When it came down to it, the Senate was forced to be fair

Susan Estrich

October 10, 1991|By Susan Estrich

HAD IT NOT been for an 11th-hour leak, Clarence Thomas today would be a member of the Supreme Court. But the delay agreed on by the Senate Tuesday to address Anita Hill's charges that she was sexually harassed by Thomas did not come about because the nomination process works. Nor did it come about because our leaders finally recognized that sexual harassment is a serious charge that cannot be disposed of summarily. It came about because politicians know when they're caught in a firestorm.

I don't expect George Bush to choose Supreme Court nominees who will agree with my views on constitutional law. The presidential election decided that question. But like most Americans, I do expect the president to choose men and women of honor and dignity. And I certainly expect the Senate, in its confirmation process, to insist on it.

For two weeks, America watched as members of the Senate Judiciary Committee tried to force Thomas to say where he stood on any issue of significance in constitutional law. They failed, as did he. Well-coached by the White House, Thomas understood that a majority of the Senate would not vote against him if he denied the significance of everything he had written and insisted that his mind was open.

What is most striking, however, are the questions Thomas was not asked. His views on natural law were thoroughly parsed. But apparently no one found it necessary to ask him whether he had sexually harassed Anita Hill, a young lawyer who had worked as his assistant at the Education Department Office of Civil Rights and later at the Equal Employment Opportunity Commission.

In its confirmation hearings, the Senate Intelligence Committee insisted on public testimony from Robert Gates' accusers and on a response from the nominee himself. And yet it seems that none of Thomas' supporters in either the Senate or the administration found it necessary even to meet, let alone listen to, Hill before concluding that she was lying.

Better late than never. The Senate must now deal with the charges against Thomas in a way that is fair to the accuser and the accused and that recognizes the serious, and unique, aspects of sexual harassment accusations.

Very few people harass a woman sexually with witnesses around. Like rape, this conduct tends to take place in private. Sometimes, when a woman comes forward, others do as well. But not always. Even if Hill is the only woman to accuse Judge Thomas, and even if there are not witnesses to her account, her charges demand consideration.

There are questions that will be asked of Hill: Did she complain to anyone, even if not to officials who also worked for her boss? Why did she follow Thomas from one job to another? And why has she come forward now?

These are fair questions, but the Senate must also be fair in evaluating her answers. The truth is that most women who are harassed don't complain about it publicly, especially when doubly disadvantaged by their race and their gender. It is humiliating and embarrassing. Whatever the law says about retaliation, complaining about the boss may lead to being fired for tardiness.

Many women tolerate harassment, even though it is debilitating and destructive. The willingness of women to tolerate hostile work environments often has less to do with how bad the workplace is and more to do with how badly they need their jobs.

Not every slight in a workplace amounts to a federal case. But whose perspective should govern, particularly if men and women see harassment differently -- if men tend to assume that their advances are welcome and women tend to find them threatening?

Ultimately, the Senate must decide who is telling the truth. In an era when the nomination process has been drained of substantive content, the least we can expect of the Senate is that it thoroughly investigate a nominee's character and judge it fairly. If Anita Hill is lying, Clarence Thomas deserves to have his name cleared. If she is telling the truth, he does not deserve a seat on the Supreme Court.

Susan Estrich is professor of law at the University of Southern California.

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