Trial by Ordeal, “Lynching,” and the Prosecution of Anita Hill

In the Beginning

The Anglo-Saxons and Normans in twelfth-century England considered justice to be determinable by Trial by Ordeal, presided over by the King of England.

The accused “would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.” If an accused’s injured hand began to heal after three days, the defendant would be deemed to have God on his side—a concept not unfamiliar in current American politics—and hence be considered innocent.

Another common “ordeal” required that the accused be tied up and thrown into a lake. An innocent person was expected to sink and drown (or be surreptitiously fished out). Royal deer poachers generally did not sink, convincing King William II—whose deer had been poached—to ban such “trials” after multiple thieves managed to stay afloat.

Convicted criminals (including witches) could also be executed by a variety of punishments including being hanged and/or drawn and quartered (being bodily pulled apart by four horses).

Generally pretty gruesome.

Some centuries later Torquemada the Torturer, born into a family of Jewish converts in fifteen-century Spain—“an intolerant man in an age of intolerant men”—turned against his own people, the Merano Jews of Spain and Portugal, after being made the Grand Inquisitor of the Spanish Inquisition in 1483.

The three most common tortures overseen by Torquemada were “to be hung by the arms until they were pulled from their sockets; to be forced to swallow gallons of water; and to be racked.” People would beg to confess to avoid being tortured, although Torquemada then tended to burn “guilty” victims, eventually immolating over 2,000 people.

Ultimately, Torquemada had all remaining unconverted Jews expelled from Spain.

A Very Short History of Lynching

During the American Reconstruction following the Civil War, especially in the period from 1877 to 1950, thousands of lynchings of African-Americans (mostly men) occurred mainly but not exclusively in Southern states. Few of the murderers were ever criminally prosecuted. Additional lynchings of a lesser number of whites also occurred during that era although they tended to be either individuals who tried to protect Southern black lynching victims or, in the West, murderers and cattle rustlers.

“Lynchings in which mobs raided jailhouses to hang, torture and burn alive black men, sometimes leading to public executions in courthouse squares, occurred more often in the U.S. South than was previously known,” according to a 2015 report by the Equal Justice Initiative. Black boys and men tended to be lynched for suspicion of having slighted or threatened white women in the most trivial ways, or being “uppity” in numerous other circumstances.

These lynching victims were often sexually mutilated prior to lynching, and crowds might gather to celebrate the events and even picnic on the spot, especially in the South.

As gruesome as the Torquemada burnings more than 400 years earlier.

Those were perilous years for black men, and many commentators consider the violent deaths of black men in U.S. police custody in recent years to be a modern extension of that trend although the purported motives of the victim “miscreants” might be more varied.

Federal Civil Rights laws of the 1960s plus greater federal law enforcement efforts at prevention and prosecution of offenders reduced the number of U.S. lynchings significantly in the last half-century.

Anita Hill Accuses Clarence Thomas of Sexual Harassment

Fast forward to October 1991, when the U.S. Senate Judiciary Committee held hearings on the fitness of Clarence Thomas to be confirmed as an Associate Justice of the United States Supreme Court.

Those hearings were televised, and I watched mesmerized like millions of others as the hearings proceeded first with the testimony of Anita Hill, whose witnesses were not permitted to testify on her behalf, and then with the lengthy and fiery testimony of the candidate himself, 43-year-old Judge Clarence Thomas, who had been recently appointed to the U.S. Court of Appeals for the District of Columbia.

“[The ‘debacle’] pre-empted the game shows, it interrupted weekend plans of foliaging, it transfixed a nation. It was carnal, ugly and surreal. This was the Scandal With Everything—penises, power, intense emotional pain—and millions tuned in. They watched an X-rated spectacle that was repulsive and irresistible at the same time.” Newsweek

In 1991 when the Thomas confirmation hearings were held by the Senate Judiciary Committee, that Committee was composed of eight (8) Democrats and six (6) Republicans. President George H. W. Bush had been smarting after a tumultuous Senate rejection of his previous nomination to replace the retiring Justice Thurgood Marshall (Robert Bork, the man who had eventually fired Special Counsel Archibald Cox of Watergate fame). He hoped to avoid a repeat experience.

Marshall had been a towering figure of intelligence and rectitude, and hence President Bush’s nomination of a conservative right-wing black judge to replace him, seemingly without regard for the need to choose one with the same moral compass as Marshall, was transparently cynical. Bush was no doubt hard-pressed to find such a nominee, but the man he ultimately put forward lacked the gravitas, experience, and integrity of Marshall.

As the hearings got under way, information was leaked to an NPR correspondent that “a former colleague of Thomas, University of Oklahoma law school professor Anita Hill, accused [Thomas] of making unwelcome sexual comments to her when the two worked together at the Department of Education (DOE) and EEOC.”

Anita Hill was recruited, pretty much against her better judgment, to stand by to testify against Thomas should the need arise. She had not volunteered to be part of the proceedings. At least three other women who could attest to efforts by Clarence Thomas to sexually harass them during their government employment were also recruited to buttress the potential testimony of Professor Hill.

And as the hearings proceeded it became evident that Anita Hill would become the sacrificial lamb of the burgeoning sexual harassment movement.

Fourteen (14) all-white all-male Senators who sat on the Judiciary Committee initially had the power to hear the testimony and decide the fate of Clarence Thomas as well as determining the reputation of his primary accuser Anita Hill, a dignified and powerful if reluctant advocate against the nomination of Judge Thomas.

[Hill:] “In fact, they were pushing to get me to release my statement even before I testified so that [Thomas] could rebut it point by point even before the world saw me. That’s the same thing that happened to the other witnesses. Angela Wright came forward to say, ‘The experience happened to me.’ Sukari Hardnett. Rose Jourdain. Three women who had worked at different times than I had at the EEOC came forward. Clarence Thomas was able to attack Angela Wright. Claimed that she was a disgruntled employee. She never even got to testify to defend herself.”

Wright alleged that Thomas “made inappropriate sexual comments” to her, which were “corroborated” by Jourdain. Wright also echoed Hill by publicly claiming “that then-Judge Thomas had made unsolicited sexual advances.”

Hardnett added in an affidavit that, “If you were young, black, female and reasonably attractive and worked directly for Clarence Thomas, you knew full well you were being inspected and auditioned as a female.”

The women’s statements were entered into the record, but none of the women were called to testify before the Judiciary Committee.

“The reasons why Wright was not called (or chose not to be called) to testify are complex and a matter of some dispute; Republican Senators wanted to avoid the prospect of a second woman describing inappropriate behavior by Thomas, while Democratic Senators were concerned about Wright's credibility and Wright herself was reluctant to testify after seeing the Committee's treatment of Hill. . . .”

Nevertheless, Wright would have testified that

“Thomas had repeatedly made comments to her much like those he allegedly made to Hill, including pressuring her for dates, asking her the size of her breasts, and frequently commenting on the anatomy of other women. [She also would have indicated] . . . that after she turned down Thomas for a date, Thomas began to express discontent with her work and eventually fired her.”

In addition, “[i]n lurid detail” Hill had referred in her testimony to Thomas’s conversations about “pornographic materials depicting individuals with large penises or large breasts involved in various sex acts,” as well as his own anatomy with reference to one of those movies.

After the hearings had ended, information surfaced that Thomas’s preoccupation with porn movies was considerably more extensive than Hill realized.

Only three of the fourteen members of the Senate Judiciary Committee who sat in judgment of Anita Hill in 1991 are still in Congress, and the two Republicans have announced their intention to retire at the beginning of 2019.

The Senate Judiciary Committee Fails to Do Its Duty

In 1991 Senate Judiciary Committee Chairman Joseph R. Biden, Jr. (D-Del.) was in charge of conducting the hearings, but he acted less as a proponent of the truth than a somewhat mealy-mouthed apologist for Hill and the other women who could have vouched for Hill’s concerns about Clarence Thomas.

Biden left the Senate in 2009 to become Vice President under President Barack Obama, and has in recent months issued a public apology to Professor Hill for losing control of the hearings and “not doing more for her during [those] hearings.”

This is a little late.

Biden was assisted by the following seven (7) other Democrats on the Committee:

— Senator Edward Kennedy (D-Mass.), whose public excesses with women and alcohol had, by 1991, led to him being described as a “Palm Beach boozer, lout and tabloid grotesque.” As a result, he sat largely silent and unsupportive of Anita Hill as she testified. “He said almost nothing until the third day of the . . . hearings, and when he did it was criticized by Hill supporters for being too little, too late.” He died in office in 2009.

— Senator Dennis DeConcini (D-Ariz.), who retired from the Senate in 1995.

— Senator Patrick J. Leahy (D-Vt.), the only Democrat on the Committee who is still in office.

— Senator Howell Heflin (D-Ala.), who retired in 1997.

— Senator Herbert H. “Herb” Kohl (D-Wis.), who retired in 2013.

— Senator Paul Simon (D-Ill.), who retired in 1997.

The six (6) Republican Senators who sat on the Committee took turns savaging Anita Hill as not credible, convincing the viewing public that in fact she was not (although current public opinion has swung back in Professor Hill’s favor). Those Republicans included:

— Ranking Member Senator Strom Thurmond (R-S.C.), who retired from the Senate in 2003 at the age of 100.

— Senator Orrin G. Hatch (R-Utah), who during the hearings “made comments aimed squarely at the accuser, implying that Hill was working in tandem with ‘slick lawyers’ bent on destroying Thomas’ chances to join the court.” Hatch has announced his retirement from the Senate effective January 2019, and his current reputation has taken a nosedive.

— Senator Charles E. “Chuck” Grassley (R-Iowa), who has also announced his retirement effective in 2019, and whose current reputation has also taken a nosedive.

— Senator Arlen Specter (R-Pa.), who publicly stated that he believed Hill’s testimony was perjurious. He retired in 2011 and died soon after.

— Senator Alan K. Simpson (R-Wy.), who retired in 1997.

— Senator George “Hank” Brown (R-Colo.), who also retired in 1997.

Clarence Thomas Has His Day in the Court of Public Opinion

When it was Clarence Thomas’s turn to testify, he took two full days and electrified the Senate chamber and American television viewers by his vivid recounting of his impoverished childhood in Pin Point, Georgia. He made “anguished statements and adamant denials.” All of his testimony was in vehement abnegation of everything Anita Hill had coolly and carefully delineated.

Thomas claimed in his testimony that

"[t]his is a circus, it's a national disgrace and from my standpoint as a black American . . . it's a high-tech lynching for uppity blacks, . . . . It is a message that . . . you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

These comments left viewers gasping with astonishment. (Today, that audacious and misleading statement brings to mind genuine “high-tech” social media attacks, but in 1991 this constituted a diversionary tactic to win sympathy and change the subject by a strong counterattack against the truth.)

“In a tone of fury and rue, [Thomas] skewered the senators. ‘This is Kafkaesque. Enough is enough, . . . . I have not said or done the things that Anita Hill has alleged. God has gotten me through . . . and he is my judge.” Newsweek

On October 15, 1991, the Senate voted 52-48 to confirm Thomas to the Supreme Court.

Game over.

Ramifications

Thomas has now sat on the Supreme Court for over 26 years, and he is “merely” 69 years of age, a relative child compared to Justice John Paul Stevens who retired at age 90 (and is still with us at age 97), and Justice Ruth Bader Ginsburg, who is now age 84 with no plans to retire.

According to one commentator, Thomas has demonstrated in his questioning (or lack of questioning) during Supreme Court arguments and in his opinions that he is an ultra-conservative whose views are frequently in conflict with the other Justices.

That is, after Clarence Thomas had sat on the Court for 20 years, he was described as

“the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it is unconstitutional to require campaign funders to disclose their identity; the only justice who believes that truthful tobacco advertising and other commercial speech may not be regulated, even when it is aimed at minors; the only justice who voted to strike down a key provision of the Voting Rights Act; the only justice to say that the court should invalidate a wide range of laws regulating business; and . . . the only justice who voted to allow the president to hold American citizens in prison indefinitely without charge and without review by the courts.” NPR, “Morning Edition” (2011)

Thurgood Marshall’s successor has made his mark but in ways that forever brand him as retrogressive and stubbornly immune to the way the modern world works.

Portent for the Future

Since this state of affairs transpired under the aegis of a Democratic majority in the Senate Judiciary Committee, consider the possible results if such a committee were one of the only bulwarks between the current occupant of the White House and lawless chaos, and is controlled by the opposition party (with Senator Charles Grassley continuing to play a powerful and antagonistic role).

Which it is as 2018 gets under way.

Robert Mueller, welcome to the reality show battle, Chapter 2. Trial by Ordeal has been in progress since January 20, 2017, and there is no end in sight. We may be staying afloat but we are all trying to keep from drowning.