Lying In The Confirmation Process: Clarence Thomas

Like William Rehnquist before him, Clarence Thomas perjured himself twice in order to get onto the Supreme Court. Part 4 of the series, "The Structure of Lies in Conservative Jurisprudence".

Part 4 of the series, "The Structure of Lies in Conservative Jurisprudence".

Like William Rehnquist, Clarence Thomas also perjured himself on two distinct issues—one notorious, his sexual harrasment of Anita Hill, the other scandalously neglected, his attitude toward Roe v. Wade at the time of his confirmation. Because the former is so much more familiar, I take up the latter first.

In Thomas's confirmation hearing he said the following:

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

Many observers instantly believed that Thomas had perjured himself, as soon as he made the claim. Roe was one of the most controversial and important cases decided at the time when Thomas was in law school—precisely the sort of case that every law student in the land with the slightest bit of professional ambition absolutely had to have an opinion on. One might fairly say, if you didn't have an opninion on Roe, you didn't have a pulse. Even if no one could immediate prove that Thomas was lying, it was such a preposterous claim that when Anita Hill's claim of sexual harrasment became known, there were justifiably severe doubts about Thomas's self-defense. The balancing-worshiping media media gleefully spread the meme of “two very credible witnesses,” but anyone paying attention before Hill's accusations emerged knew this was a lie. There was nothing very credible about Thomas's claim to have no opinion about Roe. And, indeed, it took very little time for Thomas, once approved, to show just how extreme his previously non-existent views were. As John W. Dean noted in a footnote to his book, Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches [Footnote #51 on page 297]:

That Clarence Thomas was untruthful to the Senate Judiciary Committee became fully apparent not long after he took his seat on the Supreme Court. Two months after he arrived at the Court, they agreed to hear a case from Pennsylvania, Planned Parenthood vs. Casey, that challaneged a newly adopted set of abortion restrictions that tightened the restrictions in Roe.... The justice who had no opinion on Roe sixty days earlier, and who had many options on how to deal with the case, took the most extreme position by disenting with Chief Justice Rehnquist and Justice Scalia, who called for overturning Roe, with Scalia comparing Roe with the infamous pro-slavery ruling in the Dred Scott ruling...; for the timing of Thomas's actions, see David Savage, "Lone Justice," Los Angeles Times Magazine [Nov. 1994].) David Savage quotes University of Virginia law professor Pamela S. Karlan: "[Thomas] clearly lied to them (his confirmation committee) about legal issues," adding, "I think he perjured himself about Roe."

That was just the first blatant piece of evidence. But a decade later, in 2001, a biography of Thomas appeared, by a sympathetic conservative who none-the-less presented clear evidence that Thomas had been lying, although he tried to obscure the import of what he reported. Slate's Chatterbox cited the revelations as its “Whopper of the Week” on October 12, 2001, specifically citing three passages:

"[Thomas] discussed abortion a good deal with [his fellow lawyer in the Missouri attorney general's office] Mike Boicourt, who was working on several cases in which the state was defending statutes restricting the right to an abortion (and he would go on to be the lead counsel in the landmark abortion case Webster v. Reproductive Health Services, handed down by the Supreme Court in 1989). Because of his views, Boicourt was 'ambivalent' about his work on these cases. Thomas, on the other hand, made it clear that he was anti-abortion. As part of these conversations, Boicourt and Thomas discussed Roe. Boicourt said years later that he could not remember what Thomas's views were."
--Clarence Thomas: A Biographyby Andrew Peyton Thomas, p. 165.

"Thomas also strongly endorsed a right to life for the unborn, a view which [Reagan Assistant Attorney General William Bradford] Reynolds shared. The two discussedRoe v. Wade, the landmark abortion rights case. Reynolds said, 'I know we discussed it. I think that he thought little of Roe v. Wade. ... [F]rom a scholarly standpoint, we were talking about constitutional law, constitutional issues, and Supreme Court decisions. It was clear he didn't think much of it.' "
--Ibid., p. 246

"Thomas limned a similar philosophy in his talks with Armstrong Williams. They discussed Roe v. Wade, which both of them opposed. 'He would also talk about where the Supreme Court would've erred on some of these decisions,' said Williams. 'He thought they weren't interpreting the Constitution but trying to make law. And that's not the proper role for a judge.' "
--Ibid., p. 247

In its commentary, Slate said:

Andrew Peyton Thomas, whose new biography grew out of an article for the conservative Weekly Standard, does not himself believe that Clarence Thomas "probably lied under oath." He notes that Thomas "was careful to say he had never 'debated' the case--in other words, discussed it with a person of opposing viewpoint. No witnesses would emerge in the hearings or subsequent decade to contradict this narrow claim. He also denied having an opinion on Roe 'this day.' This was a subjective matter that could not be disproved .

Yet, Reynolds and Armstrong both clearly indicated that Thomas did have an opinion about Roe. Even if you define away the meaning of “debate”, his opinion still remains. As does his lie. So that is the first count of perjury against Thomas. The second was much more immediately obvious. When Ginny Thomas, Clarence Thomas's wife, bizarrely asked Anita Hill for an apology, Steve Kornacki wrote an excellent summary of evidence that Thomas harrassed Anita Hill—and others—and lied about it for Salon. Before getting into the details he wrote:

When it comes to the suggestion that Thomas sexually harassed Anita Hill in the 1980s, there’s nothing to litigate and no need to throw up your hands in confusion: He plainly did it and he plainly got away with it. And the fact that he did is plainly relevant now, given that he, his wife and his political allies are still, all these years later, intent on behaving as if they’ve been victimized.

Indeed, Thomas and his wife are prime exhibits of the conservative victimhood complex, and it's hardly limited to the subject of Anita Hill. The fact that he's a prime beneficiary of affirmative action (without a Yale law degree, courtesy of affirmative aciton, he'd be an utterly obscure figure) who feels personally victimized by it (saying his degree is worth 15 cents) is just one of the more glaring symptoms of how this plays out for Thomas. There's no doubt that Thomas did have a much harder time getting a job than most Yale graduates, but the Andrew Peyton Thomas biography makes it pretty clear why: Thomas wanted a career in business law, but had devoted considerable study to civil rights—including his internships.

It was Thomas who “ghettoized” himself via the mixed signals he sent, then turned around and blamed others for the result. It's not that there weren't real problems in the privileged white world Thomas encountered at Yale and afterwards in the 1970s. And it's not that his own ambivalence should be seen as blameworthy—ambivalence is just part of life, particularly in starting out a career. But Thomas seemingly denied that ambivalence, rather than exploring its roots and finding ways to resolve it. The world may have been a tougher place than he had previously hoped. But it was Thomas's own internal conflicts, more than anything else, that bedeviled him. Blaming affirmative action was an easy out—one that effectively precluded critical self-reflection and personal growth, which he in turn has taken out on the rest of the country from the bench.

Of course, he did eventually get a job from a Yale alumnus, another sign of the selective perceptions involved in his victimhood. Even more, he never did mind the affirmative action benefits that came from being a black conservative—not one bit: He rode them all the way to the Supreme Court, with nary a word of complaint.

Kornacki's account of the details begins with Anita Hill:

* As Thomas’ confirmation was nearing a final vote in October ’91, an affidavit from Hill was leaked to National Public Radio’s Nina Totenberg (the source was never identified); in the document, which Hill, then a University of Oklahoma law professor, had prepared for the Senate Judiciary Committee several weeks earlier, she alleged that Thomas had repeatedly asked her out on dates and made lewd and graphic sexual comments to her when she had worked for him in the early 1980s. She made clear that the harassment had not been physical and that Thomas had never threatened her job, but said that she nonetheless felt uncomfortable and intimidated. “I felt as though I did not have a choice, that the pressure was such that I was going to have to submit to that pressure in order to continue getting good assignments,” Hill told Totenberg. She added that she had followed Thomas from job to job — first at the civil rights division of the Department of Education and then at the Equal Employment Opportunity Commission — because the harassment had briefly stopped. She was 25 years old when she first went to work for Thomas in 1981.

Kornacki then goes directly to Hill's supporting witnesses, whom she had confided with at the time:

* Three Hill friends — Susan Hoerchner, Ellen Wells and John Carr — testified under oath that she had told them about Thomas’ conduct as it happened between 1981 and 1983. “Anita said that Clarence Thomas had repeatedly asked her out … that he wouldn’t seem to take ‘no’ for an answer,” Hoerchner told senators. “The thing Anita told me that struck me particularly and that I remember almost verbatim was that Mr. Thomas had said to her, ‘You know, if you had witnesses, you’d have a perfect case against me.’”

Next Kornacki goes to Angela Wright, another victim of Thomas's whom Joe Biden decided to silence:

* Upon learning of Hill’s claims, another former Thomas employee, Angela Wright, who had worked under him as director of public affairs at the EEOC, wrote a column — not meant for publication and intended only to show potential employers at a North Carolina newspaper that she could turn around a fast and topical piece — outlining the inappropriate behavior he’d exhibited toward her. Somehow, Judiciary Committee investigators learned of the column, contacted Wright, and convinced her to sit for a phone interview, during which she detailed a pattern of harassing behavior, including an instance in which Thomas asked her what her bra size was. She was subpoenaed by the committee and flew to Washington to testify in the nationally televised hearing; the basics of her claims were reported by media outlets at the time. Her testimony would have bolstered Hill’s case — a second female Thomas underling, one who had never met or worked with Hill, accusing him of the same conduct. But the committee never called Wright, and instead simply entered the transcript of her interview into its record on the eve of the final vote. The details of her interview were buried in press reports.

Wright also had a supporting witness whom she had told about her troubles with Thomas:

* Rose Jourdain, who had worked with Wright under Thomas, told committee investigators that Wright had spoken to her while they worked together about their boss’ conduct. As later reported by Graves, “Though her recollections had differed slightly from Wright’s, Jourdain … had confirmed the basic elements of Wright’s account, including Wright’s anger at Thomas for what Wright had said was overtly sexist behavior. Jourdain had mentioned “comments [Wright] told me that he was making concerning her figure, her body, her breasts, her legs, how she looked in certain suits and dresses.”

There was also a more general atmosphere of sexual harassment testified to:

* In a letter to the committee, a former aide to Thomas at the EEOC, Sukari Hardnett, wrote that many black women at the agency felt they were “an object of special interest” to their boss. “If you were young, black, female and reasonably attractive,” her letter read, “you knew full well you were being inspected and auditioned as a female.”

Kornacki goes on into more details, particularly those turned up by Jill Abramson and Jane Mayer in their book, “Strange Justice,” and David Brock's latter recantation of his efforts to discredit them. But the points outlined above are quite enough by themselves. It was not a case of “he said/she said”, it was a case of “he said/everyone else said”, but everyone else except for Anita Hill was kept from being heard. That's how Clarence Thomas lied his way onto the Supreme Court — and Democrats like Judiciary Committee Chair Joe Biden were instrumental in letting him get away with it.

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