Senator Joseph R. Biden Jr. presided over the hearings on the nomination of Judge Clarence Thomas to the Supreme Court in 1991. (Photo: Greg Gibson/Associated Press)When Senator Barack Obama mentioned last week at the Saddleback Church faith forum that he wouldn’t have appointed Clarence Thomas to the Supreme Court bench, perhaps he had already been reviewing the presiding role that his now running mate, Senator Joseph R. Biden Jr., played in the judge’s confirmation hearings long ago.
Mr. Biden at the time was chairman of the Senate Judiciary Committee. And while the Delaware Democrat ultimately voted against confirming Mr. Thomas, he was widely criticized by liberal legal advocates and women’s groups as having mismanaged the allegations of sexual harassment made by Ms. Hill against her former employer, Mr. Thomas, at the Department of Education and at the Equal Employment Opportunity Commission, at those hearings.
It was another time and another place, but the issues of race, gender and politics intersected in a volatile way that still may hold resonance today, especially given the interplay of those themes (granted in entirely different ways) during the epic primary battle between Mr. Obama and Senator Hillary Rodham Clinton.
Some women, invariably of Senator Clinton’s age, who were actively involved in opposing Mr. Thomas’s confirmation in 1991 recall the narrow vote (52-48 in favor) as “a day of shame for the Senate and a day of shame for women,” as one lawyer said this week. The episode in time evoked strong reactions from women across the country, who viewed the judiciary panel as 14 white men who too easily dismissed Ms. Hill’s accusations and who did not allow the testimony of other women who might have corroborated or helped buttress her account to prove a case of sexual harassment.
We’ve contacted several of the people involved at the time. Some of them do not want to be on the record now; they worry that they need to preserve their fire, were Mr. Obama to be elected, to weigh in on the next round of judicial selections.
Interestingly, though, some have pointed out that while public opinion first indicated a repulsion for Ms. Hill and favored Mr. Thomas, and then somehow shifted a bit as women were weighing in, more women were elected to the Senate and the House. And as others point out, the backlash sentiment among women voters, whose refrain about the Senate at the time, (and men in general) became “they just don’t get it,” may have become influential in propelling the first President George Bush to sign the 1991 civil rights bill. And in electing Bill Clinton to the presidency afterward.
At the very least, sexual harassment came to the forefront of public debate and was much discussed on all sides, post the Thomas hearings.
For women of a certain age, perhaps, the memories are still vivid, and Senator Biden’s pivotal guidance and leadership on the Judiciary Committee remain a matter of controversy.
The advent of the Internet and YouTube preserve and resurrect that era. Perhaps because of Mr. Biden’s failed presidential bid earlier in the cycle, there are several takes of his questioning of Mr. Thomas
posted on YouTube. It’s a very interesting spot in time, captured on video. Several takes are now uploaded: One | Two | Three | Four.
“He was basically playing judge,” Susan Deller Ross, a Georgetown University law professor and expert in workplace sex discrimination, said of Mr. Biden, adding “the other side was playing advocate” for Mr. Thomas. “I’m sure you remember nobody played advocate for her. I don’t think he did well and he bears responsibility for Mr. Thomas being on the court.”
Ms. Ross, who was one of the lawyers assisting Ms. Hill, asserts that Mr. Biden treated Mr. Thomas too even-handedly because of the racially charged nature of the hearings. (Remember Justice Thomas’ charge that he had been subjected to a “high-tech lynching.”) Ms. Ross said that Mr. Biden “was accused of being labeled racist, so the Republicans were blackmailing him and he pushed the levers to make the case look like there wasn’t a case when there was.”
From not permitting other witnesses like Angela Wright to testify who would have been favorable to Ms. Hill, to not permitting affidavits from an expert on whether a pattern of behavior needed to be established to prove sexual harassment, Ms. Ross concluded: “He did everything to make it be good for Thomas and to slant it against her.” (Mr. Biden and his staff at times indicated that Ms. Wright and others weren’t willing to testify, but the record and books written since appear contradictory, as these women were held waiting in the wings for days.)
Over the years, Mr. Biden has defended his role in the hearings. In “Strange Justice,” a book about the Clarence Thomas confirmation, authors Jill Abramson (managing editor for news here at The Times) and Jane Mayer, author of “The Dark Side” and a writer for the New Yorker, extensively document the internal and external machinations surrounding the hearings and interviewed Senator Biden several times.
He made decisions, they wrote, based on his views of respect for a person’s privacy about what and wouldn’t be let into the hearings – including the pornography rentals and Mr. Thomas’s thin legal record. (At Saddleback, Mr. Obama, a former law professor at the University of Chicago said, “I would not have nominated Clarence Thomas. I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation.”)
(At one point, Senator Biden’s aides and then he told Ms. Abramson and Ms. Mayer that digging in too deep on Mr. Thomas’s intellectual legal prowess would’ve been a problem. One aide said, “it was a racial thing.” Mr. Biden himself said, “There was in fact a concern about whether or not to make the guy look stupid – what would happen if you embarrassed him.”)
In one interview, the two wrote that Mr. Biden said later that he had tried to be a statesman, to uphold decency standards. In the end, however, he conceded that his motivations might have been “misplaced.” On excluding the pornography issue alone, they quoted Mr. Biden as saying that he acted, “in fairness to Thomas, which in retrospect he didn’t deserve.”
Maybe this is all ancient history. Senator Biden is indeed credited – by Democrats and those on the left – for also presiding over the rejection of Judge Robert Bork for the Supreme Court. And in opposing the placement of now Chief Justice John Roberts and Samuel Alito on the Supreme Court.
Ms. Ross, who was a Clinton supporter during the primaries but adds that that shouldn’t be held against her in her views of Mr. Biden a la Anita Hill, and others do credit Mr. Biden for being a staunch proponent of laws against domestic violence. Of the Anita Hill-Clarence Thomas era involving the senator, Ms. Ross said, “I don’t know if other people still care after all these years.”
Another pivotal player from those years said she was told by a friend the other day, in mentioning Mr. Biden’s actions during that era, that she needed to “get over it.”
In the last few days, as we tried to reach out to people involved in the Thomas hearings, we kept hearing the same thing. Mr. Biden’s role in the Anita Hill-Clarence Thomas saga was so long ago as to not be relevant. It was a long time ago.
Funny how that phrase, though, “get over it” keeps coming back. It’s the one Mr. Obama used in a meeting with supporters of Senator Clinton about how women, once they really learned what Senator John McCain represented on their issues, would “get over it.”
Last year, when Mr. Thomas published his memoir, Anita Hill wrote an Op-Ed in The Times, basically saying well, she wasn’t over it. And in another interview this year, now on YouTube, she talks about the role of gender and politics in the 2008 cycle, although she never mentions Mr. Biden or her own role.
In the epilogue to their book, Ms. Abramson and Ms. Mayer write that members of the Judiciary Committee – Democrats and Republicans alike – came to offer some regrets for the haste in which Ms. Hill’s allegations were dealt with and by some, challenged, and dismissed. The hearings went into overtime on a weekend in October of 1991, and so many matters were put into the record. The matter was so hastily dispensed with, these lawyers said, that there was no time for a comprehensive report for other senators to digest and consider.
For his part, Mr. Biden said in one of the interviews in “Strange Justice”: If the polls are correct, 85 percent to 86 percent of the country knew who I was and had an opinion of me. That’s a highly unusual exposure for a senator.” And he told them, of those surveyed, more than a majority felt he had been “fair.”
As a short aside, one of Mr. Biden’s key aides at the time, who reviewed the allegations and dealt with Ms. Hill, was Harriet Grant, who is now married to I. Lewis Libby, otherwise known as “Scooter.”
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