Twenty-seven years after nationally televised hearings into Anita Hill's accusations against Supreme Court nominee Clarence Thomas generated a national debate over sexual misconduct, the Senate plunged back into the issue Monday, but in a vastly different country with sharply different values.
The new fight burst into view over the weekend with the allegation by Christine Blasey Ford, a psychologist and professor at Palo Alto University, that Brett Kavanaugh, President Trump’s nominee to the Supreme Court, assaulted her more than three decades ago when they were both high school students.
On Monday, as they tried to gauge the political impact of the tumult, senators on both sides retreated to the relatively safe rhetorical ground of procedure: Republicans accused Democrats of waiting until the last minute to make public the unsubstantiated allegation against Kavanaugh. Democrats charged Republicans with trying to rush the nomination to a vote without thoroughly considering the evidence.
Behind the scenes, Republicans debated how to respond. Some held out the possibility that over the years, Ford might have confused Kavanaugh with another man, a stance that would allow them to undermine her accusation at a public Senate hearing scheduled for next week without directly attacking her account. Others quietly discussed whether the nomination could survive.
While much remained unclear, Ford’s claim has abruptly jeopardized a nomination that until Sunday appeared on track toward a quick, albeit heavily partisan, confirmation. The Republican-led Senate Judiciary Committee had scheduled a vote for Thursday, and the full Senate approval was expected soon after.
Ford’s charge came in a year when accusations of sexual misconduct have dominated national headlines. The expanding #MeToo movement has led to the uncovering of assaults, harassment and threats by scores of prominent men in politics, entertainment, the news media, the clergy and other professions over the last year. Many powerful men have lost their jobs.
By contrast, Hill’s allegations emerged when the legal status of sexual harassment — and the public’s definition of what constitutes acceptable conduct — were still relatively new and very much up for debate.
The country “is in a much different place” than it was in 1991, said Susan Estrich, the Los Angeles lawyer and feminist legal scholar who is credited with inventing the phrase “nuts and sluts” to describe the way Thomas’ defenders sought to portray Hill and women like her.
“Had these allegations been made against Clarence Thomas, we wouldn’t even have gotten to a hearing” with Hill, whose complaints were relatively recent, Estrich said. “So we’re already seeing the power of the #MeToo movement.”
Estrich had her own experience with that power as a chief defender of the late Roger Ailes, who lost his position as the head of Fox News because of sexual misconduct allegations.
The most notable evidence of the country’s change is a visual one.
Among the most circulated images of the 1991 hearings was that of Hill facing a dais filled by 14 middle-aged and elderly white men, who effectively put her credibility on trial, not Thomas’.
Thomas flatly refused to answer any questions about his alleged misconduct, denouncing the hearing as a “high-tech lynching” and a “national disgrace.”
Judiciary Committee Democrats, some of whom had their own histories of sexual misconduct, effectively allowed him to avoid close questioning, visibly cringing at Hill’s accusations. Republicans repeatedly attacked Hill, accusing her of lying.
“Anita had compelling evidence, but the Republicans were acting as prosecutors and judges, and the Democrats were doing nothing,” recalled Susan Deller Ross, a Georgetown University law professor who represented Hill during the 1991 hearings.
After Thomas was confirmed by the Senate by a vote of 52 to 48, the committee’s chairman at the time, Sen. Joe Biden (D-Del.), received sharp criticism for not calling several women who were prepared to testify to Hill’s credibility.
The treatment Hill received has been widely credited with prompting a surge of women’s political activism the following year, which saw an unprecedented number of women elected to high office, including Sen. Dianne Feinstein (D-Calif.), who now is the Judiciary Committee’s ranking Democrat.
Today, the committee dais has changed. The panel’s Republicans remain all white and male, but just five of the 10 Democrats are white men. The committee’s Democrats include four women and three nonwhite senators.
And the Democrats already have pressed Kavanaugh more forcefully than their predecessors questioned Thomas.
Moreover, while the Hill-Thomas hearings galvanized women’s involvement in politics, a confrontation between Ford and Kavanaugh would come at a time when women’s participation has already hit historically high levels, said Margie Omero, a Democratic political consultant and pollster.
“We’ve had a year of debating #MeToo, we have a president who a majority of voters say doesn’t respect women. It shouldn’t be a surprise to anyone if women feel politically activated,” Omero said.
None of that guarantees that the fight over Kavanaugh will end differently than did the battle over Thomas.
Most senators already have made up their minds about Kavanaugh regardless of Ford’s allegations. The small handful, perhaps as few as five, whose votes remain uncertain face a set of questions that the Senate has never resolved.
One is how to judge actions that took place some 35 years ago, when both Kavanaugh and Ford were minors under the law.
In the eyes of at least some of his defenders, age mitigates the offense. Kavanaugh should be judged on the basis of who he is now, said Sen. Orrin G. Hatch (R-Utah), one of the few Judiciary Committee members who sat on the panel during the Thomas confirmation.
“We have to listen to everything there, but if that was true, I think it would be hard for senators to not consider who the judge is today,” Hatch told reporters Monday, referring to the allegation Ford made. “That’s the issue: Is this judge a really good man? He is. And by any measure he is.”
Other senators noted that the argument for treating the issue as a matter of juvenile misbehavior does not hold if Kavanaugh’s current denials prove false.
“If Judge Kavanaugh has lied about what happened, that would be disqualifying,” said Sen. Susan Collins (R-Maine), one of the few senators who has not yet announced a position on the nomination.
In her conversation with Kavanaugh on Friday, before Ford’s identity was known, “he emphatically denied that the allegations were true. He said that he had never acted that way … with any woman,” Collins said.
That leads to a final question for which the Senate has no rules: If the case devolves into a test of one person’s recollection against the other, who has the burden of proof?
In a criminal court, the government must prove a person guilty beyond reasonable doubt. But that protection exists to prevent the government from imprisoning a person unjustly. Senators routinely refer to the confirmation process as being akin to a job interview, and employers routinely disqualify job applicants based on evidence that falls far short of the proof that a court would need.
As the late Senate Majority Leader Robert C. Byrd (D-W.Va.) said when he announced his opposition to Thomas, “no individual has a particular right to a Supreme Court seat.”