Diary

Linda Colley

To look at, Yale’s Law School resembles a small-scale version of the Chapel of King’s College, Cambridge, superimposed on a large mock-Tudor bowling alley. In fact, like most of the present-day Yale campus, it was built in the Thirties by poorly-paid Italian immigrants. Unlike the surrounding buildings, however, which are now beginning to show their real as distinct from their fake age, the Law School is in that pristine state of repair which betokens the support of serious money. For this is America’s top law school, the most intellectually prestigious, and the most powerful in terms of its close ties with Washington. This is the alma mater of Anita Hill, Professor of Law at the University of Oklahoma, and of her adversary, Supreme Court Judge Clarence Thomas, and of his Senate sponsor, John Danforth, and of his most effective champion on the Senate Judicial Committee, the fearsomely-named and viciously forensic Arlen Spector.

On 11 October, when Professor Hill began her televised allegations, this was the only part of the campus to show any life, as TV cameramen struggled to intercept stray law professors and gain some private dirt on their famous protégés. The rest of us were in front of our screens. Even the city’s umpteen pizza houses (New Haven claims the pizza as its own invention) were more than half-empty, cooks and waitresses huddling lazily around the resident TV set, gossiping and taking bets on who was lying the most. By now, though, the saga of Hill v. Thomas has been all but forgotten, except on the Law School’s Wall – a broad expanse of brickwork on the left-hand side of the entrance hall as you go in, on which Yale law students traditionally affix their candid verdicts on the issues of the day, a kind of scriptorial Speakers’ Corner. Ever since the confirmation of Judge Thomas, the Wall has been dominated by an angry notice pinned there by a feminist lawyers’ action group. In red letters it proclaims: ‘Clarence Thomas – MISOGYNY AND MEDIOCRITY’.

In reality and in retrospect, the most striking aspects of this extraordinary affair were rather different. There was, first and foremost, President Bush’s unpleasant determination to play fast and loose with the calibre and standing of the Supreme Court. I say this not because he allowed partisan considerations to sway him in his selection of Judge Thomas: that was only to be expected. Virtually every 20th-century President has tried to pack the Court in some way. Franklin Roosevelt, for example, stacked it with liberals back in the Thirties so as to further his New Deal. What was remarkable about Bush’s behaviour on this occasion was his blatantly cynical but entirely successful response to his limited freedom of political manoeuvre. Unlike many earlier Presidents, he has to work with a Senate controlled by the Opposition. This makes Supreme Court appointments difficult because the Constitution demands that they be made with ‘the advice and consent of the Senate’. Indeed, historically speaking, the Senate has often had more power in filling these positions than has the President himself.

Bush went for a black candidate in part because the vacancy had been created by the retirement of the Supreme Court’s only black judge, the highly distinguished Thurgood Marshall. And he went for Thomas, of course, because he was a conservative: a reputed opponent of affirmative action despite having benefited from it both at Yale and in Washington, and a reputed opponent, too, of abortion. I stress ‘reputed’, because neither before nor during the Senate enquiry was the judge’s philosophy ever fully clarified. Nor was his ability. Compared with other candidates whom Bush might have chosen, Thomas had relatively little experience on the Bench or in practising or teaching the law. His legal publications were few and generally unremarkable, and the non-partisan American Bar Association pronounced only that he was ‘qualified’ for a position on the Supreme Court, not ‘highly qualified’, its normal accolade for candidates at this level of eminence. When Bush announced his choice of Thomas at Kennebunkport on 1 July, he, too, downplayed the question of professional and intellectual competence. Thomas had ‘a wonderful sense of humour’, he told reporters. He was a ‘delightful and warm’ person. He was ‘a model for all Americans, and’ – an impressive non-sequitur, this – ‘he’s earned the right to sit on this nation’s highest court.’ In reply, Thomas played the same sentimental violin, thanking his grandparents, ‘my mother and the nuns’.

The strategy was plain and brutal. Thomas was to be sold to the Senate on the strength of his undoubtedly courageous and hardworking rise out of an impoverished black family background in Pin Point, Georgia, rather than on the strength of whatever ability he might possess. Stressing his colour and his background in this way, it was correctly supposed, would make it impossible for the Southern Democrats to vote against him, because of their heavy dependence on black votes. The individual most compromised by this style of campaign was of course Thomas himself. Under strict instructions from his handlers to steer clear of contentious policy issues, he emerged from the enquiry seeming at best intellectually muddy and at worst downright devious. And because the President and his men attached such disproportionate weight to his strictly personal qualities, it was scarcely surprising that unscrupulous Democrats should in turn have sought for a way to torpedo his personal reputation. Thomas may well turn out to be an able as well as a worthy man, and a good Supreme Court judge. But the manner of his appointment made it virtually impossible for him to seem anything other than George Bush’s token black, a beneficiary yet again of affirmative action.

Now that its conservative majority has been still further strengthened, it seems probable that the Supreme Court will overturn the Roe v. Wade decision of 1973 and so make abortions more difficult to obtain. Since the confirmation, Bush has already moved a step in this direction by preventing state-funded family-planning clinics catering overwhelmingly to the poor from providing abortion counselling. To anyone from Europe the political partisanship surrounding this issue in the States is strange and quite alarming. Although Republicans are by no means all opposed to abortion on demand, those who are regularly attack it as a ‘liberal’ or a ‘left-wing’ solution. And perceptions of this kind are what is really forcing Bush’s hand, quite apart from his own moral and religious convictions.

Next year the incumbent President faces the prospect of a conservative challenge for the Republican nomination – possibly from Pat Buchanan, certainly, though less threateningly, from the Louisiana ex-Ku-Klux-Klansman, David Duke. Neither is likely to succeed, but as a moderate who has committed the deadly sin of raising taxes, Bush knows that he has to make some attempt to conciliate the more conservative wing of his party. Since the collapse of Communism has left him with few chances of doing so in foreign affairs, going for abortion is an obvious domestic option and a relatively risk-free one. Rightly or wrongly, prosperous American women will always be able to obtain abortions if they need them. In the main, it will be young poor black women who will be most affected by any new limitations on abortion in the United States. And young poor black women rarely vote Republican – or even vote at all.

Recent surveys suggest that blacks in general are no longer so ready to vote for Democratic candidates either, and this is just one aspect of the Democratic Party’s current crisis. The performance of the Democratic senators during the Thomas-Hill enquiry suggested yet again that the Party is unfit for opposition, let alone for government, that it lacks leadership, cohesion, heavyweight talent, and most of all that instinct for the jugular which all successful politicians require and which the Republican leadership possesses in abundance. Despite the manifest fact that Anita Hill was also black and just as impressively self-made as Thomas, the Democrats allowed themselves to be skewered by the absurd Republican contention that questioning Thomas’s behaviour was tantamount to ‘hightech lynching’. Manoeuvred into a corner, they failed both to defend Professor Hill adequately from the Republican assault on her integrity, and to pursue her accusations against Judge Thomas with the necessary rigour. Having shown themselves willing to wound the nominee by way of underhand tactics, they seemed pathetically afraid and unwilling to strike.

They did not, for example, discuss the substantial evidence that during his time at Yale, Thomas was seriously interested in pornography. They accepted it when the judge told them, understandably enough from his point of view, that he would not discuss his private life. They even let him get away with his arrogant refusal to listen to Professor Hill’s testimony. And while the Republicans carefully refrained from rebutting Hill’s precise charges, and instead attacked her directly as an erotomaniac, a spurned woman, a fantasist, a mentally-unsound pawn of liberal interest groups, the Democrats continued to tiptoe around Judge Thomas’s sensibilities like frightened Victorian virgins. When Orrin Hatch, Republican Senator for Utah and a Mormon bishop, accused Hill of attributing to Thomas words that she had in fact culled from The Exorcist (the pubic hair in the coke can incident), not one Democrat had the wit to remark that, given his reputed taste for kinky literature, the judge himself might well have been the one who had read The Exorcist and been influenced by it.

The Democrats’ gravest tactical error lay in not taking sufficient trouble to establish what sexual harassment really means. There was no excuse for this, since the subject has been intensively researched by lawyers and sociologists for at least a decade now, and they could easily have called on an expert such as Catharine Mackinnon (yet another Yale-trained lawyer) to give evidence to the Senate on the general issues involved. Instead, both sides took it for granted that sexual harassment is simply about sexual desire causing havoc in the workplace, and hauled in bevies of secretaries and personal assistants from the judge’s past to speak to his behaviour as a boss. The argument seemed to be that if he had talked dirty and made improper suggestions to Professor Hill during their time together at the Equal Employment Opportunity Commission, then he would have behaved as the office Lothario in other contexts as well.

To say the least, this was poor psychology. Randiness is not necessarily indiscriminate. More important, randiness seems rarely to be the prime cause of sexual harassment. Research shows that sexual harassment is mostly (not invariably) carried out by men against women, and that those guilty of it are primarily motivated not by sexual desire so much as by a need to gain, or assert, or maintain power. A man who lunges at his secretary is doing in a conventional way what Nelson Rockefeller did more imaginatively when he had a set of steps built into his New York desk so that he could climb up and address his female subordinates from on high. Sexual harassment is a way of asserting territorial rights and a means of keeping surrounding womenfolk in order. That is why the bulk of those who suffer from it are not secretaries, but women moving into job areas formerly monopolised by men. Female car-workers, female fire-officers, female police officers, female academics and female surgeons: these, according to the available statistics, are the kind of women most likely to be vulnerable to harassment from male co-workers.

Two things follow from this. First of all, since this is how sexual harassment operates, it is possible – though not proven – that Clarence Thomas was guilty. At the enquiry, female secretaries lined up to testify that to them he had always been a good and decorous boss, and there is no reason to doubt that this was true. But at the time when he is supposed to have harassed Professor Hill, Thomas was between marriages (a fairly obvious point which the enquiry never brought out). He was, presumably, rather unhappy and confused, and possibly also frustrated. Moreover, Hill was no secretary safely and respectfully tucked away in the typing pool. She was his assistant, a product of the same élite law school as himself, more intellectually inclined than he was, and both poised and extremely attractive. Did Thomas, who is a physically powerful man and – judging by his behaviour in the Senate – both arrogant and touchy, feel threatened and subtly undermined? Did he turn to his store of pornographic references and make crude allusions to his own and Anita Hill’s sexuality as a means of unsettling her and to put her in her place? We will never know, for this was not the kind of scenario which the Senate Judicial Committee ever took the trouble to explore.

The second conclusion that needs to be drawn from this whole affair is far more important. Since sexual harassment is primarily about the misuse of power rather than about sexual attraction, those anguished articles on the need to banish sex from the workplace that have been published on both sides of the Atlantic since the Senate’s enquiry are very largely beside the point. There is absolutely no need to banish sex from the workplace, and every reason not to. We have merely to ensure that whatever happens inside the office – as outside it – takes place between consenting adults, that the consent is freely given, and that an adequate complaints procedure exists for those occasions when consent is crudely taken for granted or violated. Perhaps in the future every office, and every woman’s desk in particular, should come equipped with a plaque bearing W.H. Auden’s acid lines:

Some thirty inches from my nose,
The frontier of my person goes.
Stranger, unless with bedroom eyes
I beckon you to fraternise –
Beware of rudely crossing it:
I have no gun, but I can spit.