I only wish that the ethical advice our president gets from his cronies was as good as the advocacy he’s getting from you–and for free. He might not have so many scandals.
Nonetheless, I’m not crying “uncle” just yet, if only because I never entirely grew out of my infantile male horror at the prospect of losing to a girl (especially one I’ve lost to before). So here’s a point-by-point (sort of) response, drawing from the version of my article published in the American Lawyer, which (brevity not being my strong suit) is almost 10 times as long as SLATE’s abridged version and now needs registration.
1. I’m all for short skirts, I don’t talk about sports, and I’d be glad to approve of respectful flirtation, etc., at work, but I’m not sure my wife Sally would want me saying that (let alone thinking it), so let’s keep it between ourselves.
2. Anita Hill: I’m delighted to hear that you don’t think of her complaints about Clarence Thomas as a sexual harassment case, if only because I love finding myself to your left on a women’s issue–as I did earlier this year in the VMI case in the Supreme Court. It’s almost as good as being called a “liberal journalist” by the Wall Street Journal editorial page.
But I digress. I think that if Anita Hill told the truth, the whole truth, and nothing but the truth about Clarence Thomas–which I don’t believe for a minute, for reasons I’d be glad to detail–it would amount to a rather clear case of sexual harassment by a boss. Not as bad as many, perhaps, but bad enough.
3. Clarence Thomas: I agree that Thomas was not qualified for the Supreme Court, and I share your distaste for the way he played the race card. But I don’t judge him as harshly as you, because I think that he believed sincerely (and with some reason) that his ideological adversaries were trying not only to block his confirmation, but destroy his good name with vicious lies. That includes Anita Hill. None of us knows for sure what happened between them, but we all have our hunches. Here’s mine, based on all of the evidence I’ve seen: At worst, Thomas asked Hill for a date or two, and perhaps made some off-color remarks about pornography or whatever, doing so repeatedly (if he did) only because (as even some Hill partisans admit) she never made it clear to him that such talk was unwelcome.
Then, 10 years later, while he is under attack from all sides, Hill–a woman who had sought and received favors from him for years–shows up on national television, depicting him as an overbearing, porn-crazed sexual harasser. If he had responded by saying, “Gee, I only asked her for a couple of dates, and I thought she liked joking about pornography,” it would have been seized upon by liberal feminist groups as a virtual admission that he was a sexual harasser, and he might well have gone down in disgrace.
This view of the facts qualifies somewhat my distaste for the response that Thomas did choose–and even for his possible (but still unproven) decision to commit perjury–telling some little white lies (by denying everything) in an effort to save himself from Hill’s big, evil lie.
4. The Republican senators: Sure, some of them went way overboard. But were they worse than Clinton crony James Carville, who said of Paula Jones: “You drag $100 bills through trailer parks, there’s no telling what you’ll find”?
Would you have wanted all the senators to take on faith Hill’s weakly corroborated claims against a man with no reputation for such conduct–as did Ted Kennedy, the one who had the bag over his head during the Hill-Thomas hearing? I prefer the course chosen by Sen. Specter; while his pompousness is hard to take, he did a pretty good cross-examination of Hill, and thus succeeded in exposing at least one instance of what I consider to be attempted perjury by her. (You want details? Coming right up.)
5. Paula Jones: As the American Lawyer’s version of my article shows, she had good cause for concern that the mention of “Paula” by the American Spectator (which she didn’t sue because her lawyers plausibly advised her she had no case against it)–quoting a Clinton bodyguard’s depiction of her as one of Clinton’s compliant conquests–would get back to her friends, family, and others in Little Rock, and might even endanger her marriage.
“She’ll get her day in court”? Not until 2001–seven years after she filed suit–if the president and his amici (including you) have their way.
“Hold the presidency hostage”? This is the only civil damage suit in U.S. history filed against a sitting president for personal conduct. So the floodgates of litigation aren’t exactly swinging open. While the president’s time is a precious national resource, how much of his time would it take for the courts to allow Jones to compel discovery from other witnesses? Or for Clinton himself to confirm or deny under oath–either in a carefully limited deposition, or in written answers, which his lawyer could prepare for his signature–Jones’ allegations of what he did to her in the space of a few minutes on May 8, 1991?
“Politically motivated”? By all accounts, Paula Jones is a political ignoramus, and her first lawyer–a badly overmatched solo practitioner in Little Rock named Daniel Traylor–is a self-described “yellow dog Democrat.” And contrary to your suggestion, Cliff Jackson has never been Jones’ lawyer and barely knows her. Rather, Traylor approached Jackson after flubbing pathetically an attempt to reach the White House to settle the case; Jackson suggested that one way for Traylor to get publicity that might put pressure on Clinton to settle her claim would be to go public at a right-wing conference in Washington; and Traylor foolishly took that advice, causing Jones a credibility problem that has dogged her ever since.
Is Jones stupid? I don’t know, but I don’t think it was a disgrace for an unsophisticated woman with a legal complaint to follow her hapless yellow-dog-Democrat lawyer Traylor’s bad advice.
(By the way, I called Cliff Jackson and read him your characterization of him as one of “the people who have fought against civil-rights laws to protect women.” He laughed, and responded that he was a longtime supporter of civil rights and women’s rights, and that he had won a $20 million jury verdict for a woman in 1991 in a sex-discrimination suit against Texaco–which Jackson called a “white boys’ club” that treats women and minorities disgracefully. This was the largest such verdict in history, he says, until the trial judge overturned it. I think you might like Cliff, if you ever meet him.)
6. President Clinton: I don’t fault him for hiring a good lawyer. I do fault him for choosing a defense strategy of smearing Paula Jones–who was willing to settle for a no-cash public apology–as a lying, money-grubbing slut; and of using nondenial denials to convey the impression (without ever specifying under oath, or at all) that she is lying even about those of her allegations that Clinton knows to be true; and of claiming an immunity so breathtaking in its sweep as to provoke a federal-appeals court to proclaim, with evident distaste, that “the Constitution … did not create a monarchy.”
7. Law professor’s answer: Whether or not Jones’ claims (if true) state a legally sufficient claim for monetary damages is debatable. My law professor source says they do. But I think this point is a diversion. Indeed, if things like Title VII’s 180-day statute of limitations are dispositive, why did anybody listen to Anita Hill’s 10-year-old allegations of far less serious conduct?
The reason people listened–and should have listened – is that Hill’s allegations, if true, bore on Clarence Thomas’ character, and thus on his fitness to be on the Supreme Court (in my view, if not yours). People should also listen to Paula Jones–and, of course, to any evidence the president may advance to refute or discredit her, of which he has offered virtually none so far.
(By the way, the reason Jones did not sue sooner, she plausibly says, was fear of losing her job working for a Clinton appointee, and fear that nobody would believe her; she says she would never have sued had she not been depicted in print as a supposed Clinton conquest, and then blown off by all the president’s men as a liar. Wouldn’t that have pissed you off too?)
(And no, I don’t think Congress was thinking about such incidents when they passed the KKK Act. So what? Do you think they were thinking about abortion when they passed it? Or women’s rights to equal treatment by states? And aren’t all major Supreme Court decisions on both of these issues based on the same KKK Act, along with the same 14th Amendment on which Jones relies?)
8. “So what if she’s telling the truth”? I might agree if I bought your summary of the facts: “He asked. She said no. He said OK. She left.”
Here’s my summary, based on Jones’ complaint, which tracks the accounts she gave to her friends and sisters (respectively) 10 minutes, 90 minutes, a few hours, and a day after the event:
Then-Gov. Clinton sent his state-trooper bodyguard to interrupt Jones, then a 24-year-old, low-level employee, at her work station in a Little Rock hotel and fetch her to his suite upstairs; she agreed to go, hoping perhaps to get a better job, and hardly expecting to see the governor expose himself; once he had her alone, Clinton first reminded her that he was the boss of her boss; then he “took Jones’ hand and pulled her toward him,” prompting her to remove her hand and retreat several feet; then he approached again, put his hand on her leg and started sliding it toward the hem of her culottes, while trying to kiss her on the neck; then, after being rebuffed a second time, he “lowered his trousers and underwear, exposing his erect penis, and asked Jones to ‘kiss it’ “; and finally, when she expressed horror, he pulled up his pants, he looked at her sternly and said, “You are smart. Let’s keep this between ourselves.”
As Jones said when she filed her lawsuit, “This case is about the powerful taking advantage of the weak.”
One last thing: As I detailed in another recent article, Clinton’s alleged conduct, as outlined above, would be a federal crime under the interpretation of another post-Civil War civil-rights statute that is propounded in briefs filed in another pending Supreme Court case (U.S. vs. Lanier) by all the usual feminist groups–and by the Clinton Justice Department too.
That’s not my view of the criminal law. But it’s the president’s. And he’s stuck with it.
With best wishes,