Speaking Truth to Power (43 page)

N
o matter what you make of the merits of Paula Jones’ claim, it has potential for impact on the issue. High-profile claims raised for whatever purposes can impact all claims. Yet the court, not the public arena, is the best place to ferret out the truthful claims from the spurious ones. Given what many commentators have described as the hostility of the press to Bill Clinton, he is better off in the courts than in the public arena. An individual claiming to represent Paula Jones wrote to ask if I would assist her. But a copy of a contract mailed to me focused more on creating an agent-client relationship—in the event Ms. Jones got magazine, book, television, or movie contracts—than it did on creating an attorney-client relationship. I was uncomfortable with an approach that focused so heavily on the media. And before I could decline the request, Ms. Jones and her representatives held a press conference in Washington, D.C. I thought it ironic that I, the person routinely described in the press as “reclusive,” should be contacted as a source of media promotion. The choice to pursue the legal claim in such a manner was a bad one for Ms. Jones. As a private citizen with limited public exposure, she does not have the resources to handle the kind of media barrage that she will encounter if she attempts to settle this issue through the media. Moreover, I question the strategy of insisting that the case be tried during Bill Clinton’s second term as president. I believe Ms. Jones will fare better as a plaintiff in a suit against a former president than in a suit against a sitting president. Like or dislike Bill Clinton, many prospective jurors have a respect for the office that will put her at a disadvantage in issues of credibility.

As shameful as it will be for her if Jones’ claim is false, the issue will endure. The same is true if her claim is valid. The momentum built by those women who in 1991 found their voices is much stronger than any one claim—even one directed at the president of the United States. The force of the movement they started is stronger than the politics of Bill Clinton. So widespread is the experience of harassment that the issue transcends the partisanship of any particular case in which it is raised. I
have encountered numerous women who are livid about the issue of sexual harassment but who cannot recall Clarence Thomas’ name, much less the politics that led to his judicial appointment. Their image of the hearing goes beyond partisan politics to the callousness and hostility of the White House and the Republican senators, and the indifference of the Democrats’ response to the claim. The sense of community developed from the hearing has continued long after my testimony and the Senate vote to confirm Clarence Thomas, and it will endure beyond Ms. Jones’ claim against Bill Clinton, whatever the outcome.

Though I had not practiced law for many years, as a member of the bar and a law professor, the law was more to me than the rules and remedies which people sought out to solve their problems. The law was a profession and an avocation. In May 1992 I received an honorary doctor of law degree from New College in San Francisco. Its president, Peter Gabel, is an advocate of change and examination of issues of the poor and oppressed, through compassionate affirmation of our common interests and experiences. When I spoke to the students at the graduation ceremony, I tried to impress upon them the positive contributions that went along with the challenges that they would no doubt face as lawyers. The hearing and the aftermath represented both to me.

Following the hearing, the lawyers and law professors who came to my rescue had become like family. I was proud to be associated with people who would volunteer their time out of a sense of fairness and a commitment to the confirmation process. Thus, when the ABA Section on Women in the Profession announced that it would give me a special recognition, I was proud to accept. One of the organizers of the event described it as the “hottest ticket in town.” Approximately three thousand members of the association and their guests attended the function. I was even more pleased to travel to San Francisco for the August 1992 meeting because Justice Thurgood Marshall would be featured and honored at a number of events.

The entire meeting had, according to one reporter’s account, “an air of exhilaration and anticipation.” For me it showed a promise, a promise of inclusion. I was thrilled by the whole meeting. Yet the highlight of the
meeting, for me, came when I had the opportunity to meet Justice Thurgood Marshall. The occasion was an evening program in his honor sponsored by the ABA Section on Individual Rights. The event was sold out and I was fortunate to be seated at a table near the front. Professor Stephen Carter, a former Marshall clerk and a friend of mine since law school, gave one of the tributes to Mr. Marshall. Just prior to the dinner he introduced me to the former justice or, as Mr. Marshall preferred, the retired justice. I stammered something completely inarticulate about how I was honored to meet him. I was certain that he must have thought me a blathering idiot. So awestruck was I that words, meaningful words, failed me at that moment. Later I learned, to the relief of my embarrassment, that he probably had not heard my idiocy over the noise in the room. I sat with Enola Aird, Stephen’s wife, and mutual friends, George Jones and Loretta Pleasant, also contemporaries from Yale Law. The entire program was inspiring. Stephen’s tribute was characteristically eloquent. I was especially moved by a tribute given by Karen Hastie Williams, another of Marshall’s clerks. She spoke of the great contribution which Justice Marshall had made to the lives of many in the room and around the country. In part she stated that, without Justice Marshall, there would be no Stephen Carter, no Karen Hastie Williams, nor an Anita Hill. I could not have agreed more, and certainly she said it better at that moment than I could have.

When Justice Marshall spoke, he did so with an honest graciousness that made me admire him even more. As he often did, Mr. Marshall told a story on that evening. His storytelling reflects a rich tradition in African American culture. Yet it was more than mere entertainment; more than the reflection of a skilled trial lawyer. Justice Marshall’s stories and his storytelling were part of the basis for his jurisprudence. Both set a social backdrop against which the consequences of law could be measured. On that occasion he told of a young black man in an Arkansas pool hall. This man engaged the then attorney Marshall in conversation. The young man asked Mr. Marshall if he knew anything about reincarnation. After a brief discussion on the subject, the young man declared, “If you ever find out anything about it, tell ’em for me when I come back in the next
world. I don’t care whether it’s a man or a woman, human or goat, animal or what, just don’t let it be black.” The story illustrates the depth of self-hatred and despair commanded by Jim Crow laws and socially imposed segregation in the South. Clearly, the law had failed. The promises of the constitutional amendments enacted after the Civil War were meaningless and hollow—even a mockery of this man’s realities. The protections of the Constitution meant nothing to this man whose dream was to escape racism and prejudice in another life, in another form.

When women around the world began to tell their stories about harassment, we realized that the law prohibiting it had just as certainly failed. Every time someone told of a job she quit or was fired from because of harassment, we learned something new about the problem. When thousands of women began to tell their stories, we all declared that we had had no idea it was so widespread. When we read about girls like Christine Franklin, we admitted to our embarrassment that we had had no idea it was so vicious. When we heard about harassers who were promoted while their victims were fired, we knew that there was more to accountability than the enactment of the law. A sense of achievement is mixed with disappointment when matters are settled under the condition that the victim keep quiet about what happened. Each result reminds us that social change is necessary if the law’s promises are to be fulfilled. One measure of social change is found in politics. It is thus not surprising, especially given its context, that the October 1991 hearing provoked political change of clear magnitude and that such change has sparked great resistance each step of the way.

M
y mother and father delighted in their children’s singing in church. It was not enough that we sang with the children’s choir; they wanted us to perform in smaller groups. Joyce, Carlene, John, and Ray were required to learn the gospel songs popular during the time of their upbringing. By the time JoAnn and I were old enough to remember the songs performed by the Staple Singers, we, too, were expected to sing them as a duo in church services and musicals. When my mother mercifully forgot to request our singing, her partner, Miss Mattie, took over. “I’d like to hear a song from the Hill Sisters,” she would say.

Though more of a homebody than I, JoAnn disliked public performance slightly less than I did. Each time, I dreaded the long walk to the front of the church whether to deliver the requisite Mother’s Day and Easter poem or to sing “If I Could Hear My Mother Pray Again” (Mama’s favorite). But we never quivered, nor did our voices shake. That would have been unthinkable. When I complained that I did not like being in front of a crowd, my painfully shy mother advised me that I would “just have to grow out of that.” In 1991 at age thirty-five, I finally understood just what my mother meant.

“W
hy did I agree to do this?” I asked myself repeatedly as I traveled to Coronado, California, for my first public presentation following the hearing. Ruth Mandel, director of the Center for Studies of Women in Politics at Rutgers University, invited me to speak to a bipartisan group of women politicians. Though she assured me that the reception from these politicians would be better than the reception I experienced in Washington, I still dreaded my appearance. Shirley Wiegand traveled with me for the conference. She had been there for the worst of the hearing. It was only fair that she should experience some positive aspect of that ordeal. I had been so busy that I had no time to finish my remarks before leaving Oklahoma. Fortunately, Mandel had indicated that my comments needed to be about fifteen minutes in length. I worked on the airplane and completed a speech about sexual harassment entitled “The Nature of the Beast.”

The extraordinary mood of the crowd on the evening of November 15, 1991, in the Hotel Del Coronado can only be compared to that of an audience at a rock concert. It was electric. Moreover, it was prophetic. Like no other, that evening foretold the dynamics of the engagement of women on the issue. Four law professors, Kimberle Crenshaw, Susan Deller Ross, Deborah Rhode, and I, addressed the assembly of women politicians to cheers and shouts of appreciation. Never have law professors ever been so enthusiastically received. On that evening the normally self-possessed, even sober, political leaders were boisterously disorderly. They shouted and whistled and stood on their chairs to applaud. For punctuation they waved pink napkins in the air over their heads like they were brandishing lassos. Neither the speakers nor the audience was used to this kind of reaction. Mandel, the conference organizer and a veteran in the study of women political candidates and involvement, was ecstatic about what she witnessed. These women foretold an era of renewed involvement as they summoned into being the political “year of the woman,” election year 1992.

Back in Washington the Senate was considering the Civil Rights Act of 1991. The bill had been supported by Jack Danforth before the
Thomas confirmation hearing. During the hearing he had threatened some of its supporters with withdrawal of his backing unless they voted to confirm Thomas. President Bush had threatened to veto prior proposed legislation. When the bill came up for reconsideration after the hearing, it did so in the midst of the rhetoric which declared aversion to harassment. Passage would mean restoration of civil rights protections recently stricken by the Supreme Court decisions as outside the scope of existing legislation. Importantly, under the new law victims of sexual harassment could sue for damages up to $300,000. In addition, for the first time, jury trials would be a possibility. Never before had the plaintiffs in sex discrimination cases been allowed full compensatory relief. They had been limited to back pay and promotion or reinstatement into their old job depending on the nature of their claim. The law passed with bipartisan support and absent the threat of a veto. According to Professor Susan Deller Ross, “Lawyers in the field reported that the law quickly made a difference.”

Like the new support for the Civil Rights Act, the assembly of women politicians was bipartisan. Two state Democratic senators from Oklahoma were present, as were individuals who would later work for the Republican governor of New Jersey, Christine Todd Whitman. Most of the women, though in a few cases grudgingly so, caught the enthusiasm of the event. The hearing woke up many women to the failure of progress on women’s issues. The political issue was not sexual harassment. Sexual harassment is a legal issue. The political issues in 1992 for newly involved women were lack of representation and insensitivity to our experiences. That is what the hearing represented to women and men who viewed it.