly. I just wanted to know whether or not her responses were at all based upon her knowledge of what the FBI said she said. That is all I was asking.

SENATOR SPECTER: Well, she has asked to see it, and I think it is a fair request, and I would be glad to take a moment’s delay to–

SENATOR BIDEN: This is the FBI report as it references Professor Hill, only Professor Hill.

SENATOR SPECTER: May we stop the clock, Mr. Chairman?

SENATOR BIDEN: Yes, we will. We will turn the clock back and give the Senator additional time. I will not ask how long to turn it back. I will leave that decision to Senator Simpson.

SENATOR SIMPSON: I will be watching the clock. Thank you, Mr. Chairman.


SENATOR BIDEN: That was not to hurry you along, Professor. That was to ask for silence in the room.

The only point I wish to make is that you know what is in the report and understand the report is a summary of your conversation, not a transcription of your conversation.


SENATOR BIDEN: While we have this momentary break, the Senator has 10 or more minutes remaining, and at the conclusion of his questioning we will recess for lunch for an hour and then begin with Senator Leahy.

SENATOR LEAHY: At what time?

SENATOR BIDEN: Whatever, an hour from the time we end.

SENATOR LEAHY: I see. I’m sorry, I didn’t hear that part. Thank you.

SENATOR BIDEN: All right. Have you had a chance to peruse it?

MS. HILL: Yes.


MS. HILL: Thank you.

SENATOR BIDEN: Now I apologize to my colleague for the interruption.

SENATOR SPECTER: Thank you, Mr. Chairman.

Professor Hill, now that you have read the FBI report, you can see that it contains no reference to any mention of Judge Thomas’ private parts or sexual prowess or size, et cetera, and my question to you would be, on something that is as important as it is in your written testimony and in your responses to Senator Biden, why didn’t you tell the FBI about that?

MS. HILL: Senator, in paragraph 2 on page 2 of the report it says that he liked to discuss specific sex acts and frequency of sex. And I am not sure what all that summarizes, but his sexual prowess, his sexual preferences, could have–

SENATOR SPECTER: Which line are you referring to, Professor?

MS. HILL: The very last line in paragraph 2 of page 2.

SENATOR SPECTER: Well, that says–and this is not too bad, I can read it–“Thomas liked to discuss specific sex acts and frequency of sex.” Now are you saying, in response to my question as to why you didn’t tell the FBI about the size of his private parts and his sexual prowess and “Long John Silver,” that that information was comprehended within the statement, “Thomas liked to discuss specific sex acts and frequency of sex”?

MS. HILL: I am not saying that that information was included in that. I don’t know that it was. I don’t believe that I even mentioned the latter information to the FBI agent, and I could only respond again that at the time of the investigation I tried to cooperate as fully as I could, to recall information to answer the questions that they asked.

SENATOR SPECTER: Professor Hill, you said that you took it to mean that Judge Thomas wanted to have sex with you, but in fact he never did ask you to have sex, correct?

MS. HILL: No, he did not ask me to have sex. He did continually pressure me to go out with him, continually, and he would not accept my explanation as being valid.

SENATOR SPECTER: So that when you said you took it to mean, “We ought to have sex,” that that was an inference that you drew?

MS. HILL: Yes, yes.

SENATOR SPECTER: Professor Hill, the USA Today reported on October 9th, “Anita Hill was told by Senate staffers her signed affidavit alleging sexual harassment by Clarence Thomas would be the instrument that `quietly and behind the scenes’ would force him to withdraw his name.” Was USA Today correct on that, attributing it to a man named Mr. Keith Henderson, a 10-year friend of Hill and former Senate Judiciary Committee staffer?

MS. HILL: I do not recall. I guess–did I say that? I don’t understand who said what in that quotation.

SENATOR SPECTER: Well, let me go on. He said, “Keith Henderson, a 10-year friend of Hill and former Senate Judiciary Committee staffer, says Hill was advised by Senate staffers that her charge would be kept secret and her name kept from public scrutiny.”

“They would,” apparently referring again to Mr. Henderson’s statement, “they would approach Judge Thomas with the information and he would withdraw and not turn this into a big story, Henderson says.”

Did anybody ever tell you that, by providing the statement, that there would be a move to request Judge Thomas to withdraw his nomination?

MS. HILL: I don’t recall any story about pressing, using this to press anyone.

SENATOR SPECTER: Well, do you recall anything at all about anything related to that?

MS. HILL: I think that I was told that my statement would be shown to Judge Thomas, and I agreed to that.

SENATOR SPECTER: But was there any suggestion, however slight, that the statement with these serious charges would result in a withdrawal so that it wouldn’t have to be necessary for your identity to be known or for you to come forward under circumstances like these?

MS. HILL: There was–no, not that I recall. I don’t recall anything being said about him being pressed to resign.

SENATOR SPECTER: Well, this would only have happened in the course of the past month or so, because all this started just in early September.

MS. HILL: I understand.

SENATOR SPECTER: So that when you say you don’t recall, I would ask you to search your memory on this point, and perhaps we might begin–and this is an important subject–about the initiation of this entire matter with respect to the Senate staffers who talked to you. But that is going to be too long for the few minutes that I have left, so I would just ask you once again, and you say you don’t recollect, whether there was anything at all said to you by anyone that, as USA Today reports, that just by having the allegations of sexual harassment by Clarence Thomas, that it would be the instrument that “quietly and behind the scenes” would force him to withdraw his name. Anything related to that in any way whatsoever?

MS. HILL: The only thing that I can think of, and if you will check, there were a lot of phone conversations. We were discussing this matter very carefully, and at some point there might have been a conversation about what might happen.

SENATOR SPECTER: Might have been?

MS. HILL: There might have been, but that wasn’t–I don’t remember this specific kind of comment about “quietly and behind the scenes” pressing him to withdraw.

SENATOR SPECTER: Well, aside from “quietly and behind the scenes” pressing him to withdraw, any suggestion that just the charges themselves, in writing, would result in Judge Thomas withdrawing, going away?

MS. HILL: No, no. I don’t recall that at all, no.

SENATOR SPECTER: Well, you started to say that there might have been some conversation, and it seemed to me–

MS. HILL: There might have been some conversation about what could possibly occur.

SENATOR SPECTER: Well, tell me about that conversation.

MS. HILL: Well, I can’t really tell you any more than what I have said. I discussed what the alternatives were, what might happen with this affidavit that I submitted. We talked about the possibility of the Senate committee coming back for more information. We talked about the possibility of the FBI, asking, going to the FBI and getting more information; some questions from individual Senators. I just, the statement that you are referring to, I really can’t verify.

SENATOR SPECTER: Well, when you talk about the Senate coming back for more information or the FBI coming back for more information or Senators coming back for more information, that has nothing to do at all with Judge Thomas withdrawing, so that when you testified a few moments ago that there might possibly have been a conversation, in response to my question about a possible withdrawal, I would press you on that, Professor Hill, in this context: You have testified with some specificity about what happened 10 years ago. I would ask you to press your recollection as to what happened within the last month.

MS. HILL: And I have done that, Senator, and I don’t recall that comment. I do recall that there might have been some suggestion that if the FBI did the investigation, that the Senate might get involved, that there may be–that a number of things might occur, but I really, I have to be honest with you, I cannot verify the statement that you are asking me to verify. There is not really more that I can tell you on that.

SENATOR SPECTER: Well, when you say a number of things might occur, what sort of things?

MS. HILL: May I just add this one thing?


MS. HILL: The nature of that kind of conversation that you are talking about is very different from the nature of the conversation that I recall. The conversations that I recall were much more vivid. They were more explicit. The conversations that I have had with the staff over the last few days in particular have become much more blurry, but these are vivid events that I recall from even eight years ago when they happened, and they are going to stand out much more in my mind than a telephone conversation. They were one-on-one, personal conversations, as a matter of fact, and that adds to why they are much more easily recalled. I am sure that there are some comments that I do not recall the exact nature of from that period, as well, but these that are here are the ones that I do recall.

SENATOR SPECTER: Well, Professor Hill, I can understand why you say that these comments, alleged comments, would stand out in your mind, and we have gone over those. I don’t want to go over them again. But when you talk about the withdrawal of a Supreme Court nominee, you are talking about something that is very, very vivid, stark, and you are talking about something that occurred within the past four or five weeks, and my question goes to a very dramatic and important event. If a mere allegation would pressure a nominee to withdraw from the Supreme Court, I would suggest to you that that is not something that wouldn’t stick in a mind for four or five weeks, if it happened.

MS. HILL: Well, Senator, I would suggest to you that for me these are more than mere allegations, so that if that comment were made–these are the truth to me, these comments are the truth to me–and if it were made, then I may not respond to it in the same way that you do.

SENATOR SPECTER: Well, I am not questioning your statement when I use the word “allegation” to refer to 10 years ago. I just don’t want to talk about it as a fact because so far that is something we have to decide, so I am not stressing that aspect of the question. I do with respect to the time period, but the point that I would come back to for just one more minute would be–well, let me ask it to you this way.

MS. HILL: Okay.

SENATOR SPECTER: Would you not consider it a matter of real importance if someone said to you, “Professor, you won’t have to go public. Your name won’t have to be disclosed. You won’t have to do anything. Just sign the affidavit and this,” as the USA Today report, would be the instrument that “quietly and behind the scenes” would force him to withdraw his name. Now I am not asking you whether it happened. I am asking you now only, if it did happen, whether that would be the kind of a statement to you which would be important and impressed upon you, that you would remember in the course of four or five weeks.

MS. HILL: I don’t recall a specific statement, and I cannot say whether that comment would have stuck in my mind. I really cannot say that.

SENATOR SPECTER: The sequence with the staffers is very involved, so I am going to move to another subject now, but I want to come back to this. Over the luncheon break, I would ask you to think about it further, if there is any way you can shed any further light on that question, because I think it is an important one.

MS. HILL: Okay. Thank you.

SENATOR SPECTER: Professor Hill, the next subject I want to take up with you involves the kind of strong language which you say Judge Thomas used in a very unique setting, where there you have the Chairman of the EEOC, the Nation’s chief law enforcement officer on sexual harassment, and here you have a lawyer who is an expert in this field, later goes on to teach civil rights and has a dedication to making sure that women are not discriminated against. And if you take the single issue of discrimination against women, the Chairman of the EEOC has a more important role on that question even than a Supreme Court justice–a Supreme Court justice is a more important position overall, but if you focus just on sexual harassment.

The testimony that you described here today depicts a circumstance where the Chairman of the EEOC is blatant, as you describe it, and my question is: Understanding the fact that you are 25 and that you are shortly out of law school and the pressures that exist in this world–and I know about it to a fair extent, I used to be a district attorney and I know about sexual harassment and discrimination against women and I think I have some sensitivity on it–but even considering all of that, given your own expert standing and the fact that here you have the chief law enforcement officer of the country on this subject and the whole purpose of the civil right law is being perverted right in the office of the Chairman with one of his own female subordinates, what went through your mind, if anything, on whether you ought to come forward at that stage, because if you had, you would have stopped this man from being head of the EEOC perhaps for another decade? What went on through your mind? I know you decided not to make a complaint, but did you give that any consideration, and, if so, how could you allow this kind of reprehensible conduct to go on right in the headquarters, without doing something about it?

MS. HILL: Well, it was a very trying and difficult decision for me not to say anything further. I can only say that when I made the decision to just withdraw from the situation and not press as claim or charge against him, that I may have shirked a duty, a responsibility that I had, and to that extent I confess that I am very sorry that I did not do something or say something, but at the time that was my best judgment. Maybe it was as poor judgment, but it wasn’t a dishonest and it wasn’t a completely unreasonable choice that I made, given the circumstances.

SENATOR SPECTER: My right light is on. Thank you very much, Professor Hill.

Thank you, Mr. Chairman.

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