Friday, March 24, 2017

My feelings have nothing to do with it! The Gorsuch nomination hearing.

I was expecting Justice Gorsuch to be a little more stoic. He was friendlier, smiled more and was quicker to engage with the usual lack of wit it seems most public figures are saddled with than I had expected.

I just spent four days watching the hearings. The first day was speeches by the senators and the last one by the judge. The second and third day was the senators questioning the judge - the left trying to make him sound like a nightmare and the right like the Lord's right hand man. If you read The Passion Play of Sonia Sotomayor, which I wrote after her nomination hearing (like him, I thought her qualified) you will see it is all nonsense. There it was the Republicans trying to make her sound biased and unsuitable for the job and the Democrats finding her not answering questions just fine - the exact opposite of this week's hearing. Today, for example, Senator Grassley, the chairman, prepared the judge to be asked a lot of questions he couldn't answer. With Sotomayor, Grassley was one of the senators trying to pin her down so that she could never rule in a way he didn't like. It never works! To be fair to him, he admitted in this hearing that he has done what the Democrats did at Gorsuch hearing himself. Read the Sotomayor post for more details. And Sen. Schumer, who has taken the floor to excoriate Gorsuch, did exactly the opposite when Sotomayor took the same stance as Gorsuch on answering questions.

Senator Graham also spent some time criticizing his left leaning associates for how they were treating the judge. But, if you watched the Sotomayor hearing (or read my post) you will see he too has played the same game. There is a difference in that Graham and Grassley were a lot more polite than some of the Democrats, particularly Sen.Whitehouse and Franken. The other Democrats on the committee were at least polite, if critical, which is always fine.

Frankly, the side that is defending the judge always looks nicer and the other side always looks angry and ideological. But, most are biased. There questions and demeanor often depends on who is nominated. I have no doubt that if Justice Garland had had his hearing, the roles would have been reversed.

I did go back and read my Sotomayor post. I think I was fair. I criticized her a lot (because she did seem a little more ignorant of constitutional law and legal philosophy than other past nominees), but I thought she was qualified too. The one thing I got wrong about her was that I did not think she would be as ideological as others thought. She is, as much as any of the rest of the them, if not more so than some others.

Gorsuch is obviously qualified by education and experience. His adversaries acknowledge that. What they are doing is attacking his character and judgment by taking a few cases of his 2700 - maybe 3 or 4 of them, and thereby finding him "for the big guy" and to have poor judgment. To the contrary, his former clerks, his judicial peers and friends assure us he is the nicest man who ever lived and "only follows the law" - ruling sometimes for the little guy, sometimes for the big guy, and never taking into consideration the "identity" of the litigant. And that is clearly what this is about, as are many conservative-liberal issues. If you listen to the Democrat senators questioning him, that is pretty much the nature of the opposition. The result, not the analysis matters to them. If he will not become a liberal and pledge to rule for unions, LGBT, minorities, plaintiffs, etc., then he is too biased to be a judge, in their view. It's ridiculous, of course, and they don't actually say it out loud, but that's the way these hearings always are for a long time.

I am critical of Gorsuch for a number of tactics which are mostly common to all nominees. First, his mantra that he is following the law and his personal views don't matter is ridiculous, whatever the measured tones he repeats it in. What does follow the law even mean? They all say they are doing that. They obviously differ as to what the law means. It is a fantasy that who they are and what they think does not fit into it. There is no coal black line for the justices to follow in controversial cases. To be fair, every Supreme Court nominee and judge, every senator, insists on the same fantasy. I covered this in detail in the Sotomayor post and won't repeat it all here, but, in short, judges are humans who bring their experiences to the bench. To suggest they are stoic marvels who do let emotion in is like saying athletes who perform well under pressure do not have any. The only bigger fantasy is that some hard-rock law exists that they can follow. 

Another phony mantra is that precedent controls. All hail precedent. Well, clearly we need precedent or none of us would have any idea what the law is at all. We need consistency, even when it is arbitrary, as it often is. But, most of us don't want the courts to follow precedent when we are passionate about the result. For example, some judges break the rules about not saying whether they approve of cases when it comes to Plessy-Brown, Dred Scott and Griswold (prophylactics). Some go as far as saying they agree with them. I think they do this not because they are settled law now, but because they are culturally settled and no one will blame them for saying it. Some just say that they are precedents that are due great deference. But, in truth, most of the controversial cases are about overturning precedent or finding some way to diverge from it. For example, Brown overturned Plessy. Roe diverted from the traditional rule of law that only actual cases or controversies could be decided, as it had to in order to make a decision - after all, the pregnant woman had long delivered a baby or aborted it (or I guess died) at the time of the court's decision. We know in fact she had an abortion.

Gorsuch followed this tactic with Roe. We can reasonably surmise that no Republican president is going to nominate a judge unless he knows he or she is is pro-life, even if they wouldn't talk about his personal feelings. But, Gorsuch, recognizing he had to say something, was effusive in stating that Roe was long held precedent, upheld numerous times. He did the same with Brown. When asked why Justices Roberts and Alito said they agreed with some cases and he wouldn't he fell back on - there is no daylight there - in other words he feels the same as them, but he felt he shouldn't say it out loud. So, wink, wink, nudge, nudge, as long as I don't say it, I can hint it. The truth is that it is hard not to say that you agree with important cases that virtually everyone agrees with when a senator is asking you to do so. He could have said, Roberts and Alito bowed to pressure when they felt it was safe and that he would not. 

Both sides hate precedent when it results in a ruling they don't like. It is rich to hear these senators and witnesses complain about what they see as fixed precedent. Almost all of the revolutionary cases involving the bill of rights, free speech, religion, freedom of unlawful search and seizure, right to counsel and so on or the 14th amendment (due process and the like). Many were decided in the Warren Court years, and involved overturning long held precedent. The liberals won these cases over conservative opposition. Now, there are many conservatives who are more passionate in defense of these rights than Democrats. Not only Brown, but many of the cases involving voting rights or the Civil Rights Acts involved overturning precedent. Sometimes they carve out exceptions, in other cases they twist words, and sometimes they expressly overturn rules. It all comes down to the same thing. They change the law because it has become socially or politically untenable.

The law of precedent is a labyrinth which can be summarized briefly. Justices follow prior case law up to the point that they feel they can substitute it with rulings with which they are more comfortable. There is almost always a way to justify it with precedent. If they can't find any, they just ignore it and apply "common sense," or accepted American values or some such other nonsense. 

But, back to Gorsuch's demerits. He is wrong that Bush v. Gore was precedent. It has been used as precedent, but it expressly states that it was not precedent.  

His answers were often robotic. Perhaps he thought giving the same slow answers about his feelings not mattering and precedent controlling was effective. It was not. It did make him look like he was trying to drag it out. Once he gave that answer, he could have just said same answer and not wasted time. But that would mean more questions, so it is probably taught to them. 

I did not really like his jokey manner much. He is entitled to it and I don't think it means he shouldn't be a judge, but I thought he was a little too ready to make a joke. Don't joke in public unless you are funny - and few are.  I especially disliked his Fozzy-Bear voice he uses when emphasizing something. It's not that I don't have annoying vocalizations (I've heard myself on tape), but I'm not in a nationally broadcast hearing to confirm me for one of the most sanctified, if not the most sanctified office in the world. We want sober nominees and not so much giggling ones. Frankly, he did not come off as genuine at all. I found many of the other justices in these hearings much more genuine. Sam Alito comes to mind as very matter of fact. But this is no reason to reject him either.

The Democrats fixated on a few cases where they didn't like the result. I thought this spoke very highly of him. If out of 2700 hundred cases they could criticize only a few, he must be some justice. He pointed out how often he was in the majority and even part of a unanimous decision. He had been reversed only once by the Supreme Court (though few cases get up there), in a way twice with yesterday's ruling on the education law.

And, I have to say, looking at the cases they picked on, I though he was wrong too. Foremost of them, perhaps because it was easiest, was the "Maddin" case, about a truck driver, who was fired after the brakes on his trailer froze. Against orders, he unhitched the trailer and drove the truck to safety (rescue came 15 minutes later, but he couldn't know that) rather than wait there to freeze and possibly die or to unsafely tow the brakeless trailer. He alone dissented from a ruling favoring the truck driver under a whistle-blower safety act because he said, in driving the truck, he operated it - the act protected him from refusing to drive in an unsafe situation - not driving it.  Talk about splitting hairs. The guy reported the problem and had to save his own life.  It was clear to the majority what he was refusing to drive was the truck hitched to the trailer, and that was clearly within the meaning of the Act. 

I also thought he was wrong in the education case involving the autistic boy who was not getting sufficient services under the law. The boy's father was one of the witnesses on the last day. Without going into too many details, his view of the law seemed exactly the opposite of what congress intended, as the Supreme Court found during the hearing, though on appeal of another case. The father of the boy put it best - why would they have even bothered to pass an act if the schools weren't going to really be required to do anything much?

He also disagreed with the Hawaiian Dem. Senator, Mazie Hirono, who was quite annoying, but absolutely right that in a magazine article he had criticized liberals and intimated that only extraordinary cases should be brought. He said at the hearing that it didn't sound like him. Well, it doesn't, if you go by him now, but he used to be much more partisan before he was a judge. In fact, the Democrats spent a lot of time criticizing his memos from when he worked for Bush. They were pro-torture for one thing, which is a little uncomfortable. It is not an unfair criticism, because it does describe how he felt as an adult, but it has to be tempered with the fact that being a judge does change a man (as he pointed out). His own claim sounds awfully questionable - he was a lawyer stating his client's position.

His strongest point is that he has been involved in 2700 cases and been reversed once (he says maybe once) and the Supreme Court decision yesterday would count as two, even if it is a different case. If a few cases to criticize is all they can find, that is pretty good. Even the Buddha probably stumbled once in a while.

The last criticism I have of him - though, again, I would vote to confirm - is that he would not acknowledge that it is important whether a Democrat or Republican president appoints a judge. He refused to get involved with politics and insisted that he doesn't see judges as Democrat or Republican. Nevertheless, it is so obvious it matters, how can it be denied. Trump probably would not have been elected if he did not promise to nominate conservative judges. That is something some people cared deeply about - some voted for him only because of it. And, as we know, the Republicans refused to even give a hearing to Justice Garland, who probably is as decent and impressive a nominee as could be found on either side.

The bottom line. These hearings are mostly a total waste of time. You learn almost nothing and get to hear a lot of speeches from the senators. Even floor speeches by senators are a waste of time. In the real world, if they want us to know something, they tweet it, or maybe hold a press conference. Me and a handful of other people watch C-Span. Very few people have ever listened to even one speech from a senator or member of congress.

If I haven't said it before in this evalovin' blog, I am for a constitutional amendment which would give all presidential nominees of any kind an up or down vote in a maximum of 30 days or they would be automatically confirmed, just the way presidents only have a certain amount of time to veto a bill.

Obviously, that is not going to happen. Amendments are far and few between. In the meantime, though I know Sen. Reid exercised what is called the nuclear option with respect to getting rid of the filibuster on votes for certain lower justices, it was the right call. And I hope, if the Democrats filibuster Gorsuch, that McConnell exercises it with respect to all judges - I'd prefer all nominees.

I fully expect Gorsuch will be a Supreme Court Justice soon. And I seriously doubt that all three Justice Ginsburg and Breyer are both going to last the entire four years of Trump's term, particularly Ginsburg. He will probably get another. And, if the Democrats are going to filibuster anyone he puts up and not vote for him (it used to be that almost every judge was unanimously approved), Trump may go very conservative indeed.

In modern times, even if you count Justice Garland as a 46-54 rejection (that is, count all R votes as no and all D votes as Y) Democrats have historically tougher on Republican nominees than visa versa. I start with Reagan, simply because that is when I became politically aware, or more so anyway, and also because it is reasonable to call that modern times in terms of the Supreme Court (if you go back further though, it really doesn't change much - . He nominated 5 justices. 3 were unanimous. O'Connor, Scalia and Kennedy - Scalia being the shocker, as he was already a little contradictory.

Rehnquist's Chief Justice nomination was, unlike the other 3, controversial. In the end, he won, but nowhere close to being unanimous - 65 to 33. Of the 33 no votes, 31 were Democrats.

Justice Bork, the only Justice to lose a floor vote since Nixon's two failed appointments, lost 42-58. 52 of the nos were Democrats - all but 2. Personally, I found Bork a little weird, which may not be fair, as he was "borked" and it may have given me a bad impression. I was also still very liberal. But, some of his opinions seemed so 19th century.

George H.W. Bush got two nomination. Souter won easily, 90-9, but Thomas was roasted for allegedly telling a few dirty jokes (see last week's post) and barely won, 52-48. 46 of the 48 nos were Democrats.

We now turn to the first Democrat President's nominees. Clinton nominated Breyer and Ginsburg. She was confirmed 96-3 and he was confirmed 87-9. Only a few nos, but all Republican.

George W. Bush had much greater trouble. He nominated three and two were confirmed. Harriet Miers was clearly unqualified and had to be withdrawn. Of the two that got votes, Justice Roberts (CJ), widely considered to have had the most impressive performance of any nominee, could only must a 78-22 win. All 22 nos were Democrats. Sam Alito had even more trouble. He won 52-48, but 24 senators voted to filibuster - 23 Democrats and one independent who caucused with the Democrats. In the floor vote, all nos were Democrats except for the same independent and one Republican who later became a Democrat.

With Obama, for the first time, Republicans started getting into the partisan game when it comes to the Supreme Court, but until Garland, still not as lock step as Democrats. Sotomayor won 63-31 (all nos Republican) and Kagan 63-37 (all nos Republican except Ben Nelson, who frequently voted with Republicans).

Garland, of course, the Republicans blocked, refusing to have even a hearing. But even if we count him as 54-46 against, with all Republicans voting no, historically, the Democrats clearly have given Republicans a much harder time in the last 30 or so years than the Republicans have given Democrat nominees. I think at this point, all gloves are off, although I suspect Senator Graham and a few other Republicans might have voted for Garland. He possibly could have won although doubtful.

That's all, folks.

Friday, March 17, 2017

What's a pluffer?

I’ve been on trial lately (no, I'm not the defendant, stupid – I’m representing a client) and have neglected the world’s greatest unread blog. I shall remedy that today, having been given a short respite.

I was watching C-Span the other day. A handsome 40 something man, already reaching the apex of his career, made a statement to a congressional committee. I had actually watched this statement, made over a quarter of a century ago, live. But, I had forgotten it in the crush of future events. He spoke extremely slowly, measured, and a few times excused himself as he started to choke up speaking about his family - what they had survived and how they had encouraged and helped him. Here is some of his testimony. I’ve added paragraphs to make it easier to read, corrected a couple of spelling errors and excised the speakers name for the purposes of surprise, although you will figure it out rather quickly (I think):

“. . . Much has been written about my family and me over the past 10 weeks. Through all that has happened throughout our lives and through all adversity, we have grown closer and our love for each other has grown stronger and deeper. I hope these hearings will help to show more clearly who this person [             ] is and what really makes me tick.

My earliest memories, as alluded to earlier, are those of Pin Point, GA, a life far removed in space and time from this room, this day and this moment. As kids, we caught minnows in the creeks, fiddler crabs in the marshes, we played with pluffers, and skipped shells across the water. It was a world so vastly different from all this.

In 1955, my brother and I went to live with my mother in Savannah. We lived in one room in a tenement. We shared a kitchen with other tenants and we had a common bathroom in the backyard which was unworkable and unusable. It was hard, but it was all we had and all there was. Our mother only earned $20 every 2 weeks as a maid, not enough to take care of us. So she arranged for us to live with our grandparents later, in 1955.

Imagine, if you will, two little boys with all their belongings in two grocery bags. Our grandparents were two great and wonderful people who loved us dearly. I wish they were sitting here today. Sitting here so they could see that all their efforts, their hard work were not in vain, and so that they could see that hard work and strong values can make for a better life. . . .

I attended segregated parochial schools and later attended a seminary near Savannah. The nuns gave us hope and belief in ourselves when society didn't. They reinforced the importance of religious beliefs in our personal lives. Sister Mary Virgilius, my eighth grade teacher, and the other nuns were unyielding in their expectations that we use all of our talents no matter what the rest of the world said or did. After high school, I left Savannah and attended Immaculate Conception Seminary, then Holy Cross College. I attended Yale Law School. Yale had opened its doors, its heart, its conscience to recruit and admit minority students. I benefited from this effort.

. . . But for the efforts of so many others who have gone before me, I would not be here today. It would be unimaginable. Only by standing on their shoulders could I be here. At each turn in my life, each obstacle confronted, each fork in the road someone came along to help. I remember, for example, in 1974 after I completed law school I had no money, no place to live. Mrs. Margaret Bush Wilson, who would later become chairperson of the NAACP, allowed me to live at her house. She provided me not only with room and board, but advice, counsel and guidance. As I left her house that summer, I asked her, "How much do I owe you?" Her response was, "Just along the way help someone who is in your position." I have tried to live by my promise to her to do just that, to help others.

So many others gave their lives, their blood, their talents. But for them I would not be here. Justice Marshall, whose seat I have been nominated to fill, is one of those who had the courage and the intellect. He is one of the great architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in the Pin Point, GA's of the world. The civil rights movement, Rev. Martin Luther King and the SCLC, Roy Wilkins and the NAACP, Whitney Young and the Urban League, Fannie Lou Hamer, Rosa Parks and Dorothy Hite, they changed society and made it reach out and affirmatively help.

I have benefited greatly from their efforts. But for them there would have been no road to travel. My grandparents always said there would be more opportunities for us. I can still hear my grandfather, "Y'all goin' have mo' of a chance then me," and he was right. He felt that if others sacrificed and created opportunities for us we had an obligation to work hard, to be decent citizens, to be fair and good people, and he was right. You see, Mr. Chairman, my grandparents grew up and lived their lives in an era of blatant segregation and overt discrimination. Their sense of fairness was molded in a crucible of unfairness. I watched as my grandfather was called "boy." I watched as my grandmother suffered the indignity of being denied the use of a bathroom. But through it all they remained fair, decent, good people. Fair in spite of the terrible contradictions in our country. They were hardworking, productive people who always gave back to others. They gave produce from the farm, fuel oil from the fuel oil truck. They bought groceries for those who were without, and they never lost sight of the promise of a better tomorrow. I follow in their footsteps and I have always tried to give back.

Over the years I have grown and matured. I have learned to listen carefully, carefully to other points of views and to others, to think through problems recognizing that there are no easy answers to difficult problems, to think deeply about those who will be affected by the decisions that I make and the decisions made by others. But I have always carried in my heart the world, the life, the people, the values of my youth, the values of my grandparents and my neighbors, the values of people who believed so very deeply in this country in spite of all the contradictions. It is my hope that when these hearings are completed that this committee will conclude that I am an honest, decent, fair person.
I believe that the obligations and responsibilities of a judge, in essence, involve just such basic values. A judge must be fair and impartial. A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda, and the judge must get the decision right. Because when all is said and done, the little guy, the average person, the people of Pin Pojnt, the real people of America will be affected not only by what we as judges do, but by the way we do our jobs. If confirmed by the Senate, I pledge that I will preserve and protect our Constitution and carry with me the values of my heritage: fairness, integrity, openmindedness, honesty, and hard work."

The judge was being nominated to sit on the Supreme Court. He was a Republican and a conservative, and was challenged in that hearing by Democratic committee members because of their fears of his ideology. As I so often find with myself (and I know others find this frustrating) I agreed on many of their points while finding their manner a little much. But, without suggesting the Democrats were behaving any differently than their Republican colleagues would have if the situation was reversed, my dislike of their behavior would get worse in the coming weeks.

A month later, Justice Clarence Thomas (he was a Court of the Appeals Justice at the time), was back for another hearing which was, until the O.J. trial a few years later, the most salacious public event in a long time. The committee, or at least many of them, had decided that he was the person he said he was.  Being accused of sexual harassment by a former colleague, Anita Hill, he was forced to publicly defend himself. Here’s an excerpt from his next opening statement:

“ . . . The first I learned of the allegations by Prof. Anita Hill was on September 25, 1991, when the FBI came to my home to investigate her allegations. When informed by the FBI agent of the nature of the allegations and the person making them, I was shocked, surprised, hurt, and enormously saddened. I have not been the same since that day. For almost a decade my responsibilities included enforcing the rights of victims of sexual harassment. As a boss, as a friend, and as a human being I was proud that I have never had such an allegation leveled against me, even as I sought to promote women, and minorities into nontraditional jobs. In addition, several of my friends, who are women, have confided in me about the horror of harassment on the job, or elsewhere. I thought I really understood the anguish, the fears, the doubts, the seriousness of the matter.

But since September 25, I have suffered immensely as these very serious charges were leveled against me. I have been wracking my brains, and eating my insides out trying to think of what I could have said or done to Anita Hill to lead her to allege that I was interested in her in more than a professional way, and that I talked with her about pornographic or xrated films. Contrary to some press reports, I categorically denied all of the allegations and denied that I ever attempted to date Anita Hill, when first interviewed by the FBI. I strongly reaffirm that denial.
. . . .
Mr. Chairman, something has happened to me in the dark days that have followed since the FBI agents informed me about these allegations. And the days have grown darker, as this very serious, very explosive, and very sensitive allegation or these sensitive allegations were selectively leaked, in a distorted way to the media over the past weekend. As if the confidential allegations, themselves, were not enough, this apparently calculated public disclosure has caused me, my family, and my friends enormous pain and great harm.

I have never, in all my life, felt such hurt, such pain, such agony. My family and I have been done a grave and irreparable injustice. During the past 2 weeks, I lost the belief that if I did my best all would work out. I called upon the strength that helped me get here from Pin Point, and it was all sapped out of me. It was sapped out of me because Anita Hill was a person I considered a friend, whom I admired and thought I had treated fairly and with the utmost respect. Perhaps I could have better weathered this if it were from someone else, but here was someone I truly felt I had done my best with. Though I am, by no means, a perfect person, no means, I have not done what she has alleged, and I still do not know what I could possibly have done to cause her to make these allegations.

When I stood next to the President in Kennebunkport, being nominated to the Supreme Court of the United States, that was a high honor. But as I sit here, before you, 103 days later, that honor has been crushed. From the very beginning charges were leveled against me from the shadows—charges of drug abuse, antisemitism, wife-beating, drug use by family members, that I was a quota appointment, confirmation conversion and much, much more, and now, this. I have complied with the rules. I responded to a document request that produced over 30,000 pages of documents. And I have testified for 5 full days, under oath. I have endured this ordeal for 103 days. Reporters sneaking into my garage to examine books I read. Reporters and interest groups swarming over divorce papers, looking for dirt. Unnamed people starting preposterous and damaging rumors. Calls all over the country specifically requesting dirt. This is not American. This is Kafka-esque. It has got to stop. It must stop for the benefit of future nominees, and our country. Enough is enough. I am not going to allow myself to be further humiliated in order to be confirmed. I am here specifically to respond to allegations of sex harassment in the work place. I am not here to be further humiliated by this committee, or anyone else, or to put my private life on display for a prurient interest or other reasons. I will not allow this committee or anyone else to probe into my private life. This is not what America is all about. To ask me to do that would be to ask me to go beyond fundamental fairness.

Yesterday, I called my mother. She was confined to her bed, unable to work and unable to stop crying. Enough is enough. Mr. Chairman, in my 43 years on this Earth, I have been able, with the help of others and with the help of God, to defy poverty, avoid prison, overcome segregation, bigotry, racism, and obtain one of the finest educations available in this country. But I have not been able to overcome this process. This is worse than any obstacle or anything that I have ever faced. Throughout my life I have been energized by the expectation and the hope that in this country I would be treated fairly in all endeavors. When there was segregation I hoped there would be fairness one day or some day. When there was bigotry and prejudice I hoped that there would be tolerance and understanding some day.

Mr. Chairman, I am proud of my life, proud of what I have done, and what I have accomplished, proud of my family, and this process, this process is trying to destroy it all. No job is worth what I have been through, no job. No horror in my life has been so debilitating. Confirm me if you want, don't confirm me if you are so led, but let this process end. Let me and my family regain our lives. I never asked to be nominated. It was an honor. Little did I know the price, but it is too high. I enjoy and appreciate my current position, and I am comfortable with the prospect of returning to my work as a judge on the U.S. Court of Appeals for the D.C. Circuit and to my friends there. Each of these positions is public service, and I have given at the office. I want my life and my family's life back and I want them returned expeditiously. I have experienced the exhilaration of new heights from the moment I was called to Kennebunkport by the President to have lunch and he nominated me. That was the high point. At that time I was told eye-to-eye that, Clarence, you made it this far on merit, the rest is going to be politics and it surely has been.

There have been other highs. The outpouring of support from my friends of long-standing, a bonding like I have never experienced with my old boss, Senator Danforth, the wonderful support of those who have worked with me. There have been prayers said for my family, and me, by people I know and people I will never meet, prayers that were heard and that sustained not only me, but also my wife and my entire family. Instead of understanding and appreciating the great honor bestowed upon me, I find myself, here today defending my name, my integrity, because somehow select portions of confidential documents, dealing with this matter were leaked to the public.

Mr. Chairman, I am a victim of this process and my name has been harmed, my integrity has been harmed, my character has been harmed, my family has been harmed, my friends have been harmed. There is nothing this committee, this body or this country can do to give me my good name back, nothing. I will not provide the rope for my own lynching or for further humiliation. I am not going to engage in discussions, nor will I submit to roving questions of what goes on in the most intimate parts of my private live or the sanctity of my bedroom. These are the most intimate parts of my privacy, and they will remain just that, private.”

I am not here to tell you whether he did the things Anita Hill said he did or not. I can’t read either of their minds (a lot of people I know are sure they can), and I do not think there is any smoking gun that can let us say with certainty. But, I easily remember my thoughts at the time. Without knowing, I tended to believe that what she said was true. One of the reasons is, despite all the hoopla about it, what he was accused of was so modest, so nothing in my mind, that I know that a hundred or thousand times over I have done or said things which were far "worse," and would have disqualified me from that position (as if . . . ), but which I still think were nothing. He was not accused of touching, threatening, insulting, berating or even teasing her.  The specific claims were (courtesy of Wikipedia and some other internet sources):

Naturally, there was a pile on. One co-worker said he pressured her for a date and made jokes about women’s private parts, but she never felt harassed or threatened. I should hope not. Another said "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female." She too never felt harassed. Neither testified. One who did said she worked literally next to Thomas for two years testified she never heard him make a sexual or offensive comment. Others testified to his character. Anita Hill herself said she was not sure if what he said amounted to sexual harassment, but she thought it unfitting for a member of the Supreme Court. She said he used words like “penis,” “breasts” and “pubic hair.” I can’t find it but I specifically remember a joke about a pubic hair on a coke can and him mentioning a porn movie he watched that starred “Long Dong Silver” (I don’t know if that is a real person). I believed her, because I thought she testified credibly and can’t see why she’d make it up, especially considering that most people would feel great pride someone they knew was on the Supreme Court, and they had still been friendly after they stopped working together.

What disturbed me most was the hypocrisy of the Senators, and not just the Democrats. Orrin Hatch defended Thomas with fervor. I’ve come to appreciate him more as he ages (and I guess I age) as his tone has become far more moderate, but I thought his defense of Bork previously had been over-zealous. During the Thomas hearing, he said that anyone who did what Hill had said would be insane. Insane! To make a joke about a pubic hair? That is remarkable because he was close friends with Ted Kennedy, who also sat on the committee and was famous even then for being very crude and sexually forward with women, probably well past most people’s personal standards for sexual harassment.

What I would have preferred is that the senators all laughed the allegations out of court – well, committee, although I’m sure that would have made a lot of women and some men furious too. Now, of course, we have a president who has said – well, I’m sick of talking about that, but let’s just say that Trump makes Thomas look like the proverbial choir boy. People tell dirty jokes. Again, I can’t know, but I would bet that every single senator sitting there, not just Kennedy, had said or done things that would disqualify them from their own seats had they been public knowledge. I’ll go further. I’m a man, so I will speak for men and say that if women could read the minds of ANY man, even the most staid and apparently sexless, they would not want to be alone in a room with them let alone vote for them. For crying out loud, we all know about the Martin Luther King, Jr.’s sex tapes. Would he be disqualified? I’m pretty sure if we could read women’s minds we all might react similarly.

Thomas was right. To this day, he is marked by the allegations even in the age of Trump as if he were an accused rapist. It was a figurative lynching. He did however make the same mistake that is increasingly made today by his adversaries. He assumed it was about race, calling it a high-tech lynching and saying that this was what happened to uppity black men. I suspect he was giving Democrats a little bit back for their own identity politics, which were a fraction of what they are today. It was not about race. It was about politics, just as now. Often I hear from Democrat friends to this day that Obama was hated by Republicans because he was black. I’m sure there are some people – which he himself acknowledged – but, if Clarence Thomas ran for president, almost all Republicans would vote for him.

If tomorrow, Thomas became a liberal, rather than the reflexive conservative he seems to be, he would also be lionized by the Democrats and demonized by Republicans. This is just the way it is. And, because Neil Gorsuch is a conservative, he will be demonized by Democrats and lionized by Republicans as Thomas actually is. So far, the Democrats cannot find anything salacious and are reaching to the bottom of the barrel to find absolutely anything they can. I hope for his sake, he never made a dirty joke or was caught looking at a women’s cleavage or turned his back on a black on video (even if he was going to get him a glass of water), because the attacks will be relentless.

Watching the Thomas video, I was reminded of so many other people I have seen testify in congress. Frankly, the behavior of congresspersons and senators is so debasing and obviously partisan, it is laughable in some ways. But, I don’t imagine it is fun if you have to sit there and take it. I don’t think I could do it. I can in court because I represent clients who need me to remain stoic (or usually). But, if it were me before congress – I have my fantasies. Of course, if I wanted the job. . . maybe I’d sit there and politely listen too. But, I do not understand why people in an adverse administration don’t tell them to stick it once they are nominated. I'd be happy to say "impeach me if you don't like it." Jusice Thomas kind of did. And, when he sits silently in court, I think he is sort of sticking it to them too - it's an I don't care what you think of me thing. Maybe not.

Unfortunately, I will miss the Gorsuch live hearing and may not get to watch it for a week or so. I think I’ve seen every single nomination hearing, many on videotape long after they were held, since they’ve been taping them. If I remember correctly, Rehnquist’s hearing for the Chief Justice position was first, then Scalia.  For the most part, they are a waste of time. The Justices know what they have to say to be confirmed and usually they are. These are not normal times, however. There is blood in the water and hysteria in the air.  I expect Gorsuch to be phlegmatic, but if you have never seen one before, this might be a good one to start with.

Oh, and what's a pluffer, Justice Thomas?

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .