Advice and descent

National Review, Nov 4, 1991 by Terry Eastland

THIS is not America," Judge Clarence Thomas told the Senate Judiciary Committee in his opening statement during the "special hearing on a charge of sexual harassment," and of course his nightmarish confirmation process was not America. Yet, after listening to Thomas and Committee members criticize the process for two days, Chairman Joe Biden decided he had had enough. Preposterously, he tried to defend the indefensible: The confirmation process was imperfect, but it's the only system we have. "It's kind of like democracy," he said, landing a low blow to the latter.

The special hearing would never have occurred but for the well-timed leak from a Committee member to Timothy Phelps of Newsday and Nina Totenberg of National Public Radio. Biden earnestly deplored the leak, and said he would ask for a Senate ethics-committee investigation. (What was that phrase a witness used-the fox guarding the henhouse"?) But now that the leak had occurred, Biden argued that he had to proceed Senate instructed-to investigate the accusation of Anita Hill, who before the Committee was as cool and confident as another infamous congressional witness, John Dean.

Biden strived for fairness, rebuking Democrats and Republicans alike for excesses. But however "fair in form" the proceeding might on rare moments have seemed, it was manifestly "discriminatory in practice"-against the nominee, a nationally televised smearing of his character.

It became that because Biden could not control the most liberal members of the Committee-Senators Kennedy, Metzenbaum, and Simon-or their staffers. They, in turn, could not control themselves; here was liberalism eating itself. The end of defeating Judge Thomas justified any means, including violations of Senate rules, possibly federal law-and basic decency. Biden was right when he wondered "how we can call ourselves civil libertarians."

On July 28, the Boston Globe reported: "The major civil-rights and civil-liberties organizations, many of them led by veterans of the Bork battles, are sharing research and coordinating strategy.... The official said, for instance, that opposition groups have been withholding some damaging information about Thomas's record, and will time its release to achieve maximum impact." The Globe piece neglected to point out that those "sharing research and coordinating strategy"-polite words for digging for dirt and passing around the mud-included not only the civil-rights and civil-liberties (so-called) groups but also the staffers of senators including Kennedy and Metzenbaum.

Before the special hearing it was established that a Kennedy aide, Ricki Seidman, formerly a lawyer with the falsely named People for the American Way, contacted Anita Hill on September 3 to see whether she was willing to come forward." By September 9 she was, and she did-to James Brudney, a law-school classmate of Miss Hill's who works for-Metzenbaum. Brudney, a Labor Committee staffer, directed her to Judiciary Committee staffers. At first reportedly reluctant to attach her name to her accusation, she eventually did so-after the general hearings were concluded. The committee then asked the FBI to investigate. Biden passed the results-including Miss Hill's statement-to each Committee Democrat on September 27, the day the Committee sent the nomination to the full Senate. Note that no Democrat asked for further investigation before voting, although any one could have.

Metzenbaum, Kennedy, and Simon all deny that they or their staffers leaked the report. Believe that, and you will believe Anita Hill. Unfortunately, Committee Republicans missed two excellent opportunities to develop important facts relevant to Thomas's charge that "this dirt was searched for by staffers or members of this Committee [and] was then leaked to the media."

Senator Arlen Specter raised an October 9 report in USA Today in which Keith Henderson, a friend of Miss Hill, said that she had been advised by Judiciary Committee staffers that "they would approach Judge Thomas with the information and he would withdraw and not turn this into a big story." Miss Hill's early and later testimony on the Henderson story differed, leading Specter to say she had committed "flat-out perjury." Her answers were at least fishy, but Specter might well have drawn some interesting testimony had he worked her chronologically, probing every relevant action and phone call from the moment of his nomination until her testimony.

The other opportunity came and went with Susan Hoerchner, the California workers-compensation judge who went to law school with Anita Hill. Hoerchner divulged three interesting facts: She called the day Thomas was nominated and asked Miss Hill whether she would publicly say anything about sexual harassment (she said Miss Hill told her she would not); she had talked at some point with James Brudney, a law-School friend of both hers and Miss Hill; and she had talked with NPR's Totenberg. Why no Republican senator took these facts and ran with them is beyond me. When next did she talk with Anita Hill, and how many times did they talk? Exactly how often did she talk with Brudney or other staffers? With members of People for the American Way, NOW, and so on? And what was said in all these conversations?