Confirmed: sex, lies and politics

Anthony Lewis

October 21, 1991|By Anthony Lewis

Boston -- THERE IS a lot of talk, from President Bush among others, about the need to reform the Senate confirmation process for nominees to the Supreme Court. But there is not likely to be any reform. The reason is not hard to understand.

The conservatives who dominate the Republican Party today like the process as it is. They have made it a test of ruthlessness, and at that they win. They are masters of attack and smear, of slash and burn, and they have utterly intimidated the Democratic majority in the Senate. Why should they change?

The people who gave us Joe McCarthy and Willie Horton have now given us confirmation-by-attack. The end justifies the means.

When Prof. Anita Hill testified in convincing detail that she had been sexually harassed by Clarence Thomas, the defense was to attack: Destroy Anita Hill. Attack the committee. Charge racism.

Bush approved that strategy, according to an authoritative account by Andrew Rosenthal in the New York Times. The strategy was devised by his counsel, C. Boyden Gray, and Assistant Attorney General J. Michael Luttig.

dTC (Luttig has been nominated and actually confirmed by the Senate to be a judge of the 4th U.S. Circuit Court of Appeals. But he has delayed taking the judicial oath, perhaps so that he could make this last contribution to the political process before administering evenhanded justice.)

The strategy was carried out in the hearings by Sens. Arlen Specter, Orrin Hatch and Alan Simpson. They saved their nastiest attacks on Professor Hill until after she left the witness stand.

Specter, who used to be regarded as a moderate, is apparently afraid of conservative opposition when he seeks re-election next year. He wielded the hatchet with gusto, going so far in his contempt for law as to invent a charge of perjury against Professor Hill.

Simpson pressed Judge Susan Hoerchner, who testified in support of Professor Hill, to admit that she herself had once complained of sexual harassment -- as if that somehow would make her less credible. Then, in an act of literal McCarthyism ("I have here in my hand . . . "), Simpson said:

"I really am getting stuff over the transom about Professor Hill. I've got letters hanging out of my pockets. I've got faxes. I've got statements from Tulsa saying: Watch out for this woman."

To all that the Democrats responded with . . . nothing. After the hearings Sen. Patrick Leahy told a reporter agitatedly: "I will not smear and lie just because they do." But he and his colleagues could answer the smears and lies. They failed to do so, just as Michael Dukakis failed to answer the Willie Horton smear and others in 1988. Democratic politicians have simply lost their nerve.

The Democrats failed even to respond to the charge by Thomas that he was being made the victim of a racial attack, a "lynching." The charge was a travesty, an insult to the victims of the real crime of lynching. The Democrats said nothing.

The whole confirmation proceeding followed the same pattern. The Democrats failed to engage Thomas on his qualifications. They failed to press him on his view of the Constitution, on the values and interpretive attitudes that any Supreme Court justice must bring to the task of interpreting such open phrases as "due process of law" or "liberty" or "equal protection of the laws."

Then the Democratic senators failed to take up Anita Hill's charges in a timely and serious way that would have avoided the sense of an 11th-hour intrusion -- failed, I believe, for want of courage. And when public outrage forced the Judiciary Committee to hold hearings on Professor Hill's charge, the Democrats once again performed lamely.

That was the confirmation "process" that actually took place. It makes obvious the purpose and the effect of Republican tactics.

Bush and his Senate allies want to divert public attention from the real issue posed by his nomination of Thomas: what is happening to the Supreme Court.

They want to make it illegitimate for the Senate -- and the American public -- to object to the court's increasingly statist character. And they are winning.

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