Speaking Truth to Power (24 page)

Sonia Jarvis picked me up at the hotel and took me to the law firm office to meet with my attorneys for the first time. All day various people came in and out of the conference room. I was uncomfortable with so many strangers involved, but with so little time to prepare, I could not carefully screen each individual. By midday several attorneys including Jarvis were present. Sue Ross and Emma Coleman Jordan, who live in Washington, were two of the first to arrive. John Frank and Janet Napolitano, who had taken the red-eye from Phoenix, arrived in midafternoon. Charles “Tree” Ogletree came in from Cambridge. He introduced Michelle Roberts, a trial attorney from Washington, to the group. Warner Gardner and Lloyd Cutler came at the invitation of John Frank. The numbers concerned me, but before I went over the statement I had prepared, each lawyer agreed that the discussion in that meeting was privileged—not to be shared with anyone.

The discussion was free-flowing and lively. Even in this group, no one had been involved in a procedure quite like this. Some attorneys thought the opening statement should be as detailed as possible; others disagreed. Lloyd Cutler in particular seemed uncomfortable with the idea that I should go into detail about the nature of the conduct I was complaining about. Cutler, a partner at one of the leading Washington law firms, Wilmer, Cutler and Pickering, had been counsel to President Jimmy Carter and had tried to save Robert Bork’s nomination to the Supreme Court. After a break, he left the group. Though I never heard from him again, I assumed that he had made an assessment of the chances of my prevailing and had chosen not to be associated with my claim. At worst, I suspected that he would simply leave the team. But it was not crucial that he be there; though he had “insider” credentials in Washington, so did Gardner and, to a lesser extent, Frank.

In a clear breach of professional responsibility, however, Cutler went to the press and expressed concern about my testimony, revealing information that we had all agreed was privileged. He was cited as a source in a column by Lalley Weymouth that appeared in the
Wall Street Journal
after the hearing. The information Cutler had divulged was not only privileged but was largely erroneous. He told reporters that feminist
scholar Catharine MacKinnon had been at the meeting. I had never met MacKinnon, and at no time was she at the meeting. In fact, we later learned that she’d been three thousand miles away in San Francisco. Despite their falsity, Cutler’s disclosures would be used to discredit my claim—to suggest that others, like the absent MacKinnon, had put words into my mouth. My statement was based entirely on my own recollection. I made the decisions as to what to include in my testimony. Ironically, the one person who might have been described as a “handler” was the one who turned out to be the most untrustworthy. I learned that I was better off relying on my friends and other volunteers who were political amateurs than on Washington insiders skilled at trading information for political favors.

During the afternoon we decided that I needed more information to support my statements about how I spent my work time when employed by Clarence Thomas. I called Norman to ask Dean Swank to pick up the information. He was scheduled to arrive on Friday to serve as a character witness for me. When he and his assistant, Ovetta Vermillion, arrived at my home, they had to break into my house with a locksmith. They found the documents I needed amid the disarray I had left on Wednesday. Vermillion also found that a lighted lamp in my bedroom had been draped with a pillowcase. Under no circumstances would I have left a lamp in that condition. I concluded that someone must have broken into the house and attempted to set a fire. Any other time I might have panicked at the idea that my home was threatened while I was away. But at stake in Washington was something more important—my name, my integrity, and my right to be treated fairly. The situation at home was a disaster averted. Here, I did not know what disasters to expect, though I was certain they couldn’t be far off. I simply focused on the next day’s task.

Ellen Wells had been trying to contact me in Oklahoma, but was not able to reach me until I arrived in Washington. She, too, remembered my complaining about Thomas’ behavior while I worked for him. And she was one witness who knew both me
and
Clarence Thomas. I was glad to see Ellen, not only because she could corroborate my testimony
but also because she was a link to my former work that had survived the politics of the Thomas nomination.

Don Green appeared in the conference room from time to time. I had not seen him for ten years. He offered the room as a matter of professional courtesy as part of his responsibility to the confirmation process. I would remind commentators who criticized the offer as a show of partisan politics that even the criminally accused are entitled to adequate representation. For me personally, Green’s offer was more than a courtesy. It was an offer of kindness, like so many during this time, that I will never forget and can never repay. At one point that Thursday, Green came in to advise me that the Senate had contacted him to ask why I had been “fired” from Wald. And though he told them that I had not been fired, they persisted with the accusation. Right after the hearing, John Burke, a former Wald partner, would swear that he had advised me to leave the firm—not the same as being fired, but enough to tarnish my professional reputation—though this wasn’t true either.

During the day the press discovered our location. Then, as they had at my home in Norman, they staked out the building, as security would not allow them to enter. By that time two women had volunteered to handle press requests. Louise Hilsen and Wendy Sherman were veterans of Washington politics and press relations, Hilsen working for DeVillier Communications, Sherman formerly on Senator Barbara Mikulski’s staff.

Though there was not complete disorder among my team, there was no clear order of command. Everyone did whatever was necessary to prepare me and the other witnesses for the following days and to provide the written material necessary for the hearing. Some talked to the witnesses, Hoerchner and Wells. Some focused on communicating with the Senate to get information about the process; others of us did things like copying and proofreading documents.

The day ended about 8:30, when I left to return to my hotel, escorted by Sonia and Anne Majorca, who had been on the Wald staff and was now working at Pepper, Hamilton. But the drama of the day continued when at least two vehicles followed as we drove away from the office building. Sonia evaded a van, but a motorcycle was harder to lose. She
decided to pull into a police station on Capitol Hill, and as she did so the motorcycle driver sped away. But her day did not end when she left me. She still had to supervise the physical preparation of my statement, which Leslie McFarland, Ray’s wife, would type.

By Thursday night a group of amateurs with very limited resources and not much time had accomplished a massive amount of work. The job they did would have been outstanding under any circumstances; under these circumstances it was nothing short of phenomenal. We were David against the Goliath of the White House, certain Republican senators, and, as I would later learn, the FBI. Yet when I went to bed that evening, I was content that we had acted with principle. And no matter the outcome of the hearing, my conscience was clear.

P
ART
T
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O
n Friday, October 11, 1991, following three days of utter turmoil, I woke quite early. Kim Taylor, having flown in from California, had spent the night in the adjacent room. With little to do and uncertain about when I would appear for my testimony, I ironed her suit and helped her get ready for an appearance she made on my behalf on
CBS Morning News
. Hours later, after Kim left and I had dressed for the day, Sonia Jarvis and Charles Ogletree arrived at the room. We watched on the television set in the Capitol Hill Hotel as the hearing that would become known as the Hill-Thomas hearing opened.

In his opening statement Senator Biden decried the problem of sexual harassment and other forms of gender-related abuse or violence. “Sexual harassment is a serious matter,” he began. Senator Biden insisted that “any person guilty of this offense is unsuited to serve not only the Nation’s highest court, but any position of responsibility, of high responsibility in or out of government.” Pausing, he further declared that “sexual harassment of working women is an issue of national concern.” But a simple pronouncement could not make sexual harassment a national concern, much less the concern of some members of the Senate Judiciary Committee whose only objective right now was the confirmation of Clarence Thomas.

With that statement, however, Senator Biden set the stakes for the Republicans. He had declared that a harasser was unsuited for the Court.
Thomas’ supporters were thus challenged to show that he was not a harasser. To do that, they would have to establish either that the acts I complained of were unoffensive or that I was simply fabricating the story. For the most part, the Republican senators chose the latter. While, on the evening before the hearing, Senator Biden had spoken about neutrality, Senator Thurmond apparently exclaimed, “Thomas is innocent, and we’re going to prove it.”

Biden was correct in his assessment of the severity of the widespread problem of sexual harassment in the workplace. Sexual harassment is a form of employment discrimination as defined in the EEOC guidelines and by case law. A party with a sexual harassment claim first files a complaint with the EEOC. That agency investigates the claim according to its own guidelines. Where warranted under the investigation, the EEOC can bring a suit against an employer or individual accused of sexual harassment. Alternatively, the agency can issue a right-to-sue letter which allows the individual to sue on her or his own behalf. For two decades prior to the hearing the problem of sexual harassment had been addressed under Title VII of the Civil Rights Act.

But as correct as Biden was in denouncing the problem, he was equally incorrect in assuming that the hearing about to convene was a proper forum for addressing it. From the sounding of the first gavel opening the hearing on October 11, the process was flawed. First, the committee had no experience in or rules for evaluating a claim of sexual harassment. Second, the committee had no rules for conducting the proceeding and chose instead to make the rules on an ad hoc basis, as the hearing evolved. Lack of experience and procedure detracted from the ability of the committee to reach a rational conclusion. Consequently, members of the committee resorted to one thing they did understand: partisan politics.

Though Senator Biden asserted that the committee had convened to hear evidence on charges of sexual harassment, he chose to deviate both from the EEOC guidelines governing investigations and findings of cause in such claims and from the procedures for hearing such claims developed in courts of law. In his opening statement Senator Biden declared
first that standard rules of evidence would not apply to the hearing and second that Judge Thomas would at all times be given the benefit of the doubt. “The presumption [of truth] is with you, Judge Thomas.” This presumption meant that if it were a case of my word against his, his would always be better. The EEOC guidelines presume nothing of the kind. In fact, those guidelines direct that the parties start as equally credible and that the balance is tipped by such things as contemporaneous declarations to other parties.

As Senator Biden put it, “this [was] an extraordinary hearing.” Thus, he reasoned, the rules of law generally used for limiting questions, making speeches or statements, arguing with the witness, or even excluding irrelevant testimony would not apply. As the hearing proceeded without standard rules of evidence and guidelines for processing information, the relationship between such rules and guidelines and fairness became apparent more and more. The senators’ tendency toward ad hoc rule making weighed in heavily against fairness. So apparent was this tendency that during the first day of testimony, the chair invited me to decide for the committee what rule of evidence should apply to a certain document. I knew then that the process had collapsed.

As the ranking Republican, Senator Thurmond also had his say in an opening statement. He, too, decried the problem of sexual harassment, but only briefly. The highlight of his statement was a chronicle of the nomination process that preceded this round of the confirmation process. His commitment to the nominee was clear in his praise for Thomas’ integrity. Thurmond even asserted that not one of the witnesses had had anything bad to say about his character, though Thomas himself would later contradict Thurmond’s assessment of the process by claiming that throughout his nomination claims of personal wrongdoing ranging from “drug abuse” to “anti-Semitism” to “wife-beating” had tainted the process. Yet to overpower the effect of my allegations, Thurmond recast Thomas as a person of unquestioned character, notwithstanding every other reservation voiced about his character. Thurmond followed his praise of Thomas with an attack on my statement, asserting that I had “chose[n] to publicize” my allegations the day before the vote, falsely
indicating that I had voluntarily gone to the press with a claim and that the Senate had been unaware of it before the press stories appeared.