The Clarence Thomas Witch Hunt Must Stop

COMMENTARY Courts

The Clarence Thomas Witch Hunt Must Stop

Feb 22nd, 2018 8 min read

Commentary By

Tiffany Bates @TiffanyHBates

Former Legal Policy Analyst

Elizabeth Slattery @EHSlattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

The witch hunt against Clarence Thomas must stop. Preston Keres/ZUMA Press/Newscom

Key Takeaways

Rather than first-rate journalism, Abramson’s piece reads like a product of the creative writing class she now teaches at Harvard.

What Abramson calls “lies,” most people would call Thomas’ side of the story. Yet again, she twisted the truth to fit her narrative about Thomas.

It’s Thomas’ worldview and jurisprudence that are the real motivating factors in this attack. Thomas defies stereotypes based on his upbringing and skin color.

On Monday, Jill Abramson penned a scurrilous article for New York magazine titled “The Case for Impeaching Clarence Thomas”—the latest in a long line of shameful attacks on the Supreme Court justice.

Abramson claims she has new evidence that proves Thomas lied at his confirmation hearing and should be impeached. But, as commentators have pointed out, her article is simply “a boring rerun of discredited allegations from the 1990s, resurrected by a discredited journalist who was fired for lying and mistreating her own employees.”

Rather than first-rate journalism, Abramson’s piece reads like a product of the creative writing class she now teaches at Harvard.

Recalling the Confirmation

In the fall of 1991, when the Senate was considering Thomas’ nomination to the Supreme Court, Anita Hill testified before the Senate Judiciary Committee that he made sexually explicit comments and unwanted sexual advances when she worked for him at both the Department of Education and Equal Employment Opportunity Commission.

The Judicial Crisis Network’s Carrie Severino details the various problems with Hill’s allegations—including that she likely committed perjury during the course of her testimony and that the FBI determined her allegations were not credible.

At the hearing, Thomas categorically denied all accusations, declaring, “It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves. … You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

Abramson wrote a book about the confirmation, “Strange Justice: The Selling of Clarence Thomas,” which has been thoroughly rebutted by the very sources she claimed to be citing.

But 27 years after Thomas’ confirmation, Abramson, seeking to ride the #MeToo wave, tries to resuscitate these long-debunked allegations against Thomas. She writes, “In the crescendo of recent sexual-harassment revelations, Thomas’ name has been surprisingly muted.”

But we should not forget that just as women deserve the right to share their stories, men who are accused of harassment deserve “a fair hearing.” That’s what liberal icon Justice Ruth Bader Ginsburg said in a recent interview, calling due process “one of the basic tenets of our system.”

In the case of Thomas, there was a hearing. All of America saw it. And the American people believed him.

The ‘New Evidence’

So what is this new, damning evidence?

First, Abramson rehashes Moira Smith’s claims that Thomas groped her at a dinner party in 1999. The host and other party-goers debunked that tale.

Then, she claims that Thomas had sexually harassed Nancy Montwieler, a journalist who covered the Equal Employment Opportunity Commission during Thomas’ tenure as chairman. Abramson learned of these allegations from another woman who says Montwieler refused to speak up at the time because Thomas was such a great “source” for her job.

But when Abramson reached out to Montwieler, she refused to confirm that rumor or answer any questions about the justice. In the article, Abramson says, “She wouldn’t answer any questions about Thomas, but she never denied” it.

There you have it. Because Montwieler would not answer any questions about Thomas (which presumably includes denying any allegations), Abramson construes that to mean the harassment allegations are true.

After Abramson’s story ran, however, Montwieler told the National Law Journal she sent a message to New York magazine that clarified the situation:

I knew Clarence Thomas in a professional capacity and never experienced any type of inappropriate behavior from him. Moreover, despite allegations in the article, I do not recall any conversations with Justice Thomas regarding inappropriate or non-professional subjects.

Finally, Abramson unveils the “smoking gun” for why Thomas should be impeached: She claims he lied under oath at his confirmation hearing when he denied talking about pornographic films with women at work.

As evidence, Abramson points to a document uncovered during the FBI’s investigation of Hillary Clinton’s use of a home-brewed email server during her State Department tenure, a “Memo on Impeaching Clarence Thomas.” The memo cites long-discredited claims made in Abramson’s book about other women coming forward with stories about Thomas.

She asserts, “It’s because of the lies he told, repeatedly and under oath, saying he had never talked to Hill about porn or to other women who worked with him about risqué subject matter.” She continues, “Lying is, for lawyers, a cardinal sin.”

These lies, she claims, “not only undermined Hill but also isolated her. … My new reporting shows that there is at least one more [Nancy Montwieler] who didn’t come forward. Their ‘Me Too’ voices were silenced.”

But as we discussed above, Montwieler didn’t come forward because she had nothing to come forward about. What Abramson calls “lies,” most people would call Thomas’ side of the story. Yet again, she twisted the truth to fit her narrative about Thomas.

Not to be outdone by Abramson, Angela Wright-Shannon wrote her own piece on Monday for The Huffington Post, titled “Clarence Thomas Sexually Harassed Me. Yes, He Should Be Impeached.”

In 1991, Wright-Shannon, who had also worked for Thomas, claimed he had pursued her but denied that he harassed her. During the hearing, Republican members of the Senate Judiciary Committee “wanted her to be allowed to testify to illustrate the weakness of the case against Thomas” but “Democrats entered her testimony into the record only so there would be no opportunity to rebut it.”

Thomas had fired Wright-Shannon for using anti-gay slurs at work, and she said she wanted revenge. Now, she writes that Thomas’ impeachment is her “fantasy.”

The Real Reason They Hate Him

But Abramson showed her hand later in the article, exposing her real motive for resurrecting these tired, discredited allegations:

[A]s a crucial vote on the Supreme Court, [Thomas] holds incredible power over women’s rights, workplace, reproductive, and otherwise. His worldview, with its consistent objectification of women, is the one that’s shaping the contours of what’s possible for women in America today, more than that of just about any man alive, save for his fellow justices.

It’s Thomas’ worldview and jurisprudence that are the real motivating factors in this latest attack.

Thomas defies stereotypes based on his upbringing and skin color. Though he came of age in the heyday of the civil rights movement, helping organize the Black Student Union at his college and even supporting Malcolm X and the radical Black Panthers, and spending much of his career before joining the bench steeped in civil rights issues, as a judge, Thomas strives to advance the Constitution as it was written and originally understood, rather than a race-based agenda.

Whether that means voting to strike down part of the Voting Rights Act and ruling against affirmative action in state schools (pleasing many conservatives) or rejecting mandatory minimum sentences (pleasing many liberals), Thomas is willing to strip away layer upon layer of previous Supreme Court decisions to get back to first principles—to the ire of many on the left.

This inspires anger, name-calling, and questions about his intellect and fitness for the job.

Last year, The New Yorker published an article (“Clarence Thomas’s Disgraceful Silence”) in which Jeffrey Toobin insolently proclaimed that Thomas is “simply not doing his job.” This, despite the fact that Thomas routinely authors more opinions than his colleagues every term—almost twice as many majority, concurring, and dissenting opinions in just the last few terms.

Abramson concluded by highlighting a 2013 Supreme Court case looking at who qualifies as a “supervisor” for a Title VII workplace harassment claim. She tries to transform a case of statutory interpretation into something nefarious, noting:

Thomas, who almost never speaks from the bench, wrote his own concurrence, also relatively rare. It was all of three sentences long, saying he joined in the opinion “because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment.” The concurrence is so perfunctory that it seemed like there was only one reason for it: He clearly wished to stick it in the eye of the Anita Hills of the world.

What is clear is that Jill Abramson sees the #MeToo moment as an opportunity—perhaps to resuscitate her career, and most certainly to humiliate an honest and decent man.

The witch hunt against Clarence Thomas must stop.

This piece originally appeared in the Daily Signal