We will simply have to accept, for the present, that no more than two people in the world can know…
We will simply have to accept, for the present, that no more than two people in the world can know with certainty whether Clarence Thomas said to Anita Hill what she says he did.
Shortly before the U.S. Senate was to vote on his nomination to the Supreme Court in October 1991, Hill charged Thomas with sexually harassing her when she worked for him at the Department of Education and then at the Equal Employment Opportunity Commission (EEOC), by asking her out and forcing her to listen to obscene talk; but the crime of harassment, as Hill explained, often has no witnesses. This central, crucial mystery did not mute the debate or make the advocates any more tentative in their arguments. Instead, the Hill-Thomas case became perhaps the biggest sex scandal in American history. Combatants on both sides attacked their opponents in an explosion of resentment and hate. Hill and Thomas were forced to testify publicly to the Senate Judiciary Committee about intimate aspects of their lives; they became contending gladiators in the arena, with us in the television audience poised to turn thumbs up or thumbs down. The Senate became an object of general contempt, since most of the Senators on whom we depended to question Thomas and Hill lacked either the skill to elicit the information we wanted or the moral stature to act as proper judges.
The case had its roots in recent American history, beginning with the battle over Robert H. Bork, whom President Ronald Reagan nominated to the Supreme Court in the fall of 1987.1 Bork was not only a highly qualified nominee but one of the chief intellects of the American legal profession. He had become a symbol of American legal conservatism and its challenge to the liberalism dominating the upper reaches of the profession.
Bork’s opponents attacked him with a campaign of unprecedented scope. Senator Edward Kennedy began it by sounding a call to arms, portraying Bork as an enemy of free speech and of the established rights of women and minority groups. Kennedy and other Democratic Senators helped put off hearings on the nomination in order to give liberal interest groups time to organize and launch a media campaign. Among the campaign’s chief target audiences were black organizations throughout the South. This strategy was successful: fear of displeasure in the black community caused crucial Southern Democratic Senators to vote against Bork.
Politics in the selection of Supreme Court Justices was nothing new in this country’s history, but the anti-Bork effort set a couple of precedents. For one thing, it buried the traditional, largely internal Senate politics of Supreme Court selection under mass-communications techniques developed for national political campaigns. Moreover, it was unabashed in its claim that Supreme Court Justices could legitimately be rejected for their ideology and political views. Thus during and after the anti-Bork campaign, its operatives were happy to give the press the details of their new and successful political tactics. We learned about their organized rallies, their telephone banks to generate mail to key Senators, their computer bulletin boards, their fundraising methods, and their choice of “opinion-making markets” for their TV advertising.
The modern Senate, without the strong leadership that might have resisted such tactics, showed in the Bork fight that it was extremely open to the new style of Supreme Court politics. So, when Clarence Thomas was nominated for the Supreme Court in 1991, some of the organizational veterans of the Bork fight geared up, as more than one of them put it, to “Bork” Thomas as well. People for the American Way reenlisted in the fight. So did the National Leadership Conference on Civil Rights, the Alliance for Justice, the National Abortion Rights Action League, the National Women’s Law Center, the Women’s Legal Defense Fund, the National Women’s Political Caucus, and the National Organization for Women.
But their strategy did not work the second time around. Because Thomas was a black conservative and an opponent of the more sweeping versions of affirmative action, much of the traditional civil-rights leadership harbored a special resentment toward him. Yet affirmative action was a dangerous issue to raise against Thomas, since it had become such an unpopular idea among the general public. Furthermore, even in the civil-rights groups, many people identified with Thomas’s rise from poverty, and the resulting ambivalence kept these organizations from exerting the force they had shown with the Bork nomination. In addition, Thomas supporters had learned a thing or two from the Bork battle and made sure that charges against their man did not go unanswered in the media.
Finally, during his first confirmation hearings before the Senate Judiciary Committee, Thomas appeared to contradict or qualify his past conservative views more dramatically than Bork had done. Thomas escaped from the trap of declaring himself one way or the other on the abortion issue by saying that he had never debated the legal aspects of Roe v. Wade. The Senators of the Judiciary Committee, even as they asked Thomas repeatedly about abortion, accepted his evasions and denials. All parties knew, by that time, the necessary steps in the post-Bork ballet.
The Judiciary Committee sent Thomas’s nomination to the full Senate on a vote of seven-to-seven. In mid-October, on the eve of the Senate’s final vote on Thomas, his confirmation looked like a sure thing.
Meanwhile, as the chances of defeating the Thomas nomination grew smaller, both the press and the groups working against him grew ever more vigorous in their search for material to use against him. Employees at the EEOC reported getting repeated phone calls from journalists and Thomas opponents explicitly asking for “dirt.” On Sunday, October 6, after the Senate Judiciary Committee had voted to send the Thomas nomination to the Senate, Newsday and National Public Radio reported that for a month the committee had had in its possession an affidavit from a woman named Anita Hill making charges of sexual harassment.
This particular accusation, like the mobilization of interest groups against Thomas, had a recent history in American politics.
Political sex scandals have been a perennial feature of American life, but in the past quarter-century these scandals have begun to acquire a new character and meaning. As late as the mid-60’s, politically active people who considered themselves liberal tended to be relatively tolerant in matters of sex and to accept the idea that every individual, even a politician, had a private sphere of life that was none of the public’s business.
The women’s movement changed all that. From the late 60’s onward, we heard from movement writers that sex was more often a tool of oppression than a simple plaything, and that personal habits like a male politician’s treatment of women were something the public had every right to know about. By the time of Watergate we had developed not only a vast publicity machine capable of spreading such personal scandals across the land but a rationale that gave us, the high-minded voters, permission to pay detailed attention to these salacious matters.
The first consequence of this shift was an efflorescence of classic adultery scandals. But in the mid-1980’s, a more important consequence of the new thinking appeared: we began to see many more scandals involving charges of sexual coercion or sex without full consent. It was only a matter of time before such matters would assume center stage in some confirmation drama. In this sense, the Thomas episode was a scandal waiting to happen.
Anita Hill certainly seemed an individual to be taken seriously. She was, like Thomas, black. Like Thomas also, she came from a rural background, having been raised on a farm in Oklahoma, the youngest of thirteen children. And, like Thomas again, she had attended Yale Law School. When Thomas was about to become Assistant Secretary of Education for Civil Rights, a mutual friend introduced the two of them, and Thomas offered her a job. She worked with him for nine months; he then resigned to become chairman of the EEOC. She went with him and worked at the commission until 1983, when she left to take a teaching job at Oral Roberts University in her home state.
In charging that Thomas had harassed her both at the Education Department and at the EEOC, Hill lacked any evident political motive: she was described as a Reagan appointee, a Bork supporter, and a conservative, though it later emerged that she had had political differences with the Reagan administration from the beginning and had criticized Thomas, to the FBI in July and to the press in September, for his position on affirmative action and the problem of black dependency.
A friend and former law-school classmate of Hill’s said that she had told him, within days of the Thomas nomination in July, about the nominee’s sexual harassment of her. Ricki Seidman, former legal director of People for the American Way and now an aide to Senate Judiciary Committee Democrat Edward Kennedy (though she was not on the Judiciary Committee staff itself), called Hill in early September to ask her about the harassment. Hill proved willing to talk further. James Brudney, an aide to Judiciary Committee member Howard Metzenbaum (though also not on the Judiciary Committee staff), and another former Yale Law School classmate of Hill’s, called her and continued the conversation. The FBI finally began investigating Hill’s charges on September 23 and reported back to the committee on the 26th, a day before the scheduled vote on whether to send the Thomas nomination to the full Senate. Thus the committee had little time to consider the accusations.
Thomas supporters protested the introduction of a new charge against him, after so many other accusations had been leveled and failed, on the very eve of the confirmation vote. Thomas opponents said that because not much was known about the charges, the vote should be postponed and Hill’s story given a more thorough airing.
But the opponents said a great deal more as well. They claimed that the Senate, by its treatment of Hill, had already demonstrated men’s outrageous indifference to the welfare of women and the fundamental incapacity of male elected officials to give proper political representation to their female constituents. If the Senators went ahead with their floor vote on Thomas as scheduled, they would compound the insult.
The anger of Thomas’s critics drove out respect for procedural traditions and niceties. The Judiciary Committee had considered Hill’s charges privately, in agreement with Hill’s expressed wishes; but someone on some Senate committee staff decided that he or she was morally justified in overriding these rules of confidentiality and leaking Hill’s affidavit, either directly to the press or to an intermediary, and subjecting both Hill and Thomas to a public airing of the issue.
After the leak, Thomas’s supporters said that because he was to be effectively put on trial, he should be given the presumption of innocence: Hill should have to come up with some solid corroboration of her claim. Thomas’s opponents dismissed this idea, explaining that since sexual harassment often took place in private, an absence of corroborating evidence was only to be expected. Asking for the conventional presumption of innocence under this circumstance would be nothing other than a fancy version of “blaming the victim.”
The opponents evidently calculated that by bathing the whole affair in the light of publicity, they could undo the Judiciary Committee’s verdict. And indeed, at first they seemed to succeed. But in the end, they succeeded too well. They forced a public event that featured Hill and Thomas facing off against each other directly and individually. They provided Hill with a phalanx of lawyers to match Thomas’s White House handlers. They created, in other words, a forum that strongly resembled a criminal trial.
No, it was not an actual criminal trial; the Thomas hearings were meant to investigate a character question broader than issues of criminal guilt, and the rules were looser—so loose, it later turned out, as to seem nonexistent. But the hearing and its stakes were trial-like enough so that onlookers tended inexorably—like good products of a liberal society—to apply “presumption of innocence” standards as they watched the proceedings. This feature made Thomas measurably harder to dislodge.
In addition, Thomas’s opponents may have underestimated just how big an audience they would attract. The comparison with the Bork nomination is instructive: what most citizens knew of the earlier struggle came to them through television news, which had its own distinct biases. Watching the Hill-Thomas face-off, by contrast, was a mass activity.
People may have begun by tuning in the hearings for entertainment, but they stayed on to make sober judgments, and these judgments turned out to be radically different from those of the anti-Thomas activists who had first insisted on bringing the controversy out into the open.
To see how the huge audience engaged by the public hearings finally formed its opinions, we must first look to the center of the storm and the story Anita Hill told; for, in one of the many asymmetries of the case, it was Hill and not Thomas whose account became the focus of the controversy. The questions asked by the Senators helped shape what information Hill gave, of course, and the press influenced the way we saw her. Still, the public had a huge amount of direct access to Hill and what she said, and there is little reason to think that this public failed to make up its own mind.
The most detailed version of Hill’s case appeared in the opening statement she delivered on October 11 at the Judiciary Committee’s first public session investigating her charges. In it she explained that three months after she had gone to work for Clarence Thomas at the Department of Education in 1981, he asked her out. She said no. He kept asking and started talking to her about sex. “He spoke,” said Hill,
about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involving various sex acts. On several occasions, Thomas told me graphically of his own sexual prowess.
This talk, said Hill, then ended. When Thomas was made chairman of the EEOC, he invited her to follow him, and she did. There he resumed the sexual conversations and overtures. Once, in Hill’s presence, he looked at a Coke can from which he was drinking and remarked, “Who has put pubic hair on my Coke?” He talked about the size of his penis and about oral sex. She began looking for other employment and finally left the EEOC in 1983 when she found her teaching job at Oral Roberts University. Since that time, she had seen Thomas only twice and had minimal phone contact with him. She had not spoken publicly about the harassment until she was asked about it by Senate staffers investigating the Thomas nomination.
She told her story to the Senators in a calm and composed way. During the intense questioning that followed, she did not stumble or contradict herself in talking about the words that she claimed had passed between Thomas and herself.
Her testimony, however, did have inconsistencies. Some of these were of the sort one would expect from any account, even a truthful one, by a reluctant witness remembering events that took place years ago. For instance, during questioning Republicans pointed to the fact that Hill’s charges against Thomas had changed over time, becoming more detailed from her first FBI interview (in July 1991) through her affidavit and second FBI interview in September to her considerably more elaborate testimony to the Judiciary Committee. While these variations could point to inventiveness on her part or openness to suggestions from the Senate staffers who had first contacted her, such changes can also take place as an individual remembers progressively more about a past event. They are not necessarily the result of lies.
On the other hand, most of the inconsistencies and conflicts in and around Hill’s testimony and statements were not of this random sort; they fell into a pattern. These conflicts, which might have seemed small or accidental or the product of animus if taken one by one, became more important because they so closely echoed one another. The inconsistencies all revolved around two questions: How personally and professionally ambitious was Hill? And how well did she usually look out for her own welfare and interests?
The first such problem arose in Hill’s story of how it was that she came to give her information to the Judiciary Committee in the first place and of why the committee had delayed for almost a month in considering her charges. “I was approached by the Senate Judiciary Committee in early September,” she said in the press conference she gave after her story became public. But it was not until September 20 “that an FBI investigation was suggested to me. . . .”
“I suggested to the committee throughout,” Hill emphasized, “that I wanted to make this information available to every member of the Senate committee for their consideration. . . .”
She later said, “Reliving this experience has been really bad for me, . . . especially with the frustrations that I have felt with trying to get the information in the right hands.”
A journalist asked, “Did you at some point offer to make these allegations by name? Did you discuss the removal of your request for confidentiality, and at what point did that occur?” Hill replied:
The extent of my confidentiality was never to keep the committee members from knowing my name. The extent of my confidentiality was making sure that the names were not released to the public. . . . So at all times the Senate knew my name, the committee knew who I was. So that wasn’t ever an issue.
Senator Joseph Biden, chairman of the Judiciary Committee, promptly issued a statement saying that the delay was not the committee’s fault, the staff had been “guided by Professor Hill’s repeated requests for confidentiality.” The Biden statement provided a detailed chronology, based on documentation, of the committee’s dealings with Hill. It asserted that Hill did not make her first contact with the committee until September 12. A committee staffer told Hill then that her charge could be kept confidential, but that the investigation could go no further unless her name and accusations were given to Thomas so that he would have an opportunity to respond. “Professor Hill specifically stated,” said the chronology, that “she did not want the nominee to know that she had stated her concerns to the committee.”
A week later, on September 19, according to the committee staff, Hill called again:
For the first time, she told full committee staff that she wanted all members of the committee to know about her concerns, and, if her name needed to be used to achieve that goal, she wanted to know. She also wanted to be apprised of her “options.”
The next day the staff called Hill to explain again that before her accusations went to committee members, Thomas would have to be given her name and a chance to respond in an FBI investigation.
Hill, according to the chronology, said she wanted to think about it and phoned the next day to say that she would not agree to the FBI investigation. Two days after this refusal, though, she contacted the staff and agreed to the investigation. Three days after the FBI finally got to interview Hill, it finished its report.
Hill’s account thus asserted that she had always been willing to use her name in any way necessary to bring her concerns to the committee members’ attention. But only late in the game, according to her, did committee staffers inform her that she had to let the FBI investigate and let Thomas know her name before committee members could be told of her story.
In Senator Biden’s version, by contrast, Hill was told from the beginning that in order to go forward and get her story to the committee members, she would have to give Thomas her name. She said no. She changed her mind and called the committee a week later—but when she was again told the conditions, she again said no. Then she changed her mind once more and finally agreed to the FBI investigation.
These two conflicting stories draw two quite different pictures of Anita Hill. In Biden’s account, Hill decides to go to the committee but learns, only after making contact, that in order to pursue her charge she must confront her accuser and face the consequences—emotional, moral, and professional. She wrestles with this problem, under pressures whose nature we do not know, for almost ten days. She finally lets the investigation go forward, but at a late date that greatly lessens the chances of the committee’s giving substantial consideration to her concerns.
This picture that the Biden staff drew of Anita Hill does not portray her as particularly dishonorable. After all, the decision she had to reach was not easy, and the fact that she weighed her actions carefully does not necessarily make her a mendacious witness. Still, the Anita Hill in Biden’s story, even while coming forward as a good citizen to aid the committee in its task, prudently protects her own interests. As a result, she is partly responsible for the delay that she criticized and that women’s groups cited as evidence of the committee’s dismissive attitude toward her.
The Anita Hill of her own account is quite different. She is not so smart as Biden’s Anita Hill, not so quick to grasp legal and political complexities, not so capable of giving deliberate, cautious thought to the personal consequences of the actions she contemplates, and more exclusively moved by the simple, uncomplicated desire to tell the truth and do her civic duty.
The very same conflict emerged when one of the Judiciary Committee’s Republicans, Senator Arlen Specter, cross-examined Hill during her public testimony about her dealings with Senate aides in the days before she sent her statement to the Judiciary Committee.
According to a USA Today story published at the time of her testimony, Hill had been assured by one staffer that merely telling Thomas about the existence of her charges would make him withdraw, and that Hill would not have to come forward publicly. In other words, the story implied, Hill was playing a somewhat less heroic role than it might appear.
“Did anyone ever tell you,” Specter asked, “that by providing the statement that there would be a move to press Judge Thomas to withdraw his nomination?”
“I don’t recall any story about pressing—using this to press anyone,” she answered.
Specter tried again: “Well, do you recall anything at all about anything related to that?”
“I think I was told,” she said, “that my statement would be shown to Judge Thomas, and I agreed to that.”
“But was there any suggestion, however slight,” Specter asked a third time, “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?”
“There was no—not that I recall,” she said. “I don’t recall anything being said about him being pressed to resign.”
“I would ask you,” Specter continued, “to press your recollection as to what happened within the last month.”
“And I have done that, Senator,” she said, “and I don’t recall that comment.”
“I’m asking you now,” Specter finally said, “only if it did happen whether that would be the kind of statement to you which would be important and impressed upon you [so] that you could remember in the course of four or five weeks.”
Hill said, “I don’t recall a specific statement, and I cannot say whether that comment would have stuck in my mind. I really cannot say this.”
But in the afternoon session of the same day, without being asked the question again, Hill, talking generally about how she had come forward to the Judiciary Committee, offered the information that one of her conversations “even included something to the effect that the information might be presented to the candidate and to the White House. There was some indication that the candidate, or, excuse me, the nominee, might not wish to continue the process.”
Later Specter pressed further: “So Mr. Brudney [Senator Metzenbaum’s aide] did tell you Judge Thomas might not wish to go forward with his nomination if you came forward?”
“Yes,” replied Hill.
Specter later claimed that Hill’s morning testimony, had she not contradicted it, would have been “flat-out perjury.” Hill supporters were outraged by the accusation, calling her misstep only a minor inconsistency. What is more certain than either of these interpretations is that Hill’s corrected testimony in the afternoon session presented a picture of her that was congruent with the portrait in the Biden chronology: this was a woman who knew, discussed, and cared about her “options,” and who gave thought to the means by which she could accomplish her goal while avoiding personal risk. Nothing in this was necessarily pejorative. So it is especially interesting to see how persistently Hill omitted this element from the picture she gave of herself during the morning’s five successive rounds of questioning on the subject.
The same discrepancy was more pronounced in other parts of Hill’s speech and testimony—in the matter, for example, of why she went to work for Thomas at the EEOC. Hill contended that Thomas had harassed her in her first job with him, at the Department of Education; yet when he moved to the EEOC chairmanship in the spring of 1982, she chose to go along with him. In her initial press conference Hill explained this oddity. “There was a period” at the Education Department, she said, “[during] which the activity stopped.” “Furthermore,” she went on,
at that time I was twenty-five years old. . . . If I had quit, I would have been jobless: I had not built a résumé such that I could have expected to go out and get a job. And you’ll recall that in the early 80’s, there was a hiring freeze in the federal government. I wanted to stay in civil rights. I thought I had something to add.
Later, in her testimony to the Judiciary Committee, she said:
The work [at the EEOC] was interesting, and at that time it appeared that the sexual overtures which had so troubled me had ended. I also faced the realistic fact that I had no alternative job. While I might have gone back to private practice, perhaps in my old firm or at another, I was dedicated to civil-rights work and my first choice was to be in that field. Moreover, at that time, the Department of Education itself was a dubious venture. President Reagan was seeking to abolish the entire department.
She told Chairman Biden in later questioning, “My understanding from [Thomas] at that time was that I could go with him to the EEOC, that I did not have, since I was his special assistant, that I did not have a position at the Office for Education.” She also said, “I was a special assistant of a political appointee, and therefore I assumed and I was told that that position may not continue to exist.” And she said about the Education Department as a whole, “The Department of Education at that time was scheduled to be abolished. There had been a lot of talk about it, and at that time it was truly considered to be on its way out.”
Biden said he had been informed that Hill herself was not a political appointee at the Department of Education: she was a Schedule-A attorney, with job protection. Couldn’t she have stayed at the department? “I believe I was a Schedule-A attorney,” she said, but “I was the assistant to the Assistant Secretary of Education”; “I had not been interviewed by anyone who was to take over that position for that job; I was not even informed that I could stay on as a Schedule-A attorney.”
“As a Schedule-A attorney,” Biden persisted, “you could have stayed in some job.”
“I suppose,” Hill answered, “as far as I know, I could have. But I am not sure, because at the time, the agency was scheduled to be abolished.”
She told Senator Specter:
I didn’t know who was going to be taking over the position. I had not been interviewed to become the special assistant of the new individual. I assumed that they would want to hire their own, as Judge Thomas had done.
In telling why she had followed Thomas to the EEOC, Hill got herself into a certain amount of evidentiary trouble. Believing that a Yale Law School graduate did not know anything about her Schedule-A job protection was as hard as thinking that a Yale Law School graduate would not have understood that the Judiciary Committee would require her to confront her accuser. As for Hill’s going to the EEOC in order to stay in the civil-rights field, that was the field in which she was already working at the Department of Education and in which she could have remained. As for Hill’s belief that she would not be kept on by Thomas’s successor at the Department of Education, she could easily enough have asked: this successor was a friend of Thomas’s, and Hill also had independent access to the new official through a mutual friend. And as for Hill’s seriously thinking the Department of Education was “scheduled” to be abolished (it still exists), there cannot have been three people in the federal government who did not know that it would have taken a year and a half just to get the moving labels on the furniture.
These contradictions were used to good account by Hill’s enemies, yet they could easily have been resolved. Hill did not have to go to the EEOC in order to stay in the civil-rights field, but she did have to go there if she wanted to be at the center of the civil-rights action and keep herself hitched to the rising star of her boss, Clarence Thomas. Working for Thomas’s successor or staying on in some Schedule-A position at the Education Department might have seemed like a perfectly good job to some, but it was not so good if one thought of it as being left behind instead of going on to a much better professional opportunity. Thus, Hill’s reason for following Thomas to the EEOC in spite of harassment was perfectly plausible—if one only added, as Hill did not in her accounts, the notion that she was moved by the ambition to advance her career.
But Hill did not speak of her own ambition. As a result, in her account of her move to the EEOC she sounded as if she were offering too many reasons making too little sense.
She fell into the same kind of trouble when she talked about her relationship with Thomas after she left the EEOC in 1983 to teach at the law school of Oral Roberts University. Here is the way Hill, in her testimony, described how she got her job at Oral Roberts: “I participated in a seminar, taught an afternoon session in a seminar at Oral Roberts University. The dean of the university saw me teaching and inquired as to whether I would be interested.” She said, “I agreed to take the job in large part because of my desire to escape the pressures I felt at the EEOC due to Judge Thomas.” She said she told Thomas in July that she was leaving. “I got that job on my own,” she asserted, explaining that she had asked Thomas for a recommendation only after she had landed the job and “only because the process required some kind of letter from an employer.”
Here, in contrast, is what Thomas testified about the subject:
In the spring of 1983, Mr. Charles Kothe contacted me to speak at the law school at Oral Roberts University in Tulsa, Oklahoma. Anita Hill, who is from Oklahoma, accompanied me on that trip. It was not unusual that individuals on my staff would travel with me occasionally. Anita Hill accompanied me on that trip primarily because this was an opportunity to combine business and a visit to her home. As I recall, during our visit at Oral Roberts University, Mr. Kothe mentioned to me the possibility of approaching Anita Hill to join the faculty at Oral Roberts University law school. I encouraged him to do so and noted to him, as I recall, that Anita Hill would do well in a teaching position. I recommended her highly, and she eventually was offered a teaching position.
Charles A. Kothe, then dean of the O.W. Col-burn School of Law at Oral Roberts, said it was at Thomas’s invitation that Hill attended the afternoon seminar she mentioned in her testimony. Kothe said that when he learned Hill was from Oklahoma, he expressed interest in hiring her, asking Thomas what he thought of the idea. Thomas said, Kothe remembered, that Hill would make a good teacher.
In Hill’s testimony, Thomas and his role are missing—his taking her on the Oklahoma trip in the first place, his inviting her to the Oral Roberts seminar, and his early role in recommending her for her new job. If Hill had included any of these things, they would not necessarily have shown her charges against Thomas to be false: a woman with job aspirations or professional ambitions might well decide to endure harassment to get something back from the harasser in the form of contacts or recommendations, just as such a woman might put up with disagreeable treatment for the benefit of an upward move. A woman making this type of trade-off would be, of course, one with personal and professional aims well beyond the need to put bread on the table. It was this sort of ambition that Hill’s acount excised.
The same discrepancy appears elsewhere. A former Oral Roberts law professor said that Hill had suggested Thomas as a speaker for an employment-discrimination conference at the school; Hill denied that she had wanted Thomas there. Thomas said that when he did visit the school, Hill drove him to the airport, and Dean Kothe remembered that she had offered to do so. Hill disputed the recollection:
I really don’t recall that I voluntarily agreed to drive him to the airport. I think that the dean suggested that I drive him to the airport and that I said that I would. But at any rate, one of the things I have said is that I intended—I hoped to keep a cordial professional relationship with that individual and so I did him the courtesy of driving him to the airport.
Specter asked, “Was it simply a matter that you wanted to derive whatever advantage you could from a cordial professional relationship?”
“It was a matter that I did not want to invoke any kind of retaliation against me professionally,” Hill made the distinction. “It wasn’t that I was trying to get any benefit out of it.”
“Well,” Specter followed, “you say that you consulted with him about a letter of recommendation. That would have been a benefit, wouldn’t it?”
“Well,” Hill resisted, “that letter of recommendation was necessary. The application asked for a recommendation from a former employer.”
This tussle over the presence or absence of deliberative ambition as a force directing Anita Hill was waged most dramatically over the issue of the phone logs. Diane Holt, Thomas’s secretary at the EEOC, remembered that Hill had phoned Thomas a number of times after leaving the agency. In fact, a hunt through Holt’s phone logs revealed ten calls from Hill, including one to congratulate him on his marriage. Hill responded by telling the Washington Post that the phone logs were “garbage.” She said she had called Thomas once in 1990 to make sure he had received an invitation initiated by others at the University of Oklahoma law school, her professional home after Oral Roberts, to speak at commencement. Apart from that, she said, “If there are messages to him from me, these are attempts to return phone calls.” She went on: “I never called him to say hello. I found out about his marriage through a third party. I never called him to congratulate him.”
The logs became a major subject of controversy during the hearings. In her testimony, Hill explained her calls to Thomas by saying, “I have, on at least three occasions, been asked to act as a conduit to him for others.” When this happened, said Hill, she would speak to Thomas’s secretary, “and on some of these occasions undoubtedly I passed on some casual comment to then-Chairman Thomas.” She added:
In August of 1987, I was in Washington, D.C., and I did call Diane Holt. In the course of this conversation, she asked me how long I was going to be in town, and I told her. It is recorded in the message as August 15. It was in fact August 20. She told me about Judge Thomas’s marriage, and I did say “Congratulate him.”
She claimed that what she had called “garbage” to the Washington Post was not the authenticity of the phone logs themselves but the use of the logs to attack her. She denied the Post story that quoted her as saying she had initiated no calls to Thomas.
But when Holt testified, she said that in addition to the uncompleted calls recorded in the logs, Hill had made still other calls—perhaps five or six—to Thomas. Holt said that the calls recorded in the logs were not returns of Thomas’s calls, and they were not calls to Holt herself in which a message to Thomas was tacked on.
On the issue of the logs, Hill was forced to do some public backtracking. As with the questions about her Oral Roberts job, the question of whether and why Hill had initiated all those calls did not speak directly to the truth of her charge about Clarence Thomas and the obscenities he allegedly spoke. Thomas was Hill’s mentor and a professionally rising star, and she clearly benefited from being known as someone connected to him. Advances and obscenities or no, a professional woman under these circumstances might well have thought it prudent to take even elaborate steps to make sure the relationship stayed alive. Once again, all we need to reconcile her phone calls with her charges against Thomas is to assume that Hill was a woman of some ambiton; but this is the picture that Hill denied.
Toward the end of the hearings, one of Hill’s attorneys announced that she had taken and passed a polygraph test. Nevertheless, the Americans who followed the Thomas controversy told New York Times/CBS pollsters after the hearings that by a ratio of more than two-to-one, 58 percent versus 24 percent, they found Thomas more believable than Hill. This was about the same ratio of those who had favored confirming Thomas throughout the nomination process. After all the talk in the press about the unrepresentative nature of the “all-white, all-male Senate Judiciary Committee” that had made the original decision to vote on Thomas despite Anita Hill’s charges, there was little difference, in the end, between men and women or between blacks and whites in their opinions.
There are, by now, scores of explanations of how this lopsided majority was built; clearly, people’s answers to the question “Whom do you believe more?” were made up of many considerations. It is odd that we have seen virtually no after-the-fact polling that might help us distinguish among such theories.
The reason for the pro-Thomas verdict, one explanation went, was that Thomas had won the battle of images. Hill’s performance had been too “cool” for the American public; Thomas’s passionate delivery style had simply played better to the audience. But looking at Hill’s testimony suggests that “cool” was not quite the word for the disquieting quality that she displayed. Not only the Senate questioners but a series of witnesses portrayed Hill as a somewhat ambitious and calculating woman, certainly more ambitious and calculating than she let on. Her testimony on the subject seemed to show a lack of candor, and this fact alone may have been a basis for mistrusting her. But the problem lay deeper: Hill’s perceived ambitiousness probably led many people to reject her description of herself as a victim of sexual harassment.
In the feminist view, such a proposition is cause for anger. After all, why couldn’t Hill be both an ambitious professional and a woman humiliated and disempowered by sexual harassment? Wasn’t failure to admit this possibility just another way of denigrating the importance of sexual harassment? But most people seem not to have shared this attitude, and we can get a clue as to why not by taking a look at the stories of sexual harassment that filled mass-circulation magazines like Time, Newsweek, and People during the crisis.
Some of these tales would curl your hair, and legitimately so. A female laborer and dump-truck driver for a municipal sewage department had to face persistent questioning by her supervisor about her sex life and her husband’s anatomy. A restaurant manager who protested when her boss asked her to perform oral sex in front of another employee was tailed by a private detective and fired for not ringing up drinks correctly. A secretary had a supervisor who threatened to fire her if she did not sleep with him. A public-information officer at a state corrections department had a boss who made lewd comments about her and her one-year-old daughter and had her fired when she complained.
There can be disputes aplenty about the facts behind such charges, but the accusations themselves are clearly serious. They were made by working-class or lower-middle-class women occupying ordinary jobs rather than high professional positions. These women’s situations involved firing or explicit threats of firing. Even when the accusations were of verbal rather than physical assaults, the attacks were aimed quite frontally at the women who were forced to listen.
In Anita Hill’s case, there was no physical grabbing. Thomas’s alleged obscene and pornographic words described himself and a set of movies, not any attributes of Hill herself or sexual acts to be performed by her. Hill’s supporters noted that she was at the young and still-vulnerable age of twenty-five when the alleged offenses took place; but in the types of jobs held by many of the women who told their stories to the magazines, a twenty-five-year-old was nobody’s baby. Such women were often extremely vulnerable to their supervisors’ personal judgments, while Anita Hill had considerable employment protection. These women had limited job choices, while Anita Hill had a Yale law degree. To women like these, retaliation meant dismissal, or demotion, or bad reports, while when Anita Hill told the Senate about the retaliation she feared, she said she was afraid of not getting good enough assignments, being denied a letter of recommendation after she had left the EEOC and was already working in another job, or being cut off from a cordial, professional relationship.
Federal law on sexual harassment says that such harassment can exist without any physical assault or explicit threat. It can occur when a supervisor or co-worker creates a “hostile environment” for the victim by actions “sufficiently severe and pervasive” to “alter the conditions of employment and create an abusive working environment.” When it comes to judging whether or not the environment is hostile, the courts have even ruled that the matter should be viewed from the point of view of the “reasonable victim.” If the victim is a woman, that means judging the case from the perspective of a “reasonable woman.”
The ideas of a “hostile environment” and the “reasonable woman” have caused controversy: they seem to suggest that any woman will be able to collect damages from any man who speaks words that she finds offensive, even though he may not think them offensive at all. Certainly in the Thomas case some of Hill’s supporters assumed that if Thomas spoke the words Hill said he did, he had clearly harassed Hill, humiliated her, and damaged her.
But the dispute between Hill and Thomas was referred to a jury more than half made up of “reasonable women,” the great majority of whom were less advantaged than Hill. Viewed from their situation, as from the situation of the “reasonable men” of the jury, Hill had a great deal of protection from Thomas’s whims—so that any offensive language from him was less the threatening cause of a “hostile environment” in a legally significant sense than an invitation to tell the creep to get lost.
And what about the implied threat Hill felt to the progress of her career? The answer, in this same view, is that such a threat does not have a comparable moral significance or capacity to do psychological damage as the threat to deprive someone of all or part of her livelihood. If Hill decided to stay and move on and up with Thomas, it was out of calculation, not out of fear. In this sense, it follows, ambition made Hill acquiescent or complicit in the continuation of Thomas’s alleged obnoxiousness. In her statements Hill herself, when she repeatedly omitted evidence of an ambition that other witnesses saw at work, seemed to recognize this distinction.
If sexual harassment consists of both the actions of the aggressor and the economic and psychological damage done to the victim, Hill seemed not to have given a true picture of the second half of the formula. So the words of Anita Hill’s story give us a fairly clear idea of what could have made people uneasy with her account of Thomas’s behavior and prompted them to reject it.
Some pro-Hill activists said after the hearings that Anita Hill’s testimony would have looked better were it not for the Democratic Senators on the Judiciary Committee. According to these critics, the Democrats not only sat in silence during the hearings while Republicans viciously attacked Anita Hill, but failed to subject Thomas to anything like the same type of cross-examination. The Democrats’ poor performance was said to have been caused not just by a lack of skill but by bad conscience and political vulnerability. Edward Kennedy was so notorious when it came to women that he could hardly open his mouth during the hearings. Joseph Biden had been charged with plagiarism during the 1988 presidential campaign. Dennis DeConcini was one of the Keating Five involved in the savings-and-loan scandal and, as such, had recently sat in Clarence Thomas’s place during public hearings of the Senate Ethics Committee. It was no wonder they went easy on Thomas, the critics concluded; and this asymmetry between Republican and Democratic behavior had permitted him to avoid his just deserts and showed again the need for more women in positions of power.
Such asymmetry was at work, all right, but it came from more than personal failings and foibles: it also stemmed from the public quasi-criminal trial into which the Senate had allowed the proceedings to be cast. Anita Hill had charged Clarence Thomas with crimes to which she said there had been no witnesses. The normal courtroom defense to such charges is to try to even the score by eliciting details that damage the accuser’s credibility and by testing various theories of her motivation. This chance to attack the accuser is a protection meant to balance the relative ease of making false charges in such “no-witness” cases. Thus the unequal situations of Hill and Thomas were to some extent part and parcel of this type of charge, not something created by Democratic weakness.
In addition, in order to give the concrete details of her charges, Hill had to provide the committee with a great deal of information about the short-term and long-term circumstances under which the alleged acts had occurred. It was this information that gave the Republican cross-examiners material to work with—to probe, pick at, and examine for inconsistencies.
Clarence Thomas, by contrast, did not offer an alternative account of the incidents described by Hill. He did not say anything like, “Yes, I asked her out, but I never said those things to her.” He did not answer, “Yes, I said those words, but I meant them as a joke.” Instead, he defended himself by just saying “No.” Thomas pointed out during the hearings that this position put him at a disadvantage: “You can’t prove a negative,” he said. But the same posture gave him one very large advantage: “No” is a very small target for a cross-examiner to shoot at. The possibilities for inconsistency and internal contradiction are much more limited than they are in a statement like Hill’s. This difference, too, made the cross-examining asymmetrical in a way that needs no resort to Democratic wimpery to explain.
But, said some critics of the hearings, the Democrats need not hve restricted themselves to the narrow story that Clarence Thomas denied. For instance, Hill had charged Thomas with talking to her about pornographic movies. Why not ask Thomas whether he had ever rented such movies? And, to help assess Thomas’s general credibility, why not ask Hill whether the two of them had ever discussed Roe v. Wade in their years of working together?
The short answer is that Democratic committee members certainly knew, once they raised these questions, what kind of response they would get from the Republican side: why can’t we probe more deeply into Anita Hill’s past and psyche to see whether she might indeed be delusional? And why can’t we get some Senate staffers before the committee under oath, to see whether they might have suggested to Hill some of the juicy details of her charges?
Any of these questions might be deemed relevant under some rules of evidence. The problem is that the Senate has no such rules. It is not set up like a courtroom, in which professionals from each side would have questioned both Thomas and Hill before an impartial judge—and, it must be said, questioned both of them much more intensely than happened during these hearings. Neither did this Senate hearing operate with the benefit of anything like a grand jury, which sifts through raw data and decides which information is good enough to serve as a legitimate basis for further government action. More informal procedures than those of the courtroom are fine for some types of hearings. But in public hearings on issues of individual guilt and innocence, the absence of rules means that the contest is drenched in free-floating poison. The odds are even slimmer than usual of ever finding a semblance of the truth.
After the Senate vote on Thomas, he took his seat on the Court. His wife Virginia gave a cover interview to People, explaining how her religious faith had seen her through the ordeal. Anita Hill received an enthusiastic ovation from a conference of female state legislators when she “issued a ringing call to arms,” according to the New York Times, on the issue of sexual harassment. Meanwhile, politicians and journalists who had seen the Senate’s disarray during the controversy talked about improving “the process.” It was a convenient phrase, for it allowed the speaker or writer to express revulsion at the hearings without taking a position in behalf of either Thomas or Hill. Some took their worries about “the process” quite seriously: the Judiciary Committee has decided not only to hire outside counsel to investigate the leak of Hill’s affidavit but to allow the FBI into the case. Chairman Biden has said he intends to hold hearings about how the process can be fixed so that a mess like this does not occur again.
But it was not faulty procedures that brought us this problem; it was, instead, the spirit in which some of the players used the procedures. Someone was so partisan and so certain of the righteousness of his or her opposition to Thomas as to feel fully justified in overriding those morally deficient elected officials in the Senate and leaking Hill’s affidavit. And once it leaked, there were liberal organizations in Washington and feminists in the national media willing to treat the massively ambiguous news as a clear and patent outrage.
When it comes to the issue of staffing the federal courts, there is certainly enough partisanship to go around. Yet the spirit that manifested itself at the beginning of the Thomas scandal, the type of factional leftist partisanship that insisted on saddling our institutions with an impossible burden and putting the country through what we saw in those hearings despite clearly serious questions of fact, was truly breathtaking. Even in the bitter politics of federal judicial nominations, these people deserve special worry.
We should also worry about the politicians and journalists in the capital who proved so ready to fall into the now-settled routine of scandal politics, for it was this compliance that enabled the scandal’s creators to capture the national agenda. Leaks have become such an ordinary way of doing business that a congressional staffer who has lost an internal battle will not think twice about continuing the fight by making it public. Few journalists will hesitate to publish unconfirmed charges. Those who hear the resulting news story simply assume that a cover-up has been narrowly averted. Politicians will do whatever they must to avoid being associated with this dread cover-up. No one in the system seems to have the power to say “No” and stop the machine.
This time around, with the Thomas scandal, Americans saw the process taking place with a compressed intensity. People managed to make their way through the chaos to some serious conclusions, but they were also forced to watch the scandal sausage being made, and they did not like either the product or the sausage-makers. Even in Washington there were small signs of revulsion. In the midst of the Hill-Thomas fight, the Washington Post reported, with an unusual skepticism, on the “increasingly symbiotic relationship between committee staffers, liberal interest groups, and the news media” in “a role once played almost exclusively by the Senate.” Since the final vote, it has been reported that senatorial offices are, at least for the moment, no longer so friendly as they once were to some of these groups. The groups themselves are not coming forward, as they did after their Bork experience, to brag about and explain their tactics and strategies. They have not merely lost; they are in bad odor.
Unfortunately, this setback in reputation will not bother them. Having won the Bork fight, they exulted in the way the will of the people had been brought to bear in the battle; having lost the popular contest over Thomas, they will adopt other arguments and work via other means, including a continuing, assiduous use of the confirmation process, to gain what they have consistently failed in recent years to win at the polls.
1 For a fuller discussion of the Bork nomination, see my article, “The War Against Robert H. Bork,” COMMENTARY, January 1988.
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Why Anita Hill Lost
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There’s a constitutional crisis, but it’s not the one you think
They pat themselves on the back for cutting the corporate tax rate, a reform that has had bipartisan support for most of this century yet barely happened. And they praise themselves for confirming judges, an act that requires only a simple Senate majority now. But that’s about the sum of it.
They are less inclined now to talk about health-care reform, which was the foremost plank of every Republican platform since 2010 but fell apart last year and seems to have been abandoned. Presidential priorities such as immigration and infrastructure are going nowhere. The same can be said of longstanding Republican priorities such as entitlement reform.
The budget process has never been so hobbled. Not only did we come close to an unprecedented government shutdown during single-party control of Congress and the presidency, but this year has also marked the first time in the four-plus decades since the modern budget process was created that neither chamber has even considered a budget resolution.
And the trouble didn’t start in just the past few years. Presidential hyperactivity in recent decades has masked a rising tide of dysfunction—giving us policy action to observe and debate while obscuring the disorder that was overtaking our core constitutional infrastructure. It kept us from facing what should be an unavoidable fact: Congress is broken.
So whether you measure it by legislation, public approval, member satisfaction, even just committee work or each house’s ability to live by its own rules and procedures, the institution looks awfully dysfunctional. And the primary reason for that dysfunction may be the worst news of all: Congress is weak because its members want it to be. And that means the structure of our system, the insights of its framers, and the incentives that shape our politics don’t offer obvious solutions.
The Constitution gives the Congress powers but not responsibilities. The president is required to execute the laws and tasked with responding to changing world events on the country’s behalf. The courts have to consider cases and controversies put before them and apply the laws accordingly. But while the general scope and reach of the Congress’s authorities are laid out in Article I, the institution is not really told what it must do within that scope. That’s because the assumption was that Congress would naturally seek to control things and run as far and as hard in pursuit of power as the Constitution allowed, so that only boundaries were needed.
James Madison believed the legislative branch of government would exhibit an unquenchable ambition. As he wrote in Federalist 48, it would always be “extending the sphere of its activity, and drawing all power into its impetuous vortex.” In Federalist 51, Madison offers this as the reason for the bicameral legislature: “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches.”
The legislative branch would be so dominant because the intense ambition of its members couldn’t really be contained. Those members would speak most directly for the public, and their jobs could not be bounded by the laws as the job of a judge and a president can be. They would have the power to make the laws, after all, and so would be the moving force in our regime, striving incessantly to act.
Today’s Congress simply defies that expectation. It suffers from a malady the framers never quite imagined when they thought about politics: a shortage of ambition. Members are certainly eager to retain their offices, but they seem oddly indifferent to using those offices.
For example: About half a year from an election that could plausibly end their unified control of Congress for a while, congressional Republicans appear to have decided to spend this time doing essentially nothing. Even if bipartisan agreement is too hard to achieve, they have the opportunity, using the budget-reconciliation process, to take on serious legislative work with bare majorities. And they have a president eager to sign practically anything. But they are choosing to send him little of consequence.
It is precisely the president’s relative passivity that helps us see Congress’s ambition shortage. As an institutional matter, and in terms of his uses of his formal powers, Donald Trump is almost certainly the weakest president we have seen since before the New Deal. He is intensely interested in playing the leading role in the drama of our national politics, but he views that role in terms of media and cultural theater. He has barely lifted a finger to advance any legislative agenda of his own. He has used his executive authorities less aggressively than any modern president (and has used them mostly to reverse the aggressive hyperactivity of his predecessor). He has populated his administration with many officials rightly inclined to restrain the presidency. And he has proven largely incompetent to propel the engine of the federal bureaucracy in any particular direction on most issues.
Every White House, moreover, mirrors the personality of the chief executive. So the Trump White House has been a hothouse of frenetic, undisciplined, and unproductive chaos—self-obsessed, media-obsessed, but ultimately uninterested in the substantive work of the presidency. At least in domestic affairs, we are getting a flavor of what our system of government might look like without a president.
And what we’re learning from this strange experience is that the role of presidential overreach in undermining our system has probably been overstated, while the role of congressional underreach has been underappreciated. Congress has not looked upon Trump’s weakness as an opportunity and has not stepped in to fill the vacuum. The little that has gotten done (tax reform in particular) has certainly looked more like the agenda of congressional Republicans than of the president. But very little has gotten done. And members of Congress spend much of their time waiting to see what the president will say next.
This turn of events might cast the state and modern history of our constitutional system in a rather different light from the one in which conservatives have been inclined to see it over the last few decades. It suggests that the two trends that have most worried conservatives about the system—the trends toward excessive executive power and excessive judicial activism—are both rooted in congressional dereliction.
This also helps make better sense of the history of the administrative state, which has been distorted some in the popular conservative telling. The villain of this story is Woodrow Wilson, so that the tale has been about presidential excess from the start. But the historical evidence leaves little doubt that Congress created the administrative state, and indeed that it did so with little presidential guidance or involvement more or less until the New Deal. The original “independent” regulators were formed as commissions and given a peculiar middle spot between the branches of our government in part precisely so that they would not simply add to the president’s arsenal of authorities—and would remain answerable to Congress to a meaningful degree.
This began to change with the New Deal, but very much with Congress’s complicity. And by the last few decades, a pattern of congressional neglect has clearly emerged that has been misattributed (at least in part) to presidential and judicial excess. That pattern has dominated the work of our constitutional system in this century. Broad delegations of power in statutes have let presidents wield what are properly legislative authorities, and intentionally vague legislation has empowered judges to fill gaps that legislators should never have left open. Members of Congress are happy to complain about the other branches, but they are not inclined to use the enormous power at their disposal to restrain those competing institutions and reassert their own. We have seen this in health care, education, energy and banking regulation, and across the full scope of domestic affairs. And Congress’s abandonment of its role in foreign policy has been, if anything, even more comprehensive.
That presidents and judges would have rushed to capitalize on these opportunities is no surprise. They are ambitious, as the framers knew they would be. Why Congress would willfully create such opportunities for them is the question to be answered.
So how could there be a shortage of legislative ambition? What did James Madison miss?
He didn’t get the psychology of politicians wrong. People who run for Congress are still very ambitious and driven. But their ambition is now channeled away from the institution of Congress and redirected along two related paths.
The first is partisan. As polarization has increased, members of Congress have grown more inclined to understand their political and policy ambitions in partisan terms and therefore to see themselves as belonging to a team that extends beyond Congress. That means when they are in the president’s party, they generally work to advance the president’s priorities—because they usually share those priorities, and because they expect success for the president to redound to their own political benefit.
This obviously slackens the institutional tensions that are supposed to keep our constitutional system in balance. That’s how we could find congressional Democrats earlier in this decade calling on President Obama to assert the authority to rewrite immigration laws on his own, seemingly unconcerned about the usurpation of legislative prerogatives. It’s how we find Republicans asking President Trump to use his regulatory power to do things they could do with legislative power—to protect religious liberty or enable oil drilling along the coasts.
It is worth noticing in this regard, and when it comes to the decline of Congress more generally, that the problems have been thoroughly bipartisan. There is a popular genre of political science and commentary devoted to blaming Congress’s problems on the behavior of Republicans since the Gingrich era of the 1990s. They are derided as somehow simultaneously dogmatic and nihilistic, and blamed for turning the institution into a partisan combat zone. In this telling, it was the end of a blissful half-century of Democratic dominance that started all the trouble.
A more plausible diagnosis, offered by political scientist Frances Lee of the University of Maryland, is the simple fact that control of Congress is now in question in just about every election. This has turned up the partisan heat. The minority party at any given moment imagines it could take over next time and get everything it wants, and so it feels little pressure to cooperate with the majority just to get half a loaf or less. And the majority knows that its hold on power is endangered and so avoids bipartisan initiatives in favor of forcing the minority to take hard votes on wedge issues.
Both parties behave this way, in and out of power. And they also emulate each other’s behavior toward the president when control of the White House switches—as we have seen with the Democrats’ budget antics in the Trump era, which have been nearly identical to Republican shutdown politics in the Obama years. And both Republican and Democratic members have deferred and delegated to the president when their party has held the White House.
To some extent, this is because members are happy to pass off to the president and to judges the responsibility to make hard choices. But they do this not only when it comes to unpopular measures they don’t want tied to them. As a White House staffer in the Bush Administration, I frequently encountered member requests for executive actions in properly legislative domains that had broad popular support, or at least broad Republican support. Members were perfectly happy to claim credit for getting the president to act rather than acting themselves.
Members from the party out of power in the White House will sometimes suddenly discover a deep concern for congressional prerogatives, of course. But these discoveries rarely reach beyond the bounds of partisan convenience and have tended not to involve enacting durable institutional restraints on presidential power. Presidential overreach is convenient for Congress, because members don’t view the institution as the most important channel for their own ambition.
But members do not simply subsume their own ambition beneath that of their party. Ambitious people have pride and want prominence. That, too, remains as true today as in Madison’s time. But it points to the second, and even more pernicious, kind of redirection of ambition that is the distinct disorder of the Congress in this century, and that results in a more complicated kind of dereliction of congressional responsibility.
Simply put, many members of Congress have come to see themselves as players in a larger political ecosystem the point of which is not legislating or governing but rather engaging in a kind of performative outrage for a partisan audience. Their incentives are rooted in that understanding of our politics and so are not about legislating. They remain intensely ambitious, but their ambition is for a prominent role in the theater of our national politics. And they view the institution of Congress as a particularly effective platform for themselves—a way to raise their profile, to become celebrities in the world of cable news or talk radio, whether locally or nationally, to build a bigger social-media following, and in essence to become stars.
They can best use this platform not by engaging in the mundane work of legislating but by taking part in dramatic spectacles and by fueling the outrage that is now the engine of our politics. Even for its own members, Congress seems to be most valuable as an object for commentary and a prop in a livid morality tale about corruption.
Matt Gaetz, a freshman Republican congressman from Florida, has made a name for himself as an aggressive and quotable partisan combatant on cable television. When a reporter from Buzzfeed asked him in February whether he was concerned that he was gaining notoriety rather than prominence by doing this, his answer was: “What’s the difference? People have to know who you are and what you’re doing if your opinions are going to matter.”
It is easy to imagine President Trump himself offering the same answer. And indeed, the rise of performative politics in Congress mirrors the performative approach to the presidency embodied by Trump—though it was also very much in evidence in his predecessor’s behavior. In both the elected branches, we find people inside a key institution yearning for the role of the outsider, and therefore essentially acting on the institution rather than in it. Something of the same pattern is evident in the courts today. And we can see it outside of government, too, in the professions, in the universities, in the media, and throughout the culture. Many of our key institutions are coming to be treated by their occupants as platforms for a kind of moralistic performance art.
Congress, like any serious institution, can only function by socializing its members to work together. But when those members see the institution as a stage for their individual performances, they do not become socialized and are left in a kind of anti-social form, each trying to shine. They often cannot wait to rush off the floor of the House or Senate, find a camera, and tell a waiting viewing public just how badly broken Washington is. This makes accommodation very hard to come by, and it makes legislating difficult and rare. It has everything to do with why so little gets done in Congress now and why every budget process ends with the threat of a shutdown.
This is exacerbated further by the related loss of protected spaces for deliberation in Congress. Every institution needs an inner life—a sanctum where its work is really done. Congress has progressively lost that inner life, as its deliberative spaces have become performative spaces, everything has become televised, and there is less and less room and time for talking in private. By now, the Speaker’s Office around midnight as a government shutdown approaches is almost the only private space left, and that is therefore where much important legislation gets made—so that various reforms intended to democratize the Congress and make it more accountable have resulted in a less democratic and accountable institution.
This has happened in the name of transparency. And transparency is a good thing. Without it, institutions that serve a public purpose can easily become debased and unaccountable. But every good thing is a matter of degree, and we have treated transparency as a good thing with no costs, when in fact it can have some enormous costs, and these must be accounted for. In this case, the cost is a Congress that increasingly has the appearance of a show, and that does less and less real bargaining, accommodating, and legislating.
Combine that with related reforms also intended to curtail corruption—most notably the elimination of earmarks in legislation—and it becomes easier to see why the intense ambition of legislators finds itself directed to things other than legislating, and so in turn why Congress seems so dysfunctional.
None of this points to any easy answers. In fact, although pretty much everyone who watches Congress (including its members) would now agree that institutional reforms are needed, there is not much agreement about just what such reforms should aim to achieve.
Congress isn’t working, but what is it failing to do? Is its purpose—like that of a European parliament—to enable the majority party to enact its agenda while it holds power? Or is its purpose—as envisioned by the framers of our Constitution—to compel accommodation among competing factions in a diverse and often divided country?
Reformers with the former goal in mind tend to see the partisan dereliction of congressional responsibility as a potentially promising development. They aim to make Congress more pliable, to remove obstacles to pure majoritarianism, and to empower party leaders and more efficient procedures. Those who seek the latter propose reforms that would instead empower Congress over the executive, empower members and especially committees over leaders, and encourage substantive policy conflict in Congress as a way to ultimately force compromise. They seek not ways to make the most of dereliction, but ways to reinvest the ambition of members in the work of their institution.
The experience of this century should teach us to prefer the second course. A weak Congress invites aggression from the other branches, and a Congress whose members direct their ambitions outside the institutional framework of our system sends that system dangerously out of balance—exacerbating partisan polarization and public frustration. Only an assertive and functional Congress—a Madisonian Congress—can help our politics find the practical accommodations essential to both addressing public problems and lowering the temperature of our overheated public life.
The insight that the problem with Congress is that members’ ambitions are now misdirected can help reformers think creatively and practically about what Congress needs. The budget process, which is at the center of Congress’s troubles, clearly needs to be reformed with this insight in mind—perhaps by eliminating the distinction between authorizing and appropriating legislation and breaking up the big spending bills into many smaller pieces that would have Congress always legislating but in focused and discrete ways that offer members concrete reasons to be engaged.
A transformation of oversight is also plainly in order. It is particularly important now to give Congress more of a role in federal regulation, maybe requiring its assent for major rules (as the so-called REINS Act would do), requiring it to legislate a formal regulatory budget for the executive branch just as it now imposes a budget on spending, and (as Kevin Kosar and Philip Wallach have proposed) providing it with a specialized agency to oversee regulation on the model of the Congressional Budget Office.
There is no easy answer to the incentive for performative over legislative politics, of course. But congressional reformers should consider whether transparency has gone too far, and whether limits might be placed on the televising of all floor and committee action. A much more robust role for committee work in setting the schedule for congressional activity and in drafting and revising legislation would also give members a more legitimate forum for prominence and therefore more of a chance to invest themselves in legislative work.
None of this would solve the overarching problem. But institutional reforms can be a matter of degree, and Congress could stand to improve its functioning incrementally. Such improvements should always keep in mind Madison’s exhortation in Federalist 51 that “the interest of the man must be connected with the constitutional rights of the place.”
The real trouble, however, is that any reforms along these lines would first require members to want them. If the problem with Congress is a shortage of properly constitutional will, this is all the more of a problem when it comes to institutional reforms of the Congress.
Congress is weak and dysfunctional because that suits its members. It could renew itself only if its members wanted such renewal. The health of our constitutional system rests on the premise that the officials who populate it will be ambitious on behalf of the institutions they occupy. A shortage of constitutional ambition is the real trouble with Congress—and not only with Congress.
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Selectivity in the social sciences.
Last year, I criticized universities for hurrying to implement programs to combat microaggressions, “mostly subtle, mostly inadvertent slights directed at racial minorities and other ‘marginalized” groups.’” According to a review of the research conducted by Scott Lilienfeld, professor of psychology at Emory University, there was little, if any, evidence that such programs do more good than harm. Universities, which should pride themselves on following the evidence wherever it leads, seemed to have succumbed to the pressure to “do something” about racism.
One might imagine that this phenomenon is limited to administrators and faculty who don’t understand what the science says. Alas, scientists have proven little better than non-scientists at weighing the evidence, when it comes to politically charged topics like race and gender bias.
For those who want to know more about this problem, I recommend Lee Jussim’s blog, Rabble Rouser. One could accuse Jussim, a professor of psychology at Rutgers University, of prejudice in favor of rabble-rousing, particularly concerning left-wing bias in the sciences. However, he and his colleagues recently provided the first empirical support for a proposition widely believed by psychologists, which holds that inaccurate stereotypes can have a cumulative effect far greater than what we can see in “dyadic” studies involving one perceiver and one perceived.
It is conventional political wisdom on the left that, for example, when teachers inaccurately claim that women are less equipped to excel in college than men, women will underperform as a result. This effect is believed to be observable across a variety of inaccurate stereotypes, particularly about race and sex. It may have been just like rabble rouser Jussim to notice that a widely held left-affirming view lacks empirical support. But it is also just like Jussim to investigate and let the chips fall where they may, or, again, to follow the evidence wherever it leads.
Following the evidence wherever it leads may be damaging to the conventional wisdom that women scientists suffer widely from “implicit bias” when it comes to their prospects for career advancement. There is certainly some evidence for this proposition. A well-known study that presented participants with identical applications for a lab manager position, with only the gender of the applicant varying, found that participants “rated the male applicant as significantly more competent and hirable than the (identical) female applicant. These participants also selected a higher starting salary and offered more career mentoring to the male applicant.” There is also evidence from multiple studies, finding bias in favor of women.
As Jussim points out, scientists who cite the first study and fail to acknowledge the existence of the others seem to be biased in favor of the thesis that bias explains disparate outcomes. The American Association for the Advancement of Science (AAAS) held a conference in 2016 in which “presentation after presentation by famous, influential, and prestigious scientists argued for the power and prevalence of implicit gender biases in peer review,” the vetting of a scientist’s grant proposals and paper submissions by other scientists. But “not a shred of evidence of implicit bias in peer review was actually presented” at the conference.
Jussim doesn’t claim that no such evidence exists. But he is distressed that distinguished scientists were presenting as settled science the implicit bias explanation for differences in professional outcomes, even though the evidence for that explanation is, at best, quite mixed. He pointed us to a recent series of studies in which five different political science journals looked for evidence of bias in their peer review processes. Even though “the journals differ in terms of substantive focus, management/ownership, as well [as] editorial structure and process, none found evidence of systematic gender bias in editorial decisions.”
The only bias the speakers at the AAAS demonstrate here is “bias in favor of bias.” Jussim concluded that “this sort of thing is commonplace, when scientists allow their political agendas to drive their claims about science.” This conclusion does not imply that all claims regarding the influence of bias in higher education are false or, more broadly, that the scientific method doesn’t work. It does suggest that scientists who are adept at exposing the foolishness of non-scientists need to attend more closely to their own.
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Will the reverence Trump inspires outlast his presidency?
Approximately once every quarter for the last two years, we’ve been bombarded by declarations that Donald Trump’s takeover of the GOP is complete. The frequency with which the verdict is rendered would suggest the thesis is flawed.
Trump’s takeover of the GOP was complete after he secured the party’s presidential nomination, but it was also complete after he won the presidency. It wasn’t Trump’s GOP until his first address to a joint session of Congress, or maybe when threw congressional Republicans under the bus to accept a deal offered by “Chuck and Nancy,” or when Trump-skeptical Senators Jeff Flake and Bob Corker ran for the exit. Most recently, this week’s primary contests in South Carolina and Virginia indicate that, at long last, the GOP’s resistance to Trump is in its death throes.
Trump’s “takeover” of the GOP requires constant affirmation because the president is still regarded with suspicion by some of his party’s most prominent federal and state-level elected officials. Of course, Trump as both the president and the titular head of his party commands the fealty of the party’s base voters, its enforcers in media, and elected officials who do not dare offend the party’s core constituents. For them, the “Trump’s takeover of the GOP” theme needs repeating because the condition might be uniquely ephemeral.
Trump’s occasional clashes with Republican lawmakers receive levels of attention disproportionate to their relevance because Trump himself and his followers elevate those conflicts into dramatic contests. It is a satisfying opportunity to relive 2016—a protracted battle Trump and his acolytes decisively won. But those fights are rarely about policy. They are usually about personality.
For example, why did Rep. Mark Sanford lose his primary fight? The Beltway analysis holds it was his frequent criticisms of Trump that did him in. And while there were certainly other issues in the campaign (Sanford lost the support of his state’s Republican establishment and took hits for failing to spend sufficiently on infrastructure as governor), his opponent successfully transformed the race into which of the two loved Trump more. Sanford’s sins consisted of scolding the president for defending white nationalists in Charlottesville and promising to pay the legal fees for his most violent supporters. Policy disagreements took a back seat.
Sanford’s loss came as a surprise to the Freedom Caucus, of which he is a member in good standing. This conservative body of lawmakers, many of whom are staunchly supportive of the president and serve as a bulwark in defense of his agenda in the House, has been critical of Trump’s decision to register his opposition to Sanford on Election Day just in time to get some credit for his loss. Their consternation is understandable. The Freedom Caucus has served as the vanguard for Trump. They have held firm to a hardline approach to immigration, and they are leading the effort to force the Justice Department to disclose information related to its ongoing investigations into Trump and his associates. But Donald Trump cannot suffer personal effrontery, and so one of the Caucus’s leading members had to go.
In Virginia, a truly noxious candidate has managed to secure the Republican nomination to face Senator Tim Kaine in the fall. A transplant from the Upper Midwest, Corey Stewart has leaned heavily into his adopted Southern roots and sought out some questionable associations. He’s draped himself in the Confederate flag, compared the removal of Confederate statuary with the actions of ISIS, associated himself with the “alt-right,” accused Democrats of forging Barack Obama’s birth certificate, and openly supported the virulent anti-Semite and failed congressional candidate Paul Nehlen. Virginia’s Republican figures have attacked Stewart, and the GOP’s Senate committee has withheld its endorsement.
Stewart is playing the part he thinks is most effective in the age of Trump. In 2015, Stewart was, like every other Republican ladder-climber, touting his “relationship with minority voters” because that’s what the 2012 “autopsy” recommended. “That’s what Republicans need to do in order to continue to win elections in Northern Virginia,” he added. Trump demonstrated that there was another path to victory. Barring a miracle, Corey Stewart will not be the next U.S. Senator from Virginia. The satisfaction Republican voters might derive from nominating this flawed candidate is roughly equivalent to screaming into a pillow; a cathartic but fleeting thumb in the eye of “elites.” Stewart and his like will have as lasting an impact on the history of the republic as Todd Akin or Sharron Angle.
Of course, Tuesday’s election results suggest that the GOP is the Party of Trump. They also indicate that the Party of Trump is hard to define beyond association with the man himself. That is due, in part, to the fact that Trump’s policy preferences and ideological affinities are fluid. Six months ago, if you weren’t defending the president’s threat to rain down “fire and fury” on North Korea, you were a spineless appeaser. Today, if aren’t supportive of Trump’s obsequious praise for the murderous dictator, you’re a blood-soaked warmonger. Trump promised to punish China for its trade practices and currency manipulation, only to selectively abandon those positions. Where Trump stands on NATO, NAFTA, ObamaCare, Russia, Syria, the G-7, DACA, the export-import bank, and a whole range of issues depends on which side of the bed he got up on that morning.
The North Star by which voters can gauge fealty to Trump is the extent to which Republicans defer to him personally. That’s why, as Sen. Corker said, something approaching a cult of personality has sprung up around the president. Voters simply do not have consistent policies and ideological affinities to help them navigate a complex and confusing political environment. The powerful desire to enforce group solidarity around Trump is creating the appearance of homogeneity, but it’s cosmetic. That’s why we are privy to regular assertions that the GOP is Trump’s party now. It requires repetition because it is not self-evident.
Yes, the Republican Party is the party of Trump. But the centrifugal pull associated with the principle and ideology toward which Trump was and remains hostile continues to pull on the Republicans whose political maturation predated Trump’s inauguration. A fair reading of the political environment must concede it is still unclear which of these two competing forces will win out in the end.
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Over the weekend, the Democratic National Committee voted in favor of refusing all future donations from fossil-fuel companies. They’re so proud of the decision that it was only publicized on Tuesday, and then only by reporters who had to do some digging to learn the news.
The resolution will bar the national committee from taking any donation tied to corporate political-action committees linked to coal, oil, or gas companies. Marveling over the news, ThinkProgress quoted a variety of progressive activists who are thrilled that the DNC has finally lived up to the spirit of the Democratic Party’s platform. That platform, if you’ve never read it, calls for the elimination of tax incentives and subsidies for fossil-fuel producers, demands a “phase down” of the development and extraction of new sources of carbon fuel, and calls on the Justice Department to investigate them for misleading the public on “scientific reality of climate change.” Absent from ThinkProgress’s account of this wondrous turn of events, however, is any comment from the DNC.
The Democrats’ reluctance to trumpet their righteous decision to decline donations from the fossil-fuel industry—a sector of the economy that employed 7 million people and made up 5 percent of U.S. GDP in 2017—is, perhaps, understandable. According to ThinkProgress, the Democratic Party’s hostility toward fossil-fuel producers is so intense that 90 percent of the industry’s political donations go to the Republican Party as it is. In that sense, every time a Democrat fills up her car or takes a flight, she’s contributing to Republican candidates or causes. Hypocrisy is, after all, the tribute vice pays to virtue. Today, that tribute amounts to $2.91-per-gallon.
Maybe the most bizarre aspect of this fanatic fealty to the tenets of green absolutism is that the Democrats could make a salient point about clean energy and market economics without branding the entire fossil-fuel enterprise a bête noire. The coal industry is in decline, and it has been for years. In the last 15 years, coal has declined as a share of the energy market by one-third. Oil, too, has declined slightly after a marginal resurgence. In the same period, renewable energy sources have increased from 5 to 10 percent of the market as the costs of production have declined, but every source of energy pales in comparison to natural gas. Revolutionary new technologies like hydraulic fracturing have made gas cheap and ubiquitous, to the point now that, for the first time since 1953, the United States is projected to become a net-energy exporter by 2022.
Not only does that mean that the U.S. will benefit from a kind of energy security that seemed like a fantasy just a decade ago, it means that America can relieve the energy burden on its allies, which are dependent upon exports from states like Russia and China. Even if national and economic security arguments don’t move climate fanatics, the environmental benefits of America’s transition to reliance on natural gas should. Burning natural gas emits about 50 percent less carbon into the atmosphere than coal, and the shift to natural gas has contributed to the precipitous decline of carbon emissions released into the atmosphere over the last decade in the West.
Of course, the left’s environmentalist wing doesn’t want to hear any of this. They’d prefer to hear how fossil fuels could be relegated to history’s dustbin by force of will alone. They want Democrats to treat this vital sector of the economy like apartheid South Africa. With the DNC’s vote, it would seem like the Democratic Party agrees with its left wing on the immorality of supporting in any form fossil fuel production and exploration. It makes you wonder, then, why Democrats don’t seem to want to talk about it.