KC Johnson

Confirmation Controversies

  • Steven Teles, “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment,” Studies in American Political Development (2009)
  • Vesla Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development (2009)

Thomas’s Confirmation: The True Story

Resurrection: The Confirmation of Clarence Thomas

by John C. Danforth
Viking, 225 pp., $19.95

Strange Justice: The Selling of Clarence Thomas

by Jane Mayer and Jill Abramson
Houghton Mifflin, 406 pp., $24.95

After Supreme Court nominations led to two recent slug-fests (Robert Bork’s rejection in 1987, Clarence Thomas’s confirmation in 1991), many people believed that “the process” of clearing appointments to the Court had gone seriously awry and needed repair. Senator John Danforth wants confirmation hearings to be treated like trials, preserving the assumption that a nominee is innocent of all charges brought against him or her, until and unless such charges can be proved beyond a reasonable doubt. Others have proposed different remedies—that trained cross-examiners, instead of senators on the judiciary committee, question the nominee; that the hearings be held in secret (or not held at all), that witnesses against the nominee be restricted in what they can allege. Stephen Carter, in The Confirmation Mess, shows how unpracticable these and other remedies would be.

There is no reason to think “the process” is flawed. After Watergate, some concluded that there was something wrong with the presidential electoral process, and cast about for ways of reforming it. But the electoral machinery does not guarantee that a goodman will be chosen, only that the choice will reflect the electorate’s wishes. All it can do is give the people what they want, and in 1968 people voted overwhelmingly for Nixon and Agnew (43 percent) or for Wallace-Lemay (13 percent), a 56 percent vote to repress what annoyed Americans at the time (campus revolt, city riots, antiwar protesters). The rule with the election process is the same as for computers: garbage in, garbage out. The same could be said of the Supreme Court nomination process. There is nothing wrong with the machinery of public hearing, just with the attitudes of those using it. When a chairman of the Judiciary Committee cannot make up his mind what the hearings should or should not investigate, the best machinery in the world will not improve the furnishings of his mind.

Some nominees have taken the position that they have no responsibility to answer questions about their views. Only their public record should be examined. In 1939, Felix Frankfurter refused to appear before the committee, until his friends convinced him that he would be rejected if he did not. But Frankfurter had a point: no nominees had testified before the Senate until 1925, when Harlan Stone became the first to do so. The level of appointments in the past did not seem to suffer significantly because no hearings were held.

Besides, the Senate’s role is to “advise and consent,” not to make appointments on its own. Over the course of seventy-five years, from 1894 to 1968, only one nominee (John J. Parker) was rejected—leading people to think the Senate’s role as a rubber stamp would continue. But this was the period of an expanding “imperial presidency,” when Congress ceded many powers to the executive branch. Not surprisingly, the rejection of justices reentered our political life late in Lyndon Johnson’s presidency (with resistance to his nominees Fortas and Thornberry) and early in Richard Nixon’s (with the rejection of two men in a row, Haynsworth and Carswell). That is, just when Congress was reasserting its authority on a broad range of issues.

The lull in rejections after 1894 was a sharp departure from earlier practice. Up to that year, an average of one in four justices had been rejected.1 Even a sympathetic Federalist Congress turned back one of George Washington’s choices—John Rutledge, a former justice nominated to become Chief Justice. And these rejections were often based on broad considerations, going beyond the candidate’s judicial record. Rutledge was rebuffed because he broke ranks with the Federalists on the Jay Treaty and because of rumors about his mental stability.2 He might have welcomed a chance to explain his views on the Treaty and to confront the rumors of his insanity.

Other men were dismissed from consideration as a deliberate rebuke to the President. John Tyler failed with five nominees.3 The Senate let Andrew Johnson know it would confirm none of his appointees; it reduced the court from ten to nine justices, and threatened to shrink it to eight if he tried to put up another nominee.4 These were extensions of a normal Senate reaction to lame duck presidents: when the executive is expected to change hands, the Senate has often delayed a consideration of the nominee until a new administration came in (the tactic used against Fortas and Thornberry in 1968).

There would have been more rejections but for quiet elimination of figures under consideration when their Senate prospects looked dark. This often involved “senatorial courtesy” (a de facto veto on nominees if either senator from the person’s own state was opposed) or geographical balance. The threat of rejection usually makes a president keep the congressional will in mind as he makes his selection of a nominee. It was Nixon’s defiance of such tact (as well as the candidate’s mediocrity) that quickly solidified opposition to Harold Carswell.

It is naive, then, to suppose that appointment of justices can be, or ever was, “above politics.” If that were the case presidents would not make Supreme Court appointments from their own party 85 percent of the time, and appointments to lower courts from their own party 90 percent of the time.5 It is clear from this that the Senate cannot compel a president to choose someone not of his own party. Often the nominees come from the president’s administration or his campaign team.

If a Democratic Senate cannot “advise” a Republican president to appoint a Democratic justice, what advice can the Senate give? Whatever advice it thinks relevant to the situation. Those seeking advice do not normally tell the adviser what counsel he or she can give. A person who says, “Advise me, but only to do this,” is not seeking advice. Yet some think a president can or should say, “Advise me to support the man I have already appointed.” That is not advice. It is capitulation.

Needless to say, the Senate does not have an entirely free hand. It cannot, as I just said, dictate the party background of a nominee. There are certain other practical restrictions on its mandate. A president can appoint someone because (among other things) he or she is a black, a woman, a Catholic, a Jew. Ronald Reagan promised to appoint a woman, and did. The Senate cannot, as a political reality, refuse to confirm because the candidate is black or a woman. It must come up with some other plausible objection, since there are social gains to having a black on the Court, or a woman, but no definable social gains in, say, refusing to have a woman on the Court. (If, at some point, there were seven women on the Court, objection to confirming an eighth would have a defensible basis.) “Diversity” was the ground on which some Senators voted to confirm Clarence Thomas—and it is one respectable basis for making such a decision.

In general, given the fact that a nominee will normally be of the president’s party, and often of his personal circle, the Senate can demand that the justice-to-be show some independence in judicial matters, along with basic competence, desirable judicial temperament, and formed constitutional attitudes. How to determine these things is the problem—a problem made more acute by many efforts to limit inquiry.

We are told, for instance, that the Senate should not try to predict how a justice will vote on key cases, and certainly not ask him or her ahead of time, exacting a pledge. Yet the president clearly considers that in his selection, despite unconvincing disavowals; and in fact the performance of judges, with a few famous exceptions, is usually predictable.6 We are also told that there should be no “litmus test” for confirmation of a justice, or even for his or her nomination. That makes some sense when it concerns a deeply divisive issue like abortion, on which the community has not made up its mind. New situations and arguments may call for fresh thinking on the justice’s part, and a pledge to vote one way or another might inhibit fairness (or the perception of it).

But even there a justice who showed a pattern of insensitivity to the issue (on whichever side) is suspect. And there are other matters, on which the mind of the nation is made up, which constitute de facto “litmus tests.” If, outlandishly, a present nominee held Roger Taney’s views on slavery, he would be dismissed at once. That sounds far-fetched; but Stephen Carter makes the sound point that agreement with the Brown v. Board of Education decision is now a litmus test. Both Bork and Thomas, who had earlier questioned the rationale of the decision, had to assure the judiciary committee that they agreed with the result. They would have had no chance of being confirmed if they had done otherwise.

Another limit on inquiry is imposed by people who say a justice should have no constitutional views at all, only the supposed lack of independent views that looks to the “original intent” of the Constitution’s framers and ratifiers. This claim is based on a naive epistemology—on a view that the language of the document and the mind of the reader can be clear mirrors through which others’ intent shines without interference.7 It is also based on deep historical ignorance of the nature of the Constitution—on the sense that people voted for provisions from a single discernible intent. The founders themselves proposed the document as a compromise to be clarified by time and by concrete situations.8 They differed among themselves on the meaning of their own document (e.g., on whether it allowed for a national bank). When they did so, they did not settle their arguments by looking up the debates on the Constitution (which Madison, in fact, kept hidden during the controversies on the Bank and other matters), but by arguments from equity, justice, and legal precedent outside as well as within the Constitution. Thus “originalism,” as presented by Edwin Meese or Robert Bork, is one of many schools of constitutional interpretation, not a way of avoiding interpretation.9But Republican presidents have promised to appoint people who will not interpret, just “stick to” the original intent. This is supposed to exempt them from questioning about their constitutional views (as opposed to the founders’ views).



If people can remove from the scope of Senate inquiry a consideration of judicial philosophy as well as of views on particular cases, that leaves the Senate with nothing to inquire about except basic mental and moral competence. If the nominee is equipped to read the Constitution in the original (intent and all) and has no ethical conflicts of interest or obvious moral failings, then he should sail through.

That was, in effect, what Robert Bork’s defenders said of him. When one of the major indicators of competence used by the committee, a recommendation of the American Bar Association, turned up ten votes calling Bork qualified, with one abstention and four votes marking him unqualified, Bork cried foul: “The committee was [supposed] to judge only professionalism and not philosophy.”10 The four opponents cited lack of “judicial temperament,” which Bork claimed was outside their purview—and presumably outside the committee’s as well.

When some on the committee found Bork argumentative, provocative, speculative, and sarcastic, they suggested these might be better attributes for a law teacher than for a judge. His defenders answered that a justice is not supposed to win popularity contests. When others attacked his apparent coldness toward the plight of blacks, women, or the poor, it was answered (plausibly) that he was not a racist, a misogynist, a grinder of the faces of the underclass. Decisions or agreements that disappointed these “interests” said nothing about their objective plight, only about the limits of the law at issue in each case; his opponents really wanted an “activist” judge, not an “originalist.” Bork seemed to have not only an answer to all his critics, but an exemption from any criticism. Every point of dispute was reducible to the technicalities of his decisions, which were determined not by his preferences or ideology but by the plain intent of the laws involved, of which he was a glass-pane transmitter.

The fault of the committee was that its members either accepted the limits put on their inquiry, or could find no compelling arguments for defying those limits. Beaten back on single items by Bork’s skillful fencing, they dropped their foils and picked up bludgeons. He was portrayed as a monster, more by emotional images than with arguments. Even a law professor named Anita Hill, who had not been pleased by his nomination, was distressed by this treatment of him—as were others who opposed his nomination.

How should the committee have proceeded? Ronald Dworkin indicated the way in this journal: by challenging the originalist claim to be innocent of interpretation. Not only is Bork’s constitutionalism one among many possible schools of interpretation. It is a radical school that would overturn most of the history of the Court—a view that was confirmed by Bork’s post-rejection book, though he denied revisionist aims to the committee.11

A hard look at Bork’s constitutionalism would have revealed that it disguised bias while denying bias. Was it just coincidence that his “original intent” made the founders side with the right-wing groups Bork had cultivated on almost every detail of policy? Hardly. His opposition to civil rights laws had preceded his originalism and perdured through three essentially different readings of the Constitution. When he had to accept the litmus-test Brown decision, while rejecting the Court’s arguments for it, he tried to invent an “originalist” argument, with disastrous result. He asserted that school segregation violated the purpose of the ratifiers of the Fourteenth Amendment “though the ratifiers did not understand that.”12 It is hard enough to discern an original intent that the ratifiers might have entertained. It becomes a mystical exercise to reach one that they never entertained. Bork has joined his enemies here in interpreting purpose—a thing he has refused to do in areas where he did not have to meet a litmus test.

The senators were not sophisticated enough to point out with conviction the inconsistencies and historical flimsiness of Bork’s judicial philosophy. They let him keep returning the argument to his general intellectual competence, which no one questioned. They went after his character instead—character not in the sense of minimal ethical probity but of “judicial temperament” and sensitivity. This is a legitimate ground for questioning a justice’s qualifications. Stephen Carter even puts it higher than a justice’s constitutional views, taken in the abstract:

A legal theory leading to the conclusion that private clubs are not regulated by the Constitution is a matter of debate, a matter of reasonable differences, a matter on which one may take instruction, a matter for a later change of mind. But a lifelong habit of spending one’s leisure time with those who prefer not to associate with people of the wrong color tells something vitally important about the character and instincts of a would-be constitutional interpreter, something not easily disavowed by so simple an expedient as, for example, resigning from the club.

A judge’s ethical sensitivity, his or her moral values, shows in the quality of his rhetoric or the associations she or he cultivates. Robert Bork had a history of throwing ideological red meat to right-wing groups.13 This fit with his description of the attitude of women who submitted to sterilization in order to keep their jobs: “I suppose they were glad to have the choice.”14 Or his treatment of sit-in demonstrators against segregation as “a mob coercing and disturbing other private individuals,” a mob defending itself with “a principle of unsurpassed ugliness.”15 These gleefully insensitive expressions went with a certain deceptiveness in his self-presentation to the committee as uncommitted on ideological matters. He said, for instance, that he had not taken a position on school prayer, though he told an audience in 1985 that “rigidly secularist doctrine” should give place to “some sensible things” like “the reintroduction of some religion into…our public life.” 16

It was the odd combination of assertiveness and slipperiness that made so many who knew Bork’s record oppose his confirmation—not only his four opponents on the Bar Association committee, but two thousand law professors (roughly 40 percent of all law faculties), and thirty-two law school deans.17 They were questioning his character (in Carter’s sense of moral awareness) as well as his constitutionalism. Of the three major testing areas of the committee’s concerns—competence, character, constitutionalism—Bork was vulnerable on the last two. But the senators did not structure the case this way, or focus their criticism efficiently—which left many with the impression that Bork had been rejected because of unsubstantiated vilification by “interest groups.” To paraphrase Bork’s own view of Brown v. Board, the decision was right but it was badly argued.



When George Bush recommended a man of slender accomplishment, a nervously compensatory emphasis on his achievements made him call Clarence Thomas not only “the best man” he could have chosen for the Court (the phrasing in his written speech) but “the best qualified” person (his own claim in answering a reporter’s question). This was so clearly not the case that Thomas’s coaching team instructed him to avoid the area of competence entirely, and of constitutionalism as well, putting all his emphasis on character. This was a shrewd revision of the Bork strategy, which had put all the emphasis on competence, trying to dismiss the other two as irrelevant.

The Thomas strategy was made clear from the outset, even before the hearings began. In his early visits to the senators on the committee, he said his writings should not be taken too seriously, since they were policy statements made when he was in (and speaking for) the executive branch, or speeches that curried favor with his audiences. Senators Kohl and Leahy recalled these conversations during the hearings—how the nominee said that what he had written should be dismissed, since “the real Judge Thomas would come out at the hearings,” the person, the man who had succeeded against the odds.18

In the hearings themselves, Thomas said he had decided to “strip down from those policy positions” taken earlier, in order to be perfectly neutral and impartial. This was a deft way of preempting the charge many nominees run up against, that they undergo a “confirmation conversion” and rid themselves of embarrassing earlier statements. Thomas was quick to say he had undergone a conversion—sixteen months earlier, when he became a federal judge:

I think those of us who have become judges understand that we have to begin to shed the personal opinions that we have.

Today I am a sitting Federal judge, and I find myself in a much different posture. It is a different role. I have no occasion to make policy speeches….

…I had changed roles, and the role that I had was one that did not permit me or did not comport with accumulating points of view.

When one becomes a judge, the role changes, the roles change. That is why it is different. You are no longer involved in those battles.

I have made comment throughout this hearing that when one moves to the judiciary, one must remain neutral….

For me, becoming a judge, as opposed to being in the executive branch, was a dramatic change.

I do not believe, however, that there is a role in judging for the expressions of the kinds of personal views…that you have in the executive branch.19

Though his critics said his brief service on the federal bench had been too short and unproductive of major opinions to be a recommendation, that service turned out to be strategically very useful to him. It offered him a way to cleanse himself of opinions. Everything he had said before was irrelevant—all those attacks on Congress as no longer a competent legislative body; his praise for Louis Farrakhan, and criticisms of Thurgood Marshall; his characterization of the civil rights leadership as doing nothing but “bitch, bitch, bitch, moan and moan, whine and whine.” His earlier endorsements of Oliver North, Ayn Rand, Thomas Sowell, Lewis Lehrman, and the far-right journal Lincoln Review (the only one on whose board he had appeared)—all these were brushed off as entertained for the sake of speculation and free discussion; he didn’t really agree with any of them. He had not even read things he signed, or praised, or endorsed.

This last stand would have been dangerous in any other setting than the one his handlers had carefully structured. It went to his competence. Over and over he had to mount what might be called an “out to lunch” defense. He was ignorant of the Lincoln Review’s backing and positions on South Africa. He did not read the article by Lewis Lehrman which he had praised so highly. He served on a family council headed by the religious right leader Gary Bauer without ever learning what was in its report (to which he contributed). He had been a law student, lawyer, and judge in the era when Roe v. Wade was the hot legal topic, but had formed and expressed no opinion on it at all. Why had he not? Here as usual, Thomas brought everything back to his life story, demonstrative of his character. Addressing Senator Leahy’s incredulity that Thomas could avoid discussions of Roe in law school at the very time it was decided, Thomas said:

Because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that is debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.20

It was a brilliant strategy Thomas was following—to bring every issue back to the person, not his views; to concentrate on the hard-working man from little Pin Point, Georgia, who had made good by hard work, family values, and the overcoming of obstacles. Thomas stuck to this game plan with admirable discipline, and it showed every promise of working. There was high risk in courting doubt about competence, but he and his advisers correctly doubted the senators’ stomach for calling a black man ignorant. I said earlier that the Senate realizes it cannot reject a black man or woman just because they are black or female. But attacking Thomas’s intellect might look as if they were doing just that.

Nonetheless, the game was being pursued at higher risk than anyone but Thomas knew. He realized, for instance, that his picture of the work-immersed life in law school could be challenged if anyone looked carefully. Senator Danforth, the nominee’s sponsor and former employer, writes in Resurrection that Thomas later admitted that “he had watched pornographic movies while a law student.” This hardly fits the picture of a man too busy with his new family and work to spare even ten minutes to discuss the law. He could spare hours (away from his shy, Catholic-educated wife) to watch pornographic movies.

Danforth, in his book on Thomas, says that the judge showed signs of extraordinary, almost pathological, distress even before Hill made her charges, or Thomas knew of them.

Beginning shortly after his nomination on July 1, Clarence Thomas had the strong feeling that someone was trying to kill him…. He recalls peering through his window at the decks of surrounding houses to see if there was anyone there who was trying to kill him…. In Clarence’s description of his own state, physical death and destruction of his reputation are not clearly differentiated. He recounts his fear from early July [two months before Anita Hill was heard from at all] in these words: “These people are going to try to kill me. I hadn’t done anything to them, but they are going to try to kill me. And so I was always waiting to be killed. I mean literally waiting to be destroyed in some way.”

What can explain such distress? Thomas says he was not reading the early criticisms of him made by some civil rights figures. Besides, he had been in a controversial agency, where he seemed to field criticism well. It is true that the strategy worked out for him made him dismiss old friends like Thomas Sowell and risk appearing intellectually incurious (at best) about work he had praised, cited, or magically avoided. But there was a higher cleverness to this, which he might have exulted in if he felt perfectly comfortable with the one strong point he was instructed to return to on all possible occasions—his character, grounded in his family.

His appeal to family values had been popular with the conservative audiences he found frequent occasion to address. He told them hope for African Americans lay not in the state, not in preferential treatment, but in strong families like his own. He told a group of black conservatives in 1985: “When I grew up, there was more a feeling of responsibility for kids that you brought into the world…. The government didn’t have a damn thing to do about it.” But, as Jane Mayer and Jill Abramson show in Strange Justice, this idyllic picture hardly reflects his background. His father deserted his mother; his grandfather and great-grandfather had done the same thing. What is more, Thomas was alienated from every member of his family at one or other point, often for long periods. The grandfather, whose discipline he praised repeatedly before the committee, had beaten him, pressured him into a Catholic seminary, and idolized the civil rights leaders Thomas rebelled against. The grandfather’s best friend, Sam Williams, told Mayer and Abramson that the grandfather felt betrayed by Clarence, who had promised he would become a civil rights lawyer and ended up attacking such lawyers.

The grandfather, an active member of the NAACP (he gave the organization free coal from his business), admired the Thurgood Marshall whom Clarence attacked. Yet Thomas was willing to use that grandfather on an earlier occasion than his confirmation hearings. Campaigning for Ronald Reagan in 1984, he said he convinced both his grandparents, who had voted Democratic in the past, to re-register and vote Republican in 1982, just before their deaths. Mayer and Abramson checked the voter registration rolls in question and found that Thomas’s grandmother had never registered to vote either Democratic or Republican, and that his grandfather was still a registered Democrat who voted in the Democratic primary in 1982. Using his dead grandfather was something Thomas was good at by the time he testified before the Senate. (Thomas’s defenders now say the grandfather might have re-registered as a Democrat but voted Republican. They are silent on the grandmother, about whom Thomas provably lied.)

There is no way the committee could have known about some of this, but it did have one important piece of evidence to demonstrate Thomas’s attitude toward his family. In 1980, he had told a Washington Post reporter that his sister destroyed her children’s sense of responsibility by accepting welfare: “Now her kids feel entitled to the check too. They have no motivation for doing better or getting out of that situation.” The committee members had the text of that interview. They may or may not have known that his sister was not on welfare when Thomas said she was—she had found work by then, when her children did not take all her time. Thomas, the defender of family values, did not even know his sister’s situation while he was denouncing her. He would later claim he drove from Washington to Georgia nonstop in order to apologize to her; but when Mayer and Abramson asked her about this, the sister had no remembrance of this having happened.

Even if the comments had been true at the time, they were a verbal assault on a woman who clearly needed help at one stage of her difficult life, and they were an insult to her children, Thomas’s own nieces and nephews. No single comment of Thomas’s called forth more indignation from the black scholars whose criticisms of him are collected in Toni Morrison’s fascinating book. Most of them conclude that this comment shows such moral insensitivity as to disqualify him all by itself. It would have been a cruel enough thing to say of any woman in need; directed at his sister, it was inexcusable. Thomas accused her of destroying her own children’s moral drive—though she had been the one who had to stay home and care for their mother while Clarence received the preferential treatment given males. He went off to an education and other opportunities denied her. Manning Marable, of the University of Colorado, expresses the view of many in Morrison’s book:

As economist Julianne Malvaux critically observed: “For providing that kind of support in her family, Emma Mae Martin earned her brother’s public scorn. What can the rest of us women expect from Supreme Court Justice Clarence Thomas as issues of pay equity and family policy come before the court?”

Though Thomas’s sister came to his confirmation hearing, his only brother did not—and he has refused to comment on Clarence for the press. If your sister had been treated as Clarence treated Emma Mae, would you support him? Some argued at the hearing—Thomas himself was one of them—that Thomas, having suffered poverty as a child, would have to be compassionate to the poor. Yet he was not compassionate to his sister when she was poor, though she had shared his own earlier suffering.

The Mayer and Abramson book investigates thoroughly the family ties Thomas misreported. Though his brother would not come to his hearing, Thomas invited his long-estranged father, much to the distress of his mother, who had been deserted by him. (Thomas failed to visit his mother when going back to his childhood haunts.) In fact, after Thomas found his lost father, he seemed more at ease with him than with his mother. His attitude toward Leola, his mother, emerges from this incident, recounted by her:

“Mamma, what kind of woman do I like?…what color was Kathy [his first wife, part Japanese]?”

“She was brown.”

“And the others?”

“They’ve all been light-skinned, too.”

“Right. So what would I want with a woman as black as Anita Hill?”

He was telling his mother that he did not prize dark-skinned women—and that mother is a dark-skinned woman.

Some of the black scholars in Toni Morrison’s book are quick to pick up on Thomas’s avowed dislike for “black women.” Asked why he thought Anita Hill would attack him, he could come up with only one answer: he told Senator Specter that Hill, very black, was jealous of the light-skinned women he dated. Gayle Pemberton, who teaches in the Princeton Afro-American studies program, writes in Morrison’s book:

In response to Senator Specter’s hypothesis that the brown Anita Hill had a color-linked, ulterior and jealous motive, Thomas assented, saying: “There seemed to be some tension as a result of the lighter complexion of the women I dated and the woman I chose to be my chief executive, my preferring individuals of the lighter complexion.” That broke hearts across black America, because it proclaimed the stereotype to be true: Thomas, sitting next to his white wife, with those lines became, incarnate, the black man white America imagines.

Whites who knew Thomas found it impossible to believe he would talk as crudely as Hill claimed. And indeed he made extravagant claims for his own prim language. When Biden said that he (Biden) would tell jokes among men that he could not repeat around women, Thomas said that he would never do such a thing:

I attempted to conduct myself in a way with my staff so that there were no jokes that I would listen to or tell to men that I could not listen to or tell to women. There were no jokes that I found acceptable that I could not listen to or tell to any ethnic group.21

Mayer and Abramson had no difficulty finding people Thomas talked to in very graphic ways. These informants had one thing in common—they were all black. Thomas told the committee that he majored in English at Holy Cross “as a second language,” that he felt, even with his Latin-studying years in the seminary behind him, that he could not talk correctly, that he found it difficult to do so. He learned that second language for whites and for those he respected—for use with his white wife, or with an ordained minister like Senator Danforth, or with Gary Bauer and other members of the religious right he was cultivating in the 1980s. But he knew, when he described his finickiness, that there were people listening who could testify to his other side, to the side that “talked black.” Henry Terry, a friend from law school days, now an attorney in Boston, recognized Thomas in the language Hill described him as using, not in the puritanical attitude Thomas assumed with Biden. “That’s my boy,” he said when Hill quoted Thomas. “That’s him talking.”

Even Orlando Patterson, the black sociologist at Harvard, found Hill’s language more plausible than Thomas’s weird white-speak—though he excused Thomas for having to maintain his pose with the committee.22 The black scholars in Morrison’s book also find the two-language thesis plausible, though they do not (like Patterson) defend Thomas for denying under oath that he ever used black argot. Kimberlé Crenshaw writes:

It may be that Patterson’s argument, while intellectually and politically indefensible, might in fact provide a clue into how someone like Clarence Thomas might differentiate between women…. White women could be pure, madonna-like figures needing vigilant protection, but black women can take care of themselves—indeed, they even implicitly consent to aggression by participating in a cultural repartee.

Thomas had gambled everything on his character, on the person he is. He brushed aside all his earlier constitutional views (as in fact, not constitutional, merely partisan). He let his intellectual grasp of things he read, signed, or praised look shallow or non-existent. Everything rode on his personal story, the discipline he had absorbed from his strict grandfather, the family values he owed his success to. The grandfather was almost a member of the dramatis personae in that hearing room. Senator Specter said, “I could not help but think that your grandfather and my father would have been good friends.” Senator Grassley addressed charges against Thomas by asking, simply, “What advice you think he [the grandfather] would give you?”23 Who Thomas was came to be defined in terms of what he had suffered. That was more important than any of his views. Specter was ready to conclude that “his character is shown more by his roots than by these writings” [of his].24 Alan Simpson relied on the fact that Thomas “has this extraordinary early life experience” and “came through the crucible of a life described as we know it now of Justice Thomas.”25 Joseph Biden, the fluttery chairman, gushed his agreement: “I am not so sure but what your roots are not more important in trying to predict what you will do if confirmed, than your writings.”26

The gamble seemed to be working as the committee reached its scheduled end. The “assassins” Thomas feared had never risen up to challenge his idyllic version of the tortured relationship with his own family, to ask why his doctrine of self-help, of mutual help, of family independence from the state had not made him offer assistance to his sister when she had to take state aid. No one asked friends of his grandfather what that man thought of the person he raised to be an NAACP lawyer. Nor did senators wonder at the absent brother, the bitterly divided parents, the long lack of contact between Clarence and other members of his family.

Since everything rested, in effect, on that family, the committee was oddly incurious about anything but Thomas’s own account of it. Competence and constitutionalism were let go—and the remaining thing, character, was looked at only superficially. Until, that is, word spread among committee members of Anita Hill’s charges. If the committee had taken Thomas’s views seriously, had really tested his constitutionalism and competence, those charges would not have had the impact they did. But since everything rested on the picture of his character that Thomas had created, anything so wildly at variance with that picture as Hill’s claims was bound to take on a weird resonance. The man charged with remedying workplace grievances was accused of committing a workplace aggression. The man supposed to be proper yet compassionate toward black women (his sister excluded) was called a harasser of his black associate.



In all this dramatic story, nothing is more riveting than John Danforth’s account of Thomas’s reaction to Hill’s charges. Those charges had been submitted to the committee in affidavit, but the committee chairman, Joseph Biden, properly refused to air them so long as she would not appear to defend them. She had been interrogated by the FBI, and some friends and lobbyists were urging her to come forward. But news reports of her charges did not come out until after the committee voted (seven for, seven against) on Thomas’s nomination. The Thomas forces had pushed for a quick vote in the Senate, since they feared new developments.

Danforth says he supported the quick schedule because he did not know how long Thomas could endure the suffering he had undergone since the beginning of the confirmation process. Thomas’s fears appeared to have accelerated; he slept little; he had stopped eating. The full Senate vote was, extraordinarily, scheduled for the week after the committee’s vote, on a Tuesday; and Hill’s allegations came out over the weekend. Asked what he wanted to do, Thomas said he wanted to get things over, and would go to the vote. But a number of people were asking, “Why the rush?” Senator Barbara Mikulski demanded that a woman making a complaint should get a hearing if she were willing to come forward.

Danforth and others convinced Thomas that he would lose confirmation if he faced a vote before Hill was heard.27 His team tried to negotiate a quick hearing of two days, with limited questioning. Thomas, according to Danforth, was going into a state of hysterical withdrawal, almost catatonic. He was unable to focus while his own lawyers questioned him. He lay clenched in a fetal position. He sobbed convulsively and hyperventilated before many of his intimates, saying that his destroyers had finally succeeded. Danforth saw many of these symptoms, and Thomas’s wife, Virginia, told him there were some she would not confide even to him. Danforth did not want to know more: “There are matters that should remain private between a husband and a wife—certainly matters that are hard to include in a book about a good man who is a friend. That a future justice of the Supreme Court was writhing on the floor is awful enough to tell.” Danforth would try to put off all further Senate action because he feared for the survival of his friend. It is an odd way to defend a man as qualified for the Supreme Court. If the Senate had known of this reaction, or of the paranoid earlier fears of assassination, would it have worried about stability, as it did in the case of John Rutledge?

Thomas said he would appear again to deny but not to discuss Hill’s charges; and he would write his statement without White House coaching (which he had earlier denied receiving). He brushed off lawyers’ attempts to go into detail in answering Hill. Danforth several times expressed fear that his denials would be too sweeping, so that he risked perjury and possible impeachment. That is a strange position for a man to take who is recommending a lawyer, a judge, to become a Supreme Court justice. Why does one have to inform such a man that he should not commit perjury?

Though his handlers could no longer put words in Thomas’s mouth, they did bargain hard to let him make the opening statement, and to follow up after Hill testified. The logical order would be for Hill to make her charges and then for Thomas to answer them. But Thomas, who had agreed to the Hill appearance when it became clear that the Senate would not confirm him with her charges left hanging in the air, went before the committee to say he would not answer questions:

I am not going to allow myself to be further humiliated in order to be confirmed…. I am not here to be further humiliated by this committee or anyone else….

He would deny Hill’s charge absolutely, and answer no further questions. He was not only stonewalling, but denouncing the committee for listening to Hill at all: “This is not American. This is Kafka-esque. It has got to stop.” Then he used a startling metaphor: “I will not provide the rope for my own lynching.”28 After Hill’s testimony (which Thomas claims he did not watch), he returned to repeat this metaphor even more angrily, calling the committee’s performance “a high-tech lynching.”

The use of this term causes as much indignation in the black scholars in Morrison’s collection as did Thomas’s comment on his sister. He said that any whites who suspected black men of sexual excess were succumbing to stereotypes of lustfulness that had stirred lynchers in the past. But Thomas was joining his defenders on the committee, who had used an equally powerful stereotype of black female sexuality (the Sapphire caricature from Amos ‘n Andy, the “oversexed-black-Jezebel”).29 Senator Simpson artfully suggested in the public hearing that Hill was sexually aberrant by referring to her “proclivities,” the homophobe’s code word. Danforth himself would diagnose Hill, with a sudden influx of psychiatric expertise, as an “erotomaniac.” A later critic would call her “a little bit slutty.”

Nell Irvin Painter, the Edwards Professor of American History of Princeton, points out that the black stereotype of male lust has been effectively opposed in our culture (e.g., in the cases of blacks falsely accused of rape, litigated by the NAACP which Thomas has mocked); but the stereotype of female lust is not so often challenged. It is even perpetuated by some blacks—including Orlando Patterson, when he says black women can be talked to in ways different from those used with white women. This is the double code that, Painter says, shows up in Eldridge Cleaver’s boast “that he raped black women for practice; he was honing his skills before attacking white women, who were for him real women.”

White feminists were upset at the committee’s senators, who did not seem to take sexual harassment seriously. But black women were angry at Thomas for the glaring anomaly in his lynching metaphor, which few people bothered to notice. What role did Anita Hill play in his little scenario? As Kendall Thomas points out in Morrison’s book, “No African-American man was ever lynched on the word of an aggrieved black woman.” Black women were themselves often killed or raped by lynch mobs. Thomas was casting Hill in the role of a white woman, the only kind listened to by white lynchers. He was erasing her color. Kimberlé Crenshaw puts it this way:

A black woman, herself a victim of racism, was symbolically transformed into the role of a would-be white woman whose unwarranted finger-pointing whetted the appetites of a racist lynch mob.

Entirely apart from the truth of Hill’s charge, this was wild talk, racially insensitive and even inverted. No white mob ever cared what black men did to black women. They only cared about any contact with white women. Indeed, as Kendall Thomas, who teaches law at Columbia University, points out, the only thing that would enrage a real lynch mob at Thomas’s hearing was the white woman sitting near him, Virginia Thomas.30

For all these reasons the black scholars condemn Thomas’s lynching metaphor as an act of what Kendall Thomas calls “language-robbery.” Morrison herself says Thomas was speaking the masters’ language even while he pretended to defy them. Cornel West, in his contribution to the Morrison book, says:

All his professional life he has championed individual achievement and race-free standards. Yet when he saw his ship sinking, he played the racial card of black victimization and black solidarity at the expense of Anita Hill. Like his sister Emma Mae, Anita Hill could be used…

Yet whatever one thinks of the lynching trope, it worked. And one aspect of Thomas’s character was vindicated—his audacity. The nerve of it is breathtaking. He had, in effect, ceded the areas of competence and constitutionalism: he was “out to lunch” when it came to subjects about which he was expected to be knowledgeable, and he gave up all his earlier comments on “natural law,” on ideas in general. He had staked everything on character—and now he would not answer any questions about his character. He sat there on his last limb, and angrily started sawing it off, with this dare: “Catch me before I fall, or you are all racist lynchers.” And, to their shame, the senators, shamefacedly, caught him.

But weren’t Hill’s charges false, or at least suspect? Even if they were, Thomas’s performance did not merit confirmation. It is also a mark of character—of judicial temperament if you will—to face criticism as a lawyer, with arguments, not with torrents of invective against the committee for asking questions one does not want to hear.

Hill is criticized for not coming forward sooner, for not being willing to appear, for following Thomas from job to job after he alleged harassment, for keeping in touch with Thomas, by phone and in person. But experts in sexual harassment say this is normal behavior for women, who still feel vulnerable in the professional world, who fear the unpleasantness of sexual revelations and the distrust with which such charges are treated. Black women say the pressures are far greater on them, reflecting their even more precarious perch in the professional world, the greater impact of sexual stereotyping in their case, and the pressure not to undermine any black man. There were misunderstandings in Hill’s testimonies—though not enough to justify Arlen Specter’s ferocious brandishing of a charge of perjury (a charge he has withdrawn).31

Senator Paul Simon believes that Hill might have been vindicated if other women had been called at the last minute. I doubt it. In the overheated rush that the Thomas team had demanded and Chairman Biden accepted, little was to be learned. This was an atmosphere in which Orrin Hatch claimed that Hill must have lied because a thing she mentioned was also mentioned in The Exorcist. (If she had said Thomas called her a bug, Hatch would presumably have proved that the exchange did not take place by brandishing Kafka’s Metamorphosis.)

In Strange Justice Mayer and Abramson have found additional women and men who say Thomas talked dirty to them and looked at pornographic movies. This will do little to convince those who favor Thomas. Indeed the focus on Hill is a way of guaranteeing that people will talk past each other, trading allegations about pubic hair (on a Coke can or in students’ papers) the way earlier combatants argued the details of bullet tests on Sacco’s gun or typewriter characteristics in the Chambers documents.

The Mayer-Abramson book is valuable not for its focus on Hill but for the larger picture it gives of Clarence Thomas’s life of grievance (at black skin, at civil rights leaders, at family, at liberals). The man who lied about his grandfather’s conversion to Republicanism, who called his nieces and nephews morally destroyed, needs little more in the way of discrediting. Besides, whether he committed perjury over Hill is less important than the other ways he deceived Congress in order to be confirmed. He said he was stripping off all ideological ties in order to be an impartial justice, without opinion outside the court—yet he has spoken to right-wing groups (sharing a platform with fellow speaker Oliver North), read right-wing journals (but not others), and performed the marriage (in his own home) of rightwing broadcaster Rush Limbaugh. He said he could not commit himself on abortion outside a judicial context, yet he accepted an invitation to address the anti-abortion group Concerned Women of America (withdrawing only after the ethics of his appearance was made a public issue). He spoke at a fund-raiser for a right-wing PAC.

More important are Thomas’s decisions. Thomas said he would bring diversity to the court by showing greater compassion for the poor, and especially for prisoners, than the other justices. He has shown less. 32 He told Senator Kennedy he would be aggressive in favor of voting rights. He voted against past voting rights decisions in Holder v. Hall(1994).33 He has been to the right of Scalia at times, stranding himself at one extreme.34After not having an opinion on Roe v. Wade for eighteen years, he quickly expressed a strong one (of opposition) in Planned Parenthood v. Casey (1992). Never was a prediction more quickly proved wrong than was Orrin Hatch’s: “I do not think he will be an activist for conservative principles.”35 Of course, Hatch did not want his prediction to come true. It was as cynical a statement as was Bush’s appointment of the man to fill the seat of Thurgood Marshall. There was certainly no “presidential surprise” in Thomas’s case. He has done exactly what the right-wingers who put him up to Bush expected. As Gary Bauer says, “I have not seen any decision where I have been surprised or disappointed by Justice Thomas.”36

Those who discounted everything in Thomas’s record except his poor childhood look, now, like dupes. Liberals, including Maya Angelou, said (in effect) that race will tell. Civil libertarians like Nat Hentoff believed in Orrin Hatch’s prediction. Those who said that some black, any black, on the court was better than no black may have guaranteed that no Marshall-like appointment will be made during Thomas’s predictably long tenure. (Thomas has boasted that he means to serve for forty years.)37


What To Do?

So, what’s wrong with the process? Some argue that “special interests” should have less to do with Supreme Court nominations. But, of course, their advertisements and lobbying are not part of the official proceedings; and the First Amendment allows even fools and greedy people to sound off about any subject they like, including Supreme Court appointments.

The first and most poisonous activity of a special interest occurred when the President nominated Thomas to placate the right wing of his party (which was chafing at his broken pledge not to raise taxes). Thomas was the favorite of the religious right’s principal lobbyist for judicial appointments, Thomas Jipping. Another problem with the Thomas nomination was the initial lack of mobilization by the civil-rights “special interests”—accomplished by the delays put in the way of NAACP action on the nomination. The White House collaborated with journalist Arch Parsons in persuading Benjamin Hooks to stall any quick reaction by the NAACP.38

Joseph Biden was surely dithering and ineffectual as a chairman. His omnidirectional soothings became irritants. One of the sources of Thomas’s theatrical rage against the committee was that he felt Biden had lied to and betrayed him. Biden claims he pledged to support Thomas “all the way” if news of Hill’s charges came out while she was unwilling to appear in support of them. When, however, she became a witness, a chairman’s declared opposition to her was inappropriate. Yet Thomas’s arrogant claim that he could set the rules for his own hearing was based on some poorly framed understanding of Biden’s commitments.

Biden had to admit Hill’s testimony when senators on the floor demanded it—and when Thomas, told he could not otherwise win the vote, agreed to a further appearance and delayed a vote. Biden, who later said he believed Anita Hill, tried to show an open mind toward Thomas—as he subsequently said to E. J. Dionne of The Washington Post, “in fairness to Thomas, which in retrospect he didn’t deserve.”39

The senators voted for Thomas, not because of any procedural failings in the system, but out of failure in their own mental and moral equipment—which there is no statutory way of remedying. A majority of them (though a slim one) was willing to write off matters on the record having to do with competence and constitutionalism. They took a blind leap of faith in his character, relying on the inoculation against unfairness provided by a youth spent in poverty—though one black expert witness assured them with conviction that poverty in youth had hardened more people than it had enlightened.40

What succeeded was a combination of presidential cynicism, senatorial fecklessness, and the nominee’s well-coached first appearance (topped by the huge effrontery of his “lynching” appearance). Any one of these factors, would have been insufficient. All put together, they won (though barely). Two more votes against Thomas would have made it necessary for Dan Quayle (standing by) to break the tie.

Is there any remedy? Danforth himself says he feared Thomas might be impeached if he committed perjury. But perjury is hard to prove under the best of conditions, and Thomas is safe now in his fortress-within-a-fortress, buttressed by ideological supporters.

In his book on nominations, Christopher E. Smith of the University of Akron finds a certain measure of comfort in Thomas’s performance on the Court. He thinks Thomas’s extremism on the right has scared off the centrist but right-leaning justices (O’Connor, Kennedy, and Souter), solidifying a bloc in the center.41 After all, even Rehnquist, once the right-wardmost justice on the Court, did not join Thomas and Scalia in three of their dissents during Thomas’s first year on the Court. Scalia’s own views, once feared as likely to spread to impressionable colleagues, are now somewhat tainted by the fact that he is able to win no trusty ally on the hard cases but Thomas.

Stephen Carter, who served as a clerk to Thurgood Marshall, notes that the superbly qualified Marshall, a repeatedly successful litigant before the Court, was submitted to the most humiliating and racist questioning during his confirmation hearings. It is, perhaps, some measure of increased racial sensitivity that people were afraid to ask humiliating questions of Thomas, even when his record called for pointed questioning. This may reflect the sort of progress Murray Kempton hailed when Sonny Liston proved that he did not have to be “a credit to his race” in order to win the heavyweight championship of the world. Joe Louis had set a standard of graciousness that could not be maintained forever:

The Negro heavyweights, as Negroes tend to do, have usually given that sense of being men above their calling. Floyd Patterson sounded like a Freedom Rider. We return to reality with Liston. We have at last a heavyweight champion on the moral level of the men who own him.42

You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges of immunity clauses. You have referred to Lewis Lehrman’s article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear consideration of Roe v. Wade….

  1. 1Albert P. Blaustein and Roy M. Mersky, The First One Hundred Justices (Anchor Books, 1978), pp. 72–86. 
  2. 2The Senate was probably right to listen to rumors of Rutledge’s instability—he attempted suicide shortly after his rejection. By acting on its doubts, the Senate made possible the subsequent confirmation of John Marshall, the greatest civil justice. 
  3. 3Henry J. Abraham, Justices and Presidents (Oxford University Press, 1974), pp. 97–98. 
  4. 4Abraham, Justices and Presidents, pp. 115–116. 
  5. 5For the historical statistics, see Abraham, Justices and Presidents, p. 59. 
  6. 6Laurence Tribe criticizes “the myth of the surprised president,” based on a few anecdotes of presidential disappointment in their nominees. See Tribe, God Save This Honorable Court (Random House, 1985), pp. 50–76. 
  7. 7Madison was not so epistemologically naive. He argued that the meaning of the Constitution was not single, fixed, and obvious, since “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to indicate many equivocally denoting different ideas.” Comparing constitutional interpretation to biblical exegesis, he abjures fundamentalism: “When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium, through which it is communicated.” The Federalist, No. 37, edited by Jacob E. Cooke (Wesleyan University Press, 1961), pp. 236–237. 
  8. 8Madison recommended the Constitution because it left its meaning to be found by later uses, applications, and interpretations: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated [clarified] and ascertained by a series of particular discussions and adjudications.” The Federalist, No. 37, p. 236. 
  9. 9Robert Bork says that the intent of the ratifiers in all the states (who enacted the law), not the framers (who only proposed it, acting as a drafting committee), is what binds. But some of the late ratifying states came in reluctantly, because they felt they could not defeat the Constitution and they did not want to be left out. What was their “intent”—submission to force majeure? See Bork, The Tempting of America (Free Press, 1990), p. 181. 
  10. 10Bork, The Tempting of America, p. 292. 
  11. 11Ronald Dworkin, “The Bork Nomination,” The New York Review, August 13, 1987, pp. 3-10; and “The Bork Nomination: An Exchange,” October 8, 1987, pp. 59-61. In his book, Bork argues that the Court has decided incorrectly on landmark cases all the way back to Marbury v. Madison (“Marshall argued, quite incorrectly… None of this made much sense”), throughout the New Deal decisions (“due process protection of economic liberties has never returned”), culminating in Roe v. Wade (“the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century”). See Bork, The Tempting of America, pp. 23-24, 42-43, 44, 46, 61, 116. These claims come from a man who told a college audience in 1985: “If you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it…I don’t think precedent is all that important,” and who told the Federalist Society, “An originalist judge would have no problem whatever in overhauling a non-originalist precedent because the precedent, by the very basis of his judicial philosophy, has no legitimacy.” Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (Norton, 1989), pp. 258-260. This was, indeed, Dworkin’s “radical,” not a conservative. 
  12. 12Bork, The Tempting of America, p. 82. 
  13. 13For example: Originalism “will sweep the elegant, erudite, pretentious and toxic detritus of non-originalism out to sea.” Bronner, Battle for Justice, p. 258. 
  14. 14Bronner, Battle for Justice, p. 236. 
  15. 15Robert Bork, “Civil Rights, A Challenge,” The New Republic, August 31, 1963. 
  16. 16Bronner, Battle for Justice, p. 93. See Bork, The Tempting of America, p. 309: “Senators said that I favored school prayer (a subject I have never addressed)…” 
  17. 17Bronner, Battle for Justice, pp. 298–300. 
  18. 18Senate Judiciary Committee, Thomas Hearings (J-102-40), Part 1, pp. 266, 473, 483. 
  19. 19Thomas Hearings, Part 1, pp. 183, 190, 224, 267, 352, 473, 483. 
  20. 20Thomas Hearings, Part 1, p. 222. Even if Thomas’s account of his drawing a blank on the subject at law school is to be believed, it does not explain his lack of an opinion about the case even when citing it or praising statements that attacked it. As Senator Leahy said (Thomas Hearings, Part 1, p. 223): “You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges of immunity clauses. You have referred to Lewis Lehrman’s article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear consideration of Roe v. Wade….” 
  21. 21Thomas Hearings, Part 4, p. 222. 
  22. 22Orlando Patterson, “Race, Gender, and Liberal Fallacies,” The New York Times, October 20, 1991. 
  23. 23Thomas Hearings, Part 1, pp. 69-70, Part 4, p. 258. Thomas said his grandfather’s advice would be “give out but don’t give up.” 
  24. 24Thomas Hearings, Part 2, p. 39. 
  25. 25Thomas Hearings, Part 2, p. 50. 
  26. 26Thomas Hearings, Part 1, p. 494. 
  27. 27It would take a unanimous Senate approval to delay the vote, so any of Thomas’s supporters could have prevented the delay. 
  28. 28Thomas Hearings, Part 4, pp. 8-10. 
  29. 29An ad signed by 1,603 black women professionals appeared in the November 16 New York Times denouncing the sexual stereotyping of Anita Hill. 
  30. 30Judge Leon Higginbotham, in his famous open letter to Thomas (reprinted in Morrison’s book), told Thomas that if the civil rights groups he derided had not overturned an anti-miscegenation law in Virginia as recently as 1966, “you could have been in the penitentiary today.” 
  31. 31F. Lee Bailey wrote of Specter’s claim: “No lawyer reading the record of these proceedings would even consider, on any objective basis, that a case of perjury could be made against Hill without some much more compelling evidence.” ABA Journal, January 1992, p. 49. 
  32. 32Thomas told the committee: “On my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load … I can walk in their shoes, and I can bring something different to the Court.” And, later: “I don’t know of any judge who could look out the back window of our courthouse and see bus load after bus load of young black males and not be worried …” (Thomas Hearings, Part 1, pp. 260, 480). Yet when Chief Justice Rehnquist and six other judges found it was “cruel and unusual punishment” for a prisoner to be beaten by guards so that his teeth were loosened and his denture cracked, Thomas wrote in dissent that “forcibly keeping prisoners in detention is what prison is all about.” So much for walking in prisoners’ shoes. See US Supreme Court Reports 117L Ed 2d, Hudson v. McMillian (1992), p. 178. 
  33. 33Thomas used his concurrent opinion in Holder v. Hall to go far beyond the case in question, calling the Court’s previous voting-rights decisions those of “a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation. …” In doing this, he dismissed the stare decisis principle so sweepingly as to prompt four justices (Stevens, Blackmun, Souter, Ginsburg) to file a separate opinion criticizing his rejection of the principle (which he had told the judiciary committee he would hold in high regard). See US Supreme Court Reports 129L Ed 2d, pp. 689, 715, 729. 
  34. 34Scalia joined all the other justices but Thomas in Dawson v. Delaware (1992) against the use of membership in the Aryan Brotherhood to influence a prisoner’s sentencing. The others did not want to punish belief, as had been done with members of the Communist Party. Thomas said membership in Alcoholics Anonymous was used to show good character, so membership in the Aryan Brotherhood could indicate bad character. He said AA was an indication of “abstract beliefs,” like the Aryan Brotherhood—though the former is a recommended action program of rehabilitation. See US Supreme Court Reports 1171 Ed 2d, p. 323. 
  35. 35Thomas Hearings, Part 2, p. 56. 
  36. 36Ruth Morris, “Justices Souter, Thomas,” The Washington Post, July 5, 1992. 
  37. 37“I’m going to be here for 40 years. For those who don’t like it, get over it.” See Joan Biskupic, ” ‘I Am Not an Uncle Tom,’ Thomas Says at Meeting,” The Washington Post, October 28, 1994. 
  38. 38For the important role of Arch Parsons, see Timothy H. Phelps and Helen Winternitz, Capitol Games (Hyperion, 1992), pp. 6-7, 17, 74. 
  39. 39E. J. Dionne, Jr., “On Once and Future Supreme Court Nominations,” The Washington Post, June 19, 1992. 
  40. 40Christopher Edley, of the Harvard Law School, told the committee: “The background determinism that is suggested by the fact that he came from Pin Point and therefore will act in a special way on the Court seems to be counter-factual.” Thomas Hearings, Part 2, p. 31. 
  41. 41Christopher E. Smith, Critical Judicial Nominations and Political Changes (Praeger, 1993), pp. 61-67. 
  42. 42Murray Kempton, America Comes of Middle Age (Little, Brown, 1963), p. 62. 

People for the American Way ad against Bork confirmation:

  • Sony v. Universal City Studios (1984). Question: Can copyright law be applied to companies that produce devices (in this case, an early version of the VCR) that allow others to violate copyright standards?

(betamax machine: 

Justice STEVENS delivered the opinion of the Court.

Petitioners manufacture and sell home video tape recorders. Respondents own the copyrights on some of the television programs that are broadcast on the public airwaves. Some members of the general public use video tape recorders sold by petitioners to record some of these broadcasts, as well as a large number of other broadcasts. The question presented is whether the sale of petitioners’ copying equipment to the general public violates any of the rights conferred upon respondents by the Copyright Act.

Respondents commenced this copyright infringement action against petitioners in the United States District Court for the Central District of California in 1976. Respondents alleged that some individuals had used Betamax video tape recorders (VTR’s) to record some of respondents’ copyrighted works which had been exhibited on commercially sponsored television and contended that these individuals had thereby infringed respondents’ copyrights. Respondents further maintained that petitioners were liable for the copyright infringement allegedly committed by Betamax consumers because of petitioners’ marketing of the Betamax VTR’s. Respondents sought no relief against any Betamax consumer. Instead, they sought money damages and an equitable accounting of profits from petitioners, as well as an injunction against the manufacture and marketing of Betamax VTR’s.

. . . An explanation of our rejection of respondents’ unprecedented attempt to impose copyright liability upon the distributors of copying equipment requires a quite detailed recitation of the findings of the District Court. In summary, those findings reveal that the average member of the public uses a VTR principally to record a program he cannot view as it is being televised and then to watch it once at a later time. This practice, known as “time- shifting,” enlarges the television viewing audience. For that reason, a significant amount of television programming may be used in this manner without objection from the owners of the copyrights on the programs. For the same reason, even the two respondents in this case, who do assert objections to time-shifting in this litigation, were unable to prove that the practice has impaired the commercial value of their copyrights or has created any likelihood of future harm. Given these findings, there is no basis in the Copyright Act upon which respondents can hold petitioners liable for distributing VTR’s to the general public. The Court of Appeals’ holding that respondents are entitled to enjoin the distribution of VTR’s, to collect royalties on the sale of such equipment, or to obtain other relief, if affirmed, would enlarge the scope of respondents’ statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection. Such an expansion of the copyright privilege is beyond the limits of the grants authorized by Congress.

. . . In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart’s exposition of the correct approach to ambiguities in the law of copyright: “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ‘The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, ‘lie in the general benefits derived by the public from the labors of authors.’ When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.”

. . . The two respondents in this case do not seek relief against the Betamax users who have allegedly infringed their copyrights. Moreover, this is not a class action on behalf of all copyright owners who license their works for television broadcast, and respondents have no right to invoke whatever rights other copyright holders may have to bring infringement actions based on Betamax copying of their works. As was made clear by their own evidence, the copying of the respondents’ programs represents a small portion of the total use of VTR’s. It is, however, the taping of respondents own copyrighted programs that provides them with standing to charge Sony with contributory infringement. To prevail, they have the burden of proving that users of the Betamax have infringed their copyrights and that Sony should be held responsible for that infringement.

. . . In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcasts time- shifted by private viewers. And second, respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial noninfringing uses. Sony’s sale of such equipment to the general public does not constitute contributory infringement of respondent’s copyrights.

“The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530, 92 S.Ct. 1700, 1707, 32 L.Ed.2d 273 (1972).

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.

It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.


A restatement of the facts and judicial history of this case is necessary, in my view, for a proper focus upon the issues. Respondents’ position is hardly so “unprecedented,” in the copyright law, nor does it really embody a “gross generalization,”  or a “novel theory of liability,”  and the like, as the Court, in belittling their claims, describes the efforts of respondents.

The introduction of the home videotape recorder (VTR) upon the market has enabled millions of Americans to make recordings of television programs in their homes, for future and repeated viewing at their own convenience. While this practice has proved highly popular with owners of television sets and VTR’s, it understandably has been a matter of concern for the holders of copyrights in the recorded programs. A result is the present litigation, raising the issues whether the home recording of a copyrighted television program is an infringement of the copyright, and, if so, whether the manufacturers and distributors of VTR’s are liable as contributory infringers. I would hope that these questions ultimately will be considered seriously and in depth by the Congress and be resolved there, despite the fact that the Court’s decision today provides little incentive for congressional action. Our task in the meantime, however, is to resolve these issues as best we can in the light of ill-fitting existing copyright law.

It is no answer, of course, to refer to and stress, as the Court does, this Court’s “consistent deference to Congress” whenever “major technological innovations” appear. Perhaps a better and more accurate description is that the Court has tended to evade the hard issues when they arise in the area of copyright law. I see no reason for the Court to be particularly pleased with this tradition or to continue it. Indeed, it is fairly clear from the legislative history of the 1976 Act that Congress meant to change the old pattern and enact a statute that would cover new technologies, as well as old.

. . . The making of a videotape recording for home viewing is an ordinary, rather than a productive, use of the Studios’ copyrighted works. The District Court found that ” Betamax owners use the copy for the same purpose as the original. They add nothing of their own.” Although applying the fair use doctrine to home VTR recording, as Sony argues, may increase public access to material broadcast free over the public airwaves, I think Sony’s argument misconceives the nature of copyright. Copyright gives the author a right to limit or even to cut off access to his work.  A VTR recording creates no public benefit sufficient to justify limiting this right. Nor is this right extinguished by the copyright owner’s choice to make the work available over the airwaves. Section 106 of the 1976 Act grants the copyright owner the exclusive right to control the performance and the reproduction of his work, and the fact that he has licensed a single television performance is really irrelevant to the existence of his right to control its reproduction. Although a television broadcast may be free to the viewer, this fact is equally irrelevant; a book borrowed from the public library may not be copied any more freely than a book that is purchased.

It may be tempting, as, in my view, the Court today is tempted, to stretch the doctrine of fair use so as to permit unfettered use of this new technology in order to increase access to television programming. But such an extension risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create. Even in the context of highly productive educational uses, Congress has avoided this temptation; in passing the 1976 Act, Congress made it clear that off-the-air videotaping was to be permitted only in very limited situations.

From the Studios’ perspective, the consequences of home VTR recording are the same as if a business had taped the Studios’ works off the air, duplicated the tapes, and sold or rented them to members of the public for home viewing. The distinction is that home VTR users do not record for commercial advantage; the commercial benefit accrues to the manufacturer and distributors of the Betamax.

. . . If a significant portion of the product’s use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product’s infringing uses.If virtually all of the product’s use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed. In such a case, the copyright owner’s monopoly would not be extended beyond its proper bounds; the manufacturer of such a product contributes to the infringing activities of others and profits directly thereby, while providing no benefit to the public sufficient to justify the infringement.

Like so many other problems created by the interaction of copyright law with a new technology, “[t]here can be no really satisfactory solution to the problem presented here, until Congress acts.”  But in the absence of a congressional solution, courts cannot avoid difficult problems by refusing to apply the law. We must “take the Copyright Act . . . as we find it,”  and “do as little damage as possible to traditional copyright principles . . . until the Congress legislates.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: