The Real Anita Hill;
James Brudney, Jeanne Simon, Roy Meyers, Timothy Phelps, Nina Totenberg, Gail Laster, Terrel Bell, Ricki Seidman -- and the hidden hand of Judge Susan Hoerchner.
BYLINE: David Brock;
David Brock, a Washington-based investigative reporter, is at work on a book on Congress and foreign policy for HarperCollins.
On October 3 -- three days before Anita Hill's accusations against Supreme Court nominee Clarence Thomas were first published in Newsday and aired on National Public Radio -- Kate Michelman, the national director of the National Abortion Rights Action League in Washington, called a pro-abortion socialite about a possible contribution. In the course of a discussion of NARAL's activities, Michelman mentioned that the group's leaders were "very excited because we have Anita Hill."
The woman asked who Anita Hill was. "She's going to come forward with a claim of sexual harassment against Clarence Thomas," Michelman said. "We've been working on her since July." (Michelman wouldn't comment on the call.)
The woman was subsequently moved to contact a Republican senator after listening to the following exchange between GOP Sen. Hank Brown of Colorado and Hill during the first day of the second round of Thomas hearings:
BROWN: You mentioned that you talked to several staffers and then eventually made a decision to come forward and you chatted with the committee and had a variety of conversations there. Were there others that you talked to after you talked to those two staffers and before you decided to speak to the committee?
HILL: I talked with personal friends. I talked with individuals who knew more about Title VII law than I did.
BROWN: But I take it none of these conversations included people who were actively opposing the nomination?
There are two possible interpretations of this exchange. One is that Hill had talked with Michelman or other feminist activists and was lying about it. A more likely one is that Michelman was speaking figuratively: NARAL had been "working on" Hill, pressuring her, since July, through Hill's personal friends, congressional staffers, and reporters. It is with these people, of course, that the sordid story begins.
Despite immediate threats from the anti-Thomas camp that Thomas would be "Borked," his opponents got off to a rocky start. By the end of July, a month after the Thomas nomination, the National Organization for Women, NARAL, the Women's Legal Defense Fund, People for the American Way, the Alliance for Justice, and the Congressional Black Caucus were all allied against Thomas. However, the Leadership Conference on Civil Rights, the NAACP, the NAACP Legal Defense and Educational Fund, and the National Urban League were all withholding judgement.
This put the Black Caucus in an embarrassing position. According to one member, the Caucus had blindly followed the lead of D.C. Delegate Eleanor Holmes Norton, who had been the EEOC chairman under President Carter and considers herself in line to be the first black woman on the Supreme Court. Norton harbors a personal antipathy towards Thomas, whose superior management of the EEOC made Norton look like a bureaucratic bungler. She also is infamous for her fierce intolerance of black leaders like Thomas who don't toe the line of the civil rights establishment on questions such as racial quotas.
By late July, panicky Black Caucus members enlisted the help of sympathetic officials at the AFL-CIO in getting the other civil-rights groups into an anti-Thomas posture. Although big labor, a major financial backer of both the Leadership Conference and the NAACP, put the screws to black trade unionists on the NAACP board, the first NAACP vote on Thomas was split; in the second round, some pro-Thomas holdouts thwarted a unanimous no vote. Over at the Leadership Conference, executive director Ralph Neas banged heads together for weeks to produce what he called a "consensus" against the nomination. Thus, in a pattern familiar to dissident black academics, the civil rights leadership coalesced, if hesitantly, to squelch Thomas and his unorthodox views.
With the divisions among themselves papered over, the anti-Thomas coalition faced another hurdle: they had little or no ammunition with which to shoot him down. Thomas had been the top decision-maker at a large and closely watched federal agency for seven years. He was the premier black neoconservative in the Reagan Administration, having given numerous speeches and written a host of articles on the hot-button topics of the day. The fact that he had been investigated by the FBI, and confirmed by the Senate, four times and that he'd survived innumerable contentious oversight hearings meant that there was not much ore left to mine. Only his tenure on the D.C. appeals court, short and unremarkable, had been theretofore unexamined by the opposition.
It was perhaps inevitable that the anti-Thomas campaign would turn on charges, true or not, of private ethics or beliefs; the public Thomas was virtually spotless.
Already before the first round of hearings, a pattern along these lines had emerged in the anti-Thomas stories marketed by the interest groups to the press. A pre-cooked story broke once every ten days or so, in a steady rhythm, throughout the summer. One negative story never sat on another. And the stories were always given as exclusives to one media outlet for maximum play. Thomas was a secret sympathizer of Louis Farrakhan, or of the apartheid regime in South Africa; he'd experimented with marijuana and watched porn films at Yale; he'd hung a Confederate flag in his office in Missouri; he had an unpaid tax bill; he had billed the government inappropriately for personal travel. Questions were raised about why Thomas had married a white woman, and about Thomas's religion (a theme explored by Democratic Sen. Paul Simon of Illinois, in perhaps the lowest point of the first round of hearings: "He attends an Episcopal Church that has made a crusade out of the [anti-abortion] stand").
None of these scandal stories got up and walked, either because they were trivial or just plain false (for example, the flag in question, which had been fodder for a long New York Times take-out, was a Georgia state flag). In making his case, Thomas had the assistance of well-organized partisans who left no challenge unmet, no charge unanswered. For instance, on the same day that the Women's Legal Defense Fund announced its opposition to Thomas, an ad hoc group calling itself Women for Judge Thomas held a press conference to praise him. This at least produced neutral headlines: "Women Divided on Thomas." Paul Weyrich's Free Congress Foundation matched the anti-Thomas interest groups press release by press release. During the first round of hearings, the Thomas spokesmen huddled in the conference room of GOP Sen. Thad Cochran of Mississippi, watching on television, and at every break they would hurry GOP Sen. John Danforth of Missouri, Thomas's chief Senate sponsor, to the set of microphones outside the hearing room. A senator will always attract the television cameras; Danforth would try to talk through the break, denying Michelman, Neas, & Co. the chance to put their spin on the story.
Having failed to wound Thomas through two weeks of hearings, thanks in part to the successful (but not terribly enlightening) White House coaching, the Thomas foes faced the prospect of a 9-5 favorable vote in committee. The committee numbers shifted to 8-6 when, according to Senate staffers, Howell Heflin, a moderate Democrat from Alabama, was somehow convinced by liberal black Republican Bill Coleman and NAACP lobbyist Elaine Jones that a vote against Thomas wouldn't backfire with blacks in his home state. Adhering to the view that it is politically perilous to be to the right of Heflin on anything, Biden decided to vote against Thomas, too.
Nonetheless, after the committee vote, it was clear that the momentum was with Thomas. Two Republicans who had voted against Bork, John Warner of Virginia and Arlen Specter of Pennsylvania, were backing Thomas, and important Southern Democrats like Bennett Johnston of Louisiana began announcing for him, too. So concerned were the Thomas opponents, that word went out in the Democratic cloakroom to stop announcing before the Senate debate. In short, in late September, Thomas's confirmation was a near-certainty.
Enter Anita Hill, whose sexual harassment story had been circulating, as Michelman averred in her fund-raising phone call, since July. It was a private matter, impossible to disprove -- a charge tailor-made for the fix that the Thomas foes found themselves in. For despite the anti-Thomas camp's desperation, the Hill affair could never have happened without the complicity of the Senate and press, both of which unquestioningly accepted Hill's "credibility" without investigating.
Michelman, of course, wasn't the only one who knew about Anita Hill's story as early as July; so did some members of the press with good connections with Senate staffers. Timothy Phelps, the Newsday reporter who broke the Hill story, stated on "Nightline," in a town meeting following Thomas's confirmation, that he had heard the story in July but that it wasn't solid enough to report. National Public Radio's Nina Totenberg, the other reporter who simultaneously broke the story, said in a January Vanity Fair interview that she had known about it in July as well.
But how and why did the story surface for the first time in July? The only person so far to emerge who had made a connection between Hill and Thomas and sexual harassment at the moment of his nomination on July 1 is Susan Hoerchner, a friend of Hill's who later testified publicly on her behalf. (Neither Hill nor Hoerchner responded to calls requesting interviews.) In a previously undisclosed deposition given to Senate Judiciary Committee staffers on October 10, Hoerchner was asked:
Q. What were your views when Judge Thomas was nominated for the Court. What were your personal views about that?
Q. Why was that?
A. I just remember waiting for them to explain his background and then yelling to my husband, "He's the one."
It seems likely from the record that Hoerchner was mistaken in her recollection of the events of 1981, and as a result she set the entire train of events in motion, with Anita Hill going along for the ride. In her staff deposition and on another occasion, Hoerchner told interviewers that the call in which Hill said she was being sexually harassed occurred before September 1981, i.e., before Hill had gone to work for Thomas.
In her testimony to the Judiciary Committee, Anita Hill stated: "I began working with Clarence Thomas in the early fall of 1981. . . . Early on, our working relationship was positive. . . . After approximately three months of working together, he asked me to go out with him socially." She told him no, and the first alleged incident of harassment occurred in "the following few weeks" -- i.e., in late December 1981 or January 1982.
Now, consider Hoerchner's deposition:
Q. And, in an attempt to try to pin down the date a little bit more specifically as to your first phone conversation about the sexual harassment issue in 1981, the year you mentioned, you said the first time you moved out of Washington was September of 1981; is that correct?
Q. Okay. Were you living in Washington at the time you two had this phone conversation?
Q. When she told you?
Q. So it was prior to September of 1981?
A. Oh, I see what you're saying.
Moments later, Hoerchner's attorney Janet Napolitano, a feminist activist who was also advising Anita Hill, asked for a recess. Remember, Hoerchner had told interviewers several times that the call occurred before September 1981. After conferring with Napolitano, Hoerchner, back on the record again, was asked by a Democratic staff counsel:
Q. When you had the initial phone conversation with Anita Hill and she spoke for the first time about sexual harassment, do you recall where you were living -- what city?
A. I don't know for sure.
According to a GOP Senate staffer, such pre-interviewing of public witnesses is somewhat unusual for the committee; it is useful primarily as a damage control device. In her statement to the Senate three days later, Hoerchner made a point of disclaiming any knowledge of the date of the conversation. "I remember, in particular, one telephone conversation I had with Anita. I should say, before telling you about this conversation, that I cannot pin down its date with certainty."
But immediately beforehand, Hoerchner implied that the critical telephone conversation took place when she was speaking with Hill on a regular basis, beginning in 1980, when they both moved to Washington from Yale, and ending in September 1981, when Hoerchner went on assignment to California. "We were both busy with our new jobs, so we did not get together with great frequency. What we did do, however, was keep in touch by telephone. Those conversations would often last as much as an hour. I remember, in particular, one telephone conversation I had with Anita . . ."
When Biden asked her, "How did you know that the problem continued after first being made aware of it in the conversation that you related to us, here today?" Hoerchner responded: "In telephone conversations I asked and she led me to understand that it was happening, and often would say, she didn't want to talk about it at that time." Yet Hoerchner had described her contacts with Hill after leaving Washington in September 1981 as "sporadic" and provided only one example in her deposition, of meeting Hill at a professional seminar in 1984.
If the regular telephone calls stopped when Hoerchner moved to California, Hill could not have been referring to Thomas in those calls: she wasn't working for him yet.
In addition to Hoerchner's deposition, there is another record of the crucial Hoerchner-Hill phone call that places it prior to Hill's working for Thomas. Buried in a report issued by Biden on Judiciary Committee contact with Hill is this passage, based on Judiciary Committee staff notes: "Between Sept. 12 and Sept. 19, full committee staff did not hear from Professor Hill, but received one phone call from Professor Hill's friend -- on Sept. 18 -- who explained that she had one conversation with Professor Hill -- in the spring of 1981." (Emphasis mine.)
In the spring of 1981, Hill could only have been referring to conduct by someone at Wald, Harkrader, and Ross, the law firm where she worked before moving to the Education Department. Hill may have been sexually harassed at the firm. But according to several people who worked at Wald, Harkrader at the time, the word around the office was that Hill had leveled a charge of sexual harassment to deflect attention from serious professional difficulties; none of the firm's partners, however, say they knew about any such charge being made formally. Whether or not she was harassed or charged harassment, then, Hill apparently told Hoerchner she had been, and the story came back to haunt her on July 1 of last year.
In an affidavit submitted to the Senate Judiciary Committee, John Burke, Jr., the Wald, Harkrader partner who coordinated assignments for attorneys in Hill's division, told of his evaluation of Hill in late winter or early spring 1981: "I expressed my concerns, and those of my partners, that her work was not at the level we would expect from a lawyer with her credentials, even considering the fact that she was a first-year associate. During the course of that performance evaluation, I suggested to Anita Hill that it would be in her interest to consider seeking employment elsewhere because, based on the evaluations, her prospects at the firm were limited."
Other attorneys who were considering coming forward to corroborate Burke's affidavit say they were called and talked out of doing so by Bob Wald, one of the original partners and the husband of Patricia Wald, a liberal Carter appointee on the D.C. Circuit Court of Appeals. Wald bad-mouthed another former Wald, Harkrader attorney who was trying to get the attorneys to tell what they knew, saying the attorney was getting involved only because the attorney wanted Thomas's seat on the D.C. Circuit. Wald denies exerting such pressure.
The only other attorney to come forward from Wald, Harkrader was Donald Green, whose affidavit was portrayed in the press as contradicting Burke's. Yet the best thing Green could say about Hill was that "her performance was not held to be unsatisfactory by the Wald firm" -- a fairly damning statement to anyone familiar with law firm lingo. Green also said: "Certainly the Associate Development Committee, which I chaired, did not ask or press her to leave." But what if the Committee, which kept routine track of associates' progress, knew only that Hill's performance was lackluster, but did not know about another fix she was in -- an ethical one? One Wald attorney -- who did not provide any documentary proof -- says that Hill was caught falsifying time sheets used to bill clients, because she couldn't meet the demands placed on young associates at the firm.
Hill's propensity to cover up this history was on display in her Senate testimony. When asked by Biden about the circumstances of her leaving the firm, she replied: "I was interested in seeking other employment. It was never suggested to me at the firm that I should leave the law firm in any way."
Given Hill's problems at Wald, Harkrader, Hoerchner's description of the call to Hill begins to make sense: "It was clear when we started this conversation that something was badly wrong. Anita sounded very depressed and spoke in a dull monotone. I asked Anita how things were going at work. Instead of a cheery, 'Oh, just busy,' her usual response, this time she led me to understand that there was a serious problem."
Indeed there was. So serious -- according to a close associate of Thomas -- that Gilbert Hardy, a Wald, Harkrader partner who was a friend of Clarence Thomas, called Thomas, told him that a young associate at the firm was in trouble, and suggested Thomas might hire her as an assistant in his office at Education.
Hoerchner's confusion about -- or embellishment of -- the call to Hill was apparent throughout her deposition:
Q. Just moving ahead in the time frame, did you ever discuss with Anita Hill her reasons for leaving her job at the EEOC?
A. Yes, I did. When we had that major telephone call that I can -- at least the major one in my memory, she said that she was going to give herself some time and she was going to leave because of that, whether or not she had another job.
Hill, of course, left the EEOC at least eighteen months after this conversation would have taken place. The reference could only have been to Hill's troubles at the law firm.
Later in the deposition, Hoerchner was confronted with the impossibility of Hill's having spoken about the EEOC in a 1981 phone call:
Q. Is it possible, Judge Hoerchner, that she was referring to -- again, I understand the comments you made about your recollection -- is it possible that she was referring to the same time period in which she worked at EEOC?
A. Well, I was trying to remember all of this at first. At one point, I thought it was EEOC, but I was drawing conclusions based on other parts of my memory.
An interesting formulation, that. On July 1, Hoerchner, tapping into some part of her memory, recalled her belief that Clarence Thomas had sexually harassed her friend Hill. She immediately telephoned Hill. In the deposition, Hoerchner was asked why she had called Hill, and she said she believed Thomas had an "attitude towards power." She continued: "It came from the idea that most of the positions that he had that I knew about were in civil rights, equal employment opportunity, and that this behavior really showed a disregard for general principles of equal opportunity or the rights of individuals, and it led me to believe that he possibly thought that the law was for other people."
And there we have the initial motive. At some point after she had the phone call about sexual harassment from Hill, and after Hill had gone to work for Thomas, the politically prejudiced Hoerchner must have wrongly connected the two facts. (Bear in mind that, according to some of her colleagues at the National Labor Relations Board at the time, Hoerchner had a reputation as notoriously obtuse and discombobulated, stretching back to her days at Yale.) When Thomas was nominated to the Supreme Court, it became her duty to get Hill to come forward to stop him. Hoerchner became so sure of Thomas's guilt in the ensuing weeks that she likely never stopped to examine her own story with care. In the phone call with Senate staff, and in the staff deposition, Hoerchner blurted out the truth, eventually realized that it didn't fit the story she was telling, and then recanted any knowledge of the date of the call.
It is also evident that Hoerchner, like Hill, was quite capable of misleading the committee. She herself brought a charge of sexual harassment against a fellow workman's compensation judge -- a man in his sixties -- in Norwalk, California. The judge resigned during the ensuing publicity, perhaps supplying Hoerchner with grounds for believing that leveling an accusation is tantamount to proving it. Yet when asked by Senator Alan Simpson about this imbroglio, Hoerchner twice denied it:
SIMPSON: Judge Hoerchner, I asked you if you had ever filed a charge of sexual harassment. I don't think you indicated to me that you had.
HOERCHNER: That's correct.
Simpson then produced a record of the charge, and asked again:
SIMPSON: But you did file a claim of sexual harassment against a fellow judge within your system?
HOERCHNER: I cannot say that I didn't.
Next, let's examine what is revealed in Hoerchner's deposition about the Hoerchner-Hill phone conversation on July 1. Hoerchner asked Hill, "Well, you've heard the news?" Apparently, there was only the vaguest discussion of the circumstances of the harassment of ten years ago: "You know, she knew I knew. I knew she knew I knew," Hoerchner told the staff interviewers.
But what if Hill "knew" no such thing? According to the deposition, Hill only "verified" that the sexual harasser was Thomas, indicating that it was Hoerchner, not Hill, who first came up with his name. Hoerchner asked her "whether she was going to say anything and she did not answer that directly. And she really surprised me with her answer."
My theory is that rather than correct Hoerchner's wrong impression, and thus open to unwelcome scrutiny the unpleasant Wald, Harkrader episode of 1981, Hill went along with Hoerchner's assumption while at the same time implying that she wanted to drop the whole matter. But Hoerchner likely wouldn't take no for an answer and must have been the one to bring the story, for the first time ever, to Washington. This explains why it never surfaced in prior Thomas confirmations. It had to spring from outside the Beltway at a moment when Thomas began to make national headlines.
There is one person that Hoerchner would have turned to for help. She knew James Brudney, counsel to a Senate subcommittee chaired by Howard Metzenbaum. They'd been at Yale together and Brudney had been a classmate of Hoerchner's brother. Hoerchner in the deposition said she knew that Hill knew Brudney. According to Hill's former co-workers at the EEOC, she knew Brudney quite well. They say that Hill often spoke of going out with Brudney, and of having spent weekends at his apartment when she worked there.
More than any other Hill staffer, Brudney, acting in the name of Metzenbaum, made it his aim to defeat Clarence Thomas. He has a reputation as a fierce and unprincipled partisan, willing to misread the law or go back on compromise agreements to serve his ends. As part of the anti-Thomas chicanery, he worked hand-in-glove with Nan Aron, the director of the Alliance for Justice, and if one compares the Alliance for Justice's critique of Thomas's record at the EEOC with Metzenbaum's, the similarities are too striking to be mere coincidence.
It can be assumed that once Brudney had heard even a hint of an allegation involving Thomas and sex, in short order questions were being asked and gossip was being traded through the circle of staffers, left-wing interest groups, and journalists who concern themselves with digging up dirt on conservative nominees.
At some point after the July 1 call, Hill reversed her position about talking. The only hint of the timing of the change is in the transcript of Hill's October 6 interview with NPR's Totenberg, who said: ". . . in early September, she changed her mind." Under questioning from Sen. Arlen Specter, Hill testified about a series of calls in early September from three Senate staffers. They were Gail Laster, an investigator for Sen. Howard Metzenbaum; Ricki Seidman, an aide to Sen. Ted Kennedy; and Brudney. (None of these staffers serves the Judiciary Committee, which Biden has tried to keep free of left-wing crazies.)
Laster was the first to call, on September 4, but didn't reach Hill. On September 5, Hill called Laster: ". . . during that call she asked me if I knew anything about allegations of sexual harassment. . . . My response was that I did not have any comment . . . we [then] talked about general issues involving women in the workplace, what I thought of [Thomas's] views on that, on those issues," Hill testified.
On September 6, Ricki Seidman called Hill. Seidman had joined the Kennedy staff just days after Thomas's nomination. Previously, she had been the research director of People for the American Way, and was largely responsible for that organization's gross misrepresentation of Robert Bork's record in 1987.
In her testimony about this call, Hill said: ". . . she again asked me about rumors or did I know anything or had I heard any rumors while I was at the EEOC involving his tolerance, Judge Thomas' tolerance of sexual harassment. . . . At that point I told Ms. Seidman that I would neither confirm nor deny any knowledge of that." But later in the conversation, Hill testified, she told Seidman "that I wanted to think about it and that I would get back to her."
On September 7 or 8, Hill said she called Seidman and asked her "if I were to discuss this matter, where should I go? . . . At that point she told me she knew someone who worked on the Senate Labor Committee, James Brudney. . . . She also said that she had his telephone number." Hill, of course, already knew Brudney and may have spoken with him previously; these are only the calls that are known to have taken place, from the public record.
According to a chronology given by Metzenbaum on the Senate floor, Hill called Brudney on September 9, and Brudney returned the call on September 10. Hill was never asked in the hearing to relate the specific contents of that conversation. However, Senator Brown, in what I am told was a reference to what Hill -- in a telephone conversation prior to her testimony -- had told him about the Brudney call, asked:
BROWN: I guess what had occurred to me when I heard that description from you was that, at least the inference in my mind, was that the fact that there were stories or there could be stories circulating relating to sexual harassment, and perhaps the sexual harassment towards you, that that was one of the factors that encouraged you to come forward?
HILL: That was definitely one of the factors. I did not want the committee to rely on rumors. I did not want the rumors to perhaps circulate through the press without at least considering the possibilities or exploring the possibilities through the committee process of coming forward . . .
Brudney was the first staffer to tell Hill that it was known that the sexual harassment rumors related specifically to her. This seems to have tipped the balance. Hill told Brown in their telephone conversation that Brudney told her that everyone in Washington knew that she had been sexually harassed, and that she owed it to herself to come forward. Brudney was also the first staffer to discuss with Hill the possibility that Thomas might withdraw if she came forward.
Hill initially hid her contacts with these Senate staffers, as well as later conversations with Democratic staffers on the Judiciary Committee. John B. Luton, one of the FBI agents who interviewed Hill on September 23, submitted a confidential statement to the Senate Judiciary Committee dated October 11, noting discrepancies in her testimony when compared with statements she made in the FBI interview. "She advised the interviewing Agents that she made the decision to prepare the statement after several telephone conversations with her personal friend, Susan Hoerchner. . . . She did not mention the telephone conversations that she had had with representatives of the Judiciary Committee."
On September 10, Hoerchner -- tipped off by Brudney? -- called Hill again. "I was very surprised because at this point she [Hill] was interested in making some sort of statement," Hoerchner told the staff interviewers. She then described a series of subsequent calls leading up to September 23, the day Hill issued her statement to the Judiciary Committee.
There are other signs pointing to Hoerchner as the link between Hill and those in Washington who wanted the story out. According to Senate sources, Hoerchner had been in contact with the Alliance for Justice, probably at Brudney's suggestion, which sent entreaties to Hill through Hoerchner. "I had the feeling that I was calling her," Hoerchner said. "At first it wasn't, I would say -- let me see -- either once a week or every week and a half, just to see if she knew what had happened or if someone was going to call me . . ." At another point in the deposition, Hoerchner said: "I was putting out the information. You know, if there was a question someone would contact. Either it would be believed, accepted, rejected, or more information requested . . ."
Brudney had persuaded Hill to do something, but she ran up against Judiciary Committee rules. The barrier to any investigation of Hill's charges, including an FBI interview of both Hill and Thomas, was Hill's insistence on total anonymity.
On September 12, three days after speaking with Brudney, Hill first contacted Senate Judiciary Committee staffer Harriet Grant and was told that the committee could do little with a totally anonymous allegation, according to the Biden report on committee contact with Hill. On September 20, Judiciary Committee staff again heard from Hill, who wanted to review her "options." "It was then proposed," the report stated, "that if Professor Hill wanted to proceed, her name would be given to the FBI, the matter would be investigated, and the nominee would be interviewed."
Hill balked at involving the FBI. According to the staff deposition of Hoerchner, Hill called Hoerchner on September 22 and asked how she could avoid involving the FBI. Hoerchner said Hill "was told [by Senate staff] her only option was to be investigated by the FBI, and we both thought it was odd, and I thought there should have been some alternative where she could make a statement with her name being used, as some sort of an intermediate measure." On September 23, Hill took Hoerchner's advice. She faxed a statement to the Senate Judiciary Committee claiming that when she worked for Thomas he had pressured her to date him, and had spoken to her about sexual acts in a graphic manner in the office. Interestingly, the words "sexual harassment" didn't appear anywhere in the statement.
Contrary to almost all media reports, including Totenberg's, the Hill statement was simply a statement -- signed, but not notarized. It was not a sworn affidavit -- Hill, after all, is a lawyer, and she must have known the rules of evidence, and the penalties for lying under oath.
Finally, Hill suggested in the statement that some person (or persons) had been feeding the story to the press even before her statement was made. She wrote, "In the past few weeks, I have had numerous opportunities to present my story to the press and have declined to do so." In other words, those who knew about Hill in Washington were already acting to take the decision on whether to come forward out of Hill's hands.
After faxing the statement, Hill called Harriet Grant and the subject of the FBI came up again. This time, Hill indicated that she no longer objected to speaking with the FBI, and that night in Norman, Oklahoma, two FBI agents interviewed her.
In the FBI interview, the only person identified as a possible corroborating source for Hill was Susan Hoerchner. Only after the story made national headlines did three additional sources of corroboration come forward on their own (as had Hoerchner) to remind Hill that they recalled her mentioning sexual harassment to them. Moreover, none of the three testified that she had identified Clarence Thomas as the perpetrator.
Hoerchner was the only witness who testified that Hill referred to "my boss Clarence." Someone had to do it, and I think Hoerchner perjured herself on this point for the cause. (In her deposition the prior week, Hoerchner had said about the harasser's identity: "I think she referred to him as Clarence.") The other three -- Ellen Wells, John Carr, and Joel Paul -- testified that she complained of harassment by an unnamed "supervisor," a curious term for a special assistant to use in reference to an assistant secretary or the chairman of a federal agency.
How to explain the other witnesses' accounts, all of which, unlike Hoerchner's, correspond to periods when Hill was in fact working for Thomas? It turns out that Anita Hill may have complained off and on about sexual harassment during the time she worked for Thomas -- but her complaints were never directed against Thomas.
Then-Education Secretary Terrel Bell received several allegations of sexual harassment from Anita Hill during the time she worked at the department, according to a former Department of Education official who was told of this by Bell in recent weeks. The charges were directed at Education officials other than Clarence Thomas. Bell told this official that Hill insisted on bringing the charges, in confidence, to the personal attention of the Secretary; Bell had the charges checked out, but nothing came of them. Bell "didn't want to get involved" in the Hill-Thomas tussle, according to the former official, and so he stayed unforgivably silent on the matter during the October hearings.
Bell, however, says he must have been misunderstood. He told me he remembered that Hill had once come to his office asking to see him, but she spoke only to an aide, who put Hill off. Bell says he never found out why she had come to him. Yet if this was so, how on earth would Bell have recalled the event at all? "Can't help you," he says.
As for the EEOC, there is no question Hill had a supervisor other than Thomas who sometimes spoke of sexual matters in the office, including references to his collection of pornographic movies, according to several EEOC co-workers of Hill's. While none of these sources can recall a negative reaction from Hill to these comments, it's conceivable that she mentioned them in passing to Wells, Carr, and Paul.
So the explanation for Hill's seemingly counterintuitive actions toward Thomas -- inviting him to her apartment, following him from one job to another, and keeping in touch by telephone for years after leaving his employ -- seems, in the end, rather simple: Thomas was innocent.
All of which leads us to the question that so bedeviled the Thomas-Hill inquiry -- what motive would Anita Hill have had for knowingly making a false charge of sexual harassment against Clarence Thomas? Such a question can only begin to be answered by delving into a subject that neither the Senate nor the press corps dared try to answer: Who is Anita Hill?
This was not necessarily for lack of trying. GOP Judiciary Committee staff wanted to subpoena employment records from Wald, Harkrader, and medical records from Hill's hospitalization in 1982, but the Democrats blocked it.
At this writing, there are two exceptions to the lack of national media attention on Hill. Shortly after the hearings, Lally Weymouth, a Washington Post columnist, published an op-ed piece in the Wall Street Journal that had been refused by the Post. Weymouth was able to shed a good deal of light on Hill's politics. Bob Cohn, a Newsweek reporter, wrote a piece for the New Republic on what was billed as his unsuccessful foray down the "Thomas-Hill dirt trail." What was interesting about Cohn's piece was that while the so-called dirt on Thomas didn't check out at all, the Hill dirt, which Cohn pooh-poohed with equal fervor, came from on-the-record interviews and sworn affidavits.
Although the most popular theory to account for Hill's anti-Thomas feelings is that she had a "fatal attraction" to him, the evidence suggests that his rejection of her was professional, not personal. At the EEOC, it seems that a young, ambitious, but not terribly talented woman developed some hard feelings against her boss. At Education, Hill had little competition from anyone for Thomas's ear. But, according to several EEOC co-workers, at the agency it became quickly apparent that Hill would be one of many attorney-advisers on the chairman's staff, and that she was probably the least capable of the bunch.
Hill was rejected twice for a position she had her eye on, that of chief attorney-adviser. The second time, Hill took particular umbrage, because the job went to Alyson Duncan, an attractive black lawyer. "I'm just as smart as she is," Hill told one co-worker after the Duncan appointment was announced.
Eventually frustrated at not commanding the attention she thought her due, she left her job working for a rising star in the Reagan Administration to take a position at a fourth-rate law school. As former colleague Phyllis Berry put it in a letter to GOP Sen. Strom Thurmond of South Carolina: "I found her to be untrustworthy, selfish, and extremely bitter following a colleague's appointment to head the Office of Legal Counsel at EEOC. . . . After she was passed over for the promotion, she was adamant in her desire to leave the agency and discussed this with me privately." (Thomas supporters like Berry were presumed to have come forward to protect their connections to him. But Berry, in fact, had been fired by Thomas.)
A secondary political motivation was likely. It is difficult to say whether Hill was in sync with Thomas when the two worked together but later veered toward the left, or whether the differences were there all along. In any event, at two crucial junctures in her testimony, Hill clearly indicated that as of 1991, she saw herself as opposing some of Thomas's views, specifically on Roe v. Wade. First came an exchange with Sen. Brown:
HILL: Well, I am not really sure what his philosophy on many issues is. And so I can't say that I am in agreement or disagreement. I can say that during the times that we were there, worked together, there were matters that we agreed on and some that we did not agree on and we had discussions about those matters. But I am not really certain what his philosophies are at this point.
BROWN: Would that be the case with regard to say, abortion or Roe v. Wade?
HILL: That I am not sure of his philosophies?
BROWN: Sure of his philosophy or do you perceive a significant difference between the two of you in that area?
BROWN: Can you tell us what that might be? I don't mean to pressure you here. If you would prefer not to, please don't. But if there is something that you could share with us in that area, I think the committee would like to hear it.
At this point, Biden interrupted Brown and ruled that the subject of the hearing was possible sexual harassment by Thomas, not Thomas's views on abortion. The conventional interpretation of this interruption, advanced by committee Democrats, was that Biden was trying to protect Thomas, who had indicated that he had no formed opinion about Roe. But it is just as conceivable that Biden was trying to protect Hill from divulging further her views on Roe.
At another, largely overlooked, juncture in her testimony, Hill had this exchange with Sen. Strom Thurmond, the South Carolina Republican:
THURMOND: Professor Hill, I understand you told the FBI that you had concerns about the political philosophy of Judge Thomas and that he may no longer be open-minded. Is that accurate?
HILL: I told them that I did not quite understand, but as they had been represented, yes, that I did have some concerns.
THURMOND: I have the FBI report here, and I just wondered if you remember telling them that.
HILL: I remember discussion about political philosophy and I remember specifically saying that I'm not quite sure that we understand his political philosophies. But based on what I understand, yes, there is some discomfort.
After leaving Washington, Hill fared even worse as a law professor, according to many of her former students at Oral Roberts and the University of Oklahoma. (While several students I contacted offered no comment on Hill, none had anything good to say about her.) "We had some high-quality instructors and we had some bad ones," says one former Oral Roberts student. "Anita Hill was the worst of the lot."
According to several students, Hill was known to show up late and unprepared for class, and not show up at all for her scheduled office hours. One student described her as "kooky." Another said, "She had no grasp of the material, and when she was asked a question she couldn't answer or was challenged in any way, she would get visibly angry and then say something irrational, like 'Well, the case was decided that way because women are always right.'" Another refrain favored by Hill was that "It doesn't matter who's right or wrong, it's who controls the court."
As Weymouth reported, extreme sensitivity to gender politics also characterized Hill in the classroom, another indication that Hill is not the political conservative that the media made her out to be. Many students remembered Hill going through the roof if the pronoun "he" was used by a student in a hypothetical example. Hill's feminism, however, never appeared to be deep. "You got the strong idea that she was for women's rights. She'd say, 'Women are always taken advantage of,' things like that, but there was no philosophy or point of view," said another former student.
In fact, Hill's behavior struck more than one of her colleagues not as feminism, but as plain sexism-in-reverse. "Her flirtatiousness, her provocative manner of dress, was not sweet or sexy, it's sort of angry, almost a weapon," said one former colleague. Many men in Hill's classes felt that she gave men a more difficult time than she did women, letting women who couldn't answer questions off the hook, while grilling the men. Some male students told me they started writing their exams in an elaborate cursive style, hoping to fool Hill into thinking they were women. One time, Hill made the statement in class that "there is nothing lower on the evolutionary scale than a white male," according to two separate accounts.
Some white students felt that Hill showed the same sort of preference to black students generally, which put black women at the top of Hill's pecking order -- in the classroom, anyway. Hill's romantic interests, as near as I can tell, have always been white men: the possible affair with Brudney; an affair with a young student in Oklahoma; and an affair with a University of Oklahoma faculty member, who later dropped Hill for one of his students.
Hill's obsessive, even perverse, desire for male attention is another sign that she may have been suffering from some kind of love-hate complex. "She always bragged that all the men in the office were coming on to her," said one former EEOC co-worker of Hill's. While he made for an obnoxious witness on national television, John Doggett, who told how Hill had approached him at a party in 1983 and, apropos of nothing, told him that he shouldn't lead women on and then let them down, is not the only one to have received unwelcome and inexplicable sexually suggestive comments from Hill.
I've been told of several other Doggett-like scenarios. Once, at the EEOC, Hill ran into a male colleague on a plaza at lunchtime near the office. According to the man, who did not know Hill well, she said, "You know, everybody knows we're sleeping together." At Oral Roberts University, a former student of Hill's said that he was approached by Hill while checking his telephone messages on a bulletin board near her office. "I know your favorite flavor is chocolate," Hill told him. Another former student, who contacted the Senate Judiciary Committee with his information but refused to come forward for fear of damaging his career in law and politics, said that Hill had mentioned "Long Dong Silver" to him in a social conversation in 1984.
But the most bizarre incident is alleged to have happened in the school year 1983-84 at Oral Roberts, according to a sworn affidavit, dated October 13, 1991, and filed with the Senate Judiciary Committee, in which Lawrence Shiles, now a lawyer in Tulsa, recounted the following:
Shortly after the class had begun, Professor Hill gave us a written assignment which I completed and duly turned in. When this assignment was passed out to the class after having been marked by [the] professor, sitting next to me were fellow students Jeffrey Londoff and Mark Stewart. Upon opening the assignments and reviewing our grades and comments made by Anita Hill, I found ten to twelve short black pubic hairs in the pages of my assignment. I glanced over at Jeff Londoff's assignment and saw similar pubic hairs in his work. At that time I made the statement to Londoff that either she had a low opinion of our work or she had graded our assignment in the bathroom. Mark Stewart overheard the conversation and said that he had similar pubic hairs in his assignment also. This became the standing joke among many students for the remainder of the year in her classes.
Other students in that class confirmed the story. Londoff says he couldn't be certain that the hairs were pubic, but he said he thought it was unlikely that they could have come from Hill's head, since they were short, coarse, and curly, and Hill had had the hair on her head straightened. Another student who saw the hair, but did not want to be identified, said of its origins: "You just know it when you see it."
So Hill may be a bit nutty, and a bit slutty, but is she an outright liar? Consider this: In late September, in the parking lot of Baptist Hospital in Oklahoma City, a woman was returning to her car when she saw another car back into it with a good deal of force. The woman ran over to her car to talk to the person who hit it. But the other car sped off. The woman jumped into her car and followed the other car, copying down the tag number. Through contacts at the Department of Motor Vehicles, she found the name of the owner of the car that hit hers: Anita Hill. That evening, the woman called Hill and confronted her. And Hill's immediate response was: "It's your word against mine." End of discussion.
Hill's precise reason for coming forward to jettison the Thomas nomination will probably never be known, not least because she probably never had one. But based on what we know of her attitude toward Thomas, her uneven temperament, her underwhelming intellect, her political and sexual prejudices, her weird relations with men, her history of frivolously charging sexual harassment, and finally her petty dishonesty, it is at least easier to imagine how and why Hill could have allowed herself, almost accidentally, to become the secret weapon in the war on Clarence Thomas.
It has been well established that Hill wanted the war waged behind the scenes. Under questioning from Senator Specter, Hill at first denied, but then admitted, that in her discussions with Senate staff, she was told that her confidential statement would be shown to the nominee and might cause him to withdraw. If the staffers believed this, it would follow that they made the decision to leak the charge after it failed to cause Thomas to withdraw, and then failed to affect the vote in the Judiciary Committee.
But consider the stronger possibility that the staffers never believed what they told Hill about maintaining confidentiality. They knew the story had been circulating for weeks without making it into the press. But once they had something in writing, they could make sure it got out. In an October 7 speech on the Senate floor, GOP Sen. Orrin Hatch of Utah described the process: "I am concerned because I have seen some of the staff operate. Once witnesses make a statement or are pushed into making certain statements . . . then that person is stuck with the statements."
Some of the members of the Judiciary Committee were probably in on the plan as well. Although the feminist line held that the fourteen white men on the committee simply didn't take Hill's charges seriously, it is not plausible that dyed-in-the-wool Thomas opponents like Metzenbaum or Simon would have known about such an allegation and allowed it to die on the vine.
The problem was not that the allegation was judged unserious, but that, as Senator Kennedy explained on October 8: "When the unanimous consent agreement [on when to vote on the Thomas nomination] was reached, many of us were under the impression, correct or incorrect, that Professor Hill wished her name and her allegation to be kept confidential." (Metzenbaum was far less sheepish than Kennedy in leading the charge for Hill, though his staff worried that he, too, had a credibility gap on women's issues. The very married Metzenbaum is frequently seen in Georgetown on Friday nights, cavorting at two favored restaurants, Jaimalito's and Filomena, with a female Brazilian companion in tow.) If the committee had taken up the Hill allegations before its vote, it would have done so in confidence -- in accord with Hill's wishes -- and no doubt produced a stalemate. In other words, for maximum effect, Senate procedures would have to be violated, and Hill would have to be outed.
This explains why there was so much talk -- by Metzenbaum, Simon, Michelman, Neas, et al. -- following the committee vote on September 27 that the Senate "needed more time" before voting on the nominee. Why? The Senate had concluded its fifth investigation of Thomas in a decade, and the opponents had spent three months in the trenches without wounding the nominee even slightly. The momentum was more strongly in Thomas's favor with each passing day. But still, "we need more time, we need more time."
During the week of September 30, with the Senate due to recess on Friday, the anti-Thomas forces objected to a vote that week. "Every effort was made to invoke the rules and to delay the matter and to try to get it past last Friday, because I guess they presumed that there would be an interim 10-day recess and there would be a full two weeks where Judge Thomas could be smeared while all of us were out of town," Senator Hatch recalled on the Senate floor on October 7. Sen. Bob Dole of Kansas added: "And I know what some on the other side said, oh, they would like to have another weekend. I have been around here a while. I knew last weekend when we did not vote on Friday what was going to happen on Saturday and Sunday, and it did. There is always somebody out there willing to collaborate and to print classified, or to go on the radio with classified information, and they did."
Sen. Alan Simpson of Wyoming was even more to the point:
The fact is that the FBI report on the matter was submitted to the Senate Judiciary Committee and the ranking member and the chairman and various members before the vote. That is a fact. No one chose to delay it in any way, to create a stumbling block or an obstacle with it, except -- except -- I carefully recall the negotiations last week for the unanimous consent agreement, and it was said that we would start on that Thursday morning, and that we thought we could finish by Friday evening, even if we went late, to which there was objection, unnamed, oddly enough, just to fit the scenario of the Saturday slap and the Sunday slap and the Monday slap. So that when we get to 6 o'clock tomorrow night, it will be full feeding frenzy.
It got so crazy that by Friday, October 4, one reporter was standing on a street corner outside the EEOC building in downtown Washington offering employees $100 bribes to smuggle the agency telephone directory out of the building. He had to be removed by police. Also that week, a woman who had left the EEOC under a cloud during Thomas's tenure was approached by a producer for a popular evening network news show desperate for on-camera interviews with women who had worked for Thomas. The producer faxed to the office of the woman, who is now a public official, a letter threatening to expose her if she failed to respond.
What triggered all of this, of course, was the now-infamous leak, about which we know this much: According to Senate staff, the three least scrupulous staffers dealing with the nomination were Brudney, Seidman, and John Trasvina, an aide to Sen. Paul Simon on his Judiciary subcommittee. All three are seasoned Washington players. And any savvy Senate staffer knows that the way to leak a confidential document like an FBI report is to use a private citizen (or, in the case of an intelligence leak, a staffer without a security clearance) as a cut-out. The sensitive material is either left out in the open, where it can be read by the cut-out, or it is discussed by two staffers while the cut-out happens to overhear them. The cut-out then leaks the material, and the staffers can technically deny that they "leaked" it.
I've come across several plausible cut-outs for the FBI report leak. One of them is Sen. Paul Simon's wife, Jeanne, who undoubtedly heard about the FBI report from her husband, and who was so interested in the Thomas hearings that she attended many of the sessions, sitting in the audience with feminist activists.
Another is Roy Meyers, a former press secretary to Metzenbaum who now works as a lobbyist with Cassidy & Associates in Washington. Meyer is still close to Metzenbaum and Brudney and is a frequent visitor to Metzenbaum's offices. More tellingly, he is the only person who has been described to me as close to both Totenberg and Phelps. Totenberg would have been an obvious choice to receive the scoop, but Phelps, working for a second-tier newspaper, would have to have been on excellent terms with the leaker. (Meyers called the speculation "ludicrous.")
Since the unsworn Hill statement had about as much legal standing as a piece of constituent mail, there was less danger in leaking actual copies of it. It appears as though Hill was given some advice, presumably through Hoerchner, that unbeknownst to Hill would ensure her statement's wide circulation. The Biden report describes a September 25 call to committee staff:
For the first time, she then states that she wanted the statement "distributed" to committee members. Committee staff explained that while the information would be brought to the attention of committee members, staff could not guarantee how that information would be disseminated -- whether her statement would be "distributed" or communicated by oral briefing. Once again, however, committee staff assured Professor Hill that her concerns would be shared with committee members. She concluded her conversation by stating that she wanted her statement "distributed" and that she would "take on faith that [staff] will do everything [it] can to abide by [her] wishes." Every Democratic member of the committee was orally briefed, had access to the FBI report, and had a copy of Professor Hill's statement prior to the committee vote.
NPR's Nina Totenberg also clearly had a copy; in the Vanity Fair article, her NPR producer said she had it five days before the story broke. Phelps in Newsday referred only to the FBI report. But significantly, neither Totenberg nor Phelps appear to have had the actual FBI document and neither was able to quote directly from it; either they were briefed on it, or they hid the fact that they had it. Phelps refers in his story to "the source who had access to the FBI documents," and Totenberg says the source had "seen the FBI report."
That is about all that can be said at this point. The matter may or may not ultimately be settled by the special Senate counsel investigating the leak (he has subpoena power; I don't). We do, however, have a rough approximation of what came after the leak, from Simpson, who said in his October 8 floor speech:
[It] was a very curious type of inducement by one of the media: "We have your statement" -- "affidavit," they called it -- "and there is a lot of rumor going around the city, and I think you better come forth, and if you do not, it is going to be very hard on you, it is going to be very difficult, it will be uncomfortable for you." That is what Ms. Hill was told, as the persons with the information leaked in their hands said, "Maybe you will want to say something and follow it up, because if you do not have anything to say, we are going to come out with it anyway . . ."
Sounds an awful lot like the James Brudney method.
Once the reluctant Hill was outed, she seems to have shifted course once again, playing her role to the hilt and willing to lie under oath, which suggests an additional motivation. Previously, Hill had been a disgruntled former Thomas employee, uncomfortable with some of Thomas's political views, who allowed herself to be pressured into doing him in behind closed doors by divulging that he had discussed pornographic movies with her.
Now, however, she would become, in the words of Susan Hoerchner, "the Rosa Parks of sexual harassment," with all the lavish attention (awards from the ACLU and Glamour magazine), and even career advancement (lecture fees, book advances), that that appellation has already brought and will continue to bring. Hoerchner, for her part, recently told the Long Beach Press-Telegram of her own new-found fame: "People recognize me and come up to me and say very nice things, and they pick up the tab in restaurants."
This change seems to account for the rather dramatic additions to Hill's account -- from dirty talk to outright harassment -- that can be found by comparing her original statement to the committee with what she told the FBI. For example, Hill's statement said that Thomas told her if she ever talked about what happened between them, it would ruin his career. But she told the FBI that Thomas had said he would ruin her career. Hill's handlers and advisers appear to have been trying to construct a case for so-called "hostile environment" sexual harassment. Hill apparently had a group of feminist advisers in Norman, including O.U. faculty members and local attorneys. In a conversation with a Senate staffer, Tulsa attorney Mary Constance Matthies said that she had been told in early October by Catherine Beaugardt, a Norman attorney and a member of a local feminist group, that she was helping prepare Hill for possible closed-session Senate testimony by holding mock hearings, according to the staffer. (Matthies refused to comment on the matter).
Hill's week in Washington no doubt swelled her head further. A public relations agency and a battery of high-powered lawyers went to work on her behalf, including Charles Ogletree of Harvard University; Warner Gardner of Shea, Gardner; Don Green, Robert Skitol, and Coleman Bird from Pepper, Hamilton, and Sheets; Charles Ruff of Covington and Burling; and, according to a Pepper, Hamilton attorney who read the visitors' log book at the firm, Lloyd Cutler, Jimmy Carter's White House counsel. (Cutler did not return calls seeking confirmation.) After two days of prep work at Pepper, Hamilton, Hill went on national television with her newly embellished story.
The additions in her testimony did not sit well with the FBI agents who had interviewed Hill. In his statement to the Judiciary Committee following Hill's testimony, special agent John Luton said:
Professor Hill stated that she was advised by the interviewing Agent that she did not have to answer questions if they were too embarrassing, as she would possibly be re-interviewed by FBI Agents at a later date. In fact, she was told by Special Agent Luton to provide the specifics of all incidents. She was also told that it might be necessary to re-interview her at a later time regarding this matter, but that occurred at the end of the interview. . . . Professor Hill in her testimony identified a number of specific incidents in which Judge Clarence Thomas made embarrassing comments to her about sexual activities. Among these was the reference to a pornographic movie in which an individual by the name of Long Dong Silver played a role. She cited an instance in which she was in his office and he referred to a coke can and made the statement, "Who left their pubic hair on my coke?" or words to that effect. During the interview on September 23, 1991, Professor Hill did not mention any of the above incidents.
The rest, as they say, is herstory. In the end, all that fancy advice counted for little. Hill's own attorneys apparently realized that she had given an unconvincing performance, because they decided not to call her back to rebut Thomas, something any good trial lawyer would have done. Then, they moved with alacrity to cancel the second pro-Hill panel on Sunday because of the severe credibility problems of her witnesses. Even senators who had opposed Thomas before Hill emerged, and would vote against him October 15, came away from the hearings with the same gut instinct as the American public. In the wee hours of Monday morning, when it was all over, Joe Biden stopped two of Thomas's witnesses in the hallway outside the hearing room. Biden told the women: "I believe him, not her."
Brock, David. "The Real Anita Hill." The American Spectator, March 1992,18-30.