Clarence Thomas

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Anita Hill and Sandra Fluke: Does 20 years really make a difference?

Tonight while I was surfing around looking for updates on the Malaysian jet still missing somewhere between Malaysia and Vietnam – or perhaps somewhere else – I happened upon a long story in the New York Times about the new documentary about Anita Hill.  Sheryl Gay Stolberg’s review of the movie is actually a long profile of Hill.  I’m very happy that Hill allowed the documentary to be made because it means that a whole new generation of young men and women will be introduced to a remarkable person.

Back then there was no social media, no Facebook, no Twitter but the word still spread quickly among women that someone was about to accuse a nominee for the United States Supreme Court of sexual harassment.  No one knew exactly who she was, but we knew this was going to be important.  I was in Washington, D.C. that day at a meeting, but I remember sitting in a bar that afternoon with several other women all of us transfixed by what was happening on the television.  I was astounded that none of the men, and the Judiciary Committee was all white men, had any clue.  Stolberg puts it this way

“I think this event changed the course of her life and gave her a public mission that she took on,” said Fred Lawrence, the Brandeis president and a Yale Law School classmate of Ms. Hill’s. “It’s not a duty that she volunteered for, but I think she understood that the circumstances had put her in a unique role, and gave her a voice.”

The hearings were a surreal spectacle, as senators prodded an obviously uncomfortable Ms. Hill through awkward testimony about penis size, pubic hair and a pornographic film star known as Long Dong Silver — shocking public discourse at the time. When the hearings ended, Ms. Hill returned to teaching commercial law at the University of Oklahoma, trying, as she says in the film, to find “a new normal.” It proved difficult.

Ms. Hill at the hearings.

Ms. Hill at the hearings.

And I think every women who watched the hearings remembers that electric blue suit.

There were thousands of letters of support, but also death threats, threats to her job. Conservative state lawmakers wanted her fired; fortunately, she had tenure. Even years later, she felt “a discomfort,” she said. One dean confided that he had tired of hearing colleagues at other schools remark, “Isn’t that where Anita Hill is?”

In Washington, her testimony reverberated. Sexual harassment claims shot up. “Our phones were ringing off the hook with people willing to come forward who had been suffering in silence,” said Marcia D. Greenberger, founder and co-president of the National Women’s Law Center in Washington, where Ms. Hill serves on its board.

Congress passed a law allowing victims of sex discrimination to sue for damages, just as victims of racial discrimination could. Waves of women began seeking public office. In 1991, there were two female senators. Today there are 20.

Clarence Thomas was confirmed even though, as Hill puts it

“I believe in my heart that he shouldn’t have been confirmed,” she said in a recent interview, acknowledging that it irritates her to see Justice Thomas on the court. “I believe that the information I provided was clear, it was verifiable, it was confirmed by contemporaneous witnesses that I had talked with. And I think what people don’t understand is that it does go to his ability to be a fair and impartial judge.”

And there are still those who believe she made the whole story up. Then I started thinking about a more recent woman’s experience with Congress. This is from a story in the Daily Beast.

Rep. Darrell Issa’s Thursday hearing went off the rails early. “What I want to know,” demanded Rep. Carolyn Maloney, D-NY, as she looked at the all-male panel of clerics before her, “is, where are the women?”

The hearing, titled “Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience,” was about religious freedom, Issa said, but it took place against the backdrop of a national controversy regarding the White House’s mandate that all employers provide birth control as part of their insurance plans.

As it happens, there was one woman present prepared to testify on the issue of birth control. Sandra Fluke, a 30-year-old Georgetown University Law School student, had been contacted earlier in the week by committee minority leaders after Democrats saw a video of her speaking about the mandate at the National Press Club on February 9.

Sandra Fluke

Sandra Fluke

Congress had a woman to ask the question, but the panel was all men.  Fluke went on to testify at an informal hearing arranged by Democratic women.  The Huffington Post described it this way

This week she received almost rock-star treatment as the lone witness at an unofficial Democratic-sponsored hearing. While the rest of the Capitol was mostly empty, Democratic leader Nancy Pelosi, three other Democrats and dozens of mainly young women supporters crowded into a House office building room to applaud Fluke as she spoke of the importance of reproductive health care to women.

Prominently displayed by Rep. Carolyn Maloney, D-N.Y., was a photo of five religious leaders, all men and all appearing at the invitation of the Republican majority, testifying last week with Fluke visible in the background, sitting in the visitors’ section.

Democrats pounced on that image of a hearing discussing contraceptive rights being dominated by men while the one person Democrats had asked to appear on the witness stand, a woman, was turned away. Pelosi, D-Calif., said they had since heard from 300,000 people urging that women’s voices be heard on the issue.

“We almost ought to thank the chairman for the lack of judgment he had,” in denying a seat to Fluke, Pelosi said.

Committee chairman Darrell Issa, R-Calif., had said at last week’s hearing that the panel’s focus was on whether the administration policy was a violation of religious freedom. He said at the time that Fluke, invited by Democrats in her capacity as former head of Georgetown Law Students for Reproductive Justice, was not qualified to speak on the religious rights question.

“I’m an American woman who uses contraceptives,” Fluke said, when asked Thursday by Rep. Elijah Cummings, D-Md., about her qualifications to speak on the issue.

So maybe we have made progress in the years since Anita Hill.  Some Republican men don’t seemed to have learned much, but there were plenty of woman and men in Congress who wanted to hear Fluke’s testimony.  And we can thank Anita Hill for her part in making change happen.

Photograph of Anita Hill: American Film Foundation

Photograph of Sandra Fluke:  Getty Images

Daily Beast story: Matthew DeLucca

Huffington Post story: Jim Abrams

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Clarence Speaks – and makes news

It has been seven years or so since Justice Clarence Thomas has said word at  Supreme Court during oral arguments so when he spoke, he made the news.  But he still hasn’t asked a question, so that streak is intact, and we aren’t really sure what he said.

According to the Washington Post

Thomas seemed to be making a lighthearted joke about lawyers trained at his alma mater, Yale Law School, or its rival, Harvard; the Ivy League is a common Thomas target. But several justices were speaking and laughing at the time, and Thomas’s exact comments apparently are lost to history.

Too bad.  This is what we have for a transcript.

Monday’s case was from Louisiana, and the question was whether years-long delays in funding lawyers for an indigent man facing the death penalty violated his right to a speedy trial.

Jonathan Boyer’s lawyer, Richard Bourke of New Orleans, said the delay meant that Boyer did not have lawyers competent to handle a complicated murder case that brought the prospect of the death penalty.

Justice Antonin Scalia, however, suggested that Boyer did have qualified lawyers. Didn’t one of them go to Yale? he asked Carla S. Sigler, the Louisiana assistant district attorney in the case.

She did, Sigler said. And didn’t another attend Harvard? Scalia asked. Yes, again, Sigler said.

“Son of a gun,” Scalia said.

Thomas was among the justices — all nine attended either Harvard or Yale — who either laughed or made side comments at that point.

All that appears in the transcript is Thomas saying, “Well — he did not — ”

It seems likely that the rest of the sentence was along the lines of “have competent counsel.” Sigler, smiling, replied: “I would refute that, Justice Thomas.”

Sotomayor, a Yale graduate, then asked Sigler what was enough to make a lawyer constitutionally adequate.

“Is it anybody who’s graduated from Harvard and Yale?”

More laughter.

“Or even just passed the bar?” Sotomayor asked.

“Or LSU law,” Sigler said, referring to Louisiana State University.

Thomas famously does not believe that the Justices should be asking pesky questions during oral argument believing that it is the time that the lawyers for each side should lay out their cases.  Other Justices don’t agree.

None of his colleagues, conservative or liberal, share such a view. They believe that the lawyers make their case in briefs filed with the court, and that oral arguments are the chance for the justices to challenge their theories and make them respond to their opponents’ arguments.

Makes me wonder if he reads any of the briefs.  He doesn’t have to because Justice Scalia is around to tell him how to vote.

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2009. Top row (left to right): Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row (left to right): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. (Photo credit: Wikipedia)

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And Scalia, too

A few days ago, I posted about Justice Thomas and his conflicts of interest.  Now it seems that Justice Scalia has his own ethical problems.

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Looking around, it appears that ethics are not a huge consideration for a lot of judges and politicians these days.  Massachusetts has two political leaders currently serving time and a third one is likely on the way.  Plus, a former Senate President, William Bulger, has got to be concerned about his reputation as his brother, James, faces trial on 19 counts of murder here as well as others in Florida and Oklahoma.  There have always been hints that William tried to shield James while James was on the run.  William’s son has been implicated in conflict of interest in hiring at the Massachusetts Department of Probation. 

There is a new translation of Aristotle’s Nicomachean Ethics reviewed in this week’s New York Times Book Review.  While I’m not sure I agree with the reviewer, Harry V. Jaffa, that Leo Strauss was the “greatest political philosopher of the 20th century”, a couple of sentences caught my attention.

The existence of politics before political philosophy is what makes political philosophy possible. Politics is inherently controversial because human beings are passionately attached to their opinions by interests that have nothing to do with the truth. But because philosophers — properly so called — have no interest other than the truth, they alone can bring to bear the canon of reason that will transform the conflict of opinion that otherwise dominates the political world.

Unfortunately, what has been called philosophy for more than a century has virtually destroyed any belief in the possibility of objective truth, and with it the possibility of philosophy. Our chaotic politics reflects this chaos of the mind. No enterprise to replace this chaos with the cosmos of reason could be more welcome

Maybe Aristotle should be required summer reading for the Supreme Court, the Massachusetts General Court (Legislature) as well as for the rest of us.  My husband pulled our copy of Aristotle down from the shelf last night.  Neither of us have read it since our freshman year at St. John’s College:  Maybe it is time to read it again.  Maybe Justice Scalia and Justice Thomas need to think about whether the opinions they are writing as influenced by interests “that have nothing to do with the truth.”

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Justice Clarence Thomas should resign

I’ve been thinking about this for several days now.  I’ve asked myself if this is just the left/progressive/liberal media piling on someone they have never liked much?  Am I attracted to this story because I never wanted him confirmed in the first place?  (I have my “I believe Anita” button somewhere.)  Is it because he never asks questions?  Because 99% of the time he does what Justice Scalia does?

I don’t think the New York Times is the liberal media.  And, yes, I’d like him to fall as payback for what he did to Anita Hill.  (I can’t be as forgiving as she).  I do believe that having him on the Court is a waste of a seat.  I also know that when Justice Kagan does not recuse herself from voting on the health care reform Fox etc. will be jumping all over her.  Justice Kagan has, however, recused herself from several cases that were already filed and being considered by the Department of Justice as well as her former office, Solicitor General.

What is the Times story about?  It is about preservation of a site in Pin Point, GA where Justice Thomas’ mother once picked crabs and the creation of a museum there.  It is about the owner making connection with Harlen Crow through Justice Thomas.  Crow, you may remember, financed the Swift Boat campaign against Senator John Kerry.

Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

OK, Justices have to have a life outside of court and they have friends.  But as the Mike McIntire who wrote the story in the Times points out

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

What do other Justices, Justices on the other side of the Court’s ideological divide do?

It is not unusual for justices to accept gifts or take part in outside activities, some with political overtones.

Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

And as I pointed out earlier, Justice Kagan has recused herself from a number of cases.

Justice Thomas and Harlan Crow are friends.  They spend time together.  Crow is helping to finance the museum and Thomas has done more than simply introduce the property owners to him.  According to the Times story he has picked the people to put the exhibit together and has worked on the film that will be shown.  Opposition first came from a group that opposes Thomas politically, but does that make this suspect?

No one is saying that Crow and his money have directly influenced any of Thomas’ votes.  But we can have suspicions.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

“When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”

Plus we all know that the Affordable Health Care Act will be coming to the Court.

Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court. Mr. Crow’s donation to Liberty Central was reported by Politico.

So what does this all mean?  What can anyone do about it?

The Code of Conduct for judges does not directly apply to the Supreme Court largely because there is not higher court to enforce it.  Justices do say that they follow the Code anyway.  But Thomas does not seem to have reported all the travel paid for by Crow.  Even as a group of law professors and Common Cause call for legislation to extend the Code directly to Supreme Court Justices one has to wonder who would be the enforcer.  If a Justice is already ethically aware there is no problem.   But there will always be a Clarence Thomas who appears not to have a clue.  His friends should tell him it is time for him to leave the Court.

 

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Challenge to Obama’s qualifications

The Supreme Court has been asked to take a case which questions whether  Barack Obama is Constitutionally qualified to be President.  At issue is the fact that his father was not an American citizen even though his mother was and he was born in Hawaii after it was granted statehood.  The allegation is that he is not  a “natural born citizen.”

NBC has an interesting take on the situation concluding that it is unlikely the Supreme Court will intervene.  Politico.com adds an interesting piece of information:  Clarence Thomas is the one asking that the Court consider taking the case.

The U.S. Supreme Court will decide Friday whether to take up a case over president-elect Barack Obama’s citizenship — one of a few around the country seeking to nullify his election, but this one has an interesting lineage. It was referred to the high court by Justice Clarence Thomas, the court’s only African-American justice.

Maybe Thomas is just returning the favor — putting through a case that questions whether Obama should be president, after Obama said he wouldn’t have picked Thomas for the high court.

Can I believe that Thomas could be so petty?  You betcha!

A decision is expected on Monday.