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Wednesday, October 03, 2007

Some Problematic Arguments About Justice Thomas and Anita Hill

I haven't yet read Justice Thomas's book, but, like many of you, I watched his 60 Minutes appearance with interest and have been following some of the early returns in the newspapers and blogs, including Edward Lazarus's review of the book, and this NYT op-ed by Anita Hill, published yesterday.  It seems to me that two kinds of problems arise whenever people turn to this controversy, whether in 1991 or since then.  The first is that ultimately much turns on a he-said, she-said dispute, and so argument tends to devolve into a tendentious sifting of the circumstantial evidence.  The second is that discussion about Justice Thomas seems almost inevitably to turn on questions about what it means to have a (black) political identity, and the relationship between one's personal and political identity and one's jurisprudence.  In reading these latest items, I see some of those problems rearing their head yet again.  For instance: 

1) Lazarus writes, in what ultimately becomes a patronizing passage, that Thomas's memoir should have focused more on the discussion of his upraising.  This is so, in his view, because Thomas's personal conservatism and the lessons of self-reliance he was taught as a child lead naturally to his jurisprudence, which is "most notable for his virulent opposition to affirmative action (including a rejection of the idea, belied by Thomas' own experience, that minority students learn better in a multi-racial environment), his attack on the constitutionality of New Deal-style social programs and his support for a more active role for religion in public life."  I don't see Lazarus's basis for drawing confident conclusions about what Thomas's own experience suggests about the benefits of multi-racial learning, and I'm not sure he's characterizing Thomas's views accurately anyway.  But is it not possible that Thomas actually has jurisprudential or methodological views about the Constitution?  Can we not take him seriously enough to examine those views on that basis, or is there something especially fixating about his identity that requires us to view him only as a psychoanalytic object?  And why, anyway, is whether Thomas did or did not benefit from affirmative action at Yale in his 20's especially relevant to whether or not he thinks public universities are, under the Fourteenth Amendment, entitled to engage in the practice?   

2) On the factual dispute, take Anita Hill's op-ed yesterday.  Hill writes that Thomas's characterization of her "is hobbled by blantant inconsistencies.  He claims, for instance, that I was a mediocre employee who had a job in the federal government only because he had 'given' it to me.  He ignores the reality: I was fully qualified to work in the government, having graduated from Yale Law School, and passed the District of Columbia Bar exam, one of the toughest in the nation."  I confess I don't see the two as blantantly inconsistent.  (And I'll note but duck the obvious but unfair jokes about whether "fully qualified to work in the government" is an especially strong statement.)  It is just possible to graduate from Yale Law School and be a mediocre lawyer; and the DC bar exam has a low pass rate, but it also has a weak pool of applicants, and passing it is frankly not that much of a job qualification.  (I speak as someone who took and passed the DC bar.)  And take Lazarus's op-ed, again.  Lazarus is at pains to point out that Thomas "was a voracious consumer of pornography," and that this interest may have "extended much later into his life."  His point is that this undermines Thomas's picture of himself as "not the kind of man who..."  But surely, not to put to fine a point on it, consuming pornography does not always reveal a predisposition to commit sexual harassment.



These points all favor Thomas, but that's not my goal.  In fact, both Thomas's current defense of himself, which consists in some measure of reprising David Brock's "little bit slutty, little bit nutty" attack on Hill, and Hill's current self-defense, which consists in part of demonstrating what an able lawyer she was -- and which is echoed by Robert Reich's argument that Thomas was an "undistinguished" lawyer and an unqualified nominee to the Court, while Hill had "a distinguished career as a lawyer and legal scholar" -- are more disturbing for what they suggest about the inevitable state of argument in a he-said, she-said debate about sexual harassment.  In the real world, seemingly "decent" men can commit sexual harassment, and many "boorish" men manage not to do so.  In that world, women need not be saints, or lacking in ambition, or perfect workers to be victims of sexual harassment.  Even "mediocre" female lawyers who are "not the demure, religious, conservative person" they want others to believe they are can be victims.  Absent direct evidence other than the testimony of the two people involved, we are still, these many years later, arguing the truth of the dispute by turning Thomas into a pig or a Victorian gentleman, and Hill into a slut or a saint.  This is not fruitful to the formation of any reasonable view of what men are like or what sexual harassment is about; and it further victimizes women by having both supporters and skeptics turn arguments about these women's credibility into referenda over whether these are "good" women.

In the end, on the sexual harassment issue, it seems to me that the most important statement both of these individuals have made is "I stand by my earlier statements."  After that, no matter how much we might wish for certainty, discussion about the circumstantial evidence is more likely to be harmful than helpful, and our conclusions are likely to be substantially determined by our political predispositions.  The sexual harassment occurred or did not (or to be more precise, as some reasonable commentators have pointed out, it did or did not occur, but with different subjective experiences by both of the parties involved), but it is unlikely that tendentious fact-parsing will get us any closer to an answer to that question; and it just may get us closer to perpetuating the kinds of hero-vs.-victim stereotypes that do neither men nor women much good.  And on the question of Justice Thomas's background vs. his views, at some point we might abandon our endless psychoanalysis on the subject of male black identity and do him the honor of supposing that he has actual views about constitutional interpretation, whether those views are right or wrong.  After all, I don't spend all my time wondering whether the jurisprudence of my favorite bien-pensant white liberal Justices was the unevitable result of a crippling lifetime of affluence and good fortune; I actually assume some of them have ideas.

Posted by Paul Horwitz on October 3, 2007 at 09:15 AM in Law and Politics | Permalink


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Healtheland, I appreciate the comment. I hope it is evident I am not seeking in my post to perpetuate any myths about qualified or unqualified minorities or others in the workplace. My point was that debates about Hill's fitness for the job can easily translate into an unspoken requirement that harassment victims demonstrate not only that they were harassed but that they were "good" victims, a tendency we ought to resist.

Posted by: Paul Horwitz | Oct 3, 2007 3:20:57 PM

Not one shred of evidence has ever been produced by anyone that Anita Hill was unqualified for any position that she sought or mediocre in any position that she performed in. Had there been such evidence, it would have been produced by the conservatives long ago. After all, did not Clarence Thomas hire her TWICE? If his claims that he hired her because she was about to get fired from her law firm (which was contradicted by the firm itself by the way) ... well what does that say about him as a manager? And of course, no one ever likes to deal with the fact that David Brock's "The Real Anita Hill" was filled with lies. Even after the lies in it were exposed, the right continued to peddle the book until Brock turned against his former employers.

You have to realize what this "unqualified mediocre" thing is anyway. A generation ago, it was perfectly acceptable to publicly state a position that only the most exceptional of black people had the intelligence, work ethic, and character to be a professional, to run a business, or to be a manager at a workplace. Such things were considered "not a black person's place." Even those who acknowledged that blacks were capable of such things would admit that since this was a country founded and run by whites, whites should receive whatever opportunities they pleased, and that it was incumbent upon blacks to make a living as best they could and be happy with their lot in life. Blacks who felt otherwise were labeled malcontents, troublemakers, etc.

Now of course, you cannot openly acknowledge such sentiments and be allowed to participate in polite mainstream discourse any longer. So these people mask their true feelings by expressing them in code words in opposition to affirmative action and other liberal programs. As such, every black person that has ever walked the face of the earth is unqualified for whatever position that they receive and mediocre and undistinquished in their performance of it. Every white person that does not get a job, promotion, or college acceptance is "a victim of reverse discrimination." Such a person need not to have even been in direct competiton with a clearly lesser qualified black person for the final slot (a case which truthfully happens only rarely); the mere presence of any black person that was hired or accepted is sufficient proof of the reverse discrimination.

Over time these folks have had to modify their arguments, such as feigning such concern over Asians that lose their spots to blacks. Fine, but when is the large number of highly qualified Asians being accepted into our best schools going to translate into a large Asian presence in our corporate boardrooms and other elite positions? That has not happened precisely because Asians lack the civil rights apparatus to force their obvious merit to be rewarded by the same people that claim to be their advocates.

What the right wing did to Anita Hill is shameful, and the fact that none of them acknowledges it exposes their claims to be such great Christians as utterly false.

Posted by: healtheland | Oct 3, 2007 2:52:52 PM

Yeah, I also find psychoanalysis of one's jurisprudential or political views unrevealing, because it's easy to prove anything after the fact. If someone with Thomas's life story became a big lefty, one would write, "we can see the first spark of his progressivism, and ire about discrimination, in his decision to leave a seminary after racial tensions following the assassination of MLK" (if I remember Thomas's story right). And I don't think a dad or gandpa who taught self-reliance, and learning not to react too strongly to racial insults/mistreatment, is unusual for blacks born in the south in 40s.

In short, I think all you can conclude is that of those born in Thomas's position, 90% will become liberals, but 10% will come to resent liberal meddling in racial issues like Thomas and go the other way. In that light, I don't think his life story "explains" his views at all.

Posted by: Scott Moss | Oct 3, 2007 10:11:20 AM

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