The committee met, pursuant to notice, at 10:14 a.m., in Room SR-
325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr., chairman
of the committee, presiding. Senators Biden, Kennedy, Metzenbaum, DeConcini,
Leahy, Heflin, Simon, Kohl, Thurmond, Hatch, Simpson, Grassley, Specter,
[Continuation of Questioning of Judge Thomas After Professor Hill's Allegations]
SENATOR BIDEN: The committee will come to order.
Good morning, Judge.
SENATOR BIDEN: The Chair yields for the next round of questioning to the Senator from Vermont, Senator Leahy.
SENATOR LEAHY: Thank you, Mr. Chairman.
Good morning, Judge. Judge, yesterday, you said in answer, I believe, to a question that you had not watched or listened to the six or seven hours of Professor Hill's testimony. You are obviously under no requirement to do so, but I wonder if, since then, you have had either an opportunity to read or be briefed about what she said.
JUDGE THOMAS: Senator, prior to coming here last night, I was briefed about much of what she said. Of course, my wife watched significant portions of it and talked about some of the things that she had to say.
SENATOR LEAHY: The reason I ask, you may have followed a part of the testimony where she spoke about going to dinner with you at the time when you--when she, rather, was leaving the EEOC. Are you familiar with that part of her testimony?
JUDGE THOMAS: Senator, I am familiar that she said that. I didn't see it. I was briefed that she said that.
SENATOR LEAHY: Was there such a dinner?
JUDGE THOMAS: Senator, I do not recall such a dinner. It was not unusual for me, when a staffer was leaving, to go to lunch or to--dinner would be more unusual, but not out of the question, but it was not unusual to take them out and just simply say "thank you." In later years, I know we had much bigger dinners. We would have many members of the staff go out and be a cause for great celebration. But I don't specifically recall such a dinner.
SENATOR LEAHY: Do you recall any time ever taking Professor Hill out to dinner?
JUDGE THOMAS: No, Senator.
SENATOR LEAHY: Now, Judge, in her testimony, in which she speaks of this dinner, she said that you had driven her to the restaurant--she did not recall the restaurant--was there for a period of time. You have heard, I am sure, the conversation that she recounts as taking place. And then after you left and went on to wherever you did, she took the subway home, again according to her testimony. She said that the two of you went there in your car. You were assigned, I believe, a car and driver in your position. If that was so, would there be a log that the driver keeps of where he might drive you?
JUDGE THOMAS: No, Senator, we did not keep logs. I used my driver more frequently in the early years and less frequently in my later years at EEOC, but we didn't have logs.
SENATOR LEAHY: Even though if drivers work late, they get paid overtime, they don't keep logs of where they go?
JUDGE THOMAS: Senator, my driver at that time worked with me later. He was on my personal staff. I don't think the driver today is on the personal staff. But the driver at EEOC was assigned to the Chairman's office when I went on-board and would still have been assigned to the Chairman's office.
SENATOR LEAHY: At the time that Professor Hill was talking about, just at the time that she was leaving the office, who would have been the driver?
JUDGE THOMAS: Mr. Randall, James Randall, who has since retired.
SENATOR LEAHY: Mr. James Randall?
JUDGE THOMAS: Randall.
SENATOR LEAHY: I'm sorry, between the sound of the cameras clicking, Judge, I still didn't hear the last name.
JUDGE THOMAS: Mr. James Randall.
SENATOR LEAHY: Randall. Thank you. But the bottom line is that--well, let me make sure I understand this. Professor Hill said the two of you went out to dinner as she was leaving. Professor Hill, of course, further alleges--and this would be a major and explosive matter--that you said something to her to the effect, "If you ever tell about this, it will damage or destroy my career." Now, that was her statement. I want you to have a chance to give yours. Am I correct in understanding your testimony now that, one, you have no recollection of ever having such a conversation at any time, is that correct?
JUDGE THOMAS: No, I have no recollection of having dinner with her as she left, although I do not think that it would be unusual for me to have gone either to lunch or to particularly an early dinner with a member of my staff who was leaving. I would categorically deny that, under any circumstances, whether it is breakfast, lunch or dinner, that I made those statements.
SENATOR LEAHY: Then, it would be safe to say your testimony is, at any time, whether in a social, business or any other setting, you never made the statement, "If this comes out, it would ruin my career," or anything even relating to that kind of a statement, is that correct?
JUDGE THOMAS: That's right.
SENATOR LEAHY: Thank you.
Now, I just want to make sure I understand this and then we will move on to another subject. Do you recollect ever going to dinner with Professor Hill? I understand your saying it would not be unusual to go with a member of the staff, but do you ever recollect going to dinner with her at all?
JUDGE THOMAS: I don't recall, other than the once I believe we had dinner, perhaps, with Charles Kothe in Oklahoma subsequent to her leaving EEOC, I don't recall ever having gone to dinner with Professor Hill.
SENATOR LEAHY: I understand that and you have stated that before, but I am just talking about the time when she was working there, you did not have any such--
JUDGE THOMAS: I do not recall. Let me add one thing, Senator.
SENATOR LEAHY: Certainly.
JUDGE THOMAS: I occasionally, with my personal staff as well as with my personnel, when I am going out to lunch, I will grab the first person available and say is anybody ready for lunch and walk out to either a local place or perhaps just a deli to grab a sandwich. That is customary with me, so I don't want to suggest that there wasn't an occasion when I would do something like that.
SENATOR LEAHY: Judge Thomas, I can't imagine a member of the Senate who doesn't do the same thing and say to some of the staff let's grab a sandwich, let's grab lunch, something like that, and continue discussion of whatever might be going on. I don't think you speak to something unusual nor do I suggest you do.
Tell me, Judge, you said yesterday that there were a couple of occasions when you would go by Professor Hill's apartment, probably have a beer, continued discussions. Do you recall? I've forget which Senator you had responded to.
JUDGE THOMAS: That's not the way I said it, Senator. What I said--
SENATOR LEAHY: Would you restate it the way you said it?
JUDGE THOMAS: What I said was, when we were at the Department of Education, there were, as I recall, a number of instances in which I gave her a ride home and she asked me just to drop in to continue discussion, and I would have a Coke or a beer or something and leave. That was, again, nothing, I thought nothing of it. It was purely innocent on my part and nothing occurred with respect to that, other than those conversations.
SENATOR LEAHY: I'm not suggesting by the question there was anything that was not. I just wanted to make sure I understand this. That was only when you were at the Department of Education, is that correct?
JUDGE THOMAS: That's the reason I recall that, is because I lived in Southwest, and for a significant part of her tenure at EEOC, I did not have a personal car, and she lived nearby on Capitol Hill. The Switzer Building is in Southwest, and I would just simply give her a ride to the other side of the Hill.
SENATOR LEAHY: Do you recall whereabouts on the Hill she lived?
JUDGE THOMAS: No, I do not.
SENATOR LEAHY: Do you recall anything at all about the apartment, big, little, old, new?
JUDGE THOMAS: She had a roomate, of course, and the area that I remember was just a small living room-type area, where there was a TV and I think a small couch or something.
SENATOR LEAHY: Okay. Do you remember whether it was an old building, a new building or--
JUDGE THOMAS: I remember it as an old building or an older building, and a duplex, for some reason a duplex in my mind.
SENATOR LEAHY: Now, Judge, you have spoken eloquently in the past of the kind of racial harassment and racial discrimination you've faced growing up, a lesson perhaps for everybody, realizing that these are not some ancient things, that a man your age is speaking within a generation of it.
Let me talk to you about, since you have been in the workforce for about 20 years since leaving law school. Have you ever witnessed sexual harassment first-hand?
JUDGE THOMAS: Senator, I have witnessed incidents that I would consider sexual harassment and inappropriate conduct. As Chairman of EEOC, particularly, in the workforce there, I was adamant that this conduct would not take place, and anyone who has worked with me understand that, I was adamant that it would not take place.
SENATOR LEAHY: In that being adamant, how did you translate that to staff or the people who worked for you, in statements, speeches, memos, personal--how would you do it, Judge?
JUDGE THOMAS: If you engage in it, you will be fired, simple.
SENATOR LEAHY: The easiest way to have it.
JUDGE THOMAS: If you engage in it, you will be fired.
SENATOR LEAHY: We have a similar rule in my office for drug abuse and sexual harassment, if you do it, you're gone.
JUDGE THOMAS: Anyone who, and you will have witnesses who have worked with me, you ask them what my statements were. It was very simple. That is particularly easy on a personal staff and it is particularly easy with Schedule C appointees.
SENATOR LEAHY: Judge, you said you have seen, you have witnessed sexual harassment first-hand. What was the nature of--can you just give me some idea of the type that you have seen?
JUDGE THOMAS: Well, the types of things are, again, people using graphic language to subordinates who are female, women, there would be individuals who would expect certain conduct on the part of women, that they expect to stay in the workforce or to prosper. Those kinds of things I have seen either when I was not in the position to do anything about it and I've heard about when I was in a position to do something about it, and in the latter instance, I did something about it.
SENATOR LEAHY: Judge, it is a very difficult thing to do here, under the circumstances, but could you just step out of the role for a moment of being a Supreme Court nominee and think back to being head of the EEOC for a minute. You get a call from an investigator in a district office who has just had a woman come in with a claim of sexual harassment, he relays the claim to you and you look at it and say, yes, this is, it fits on all fours within the regulations and statutes. And he says, "But, Mr. Chairman, it was five years ago, the statute has run." What would you say to him?
JUDGE THOMAS: Senator, that is certainly something that never occurred during my tenure. There were instances in which there were older charges of that nature. What we would generally find would be that the person involved would have engaged in a pattern of that kind of practice.
To give you an instance, if that person is a manager that we are talking about, you could find a pattern and you can find more recent occurrences, to my knowledge--again, this may not always be the case, but when you have a person who is engaged in grotesque conduct or harassing conduct, you will find more than one person. If the person has a habit of harassing secretaries, you will find a series of secretaries. If the person has a habit of harassing professionals, subordinates or other employees, you will find a series of those. You will not find generally just one isolated instance, and I think that would be the trigger to look for more instances of them.
SENATOR LEAHY: Would it be unusual, though, to have the initial allegation be something that happened sometime back? I understand what you are saying about the pattern, that you didn't reconstruct later, but would it be unusual to have the initial allegation of sex harassment be of sometime past?
JUDGE THOMAS: To my knowledge, Senator, based on just what I have seen personally, it would be unusual.
SENATOR LEAHY: Thank you.
JUDGE THOMAS: Usually, what you would have is you would have a recent occurrence that would trigger an instance, and then you would look back and you will see a pattern.
SENATOR LEAHY: Back on the charges that Professor Hill made yesterday, one was of discussion of pornographic films with her. She stated this happened on a number of occasions and that she had found it uncomfortable and asked you not to. Let me ask you--she has been asked whether this happened--let me ask you: Did you ever have a discussion of pornographic films with Professor Hill?
JUDGE THOMAS: Absolutely not.
SENATOR LEAHY: Have you ever had with any other women?
JUDGE THOMAS: Senator, I will not get into any discussions that I might have about my personal life or my sex life with any person outside of the workplace.
SENATOR LEAHY: I'm not asking--
JUDGE THOMAS: I will categorically say I have not had any such discussions with Professor Hill.
SENATOR LEAHY: Please don't misunderstand my question, Judge. I am confining it to the workplace. I have no interest in what might be your personal life in this. That is yours. What I am asking is within--she alleges within the workplace. Let me make sure I fully understand--I am asking you this question, so that you can give the answer.
Am I correct in understanding your answer, within the workplace with Professor Hill, you never had such a discussion?
JUDGE THOMAS: Right.
SENATOR LEAHY: You never had such discussions within the workplace with any other women?
JUDGE THOMAS: That's right.
SENATOR LEAHY: Or anyone, for that matter?
JUDGE THOMAS: That's right.
SENATOR LEAHY: Thank you.
Now, were you interviewed--you were interviewed by the FBI, I mean you have talked about that. Were you interviewed on--there seems to be some confusion--on September 28th by the FBI?
JUDGE THOMAS: I don't know which dates in September. I was interviewed on Wednesday, I believe, September 25th, I'm not sure.
SENATOR LEAHY: I think we have some confusion. In your affidavit, it says, "I told the Federal Bureau of Investigation on September 28, 1991, I categorically deny"--
JUDGE THOMAS: Well, it's Wednesday.
SENATOR LEAHY: I've got--it says "date of transcription," the FBI, it says 9-28-91. It was faxed on September 25, 1991, and I am just wondering if we have in about five different places on here, the FBI have made a typographical error and have the dates off by three days. It was on a Wednesday, which is--
JUDGE THOMAS: It was on a Wednesday.
SENATOR LEAHY: When you had that discussion with them, did they ever mention or did you ever mention to them going to her apartment at any time, to Professor Hill's apartment at any time?
JUDGE THOMAS: I think I may have mentioned that I dropped her off at home and I may have mentioned that I had been in her apartment. I can't remember. I don't think they were focusing on that. I think they were focusing more on whether or not I--the allegations that she made.
SENATOR LEAHY: I understand. You said yesterday in your statement that, "I cannot imagine anything that I said or did to Anita Hill could have been mistaken for sexual harassment. With that said, if there is anything that I have said that has been misconstrued by Anita Hill or anyone else to be sexual harassment, then I can say that I'm so very sorry, I wish I had known, if I did know I would have stopped immediately, and I would not, as I have done over the past two weeks, tear away at myself trying to think of what I could have possibly done, but I have not said or done the things Anita Hill has alleged."
I have heard people say was there something further to that--I mean can you think of anything--I mean you say if there was anything, then you're very sorry, but you are also saying you cannot think of anything that could approach this, is that correct?
JUDGE THOMAS: That's right, Senator. I have agonized over this. This has not been an easy matter for me, and I don't know how or why she would say these things. I don't know what I could have done that would have resulted in this, and that is just to simply make that point, that if I did anything to anyone that would bring them to a point to suggest or to think that I engaged in sexual harassment, then I am sorry, because it is certainly conduct that I would not approve and conduct that I would not engage in.
SENATOR LEAHY: Well, let me follow up on that a bit. Since you searched your mind for why do this: Now, if I understand also your testimony--in trying and give a summary and please correct me if I am inaccurate in the summary--you feel that you gave Professor Hill opportunities in government service, as you have others, is that correct?
JUDGE THOMAS: That's right.
SENATOR LEAHY: And you have stated that you felt a particular responsibility, you spoke of them really basically almost as family, the people that have worked for you and bringing them forward and giving them these opportunities, is that correct?
JUDGE THOMAS: Yes, Senator. In Professor Hill's case--and it is important to me that this be understood--I believe that when I have assistants or interns, that I have a personal responsibility for them, as teacher, advisor, not employer. I am the employer, also, but they are my personal charges for whom I have responsibility.
Anita Hill came to me through one of my dearest, dearest friends- -he was the best man at my wedding, we were at Holy Cross College together, we were at Yale Law School together, we were the two slowest guys on the track team, we spent a lot of time together, we lived across the way from each other in law school, we lived together during the summer when my marriage broke up, I slept at his apartment--this was my dearest friend, and when he brought her to my attention, it was a special responsibility that he asked me to take on, and I felt very strongly that I could discharge that in the way that I did, and that was to be careful about her career, to make sure she had opportunities, to be there to offer advice and counsel, and that is something that I continued with my other special assistants. They are family. My clerks are my family. They are my friends.
SENATOR LEAHY: Well, then having done all this for Professor Hill, and knowing now what she has said here, and what you have read, and hearing her statement, under oath, explicit as it was--a statement that you have categorically denied, to use your term--why would she do this?
JUDGE THOMAS: Senator, you know, I, I have asked myself that question, as I told you. I have not slept very much in the last two and a half weeks. I have thought unceasingly about this, and my wife simply said, "Stop torturing yourself."
I don't know why family members turn on each other. I don't know why a son or a daughter, or a brother or sister would write some book that destroys a family. I don't know. All I can tell you is that from my standpoint I felt that I did everything I could toward Professor Hill in the same way that I would do with my other special assistants to discharge my responsibilities. I don't know. I do not have the answer.
SENATOR LEAHY: Have you had any conversation with her since this began? I mean since these charges came out?
JUDGE THOMAS: No, Senator.
SENATOR LEAHY: I am not trying to be facetious, Judge, I am just--I mean was there any attempt, not by you, but was there any attempt by Professor Hill, did she make any attempt to reach you?
JUDGE THOMAS: No, not to my knowledge. Senator, I have had no conversations with her since, to my knowledge, November of 1991.
SENATOR LEAHY: So when did you first hear of these allegations?
JUDGE THOMAS: When the FBI walked--I first heard that there had been, in a call from the White House, allegations of an unspecified nature which needed to be--and the FBI would be sent out. That was Wednesday morning, the 28th or 25th. And that I was to contact the FBI agent or the FBI and set up an appointment. I did that and the agent came out, I think an hour and a half or two hours later. The first I heard of the nature of the allegations was when the FBI agent, after identifying himself, informed me.
SENATOR LEAHY: At your home?
JUDGE THOMAS: At my home.
SENATOR LEAHY: And were you there alone meeting with him or--
JUDGE THOMAS: I was there alone with two FBI agents.
SENATOR LEAHY: Judge, what was your reaction? I mean when you heard this--you are saying you heard this for the first time, what was your reaction?
JUDGE THOMAS: Senator, my reaction initially, I was stunned. I was hurt. I was confused. I was pained. I did not know what happened, I did not know where it came from. I did not know what the basis of it was. I couldn't believe it and when he said there is an allegation by Anita Hill, I think my words to him were, "Anita?" And then when he told me what the nature of the allegations were, I said, "You can't"--something, like you have got to be kidding. This can't be true.
I can't remember. All I can tell you it was painful.
SENATOR LEAHY: There was no flash, could she have misconstrued--
JUDGE THOMAS: No.
SENATOR LEAHY: Fill in the blank know that?
JUDGE THOMAS: No. It is just like this is incredible, I can't believe it.
SENATOR LEAHY: Have you now--I don't want to go through repetition of them here--but have you now heard the specific charges that Professor Hill made yesterday during her six or seven hours of testimony against you?
JUDGE THOMAS: Senator, I have heard the initial charges through the FBI agent and I have been briefed on the specific charges from yesterday that were different from the previous statements.
SENATOR LEAHY: And, Judge, what is your response to those specific charges again?
JUDGE THOMAS: Senator, my response is that I categorically, unequivocally deny them. They did not occur.
SENATOR LEAHY: Incidentally somebody just handed me a note and I missed this too, but you said your last contact with Professor Hill was November of 1991.
JUDGE THOMAS: 1990, I am sorry, 1990. I would have to be clairvoyant I guess.
SENATOR LEAHY: Judge, I think that you and I may disagree on a number of things, but I think both of us would agree on one thing. Neither of us have been clairvoyant in these hearings or in this process. But you meant 1990?
JUDGE THOMAS: 1990.
SENATOR LEAHY: Have you spoken with any of the witnesses of this hearing within the last week, the witnesses who are going to be at this hearing?
JUDGE THOMAS: I don't know. You would have to give me each of the witnesses, Senator. I have spoken with friends of mine who were at EEOC and maybe some of the witnesses. I have spoken to them in the halls here, they have called to wish me well. These are people who are like family to me. These are not--these are former special assistants, I believe, and individuals who were in the inner confines of my office. And again, as I indicated, my staff and I are family.
SENATOR LEAHY: Do you know whether personnel from the White House have talked to the witnesses who are going to appear here?
JUDGE THOMAS: I would assume they coordinated their appearance here, Senator, so I would assume the conversations did occur to make sure they were here and the timing, etc.
SENATOR LEAHY: Thank you, Judge.
My time is up and I know that Senator Hatch, and Senator Biden have time and I will come back later on.
SENATOR BIDEN: Thank you.
SENATOR HATCH: Thank you, Chairman Biden.
Judge, there are a lot of things that just don't make sense to me in Anita Hill's testimony. I liked her personally. I thought she presented herself well. There is no question she is a very intelligent law professor. She has graduated from one of the finest schools in the land, law schools that is, and her undergraduate work was exemplary.
She clearly is a very intelligent woman. And I think everybody who listened to her wants to like her and many do. But, Judge, it bothers me because it just doesn't square with what I think is--some of it doesn't square with what I think is common experience, and just basic sense, common sense.
I hesitate to do this again but I think it is critical and I know it outrages you, as it would me, as it would anybody who is accused of these type of activities.
In her first statement on this issue, really given to the FBI and all over the press, all over the media, about two or three weeks after Thomas originally asked Hill for a date, he started talking about sex. He told her about his experiences and preferences and would ask her what she liked or if she had ever done the same thing. Hill said that he discussed oral sex between men and women. Thomas also discussed viewing films of people having sex with each other and with animals. He told her that he enjoyed watching the films and told her that she should see them. He never asked her watch the films with him. Thomas liked to discuss specific sex acts and frequency of sex.
That is allegation number one, given in what I consider to be a pretty decent FBI investigation, pretty thorough, by a man and a woman, FBI agent.
In the four-page statement that she issued, which of course was leaked to the press by somebody on this committee, in violation of law, in violation of the Senate ethics, in violation of a stringent rule formulated because these FBI reports contain raw data. And information from the FBI report was released and this statement was given, in fact, the reporter who broke the story read the statement to her, according to her own remarks.
She then said in this statement--this is the second one--after brief discussion about work he would turn the conversation to discussions about sexual interests. His conversations were very vivid. He spoke about acts that he has seen in pornographic films involving such things as women having sex with animals and films involving group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts.
That is the second statement which is considerably from the first and adds some language in. And you have denied each and every one of these allegations last night.
So I won't go through that again today, although if you want to say anything about it further, I would be happy to have you do it.
Then, yesterday, she appeared before this committee and in her statement yesterday, her written statement of which I have a copy that was distributed to the press and everybody else, she said his conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex and rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts. On several occasions, Thomas told me graphically of his own sexual prowess. Three different versions, each expansive, each successively expansive.
Now, Judge Thomas, anybody who made all of those cumulative statements--if you take one of them out of context, they are so graphic and so crude, and so outrageous, and I think so stupid, that would be enough, in my opinion, to find sex harassment against anybody, if it happened. But if you have all of those cumulatively together the person who would do something like that, over a period of time, really a short period of time according to her, and in two different separate agencies, we will put it that way, that person, it seems to me, would not be a normal person. That person, it seems to me, would be a psychopathic sex fiend or a pervert.
Now, Judge, you have had to have thought about this, I know you are outraged by it, and you have denied all of these things, and you said, these things did not happen, they are simply untrue.
And you have had an evening to think about it, do you have anything further to say about it?
JUDGE THOMAS: Senator, my reaction to this has been, over the last two weeks, has been one of horror. I can't tell you what I have lived through. I can't tell you what my wife has lived through or my family. I can't tell you what my son has lived through. I don't know what to tell him about this. If I were going to date someone outside of the work place, I would certainly not approach anyone I was attempting to date, as a person, with this kind of grotesque language.
SENATOR HATCH: I have to interrupt you here, Judge, but there was an implication that you not only repetitively asked her for dates--I don't know, I guess that can be construed as sexual harassment, repetitively asking a woman for dates--but the implication was, and the clear implication which she spoke about was that you wanted more than dates, if her allegations were true.
JUDGE THOMAS: Senator, I did not ask her out, and I did not use that language. One of the things that has tormented me over the last two and a half weeks has been how do I defend myself against this kind of language and these kind of charges? How do I defend myself? That's what I asked the FBI agent, I believe, for the first time. That's what I have asked myself, how do I defend myself?
If I used that kind of grotesque language with one person, it would seem to me that there would be traces of it throughout the employees who worked closely with me; there would be other individuals who heard it, or bits and pieces of it, or various levels of it.
SENATOR HATCH: Don't worry, Judge, probably before the weekend's out they will find somebody who will say that.
JUDGE THOMAS: Well, the difficulty also was that, from my standpoint, is that in this country when it comes to sexual conduct we still have underlying racial attitudes about black men and their views of sex. And once you pin that on me, I can't get it off. That is why I am so adamant in this committee about what has been done to me. I made it a point at EEOC and at Education not to play into those stereotypes, at all. I made it a point to have the people at those agencies, the black men, the black women to conduct themselves in a way that is not consistent with those stereotypes, and I did the same thing myself.
SENATOR HATCH: When you talk in terms of stereotypes, what are you saying here? I mean I want to understand this. First of all, let me go back to your first spot.
You said that if you wanted to date somebody or even if you wanted to seduce somebody--you didn't say that--but just put yourself in the mind of this, if you had wanted to seduce her, is this the kind of language you would use? Is this the kind of language a reasonable person would use, is this the kind of language that anybody would use who wanted a relationship?
JUDGE THOMAS: Outside of the work force, or outside of the work place that is not certainly the way I would approach someone I would want to date. Whether I would date that person for a long time or just go to dinner, that is not my approach. I think that--and I have to reiterate this-- that for someone in the work force to use that kind of grotesque language it has to show up with other staff members. When we looked at sex harassment cases, when we looked at cases of people involved in unacceptable conduct of this nature, there was always a pattern. The other point that I am making that is of great concern to me is that this is playing into a stereotype.
SENATOR HATCH: Before we get to that, Judge, because I am going to get to that, that's an interesting concept that you have just raised, and I promise I will get back to it. You are a very intelligent man, there is no question about it. Anybody who watches you knows that. You could not have risen to these high positions in Government, been confirmed four times by the august United States Senate, three times by the Labor Committee--upon which a number of us, here on this committee serve, and whose staff members were used in this investigation--and I might add, once now before the Judiciary Committee, august committees.
She is an extremely intelligent woman and from all appearances a lovely human being. Do you think an intelligent African-American male, like you, or any other intelligent male, regardless of race, would use this kind of language to try and start a relationship with an intelligent, attractive woman?
JUDGE THOMAS: Senator, I don't know anyone who would try to establish a relationship with that kind of langauge.
SENATOR HATCH: Unless they were sick.
JUDGE THOMAS: I don't know of anyone.
SENATOR HATCH: I don't even know of people who might have emotional disturbances who would try this. Now, I want to ask you about this intriguing thing you just said. You said some of this language is stereotype language? What does that mean, I don't understand.
JUDGE THOMAS: Senator, the language throughout the history of this country, and certainly throughout my life, language about the sexual prowess of black men, language about the sex organs of black men, and the sizes, etc., that kind of language has been used about black men as long as I have been on the face of this earth. These are charges that play into racist, bigoted stereotypes and these are the kind of charges that are impossible to wash off. And these are the kinds of stereotypes that I have, in my tenure in Government, and the conduct of my affairs, attempted to move away from and to convince people that we should conduct ourselves in a way that defies these stereotypes. But when you play into a stereotype it is as though you are skiing downhill, there's no way to stop it.
And this plays into the most bigoted, racist stereotypes that any black man will face.
SENATOR HATCH: Well, I saw--I didn't understand the television program, there were two black men--I may have it wrong, but as I recall--there were two black men talking about this matter and one of them said, she is trying to demonize us. I didn't understand it at the time. Do you understand that?
JUDGE THOMAS: Well, I understand it and any black man in this country--Senator, in the 1970's I became very interested in the issue of lynching. And if you want to track through this country, in the 19th and 20th century, the lynchings of black men, you will see that there is invariably or in many instances a relationship with sex--an accusation that that person cannot shake off. That is the point that I am trying to make. And that is the point that I was making last night that this is high-tech lynching. I cannot shake off these accusations because they play to the worst stereotypes we have about black men in this country.
SENATOR HATCH: Well, this bothers me.
JUDGE THOMAS: It bothers me.
SENATOR HATCH: I can see why. Let me, I hate to do this, but let me ask you some tough questions. You have talked about stereotypes used against black males in this society. In this first statement he told her about his experiences and preferences and would ask her what she liked or if she had ever done the same thing? Is that a black stereotype?
JUDGE THOMAS: No.
SENATOR HATCH: Okay. Hill said that he discussed oral sex between men and women. Is that a black stereotype?
JUDGE THOMAS: No.
SENATOR HATCH: Thomas also discussed viewing films of people having sex with each other and with animals. What about that?
JUDGE THOMAS: That's not a stereotype about blacks.
SENATOR HATCH: Okay. He told her that he enjoyed watching the films and told her that she should see them. Watching X-rated films or pornographic films, is that a stereotype?
JUDGE THOMAS: No.
SENATOR HATCH: He never asked her to watch the films with him, Thomas liked to discuss specific sex acts and frequency of sex.
JUDGE THOMAS: No, I don't think so. I think that could--the last, frequency--could have to do with black men supposedly being very promiscuous or something like that.
SENATOR HATCH: So it could be partially stereotypical?
JUDGE THOMAS: Yes.
SENATOR HATCH: In the next statement she said, "His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such things as women having sex with animals and films involving group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts."
What about those things?
JUDGE THOMAS: I think certainly the size of sexual organs would be something.
SENATOR HATCH: Well, I am concerned. "Thomas told me graphically of his own sexual prowess", the third statement.
JUDGE THOMAS: That is clearly- -
SENATOR HATCH: Clearly a black stereotype.
JUDGE THOMAS: --stereotypical, clearly.
SENATOR HATCH: Do you think that--well, what do you feel about that?
JUDGE THOMAS: Senator, as I have said before, this whole affair has been anguish for me. I feel as though I have been abused in this process, as I said last night, and I continue to feel that way. I feel as though something has been lodged against me and painted on me and it will leave an indelible mark on me. This is something that not only supports but plays into the worst stereotypes about black men in this society. And I have no way of changing it, and no way of refuting these charges.
SENATOR HATCH: Now, let me just--people hearing yesterday's testimony are probably wondering how could this quiet, you know, retired, woman know about something like "Long Dong Silver"? Did you tell her that?
JUDGE THOMAS: No. I don't know how she knows.
SENATOR HATCH: Is that a black stereotype, something like Long Dong Silver?
JUDGE THOMAS: To the extent, Senator, that it is a reference to one's sexual organs, and the size of one's sexual organs, I think it is.
SENATOR HATCH: There is an interesting case that I found called Carter v. Sedgwick County, Kansas, a 1988 case, dated September 30th. It is a Tenth Circuit Court of Appeals case. It is a District Court case. It is a District Court case within the Tenth Circuit.
And do you know which circuit Oklahoma is in?
JUDGE THOMAS: My guess would be the Tenth Circuit. I remember serving on a moot court panel with a judge from the Tenth Circuit and I believe she was from Tulsa.
SENATOR HATCH: Well, I have to tell you something, I believe Oklahoma is in the Tenth Circuit, and Utah is also.
An interesting case and I am just going to read one paragraph, if anybody wants to read it. I apologize in advance for some of the language, I really do. It is a civil rights case, interesting civil rights case.
And again I apologize in advance for the language. I just want to read one paragraph. "Plaintiff testified that during the course of her employment she was subjected to numerous racial slurs"--by the way this is an extremely interesting case because the head note says, black female brought suit against county and county officials contending she suffered sexual harassment and was unlawfully terminated from her employment with county on the basis of her race and sex. Now, anybody who wants it, we will make copies for you or you can get it. I will give the citation, as a matter of fact. The citation is 705 F Sup 1474, District Court Kansas, 1988.
Let me just read the one paragraph. "Plaintiff testified that during the course of her employment she was subjected to numerous racial slurs and epithets at the hands of the Defendant Brand. And was sexually harassed by Defendant Cameron. Specifically as to Plaintiff's claim of race discrimination. Plaintiff testified that Defendant Brand referred to Plaintiff on several occasions as John's [Cameron] token"--I apologize for this word, but it is in here--"nigger." That is certainly racist.
"And at other times, would tell Plaintiff that is was 'nigger pick day'. Plaintiff claims that Defendant Brand kept a picture of a black family in his office, and when Plaintiff questioned Brand about the picture he boasted of his own"--and the word is used again--"blood and of his sexual conquests of black"--and I am not going to say that word, it is a pejorative term, it is a disgusting term.
So this man was claiming sexual conquests. "Plaintiff further testified that on one occasion Defendant Brand presented her with a picture of Long Dong Silver--a photo of a black male with an elongated penis." I apologize again.
Well, it goes on, it gets worse, maybe not worse, but it goes on. That is the public opinion that's available in any law library. I have to tell you I am sure it is available there at the law school in Oklahoma and it is a sexual harassment case.
I am really concerned about this matter. Because, first of all, I really don't believe for one instant, knowing you for 11 years, sitting in on four confirmation processes, having them pick at you, and fight at you, and find fault all the way through--and it is fair game with regard to what you did and what you tried to do, what your excesses were with regard to your job, what your failures were, what your successes were---all of that is fair game and it happened.
And you went through it and you held your dignity and answered all the questions. You were confirmed three times in a row. This is your fourth time. And you should be confirmed here. Never once were you attacked like this by anybody and I know you, and the people who know you the best and that involves hundreds of people, think the world of you. They know you are a good man. They know this woman's a good woman. And this is not consistent with reality. And I am not going to find fault beyond that with Professor Hill. I liked her, too, she presented herself well.
I will tell you the Juan Williams piece in the Washington Post telling how all these interest groups have scratched through everything on earth to try and get something on you, all over the country, all over this town, all over your agency, all over everybody. And there is a lot of slick lawyers in those groups, slick lawyers, the worst kind. There are some great ones, too, and it may have been a great one who found the reference to "Long Dong Silver", which I find totally offensive.
And I find it highly ironic that you have testified here, today, that used against you by one who taught civil rights, who came from one of the five best law schools in the country, who is an intelligent, apparently decent African-American, used against you, a bunch of black stereotype accusations.
What do you think about that?
JUDGE THOMAS: Senator, as I have indicated before and I will continue to say this and believe this, I have been harmed. I have been harmed. My family has been harmed. I have been harmed worse than I have ever been harmed in my life. I wasn't harmed by the Klan, I wasn't harmed by the Knights of Camelia, I wasn't harmed by the Aryan race, I wasn't harmed by a racist group, I was harmed by this process, this process which accommodated these attacks on me. If someone wanted to block me from the Supreme Court of the United States because of my views on the Constitution, that is fine. If someone wanted to block me because they felt I was not qualified, that is fine. If someone wanted to block me because they don't like the composition of the Court, that is fine. But to destroy me, Senator, I would have preferred an assassin's bullet to this kind of living hell that they have put me and my family through.
SENATOR HATCH: Let me just give you one more. Everybody knows that the worst nightmare for any trial lawyer is to have a person who has an impeccable background, a good appearance and appears to believe everything that person is saying, testifying. And it happens in lots of trials, lots of them.
I have been there, believe it or not. I have lost a lot of the skills, but I have been there. Sixteen years here causes you to lose a lot of things. You almost lose your mind sometimes, and some have suggested that I have, from time to time. But I am just going to give you one more because it really offends me, maybe it doesn't anybody else, maybe I am wrong. But I don't think so. I have been through this a lot of times. I have been through this, only usually--Senator Biden, I am really going to have to take more time than a half hour, if you will let me, I have got to finish this and I have got to finish my line of questions.
SENATOR BIDEN: Without objection, you can take the time you want and then we will just allocate the time.
SENATOR HATCH: Thank you. I really appreciate that.
She testified "One of the oddest episodes I remember was an occasion in which Thomas was drinking a coke in his office, he got up from the table, at which we were working, went over to his desk to get the coke, looked at the can and asked, 'who has put pubic hair on my coke?'"
That's what she said. Did you ever say that?
JUDGE THOMAS: No, absolutely not.
SENATOR HATCH: Did you ever think of saying something like that?
JUDGE THOMAS: No.
SENATOR HATCH: That's a gross thing to say, isn't it?
Whether it is said by you or by somebody else, it is a gross thing to say, isn't it?
JUDGE THOMAS: As far as I am concerned, Senator, it is and it is something I did not nor would I say.
SENATOR HATCH: Ever read this book?
JUDGE THOMAS: No.
SENATOR HATCH: The Exorcist?
JUDGE THOMAS: No, Senator.
SENATOR HATCH: Ever see the movie?
JUDGE THOMAS: I have seen only the scene with the bed flapping.
SENATOR HATCH: I am going to call your attention, and keep in mind, Juan Williams said, this great journalist for the Washington Post, I differ with him, but he is a great journalist. I don't differ with him on everything, we agree on a lot of things.
We certainly agree in this area. But he wrote down what they have tried to do to smear you, he wrote down that they have the whole country blanketed trying to dig up dirt, just like you have said it, just like you have said it. And let me tell you these are not itty-bitty tort attorney investigators. These are the smartest attorneys from the best law schools in the land, all paid for at the public interest expense, that is what is ruining our country, in large measure because some of these groups, not all of them--many of these public interests are great, I don't mean to malign them all--but a number of them are vicious. We saw it in the Bork matter and we are seeing it here.
You said you never did say this, "Who has put pubic hair on my Coke." You never did talk to her about "Long Dong Silver." I submit, those things were found.
On page 70 of this particular version of the Exorcist, "Oh, Burk, sighed Sharon. In a guarded tone, she described an encounter between the Senator and the director. Dennings had remarked to him, in passing, said Sharon, that there appeared to be 'an alien pubic hair floating around in my gin.'"
Do you think that was spoken by happenstance? She would have us believe that you were saying these things, because you wanted to date her? What do you think about that, Judge?
JUDGE THOMAS: Senator, I think this whole affair is sick.
SENATOR HATCH: I think it's sick, too.
JUDGE THOMAS: I don't think I should be here today. I don't think that this inquisition should be going on. I don't think that the FBI file should have been leaked. I don't think that my name should have been destroyed, and I don't think that my family and I should have been put through this ordeal, and I don't think that our country should be brought low by this kind of garbage.
SENATOR HATCH: These two FBI agents told her to be as specific as she could possibly be, and yet she never said anything about Long Dong Silver or pubic hair to them. She didn't say it in her statement, her four-page statement, which is extensive, single-spaced, four pages. But she said it yesterday.
I don't know whether you noticed, but I noticed that whole entourage--not her family, they looked beautiful, they look like wonderful people to me. Look at her parents, they are clearly good people, clearly, her sisters, clearly good people. But I saw the entourage come in, and I'm not saying they did this, but you can bet your bottom dollar that their are very possible stereotype, to use your terms--but I never fully understood that- -every possible stereotype that could be dug up.
Judge Thomas, I just have to finish another short line of questions. I will have others later.
SENATOR BIDEN: Senator, you are welcome to do that. Can you give us an idea how long you are going to go?
SENATOR HATCH: If you could give me another 10 minutes, I would appreciate it.
SENATOR BIDEN: Sure, just so we have an idea.
SENATOR HATCH: First of all, I would like to put Juan Williams' article into the record at this point.
SENATOR BIDEN: Without objection.
SENATOR HATCH: "The phone calls came throughout September," Juan Williams said. "Did Clarence Thomas ever take money from the South African government? Was he under orders from the Reagan White House when he criticized civil rights leaders? Did he beat his first wife? Did I know anything about expense account charges he filed for out-of-town speeches? Did he say that women don't want equal pay for equal work? And finally, one exasperated voice said, 'Have you got anything on your tapes we can use to stop Thomas.'"
"The calls came from staff members working for Democrats on the Senate Judiciary Committee." I didn't say that. I am just repeating it, but I know it's true. "They were calling me, because several articles written about Thomas have carried my byline. When I was working as a White House correspondent in the early '80's, I had gotten to know Thomas as a news source and later wrote a long profile of him."
"The desperate search for ammunition to shoot down Thomas has turned the 102 days"--this is just as few days ago--"102 days since President Bush nominated him for a seat on the Supreme Court into a liberal's nightmare. Here is indiscriminate, mean- spirited mudslinging supported by the so-called champions of fairness: liberal politicians, unions, civil rights groups and women's organizations," all of whom Juan Williams has regard for, or at least did up until this article.
I am just reading excerpts. "Now the Senate has extended its attacks on fairness, decency and its own good name by averting its eyes, while someone in a position to leak has corrupted the entire hearing process"--it couldn't have been said better in one paragraph, somebody on this committee--by releasing a sealed affidavit containing an allegation that had been investigated by the FBI, reviewed by Thomas' opponents and supporters on the Senate committee and put aside as inconclusive and insufficient to warrant further investigation to stop the committee's final vote."
It is an interesting article. I commend it to everybody.
Judge Thomas, I have a copy of a November 14, 1984 memorandum concerning sexual harassment that you issued within the EEOC. The memo emphasizes the importance of an earlier EEOC order issued shortly before your arrival at that agency.
Judge Thomas, before I get into that memo, I would just like to say this to you, and I wrote it down, because I wanted to say it right: I have to tell you, Judge Thomas, I have reflected on these hearings--this is my handwriting--and what has unfolded this past week is terrible. One of the things that I find most ironic is that many have tried to turn this issue into a referendum on sexual harassment.
Well, let me say, this is not a referendum on sexual harassment. We all deplore sexual harassment. We all deplore the type of conduct articulated here by Professor Hill. But the most ironic thing to me is, it is easy for us on this committee to say that we deplore sexual harassment, and many on this committee have said in the past and during these proceedings and before the media.
But you, Judge Thomas you have spent your career doing something about it, a heck of a lot more than deploring sexual harassment. You and your people at the EEOC have been directly involved and have done a lot about it, I know that, because, along with Senator Kennedy and the other members of the Labor Committee, we oversee what you do.
Now, the memo that you issued at the EEOC on sexual harassment, this emphasizes the importance of an earlier EEOC order issued shortly before your arrival at the agency, and that memo stated in unequivocal terms that sexual harassment is illegal.
The final paragraph of the memo, which was signed by you, reads as follows: "I expect every Commission employee to personally insure that their own conduct does not sexually harass other employees, applicants or any other individual in the workplace. Managers are to take the strongest disciplinary measure against those employees found guilty of sexual harassment. Sexual harassment will not be tolerated at the agency"--underlined.
Now, Judge Thomas, does this memo reflect a major policy commitment of yours?
JUDGE THOMAS: It expresses my strong attitude and my adamant attitude that sex harassment was not to take place at EEOC.
SENATOR HATCH: Judge Thomas, I also have a copy of an EEOC plan for the prevention of sexual harassment issued in 1987, while you were Chairman of the Equal Employment Opportunity Commission, which clearly states that sexual harassment includes "unwelcome sexual teasing, jokes, remarks or questions." Now, is this consistent with the views that you personally have believed in and have abided by during your lifetime?
JUDGE THOMAS: Yes.
SENATOR HATCH: Or certainly during these last 10 or 11 years--
JUDGE THOMAS: Yes, Senator.
SENATOR HATCH: --which are the years in question. Was sexual harassment tolerated within the EEOC by you, as Chairman, or while you were Chairman?
JUDGE THOMAS: Absolutely not.
SENATOR HATCH: Did you make clear your views to those around you or who were working with you on sexual harassment?
JUDGE THOMAS: Yes, on many occasions.
SENATOR HATCH: I would like to just bring up briefly, to ask you what your experience was in handling sexual harassment charges within the EEOC itself while you were the Chairman of the EEOC. I realize that most of the relevant information is contained in confidential employee files, but a few general questions would be in order at this point. You have been asked about this already, but this I think needs to be clarified.
There were a number of such charges brought and processed within the EEOC while you were there, were there not?
JUDGE THOMAS: That's right, Senator.
SENATOR HATCH: And these--
SENATOR BIDEN: Excuse me, let me interrupt, not for your time. I made a ruling yesterday--you are fully within your rights and if the Judge would like to go on it, we can continue--that the conduct at EEOC on sexual harassment was not at issue. Now, you put it back in issue, which I understand. It is pretty hard--
SENATOR HATCH: I agree it is not an issue, but it was made an issue.
SENATOR BIDEN: No, I ruled it out of order yesterday, it was not allowed to be an issue. Now, it seems to me that Senator Heflin has a right to go back and question now on that issue.
SENATOR HATCH: On this particular issue, I have no problem with that.
SENATOR BIDEN: Fine. Because I cut Senator Heflin off and I still think it is beyond-- I do not think he should have to answer questions about his conduct at EEOC in terms of what his policies were, but if that's the case, then it is going to be hard for me to fairly sit here and rule that one person can ask those things that relate to one type of administration of that issue and another Senator cannot ask countervailing questions.
I just want to make that point.
SENATOR HATCH: I appreciate it, but the real purpose of this is not to go into the matter any deeper than Senator Heflin did, but just to rebut what was said in his questioning, and that's the only reason I am doing this. I don't want to go any further, I don't want to particularly open up the whole issue, although I am sure that he would be happy to discuss it.
I think, frankly--let me just do this and I think you will see why it is relevant under the circumstances. I did not object--
SENATOR BIDEN: No, I think it is relevant. I just want to make sure you understand.
SENATOR HATCH: But I mean as a rebuttal to what was said.
SENATOR BIDEN: There is no rebuttal. I cut the Senator from Alabama off. Go ahead.
SENATOR HATCH: After a number of comments were made, I want it clarified. Maybe I should have objected earlier, but I didn't and I think this needs to be clarified.
Again, I repeat, I believe most of the relevant information is contained in confidential files there at the EEOC. I think the EEOC maintains its confidentiality, unlike the Senate Judiciary Committee.
There were a number of such charges brought and processed, you have just said, within the EEOC. You handled these matters, right?
JUDGE THOMAS: That's right.
SENATOR HATCH: And these cases would have been investigated by the General Counsel's Office, with disposition recommended by that office and then approved by yourself, as Chairman of the Commission itself, is that correct? Is that a fair statement?
JUDGE THOMAS: It would be approved by the whole Commission.
SENATOR HATCH: Now, just to the specific point, I want to give you a chance to speak on it. Now, reference was made earlier today or last night to the Harper case. In November of 1983, the very time relevant to today's charges, you sent a memorandum to the General Counsel of the EEOC, David Slate, in which you concurred in a recommendation to terminate Mr. Harper's employment, because of sexual harassment charges, and that you specifically noted your view, your individual view that termination, as severe a punishment as it is, was in that case "too lenient" punishment.
JUDGE THOMAS: I generally remember either handwriting that on the memo, I felt very strongly that he should have been fired, and that was my view. I felt and continue to feel that individuals engaged in this conduct should be fired, and that's the approach I took at the EEOC.
SENATOR HATCH: Well, there are a lot of other things that I could go into to show that you have been a champion in this area for women. You have been a champion in many ways for a lot of us.
I have taken way over the allotted time, but I thought it was essential, because I really am starting to become, more than I have been, outraged about the way you have been treated. I have been outraged over the way this committee has treated you, and I think Senator Biden and Senator Thurmond did everything they should have done. They handled it like every prior difficult decision. The Chairman, I have great respect for him for that.
But somebody on this committee has abused the process, and I am not going to be happy with just an Ethics investigation. I don't think anybody is.
SENATOR BIDEN: I am going to order one, though.
SENATOR HATCH: I want you to order an FBI investigation. I want an investigation by real appropriate, non-Senate staffers. I want some people who are not affiliated with the Senate to look into this matter, because I think that is the only way we even have the slightest chance, anyway, of getting to the bottom of it, and then we probably will not.
But if we are fair, this is not, as I said at the beginning, the nomination of a justice of the peace to the some small county in some small State. This involves the very integrity of and fabric of our country.
I also want to say that the burden of proof is certainly not on Judge Thomas. This is America. This is America. The burden of proof is on those who use statements that are stereotypical statements. I thought when we were talking about stereotypes, that we were talking about the Exorcist and some of these things that apparently some very bright minds out there have found to help make this dramatic in a destructive way to these good people.
Mr. Chairman, I will come back again and try to ask the rest of my questions.
SENATOR BIDEN: Thank you.
Let me make one thing clear: One is there will be an investigation of this matter, as I believe not only has the Judge been wronged, Anita Hill has been wronged, and the process has been wronged.
One other point I would like to make, I think it is appropriate to take a break in a moment, but I would like to ask my colleagues--I want to make it clear to the press, I am about to ask my colleagues to caucus with me, an there is nothing of any consequence in the caucus, other than to try to figure out the schedule for the rest of the day.
What we will do, if my colleagues would be willing to caucus across the hall with me now for a few minutes, and we will recess for 15 minutes, Judge, and then come back.
SENATOR BIDEN: The hearing will come to order.
In order to accommodate the schedules of the committee and the nominee, we are going to--this is a committee decision--we are going to adjourn now for lunch until 1:30.