This week (the first days of February, 2017), President Donald Trump–it’s still hard for me to see that in print–nominated Neil Gorsuch, an appellate judge on the Tenth Circuit Court of Appeals, to be on the U.S. Supreme Court. Also this week, I watched, for the second time, the HBO historical drama film Confirmation, which dramatizes the very high-profile battle over the 1991 nomination of Clarence Thomas to the Supreme Court, an event I remember very well in real life. The convergence of these two events in the same week left me thinking a lot about the Supreme Court, both in the past and what it means for our future in a Trump administration. I wish my thoughts were even a little bit more optimistic regarding the latter. But, recalling the Anita Hill-Clarence Thomas controversy that was depicted in the film, as a historian I can see a clear road between that event and what’s now taking place regarding the Gorsuch nomination. It’s a dark and troubled road that has me asking: where did we go wrong?
First, the movie Confirmation. Released on cable in April of last year (2016), the film begins–after news-footage flashbacks of Ronald Reagan’s controversial nomination of Robert Bork to the Supreme Court in 1987–with the retirement of Justice Thurgood Marshall, and the nomination of African-American conservative judge Clarence Thomas (Wendell Pierce) by President George Bush I to fill his seat. At first it’s smooth sailing, even through a Senate Judiciary Committee controlled by Democrats, but then an investigator (Zoe Lister-Jones), who has heard that Thomas may have “mistreated women,” calls his old colleague from Washington, Anita Hill (Kerry Washington), who’s now a law professor. Hill reluctantly confirms that Thomas sexually harassed her while they worked together 10 years previously. When she feels she must testify, a ferocious political firestorm ensues, momentarily capturing the attention of the nation in a tense he-said, she-said duel of testimony before the Senate. The question in the film is, as it was in real life: who was telling the truth?
I remember very well when the Hill-Thomas controversy broke quite suddenly in October 1991. I was in college in New Mexico, and for about a week the world seemed to come to a halt. Everyone talked about the case everywhere you went: in diners, in class, while working, while having a drink with friends, everywhere. Opinions didn’t break as neatly around gender or political lines as you might think. Many men believed Anita Hill implicitly; some women supported Thomas; I knew conservatives that were deeply troubled by the allegations, and liberals who brushed them off. It was complicated. Part of the problem was that there seemed to be no real resolution. We never really learned whether Hill’s claims were accurate. On October 14, 1991, the Senate narrowly voted to confirm Thomas. He sits on the Supreme Court today, writing very few opinions, saying virtually nothing at oral arguments, and staying out of the public eye.
It was certainly disconcerting–even horrifying–to hear Professor Hill’s testimony. The film portrays it accurately, a host of boorish and vulgar things that Thomas said, crudely sexual, invariably cringe-inducing. Worst of all was Hill’s explanation that she thought, for the sake of her career, she had to endure these things. Millions of women have remarkably similar stories. Sexual harassment, in the workplace and other places, is no less an epidemic today than it was in 1991, or in 1961. The Hill-Thomas matter did help bring it into public view in a very raw and much-needed way. Personally, I believed Hill told the absolute truth. A few months later, in April 1992, I went to hear her speak on my campus. I was one of the few young men in the audience. In fact I remember a woman saying to me, as I went in, “Don’t you feel out of place here?” I don’t remember what Professor Hill said in her lecture, but I remember feeling indignant that someone thought it so highly unusual that a college-age man would care about sexual harassment. Maybe it is. That itself is a problem.
Anita Hill’s testimony before the Senate in October 1991 galvanized the nation. Here is her opening statement as it was recorded by CNN.
Fast-forwarding to 2017, issues of gender, harassment and the mistreatment of women lie uncomfortably close to the surface of the new Donald Trump presidency. The problem now is that behavior far in excess of what Hill accused Thomas of doing, which nearly derailed his nomination, is apparently no longer a disqualifier in the way it most definitely should be. Trump, remember, was caught on tape bragging that the proper way to treat women is to “grab ’em by the p*ssy.” Numerous accusers came forward during the campaign with remarkably similar stories about how Trump groped and demeaned them. The majority of the electorate who voted for Hillary Clinton obviously cared about these issues, but somehow Trump wound up as President anyway. Obviously a man like this, a harasser and an abuser of women, is going to be a disaster for the rights of women in this country and perhaps the world. This is why so many of us, myself included, took part in the Women’s March on January 21 to send a clear message that we must resist his inevitable attempts to take gender relations back to well before the sorry place they stood on the day Anita Hill walked into that Senate room to tell her story.
There’s another aspect to the story too. The Hill-Thomas matter announced to America, in no uncertain terms, that Supreme Court nominations had the potential to become partisan battlegrounds–the most traumatic and rancorous of partisan battlegrounds. Curiously, the kind of knock-down, drag-out political warfare that Hill-Thomas primed us to expect around Supreme Court nominations has generally not transpired as often since 1991 as we thought it might. Nominations of Ginsburg, Roberts and Sotomayor generally went smoothly, despite some obvious political buzzing at the outset; I barely even remember the confirmation hearings of Breyer, Alito or Kagan. But the potential for explosive warfare, descending into the dirtiest gutters and riling up the worst partisan feelings, was always there. We knew from Thomas, and also from the Bork nomination (referenced in the film), that confirmations had the potential to be especially bruising. This sword of Damocles has been hanging over our political life ever since.
Justice Antonin Scalia died unexpectedly in February 2016. The battle for his replacement is just beginning…or is it already over?
And now, here we are. Justice Scalia died about a year ago. Acting out of pure and naked partisan rancor, Republicans utterly refused even to consider any nomination made by Barack Obama; had Hillary won in November, I’m certain Republicans would probably have tried to leave Scalia’s seat open for her entire Presidency. Now Trump has nominated a die-hard believer in the bizarre legal cult of “textualism” or “originalism,” someone likely hostile to the rights of women, LGBT people or anyone who isn’t a corporation. Thomas’s legal views have turned out to be rather extreme. Gorsuch’s record promises even more so. We seem to be going backwards.
That said, I frankly doubt there will be a huge partisan battle over Neil Gorsuch, for one simple reason: Trump’s political allies will rig the system such that any political dissent by Democrats over his nomination will be rendered totally irrelevant. Maybe I’m wrong, but I doubt we’ll see dramatic hearings or thought-provoking testimony like we did in 1991. Gorsuch will likely ascend to the highest court in the land relatively quietly, unvetted, without a chance for us to hear what he really stands for–and certainly without any chance of registering dissent. We’ve skipped over that phase of ultra-rancorous confirmation processes we all feared, because the party in power simply doesn’t care what anyone else thinks anymore. And we’ll be stuck with Gorsuch, and a “textualist” majority on the Court, whittling away the Constitution for the next 30 years.
Here is Anita Hill as she appeared in 2014. She continues to speak out on issues of feminism, race and harassment, and has not regretted speaking out in 1991.
Confirmation was a disturbing film on a number of levels, though an extremely well-made one. But it’s about the Supreme Court of the past. Unfortunately I think the notion of a robust national debate about the merits or character of Supreme Court nominees is in the past too. Confirmations don’t matter anymore and probably never will again. It’s a bleak prediction, but there we are.