Dinners with ruth, p.11
Dinners with Ruth, page 11
Prior to his quick rise in the conservative Reagan administration, he had clerked for Justice Thurgood Marshall, the nation’s first African American justice, and then taught at Harvard Law School. So I went to Cambridge to see what I could learn about him there. Rather quickly I discovered that he had occasionally smoked marijuana with students, and, to the displeasure of some faculty mothers, he had also smoked weed in front of their children.
Today it may sound crazy that having smoked marijuana would sink a Supreme Court nomination, but in 1987, this was a very big deal; in fact, the Reagan administration had a very hard-line policy on drug use and prohibited the Justice Department from hiring attorneys who had used marijuana after being admitted to the bar. Somehow, Ginsburg had been hired anyway.
But what to do with such revelations? I agonized. Ultimately, the answer was easy. These were corroborated facts. It is not up to me to determine someone’s fitness for a position, but it is my responsibility to share information germane to a lifetime appointment. We broke the story on NPR’s All Things Considered right after I returned from Cambridge. It would have been my preference to wait, but we were hearing that other reporters were beginning to “sniff out” the same information. So I wrote a series of questions for host John Hockenberry to ask me, questions so bland that he actually had me redo the interview for the second feed. He was right. I had buried the lede the first time around.
Still, at the end of the story, I kept the qualifier that it was unclear whether this in any way disqualified Ginsburg from an appointment to the Supreme Court. It turned out that it did; Republican senators in particular were horrified, and Ginsburg withdrew from consideration within a week.
On his third try, Reagan nominated Anthony Kennedy, who sailed through and was also unanimously confirmed.
At that moment, I wasn’t considering the possibility of another Judge Ginsburg being nominated to the Court—or the possibility of being caught in a firestorm over another confirmation hearing. Within five years, both would happen.
Seven FRIENDS and CONFIDENCES
Ruth had served on the U.S. Court of Appeals for the District of Columbia Circuit for more than a decade. In that time, she had watched three colleagues be nominated for the U.S. Supreme Court but only one be confirmed. Now, in the summer of 1991, a fourth colleague—Clarence Thomas—was being nominated to the High Court, this time to replace the retiring Justice Thurgood Marshall. He had been on the DC Circuit with Ruth for just over a year when he was selected, and I cannot remember her ever saying anything about him one way or the other. But when he was named to the lower court, it was clear he was being groomed as a potential Supreme Court nominee in the event of a Marshall retirement. When that expectation became reality, it would lead to the biggest story of my career.
The confirmation hearings began in September, and after eight days of testimony, the Senate Judiciary Committee was scheduled to vote on the nomination September 27. I did not expect anything unusual, but then something odd happened. The chairman of the committee, Delaware Senator Joe Biden, made a very cryptic statement before the committee vote: “I believe there are certain things that are not at issue at all, and that is his character or characterization of his character. This is about what he believes, not about who he is.” With a warning tone in his voice, Biden added, “I know my colleagues, and I urge everyone else to refrain from personalizing this battle.” Sitting there, I thought to myself, “What character questions?” As Biden was making his statement, I saw that all the committee members had been given large manila envelopes, and they were looking at the contents. The clear subtext was that this involved something that was perhaps highly inappropriate. I didn’t know what was inside those envelopes, but I started kicking the proverbial tires. After Thomas had been nominated, on July 1, I had heard rumors about sexual harassment allegations, but I could not verify anything about them, so I gave up. This was, I assumed, “another good story ruined by the facts.”
But after that Judiciary Committee session, I called up Democrats on the committee, starting with Howard Metzenbaum. And I asked, “What do you know about this?” In answer to my questions, he said, “Oh, Nina, this is no silver bullet. This is not a big deal.” I wasn’t so sure. I kept calling folks, and finally, I had a name: Anita Hill.
I began my own background check on Professor Hill, who was teaching law at the University of Oklahoma but who had worked for Clarence Thomas at both the Department of Education and the Equal Employment Opportunity Commission. Reliable conservatives gave her high praise and said she hung the moon. Both her current dean and the dean of the Oral Roberts University law school, where she had taught previously, spoke highly of her, calling her an outstanding professional and a woman of the highest integrity.
My next call was to Professor Hill, with an opening line about how I was writing a piece on Black law professors. She replied succinctly, “I know why you’re calling.” She said she would speak to me, but only if her name wasn’t used. And I told her that I couldn’t do that. In my view, I said, no one could make this type of accusation anonymously. That was especially true this late in the confirmation process, but any time as far as I was concerned. Professor Hill said she wouldn’t talk to me unless I got a copy of her sworn affidavit.
I didn’t know it at the time, but the Judiciary Committee staff had known about Hill for some time, although she had not been willing to come forward publicly. In September she reconsidered. As I reported when I broke the story, “By the time Clarence Thomas was testifying before the Senate Judiciary Committee the week of September tenth, Hill had contacted the staff of the Committee’s chairman, Joseph Biden. She says that while Biden’s staff seemed interested, it was not until ten days later, after repeated calls from her, that she was interviewed by the FBI.”
On September 23, four days before the mysterious envelopes and Biden’s statement, the FBI interviewed Professor Hill in Oklahoma. Hill provided the name of a corroborating witness, a friend in whom she had confided at the time, a friend she had known at Yale Law School, Susan Hoerchner, who was by then a worker’s compensation judge in California. The FBI interviewed Hoerchner, as well as Clarence Thomas. Hoerchner, according to Senate sources who saw the FBI report, confirmed that Hill had told her contemporaneously about the harassment, but Thomas had denied the allegations. The White House examined the report for less than two days, declared it exculpatory, and told the Senate to move forward.
After the FBI meeting, Hill submitted her affidavit to the Judiciary Committee, so it would have her own words. (At the time, FBI interviews were not recorded or even transcribed verbatim. They were paraphrased from general handwritten notes taken by the agents during the interview. That was standard practice until 2014 and is still the case with many of the interviews the bureau conducts today.) She had also retained a high-profile attorney, Charles Ogletree of Harvard Law School. Ogletree may have told her I wouldn’t be able to get a copy of her sworn statement, but by October 1, I had reviewed every word of it. I called Hill back, and she lived up to her promise to talk to me, on the record, and on tape. At the end I told her that she would be “the subject of great trauma and great controversy.” I wanted to give her one more opportunity to say no. The decision to go forward, publicly, with the charge had to be hers. I also spoke to Susan Hoerchner.
Then I did something that would be impossible today: I held the story for one more day, while I tried to reach Biden and his staff for a comment. They refused to respond; only Senator Paul Simon would speak to me on the record, telling me that when Hill had first contacted the committee, he had said to her, “You can’t have this kind of an accusation anonymously.” Now, the accusation was no longer anonymous. So, on October 6, two days before the entire Senate was scheduled to hold its final vote on Thomas’s nomination, NPR aired my report on Weekend Edition Sunday, laying out Hill’s charges along with audio excerpts from my interview with her—and the information from the corroborating witness. That same day a Newsday reporter, Timothy Phelps, broke the story in print, identifying Hill by name but without any of the details about her charges. On Monday, Hill called a press conference and announced that she would testify in an open hearing if asked.
That morning, I was being interviewed by the host of NPR’s Morning Edition and one of the questions I got was whether the Senate would vote on Thomas’s nomination that week as scheduled. My response was that they would vote if the Republican leadership, namely Bob Dole, had the votes to confirm, and if they didn’t have the votes, there would be a second set of hearings. It turns out, they didn’t have the votes, but the subsequent hearings were very rushed, with enormous political pressures on both sides. The truth-seeking role was lost in the shuffle. The Thomas-Hill hearings, which riveted the nation and indeed much of the world (they received higher television ratings than that year’s World Series), stretched from October 11 to October 14. But nothing was resolved. A few minutes after 6:00 p.m. on October 15, Clarence Thomas was confirmed for a seat on the Supreme Court by a 52–48 vote, the narrowest margin in more than a century.
That part of the story was over, but mine was just beginning. The Republicans were furious, and many saw my reporting as an attempt to derail Thomas’s nomination and ultimately keep him off the Court. They believed that I was purposely sabotaging their nominee—even though Chairman Biden, under some duress, had directed the FBI to begin its own investigation before I ever asked my first question. Two days after my NPR report, Senator Alan Simpson and I argued about the story on Nightline. After the show had finished taping, he followed me to the hired car the network had sent to take me home, waving a journalistic ethics code in one hand and accusing me of “ruining Anita Hill’s life.” He held on to the car door and yelled at me until I got out and yelled back, using a few choice words, including, regrettably, calling him a “fucking bully.” When my car finally left and had turned the corner, the driver pulled over, turned around, and said to me, “Lady, you better get a gun.”
Simpson’s fury was so profound, I desperately wished Floyd had been there. Instead, when I came home after that Nightline encounter, Floyd heard me and came down the stairs, in his pajamas and half asleep. He took one look at me, and I burst into tears, hardly the tough reporter I played on network television. Floyd was wonderfully supportive throughout. He was absolutely unlike his former colleagues, including the most liberal members of the committee, like Senator Metzenbaum, who had dismissed sexual harassment as a nonissue. While I was working on the story, before I had enough to go with, Floyd could not understand why this wasn’t a big deal and why the committee didn’t do something about it. The man who always wanted me to be home on time to make dinner kept saying, “You go do it. This is an outrage. This should be looked into.”
What bothered me the most when I started digging was that neither side had fully investigated these allegations. It’s much easier to investigate fully when charges are still confidential, before they are splashed across the nation as a huge news story. The fact is that no one ever disputed the truth or accuracy of my story, which was that a credible witness had made a serious allegation to the Judiciary Committee and those allegations, for all practical purposes, had not been examined. Hill’s name had been forwarded to the committee weeks before, and the committee had dropped the ball.
Instead, I was put under the microscope. When I arrived at work, my voicemail would be full. I think it held thirty-six messages, and every morning, when I pushed the play button, almost all of them were abusive and awful (voicemail messages having been precursors of social media discourse). Once I heard the venomous talk, I would hit delete, delete, delete. It was incredibly unpleasant; my post-Nightline encounter with Alan Simpson was even written up in The Washington Post, having been leaked by Simpson’s press secretary. Not certain where this was heading, a day or two later I destroyed all my handwritten notes that had any possibility of revealing information about my sources.
Nothing I’d ever done in my life, good, bad, or indifferent, went unexamined. Some of the attacks were withering. Wall Street Journal columnist Al Hunt, seeking to impugn my integrity, resurrected the nearly two-decades-old incident where I had borrowed quotes for my Tip O’Neill piece. “Purposeful plagiarism is one of the cardinal sins of journalism from which reporters can never recover their credibility,” Hunt wrote.
I felt like one of Floyd’s tennis balls being smacked back and forth between the opposing sides.
But suddenly the stakes were raised. In his defense of Thomas on the Senate floor during the final confirmation vote, Missouri Republican Senator John Danforth had delivered an impassioned speech, all but accusing Senator Metzenbaum’s staff of leaking the FBI file. He said that the penalty for senators or staff who leak secret information is expulsion or dismissal. “That is how serious leaking an FBI file is,” he thundered, as he fixed his eyes on the Democratic staffers sitting in the staff seats at the back of the chamber. Never mind that I had never seen the FBI file in question, or claimed to have seen it.
Inside the Senate, the controversy would not subside. On October 24, by a vote of 86–12, the senate passed a Democrat-sponsored resolution that gave the Republican and Democratic leaders the power to appoint a special counsel to investigate “the leak.” He—it was always going to be a “he”—would have subpoena power and receive assistance from both FBI and General Accounting Office investigators. He would be given 120 days to complete his investigation and report back on leaks from both the Thomas-Hill hearings and the earlier Keating Five banking scandal, which had ensnared several prominent Democrats. Suddenly, I was not merely being excoriated in the press. I, along with Timothy Phelps, had been plunged into legal jeopardy. On December 6, Senate leaders George Mitchell and Bob Dole named Peter Fleming, a New York lawyer, as the special counsel. His investigation was slated to commence on January 1.
I insisted that NPR hire Floyd Abrams, a wonderful First Amendment lawyer, to defend me. He generously gave us a cut rate, and now I had two Floyds in my life. Special Counsel Fleming subpoenaed both me and Phelps. On February 24, I made my way to the Hart Senate Office Building, a white marble building with a massive black Alexander Calder half sculpture half mobile, Mountain and Clouds, dominating the atrium. I made my way to one of the closed-off rooms on the second floor for my interview.
To each question, I replied, “I respectfully decline to answer.” I had given my word to the sources who helped me with the story, and to betray them not only would have been dishonorable but would also threaten my ability and the ability of the press in general to inform the public about the functioning and malfunctioning of government. As I explained first to Fleming and afterwards to a battery of cameras and reporters covering the subpoena, “I will not be a party to this effort, even if it costs me my liberty.” I also told the special counsel that I would take the names of my sources to my grave, and I feel exactly the same way about that pledge today. No one will ever know.
* * *
The expectation was that, because of my refusal, the Senate Rules Committee would cite me for contempt, and contempt of Congress could mean jail. Floyd Abrams told me from the start that I didn’t have a legal leg to stand on; the only thing I had was public opinion. He told me to do every media interview I was offered.
I was so nervous for the first interview, on the Today show, that he sat next to me. Fortunately for me, right-wing talk radio did not yet exist; there was no Rush Limbaugh show or Sean Hannity. That would have been far worse.
Fleming’s next move was to subpoena my telephone records and Timothy Phelps’s from September 23 through October 6. He also requested that we both remove any “personal calls” from the records. But, as Phelps’s, lawyer, Ted Olson, pointed out, removing those calls would make it easier for the counsel’s efforts to isolate and identify a source. Floyd Abrams was indignant, issuing a statement that called the subpoenas “dangerous assaults on the First Amendment,” and saying, “Journalists must be free to use their telephones without fear of government surveillance.” In the small world of Washington, the person who had signed the subpoenas was Senator Robert Byrd, Democrat of West Virginia, the president pro tempore of the Senate and one of my longtime sources. Byrd said he was required to do so by the terms of the resolution authorizing the special counsel investigation. He added that any objections should be raised with the Senate Rules Committee.
One member of that committee, Senator Daniel Patrick Moynihan, finally put an end to the spectacle. In a speech on the Senate floor, he declared that the special counsel was doing damage to the First Amendment, adding, “It’s not as if any crime was committed here.” More important, he said that if the matter came before the Rules Committee and anyone supported Fleming’s tactics, “I’ll guarantee there’ll be blood on the walls of the committee room.” Within a couple of weeks, the Democratic committee chairman and Republican ranking member had quashed the subpoena request. Just like that, my legal jeopardy was over.
But the ramifications, bad and good, have lasted a lifetime. In hindsight, I think I did really good work, and I’m very glad I did it. But at the time, I wondered almost daily if that one story was worth what was happening to me. I often joked that strangers had sent me flowers and candy, but I had to throw away the candy because first, it would make me chubby, and second, I didn’t know if it had been poisoned. I was trying to keep up a good front, but in fact, I was using humor to state the truth. Many people deeply hated me and were not shy about expressing their vitriol.
