Jurisprudence

Joe Biden Still Doesn’t Understand What He Did to Anita Hill

He feels empathy for her pain, but her complaint is legal, not emotional.

Anita Hill speaks onstage at the Fortune Most Powerful Women Summit 2018 on Oct. 2, 2018 in Laguna Niguel, California.
Anita Hill speaks onstage at the Fortune Most Powerful Women Summit 2018 on Oct. 2, 2018 in Laguna Niguel, California.
Phillip Faraone/Getty Images for Fortune

Joe Biden is running for president. He has a lot to recommend him, including his ability to explain the problem with repackaging Nazis as benign Civil War enthusiasts. (At this point, I might support a kitchen mop in a jaunty fedora’s run for president as long as it was not actively repackaging Nazis as benign Civil War enthusiasts.) But we still have a good long while to figure out who should run for president, and if Biden thinks it should be him, we need to revisit his role in the Anita Hill–Clarence Thomas hearings. We need to revisit it not only because Biden badly bungled the hearing when it happened, but because he is badly bungling the baggage he carries over it now, in his first days on the campaign trail. His inability to correct for it is baffling given that he has lived through 2017 and 2018 along with the rest of us. But it’s particularly important to recognize that his failure here isn’t a problem of the 28 years that have passed in between—it’s a problem of truth and justice and law.

It would be very easy to dismiss Biden’s choices as just so much ancient history. It was 1991 when he presided over the Senate Judiciary Committee hearings over then–Judge Clarence Thomas’ conduct toward his subordinate, Anita Hill. Her testimony is what prompted us to build out the language we now use to talk about sexual harassment in the workplace, which is part of why, were Biden willing to evince any genuine contrition or responsibility for the errors made and the misconduct seemingly excused, it might be easy to forgive him. But we also have to reckon with the fact that, as Elise Viebeck has chronicled at length, Biden was hardly a confused bystander as the Thomas-Hill hearings unspooled. As committee chair, he controlled many of the processes and systems designed by the Judiciary Committee to ostensibly learn the truth behind Hill’s allegations. Biden was, quite simply, outplayed by Republican senators intent on smearing Hill as delusional and a nymphomaniac, as Jane Mayer reminds us. He allowed Republican senators to issue threats about how they would destroy her. He put in place a process that isolated her—he failed to call corroborating witnesses who had similar stories about Thomas and were prepared to testify before his committee. In the end, this meant that Hill was left alone in a his-word-against-hers contest that pitted her dignified answers against Clarence Thomas’ furious, unhinged anger.

Biden now says he understands all this. Does he, really? When I interviewed Hill in 2014, she reminded me of something she says frequently about those hearings: “I had a gender and he had a race,” by which she meant that “there were senators and the people in the country who ignored the fact that in Washington, D.C., particularly in 1991, there was a great deal of entitlement that went along with being a male.” And one of the privileges of being a male in D.C. in 1991, especially a male on the all-male Senate Judiciary Committee, was that you got to make up the hearings process. And it wasn’t, as Viebeck notes, merely that Biden didn’t call witnesses or didn’t stop his colleagues from saying unconscionable things to Hill. He also made decisions about who testified when, the limited scope of their testimony, when the committee saw the FBI report, and how depositions were handled. It’s true this was happening on the fly, mistakes were made, miscalculations were not foreseen. But none of that means the final process was fair.

These may all sound like trivial process problems, but as Hill told the Washington Post in 2017, her hearing thus became a “trial that lacked all of the protections of a trial.” Among other basic process flaws, Hill noted that, “even if somebody had been sitting at the table with me, you couldn’t object, nobody could speak but me, and the chairman was not controlling what was going on, so it was worse than being put on trial because in a trial you’ve got legal protections.” I have never heard Hill discuss the hearings without focusing in on what she told the New York Times (again) last week was a “flawed process.” (Hill was responding to Biden’s claim that he didn’t fail to call her corroborating witnesses; they just backed out.) And Hill talks almost compulsively about formal processes not just because she is an attorney and a law professor, but because she knew then, and still knows now, that her testimony in 1991 and Christine Blasey Ford’s testimony in 2018 were governed by the same unspoken rule: Men have control over the process, and women have “stories.”

I would wager here that Anita Hill was no more interested in performing her pain before the Senate Judiciary in 1991 than Ford was in doing so last autumn. I would further wager that Hill would have accepted Biden’s creation of a full and fair fact-finding process in 1991 far more willingly than she ever wished for his “regret for what she endured” in 2019. I would suspect that Ford would similarly have preferred a fair and thorough investigation, including of the claims put forth by witnesses who were never contacted, to Sens. Jeff Flake and Susan Collins’ sanctimonious inchoate pity for her suffering in 2018. The Senate Judiciary Committee under Sen. Chuck Grassley, with its laughably hired sex crimes prosecutor who was benched halfway through the hearings to make room for the sputtering rage episodes from Sen. Lindsey Graham, was no more a fair fact-finding “process” than Thomas’ hearing was 28 years ago. It was a performance of female suffering, roped away from any formal rules of evidence or procedure. It ensured that the “empathetic” players like Flake could certainly later say they were sorry for what the victim endured, but that the facts didn’t support anything conclusive, without ever acknowledging that an unjust process skewed which facts we got.

He who controls the process controls the outcome. That’s what Hill learned in 1991 and what Ford learned in 2018 and what millions of women have known for millennia. What Biden, Flake, Collins, and the many others who say, “I’m sorry for your suffering”—while they alone control who testifies, who is investigated, and the rules of cross examination—are really saying is “Good performance. I was very moved. I am also quite relieved that I don’t have to do anything about it.” That the same illegitimate fact-finding process deployed in 1991 was again deployed in 2018 means we should not accept apologies for a victim’s pain without pushing to ask why there wasn’t an effort to make better processes to adjudicate what caused their pain. Because apology might be empathy, but it’s surely not reform and it’s also not progress and it’s definitely not sufficient.

Last week I had the honor of hearing my friend Heidi Bond—one of the first women willing to come forward with allegations that then-Judge Alex Kozinski had abused and bullied his law clerks for decades—speak to yet another roomful of people about law and process, and how we might lean toward a better version of both. I had to hear, once again, how the fact that Kozinski had stepped down before there could be any investigation of her allegations, or the allegations of over a dozen other women (including me), meant that she has no formal legal conclusions to point to. Instead, she is left listening to people tell her how sorry they are for her pain, which isn’t particularly useful to her. One of the things Bond told the roomful of listeners was that in the year since her story went public, virtually every man she has encountered has told her that he was either unaware of her former boss’s behavior, or that he couldn’t have done anything about it.

And on the other hand, all the women who hear her story tell her they are sorry they didn’t know, and that they should have known and acted, and that systems need to change. What that means to Heidi is profound: For the most part, women want to play a part in fixing the system. For the most part, men are trying to absolve themselves of any responsibility—but they do want her to know they are sorry about what happened. Like Hill, Bond isn’t interested in apologies. She is interested in a better process.

If Biden’s errors were understandable in 1991, they are not understandable in 2019. But even those of us inclined to believe that Biden suffers from a kind of inadvertent age-and-gender myopia can see the red flags behind his public comments on the matter, which can best be described as an attempt at free-floating apology. First there was the fact that he called Anita Hill to express his regret over how things had gone all those years ago a few weeks before launching his campaign—a conversation that Hill specifically said she would not characterize as an apology. Then there was an awful interview on The View, in which he claimed, “I did everything in my power to do what I thought was within the rules to be able to stop things,” a line that seems to have been deliberately designed to imply that he was a lowly staffer, instead of the committee chairman tasked with crucial decisions about calling witnesses and process.

Biden’s media tour continues—on Tuesday morning, we’ll see if his attempt to apologize to Good Morning America’s Robin Roberts lands the way his previous attempts clearly have not. The preview suggests that Biden has pivoted toward a deeper apology but still seems oddly unaware of the fact that at the heart of taking responsibility lies the obligation to repair unjust systems. You don’t need a Ph.D. in gender studies to understand why the logic Biden is deploying, and the number of times he’s had to take a crack at it, is wholly inadequate. Biden may finally be willing to say he will “take responsibility” for what happened to Anita Hill when he was chairman of the committee tasked with investigating her claims—but there is still no evidence to suggest what he thinks that means.

What does it mean to “take responsibility” for such a thing? Biden is widely celebrated for his empathy; it’s a quality in him that I have long admired. But Hill didn’t want mere empathy. Ford didn’t want mere empathy, and Heidi Bond doesn’t want mere empathy. They want to hear not just that men “believed” them, or that men are “sorry,” but that the next woman and the woman after will get more than sympathy and a chance to tell her sad story, in front of a camera, with a glass of water and a box of tissues as her emotional support animals. They want to hear that processes that were once broken and crabbed and constrained for truth-seeking are being improved, that the very idea of truth-seeking has legal force and meaning, and that the next woman will not be fobbed off with claims that the men in power are super, super sorry for their suffering.

I admire Joe Biden. I have a good deal of respect for a great deal of the work he has done over his long career. I feel sorry for his current suffering around the problem of Anita Hill. But I don’t need to talk about his feelings. I’d rather hear about how he thinks he screwed up, how he thinks Christine Blasey Ford was betrayed, and how systems he helped create still hamper the truth. I am glad he is sorry. I’d like to hear him talk about how it will never happen again.