Speaking Truth to Power (18 page)

The agents ended the session by informing me that my corroborating witness would be contacted and that I would undoubtedly hear from them again with follow-up questions. Follow-up contact, Agent Luton explained to me, was inevitable, and I should expect it. We chatted briefly after the interview, which lasted approximately forty-five minutes, and I showed them the work I was having done on my house.

The agents’ questions were not as direct as those Jim Brudney had asked a few days earlier when he sought the details of Thomas’ behavior. In responding to the FBI agents, I spoke specifically to their questions but did not elaborate or volunteer more information. I was much more uncomfortable talking about the matter to two strangers face-to-face than I had been on the telephone to Jim Brudney. Though Brudney was only an acquaintance, I knew and trusted him and his role more than I trusted the FBI agents. And again, the information I provided was enough to begin their investigation, had an unbiased and careful investigation been the goal.

There was no follow-up to the interview. The next time I heard from Agent Luton was in the spring of 1992, when he called to get a reference for a law student who had applied for a position with the FBI. “Is a reference from me going to hurt or help the student given the fact that you contradicted my hearing testimony?” I felt compelled to ask. Luton said that the agency took into account all of the references it sought out. He added, almost condescendingly, “I told you that the process wasn’t going to be easy.” I had not expected it to be easy, but I certainly had not expected the FBI to become actively involved in the harm that was done.

On Tuesday FBI agents visited Susan Hoerchner at her home in Whittier, California. Their conversation lasted approximately one hour, and she told them what she remembered of my account to her of my experience. She never heard from the FBI again either.

I continued to get what I characterized as the “runaround” from
Harriet Grant of Biden’s staff. “No, I did not promise to circulate your statement with the FBI report,” she said when I called to ask if that had been done. “No, I can’t tell you how your statement was handled,” she added.

My frustration was mounting, but so was my resolve. I called two friends, Sonia Jarvis and Kim Taylor, to ask whether they knew someone on the committee staff who could give me some information. I tracked Sonia down in California, where she was attending a Stanford alumni weekend. She and Kim, another law school classmate teaching at Stanford, suggested I talk to Charles Ogletree, who was at the same function.

Charles Ogletree is a professor at Harvard Law School with an outstanding reputation for his skills and integrity. He had worked in D.C. for ten years in the public defender’s office, trying criminal cases. We spoke, and I gave him the substance of my concern that my statement had been mishandled. Though I did not know it, Ogletree passed the information to Laurence Tribe, a Harvard colleague, one of the country’s leading authorities on constitutional law and an adviser to Biden. Nor did I know that on September 27 Tribe contacted Biden staffer Ron Klain to impress upon him the seriousness of my charges. “A group of women law professors on the West Coast are concerned about the statement,” Tribe is reported to have told Biden. Again unknown to me, the senator responded by delivering my statement to all of the Democrats on the Judiciary Committee.

Senator Paul Simon telephoned me after reading the statement and the FBI report. “You cannot maintain confidentiality if the information is circulated to the entire Senate. It is bound to get to the press,” Simon informed me. At this point I had no idea what measures had been taken to investigate my claim. And I could not trust the press to handle the matter properly, since I had no idea what information might be available. And still no one on the committee advised me of what was happening or had happened with my statement.

That same day the committee voted on Thomas’ nomination. Seven members favored the nominee. Seven voted against him. But by a vote of
13–1, The committee voted to send the name forward for full Senate consideration, to take place on October 8.

Days passed and I heard nothing. I did not know about the exchange between Tribe and Biden. I did not know which of the senators, aside from Senator Simon, or their staff members had the FBI report or my statement. I assumed the committee had abandoned the matter, and I was angry. All along, I had been skeptical, expecting very little from the process and feeling powerless to demand more. Sue Ross and I put the matter to rest—nothing more would be done and I would never know just what had happened.

On Thursday, October 3, Nina Totenberg of National Public Radio called. Hers was a voice I had heard many times over the radio. Her stories on legal issues often interested me. By late that week, she had pieced together much of the story. I refused to discuss the matter with Totenberg at that time. On Friday, October 4, acting on a tip that a “certain law professor” had information that might threaten the nomination,
Newsday
reporter Timothy Phelps called me. I had spoken to Phelps before, when, earlier in the summer, he had contacted me about Thomas’ association with South Africa and rumors that he had been sympathetic to the apartheid government. I had confirmed Thomas’ connection with Jay Parker, whom Phelps had concluded was an agent of the White government, but offered little more. Phelps seemed professional, more issue-oriented than many in the press. Now, contacting me again during the first week of October, he was just as professional and courteous. From at least two sources, he had matched my name with information about allegations of sexual harassment. Immediately, I telephoned Charles Ogletree for advice. Certain that
Newsday
had some information, but perhaps not enough to go forward without my cooperation, Ogletree advised me to say nothing unless they proved that they had my statement.

Both reporters had recounted to me so closely what had transpired to date that I was sure they had the statement or would soon, regardless of my actions. At some point during numerous telephone calls, I told both
Phelps and Totenberg that I wanted proof that they had the document. And while Totenberg exhibited either feigned or real exasperation with my reluctance, Phelps seemed to understand and called to suggest a deal. His Senate source would give him the information for me to confirm, if I gave the source my permission. I refused. On Saturday afternoon a frustrated Phelps called with details about my statement. I confirmed only the details he had and refused to provide more. Phelps’ story ran on Sunday, October 6, in the morning edition of
News day
, but the presses ran on Saturday, and the story went out over the wires that evening.

Totenberg telephoned after Phelps on Saturday and read the opening paragraph of my statement, confirming what I already knew. The press wanted the story badly, and there was nothing I could do to stop them. If she had it, eventually so would others. So, from my office, I granted a taped interview with Totenberg to air on Sunday morning.

For the remainder of that Saturday, I telephoned family to inform them about the story. “Did you send a statement to the Senate? Is the story true?” my mother asked. This was the first she had heard of it. Afterward, I located my nephew Eric, who had been doing high school recruiting for the college on campus that day. He knew about the FBI’s visit. “The press has the story,” was all that I could say. “How did they find out? Are you all right?” he wondered. For the next few weeks his innocently confused look would haunt me. We were best of friends, and I knew that this would hit him nearly as hard as it did me.

Despite being consumed by the events of the day, I tried to go about my regular routine. That evening, in tax professor Mark Gillett’s van, a group of my colleagues and friends went together to a yearly law school minority recruitment dinner. I sat with one of the law school alumni, Melvin Hall, and some potential students. I ate my dinner quietly, thinking about but never raising the matter. Returning home in the van, I told the group to expect the NPR report the following day. I gave them the substance of the story but few details. Their mood was quiet, concerned. No one knew what to say or what to expect. Even I could not predict the storm that was about to overtake the law school’s usual calm.

Tim Phelps’ story in
Newsday
alerted other members of the press. And
starting after midnight, a reporter from CBS called my home every half hour. I gave up the idea of sleeping and got out of bed about 3:00
A.M
. I knew that before long, especially once the story aired on public radio, other reporters would find my home. Deciding to check into a local hotel, I dressed and went to the supermarket to buy microwavable food, wanting to be prepared to stay in the hotel room throughout the next day, or longer if necessary. I called Eric to let him know where I would be. Around 7:00 Sunday morning, I drove to Shirley Wiegand’s house. Together we listened to Nina Totenberg’s report on National Public Radio. Shirley decided that she should go to the hotel and get me a room using her name and credit card.

All that Sunday, I tried to develop a plan to deal with the situation. None came to mind. Eric was my messenger, shuttling back and forth between the law school, my house, and the hotel. “The press is everywhere,” he told me. “Some are staying at this hotel.” Pointing to the law school logo on his sweatshirt, I warned, “Change clothes before you come back. Someone might spot you.” My words made me acutely aware of my predicament and the futility of remaining in the hotel. I could not believe any of it.

I was anxious, but not yet desperate. Eric and I prepared for our classes. Because I assumed that my schedule would continue uninterrupted, I even made an appointment to meet with my minister from Tulsa about a project he was working on later that week. Shirley came over to visit me late in the afternoon. I had a map of the hotel grounds, and from telephone calls coming into the law school, she provided the numbers of the rooms where press members were staying. Together we avoided journalists and went out to a track for our regular walk. It was a cool, crisp autumn evening, the best time of the year for one. And I needed to be out of the hotel room, if only temporarily. The press was so focused on sexual scandal that later certain reporters suggested I had spent the evening in a tryst with Shirley Wiegand—no doubt easier for some than admitting that I had simply eluded them under their very noses.

By Sunday evening I knew that I could not avoid the chaos that was
to come. It was as if all summer long I had only been putting off the inevitable. My colleague Rick Tepker prepared a statement announcing that I would hold a press conference in the law school on Monday. I could barely read it, so unreal was the entire situation to me. Nevertheless, I signed off on it. I watched a local news report claiming that I had returned home that evening but fled upon seeing the press. The report had footage of a car driven by a black woman with black female passengers pulling into the driveway. Later I learned the occupants were law students playing a prank on the press. I ate dinner and went to bed. Amazingly, I managed to sleep for several hours.

F
or weeks and months after the hearing of October 1991, professional news analysts and commentators attempted to explain the intense anger that erupted because of the proceeding. In retrospect it is difficult to understand how the various emotions intensified so rapidly during the confirmation hearing. In a relatively short time, anger, confusion, disappointment, distrust, and more anger reached a boiling point, as people around the country focused on their televisions or radios to try to comprehend the spectacle which the process became. The hearing combined a variety of potentially volatile elements—gender, race, power, sex, and yes, politics—which when combined and subjected to the glare of television caused a mild explosion.

Memories of behavior which women had once had to “grin and bear” or at least go out of their way to avoid came back to us, and it no longer seemed right to dismiss them. By going back and looking at the entire record of the proceeding and the press accounts, one can begin to recall how the scene was set for the response. In fact, put in context, the intense emotional response was predictable, even natural.

I
woke early Monday morning and returned home from the hotel just before daybreak to find one remaining crew of reporters camped on my neighbor’s lawn. They quickly crossed the street to mine. One member
of a crew of three or four journalists carried a glaring light that blinded me so that I could not see the faces of those approaching. Live microphone in hand, a female reporter introduced herself by saying that she wanted to ask me a question about my statement to the Senate Judiciary Committee. “I won’t answer anything until you get that light out of my eyes,” I said. After a brief discussion among themselves, the crew obliged, and I proceeded to tell the reporter nothing she didn’t already know. “Yes, it is true that I sent a statement to the Senate. Yes, there will be a press conference today.”

I went into my home, concluding that the only purpose of the exercise was to capture me when I was not expecting to be photographed, a form of “ambush” journalism relying on the theory that a surprise visit might elicit some telling response or reaction more newsworthy than a formal interview. Apparently, the statement I had issued the previous day explaining that I would be giving a press conference was not adequate. The competitive nature of the industry required “extemporaneous” reporting. Privacy—my own right to enter my home without intrusion—meant nothing compared to the potential “news” the ambush might elicit. I did not rush into my house to avoid the crew, but frankly, I was very annoyed that I could not go home in the early morning hours without being confronted by reporters. After all, the story had not changed while I slept. This crew’s approach promised that the thoughtful handling the story had received from Phelps and Totenberg would be a thing of the past. In its wake would follow the familiar kind of careless, untrustworthy journalism I had dreaded from the beginning. The crew dismantled their equipment and left my neighbor’s lawn. It was barely 7:00
A.M
.