Speaking Truth to Power (49 page)

The reality of sexual harassment is that most women do say no to harassment but too often are stuck with the interpretation of her harasser that her no meant yes or, at least, “maybe.” The idea that even forcefully saying no stops the behavior misperceives the basis for harassment and the dynamics of such interaction. Targets of harassment are all too often not in control of the harasser’s behavior or the general environment in which the harassment takes place. Harassment is abuse of power manifested in the form of sexual coercion. In the same way that saying no to the use of the club rarely stops its use or the threat of it, saying no to harassment does not end it absent some greater power to back up the refusal.

Women targeted for sexual harassment are rarely the sexual prudes or aggressors described by their harassers or their harassers’ apologists. Nor is every harasser an “animal” with obvious social deviancies. The prevalence of the problem supported by social research indicates that harassment victims come from all walks of life and are of all different personalities. Similarly, women rarely use harassment claims to escape responsibility for other problems in their lives: only 3 percent of the harassment claims filed are baseless while 97 percent of the cases go unreported. However, when, without fully investigating it, you presumed that my claim was a frivolous or spite claim, you advocated action based on the exception rather than the rule.

When certain members of the Senate Judiciary Committee received my statement, they acted on the myths of sexual harassment and proceeded to perpetuate those myths. In labeling me a manipulative aggressor and a political conspirator, you ignored the reality of the workplace, and moreover, that I came before the committee after your staff contacted me. As Judge Hoerchner stated in her testimony, I “did not choose the issue of sexual harassment, rather the issue chose” me, nor did
I choose to testify publicly or to make this an issue of public concern. Other than my personal experience, neither I nor you knew much about sexual harassment prior to the hearing and neither did the public. Your lack of knowledge of the problem is understandable. Some members had practiced law before election to the Senate but none had specialized in employment discrimination law specifically. Given the sharp progression in employment discrimination law since 1964 when the Civil Rights Act was passed and in sexual harassment law since 1986 when the first Supreme Court decision was rendered on the topic, it is unlikely that even the attorneys on the committee had kept up with the case-law development in the area of sexual harassment. Consequently, your failure to avail yourselves of available sexual harassment experts is inexcusable. It can only be explained as arrogance or willful ignorance. Your statements during the hearing suggest that both may have been at work.

In addition to educating themselves on the issue of sexual harassment, the committee should have adhered to established procedure and standards in evaluating the fitness of the nominee. One of the greatest disservices that the Judiciary Committee did was to unnecessarily blur the lines between a nominee’s public and private behavior. The issue is one which the public and various congressional advisory committees have grappled with and which promises to become more prominent as the press becomes more and more aware of the details of nominees’ and candidates’ lives. But in many ways it is a false dichotomy—one set up only as a way of avoiding discussing matters which the committee is afraid to consider.

Other nominations have been called into question or failed because of behavior that, if proved, would constitute poor judgment as well as illegal activity—either a criminal or a civil violation. For example, Harvard law professor Douglas Ginsberg allegedly smoked marijuana at a law school function where both students and other faculty were present. President Bush withdrew his nomination to the Supreme Court in the face of this disclosure. Zoe Baird, a corporate attorney, was the first woman ever nominated to head the Justice Department. Baird admitted to hiring illegal aliens for child care at a time when it was illegal to do so. Her nomination ultimately failed when, after discussion, the Judiciary Committee
declined to send her name forward to the full Senate. Interestingly, before the revelation about her illegal activity, Ms. Baird’s nomination received bipartisan support. Each of these matters might have been considered private behavior and thus inappropriate for consideration by the committees involved in the process. Nevertheless, they became a part of the public consideration once Presidents Bush and Clinton made the nominations to high office.

Clearly, illegal behavior and evidence of illegal behavior should not be excluded from the scrutiny of an advisory committee when a nomination or candidacy for high office is at stake. Although the reviewing committee is not a court of law competent to adjudicate a claim or mete out a sanction, it must not exclude the information as private or personal. It is relevant to the question of the nominee’s qualifications and character. Moreover, the committee should not distinguish between types of illegal behavior by suggesting that certain illegal behavior is private rather than public behavior when deciding whether to consider the information. The committee must be willing to explore evidence that supports the allegation that the behavior is illegal. For example, where an allegation of racial discrimination is made involving a refusal to hire a person because of race, information about racial animus that shows a propensity to discriminate must be considered. An advisory body should consider the evidence, though it may not show that the particular decision resulted from racial bias. It is relevant to support the claim of the particular incident alleged. More important, it is relevant to the character and competency of the nominee.

Evidence which has not been ruled to be a violation of the law by a court (such as the evidence presented in Ms. Baird’s nomination hearing) but which raises a colorable question of a violation or suggests a disregard for the law also must be considered. This is especially so when a committee is passing on a person seeking a law enforcement position, such as a position on the Supreme Court or in the Justice Department. Often, absent a court ruling, a person offering evidence of illegal activity cannot establish with certainty that the information that they are seeking to present represents a violation of the law. Placing the burden of obtaining
a court ruling or otherwise establishing a violation with absolute certainty does not serve the public interest in making a thorough determination about the nominee. Moreover, a requirement that someone coming forward establish a violation of the law in many circumstances is unreasonable. As one letter writer asserted in responding to the hearing, Thomas’ behavior “indicated an attitude toward women which is not only offensive but which I fear will be harmful to all of us as we seek equality.” Another declared that Thomas’ confirmation “sent a clear message to those in our society who are prone to abuse the human dignity of others that it is indeed permissible to do” so. Thus, the information about his behavior was relevant regardless of whether it fit within the definitions of behavior which was outlawed. In addition, violations of public trust and evidence of such should not be excluded as relevant to the nomination of an individual to high office. Likewise, such violations are not personal information because they reflect on how an individual comports oneself in a position of authority and guardianship. As such, evidence of the behavior of Professor Ginsberg, Ms. Baird, and Judge Thomas was not private.

Consequently, certain behavior by its nature is public, not private, when a person is being considered for a high office. Illegal behavior and evidence of it must be considered regardless of whether the source of the law which makes the behavior illegal is civil or criminal in nature. Colorable claims of illegal behavior must also be considered, as should violations of public trust or evidence thereof, because the latter relates to the handling of a position of civic responsibility. These activities by their nature are public, not private. Actions which by their nature are private but which the nominee has introduced into the public arena such as the workplace or in congressional gatherings are subject to review in considering a nominee as well.

Again we must not overlook the context from which these reviews arise. A federal judicial appointment is a life-term placement subject only to removal by impeachment. Judicial appointments, which occur at the conclusion of nomination proceedings, are independent of the democratic
process and should be, if they are to serve and to protect the rights of the majority as well as the minority. Such a nomination or an appointment is a prize, not an entitlement. Even presidential selection for a position does not give one the right to be confirmed to such a post. Two key factors argue in favor of heightened scrutiny of the nominee’s background and qualifications—the standard often applied in the past. First, appointment to high office is a plum whose award is nearly impossible to retract. Second, the public has a profound interest in the integrity of the courts aside from the politics of any nomination. Absent a clear invasion of private matters which do not relate to the law or the ability of a person to carry out his or her role as arbiter of disputes and protector of rights, much latitude has to be given to review information about the nominee.

Presidential nominations to other than lifetime posts must to a lesser extent be subject to scrutiny as well. These nominations and subsequent appointments are subject to the will of the president, who in turn every four years is subject to the will of a popular vote. Nevertheless, the fact that they are prizes and not entitlement dictates that they, too, must be scrutinized. Actions of public officials, even seemingly private ones, may have public consequences, and a nominee who violates the law can blame only him- or herself.

During the hearing, Senator Paul Simon asked that I or someone at my academic institution provide the Senate with some guidance on how to “deal with a charge that someone makes, that is a substantial charge, but that person says, … ‘I don’t want the charge made publicly.’ ” Two things are of utmost importance: a thorough and fair investigation and application of the proper standard of evaluation.

Even before an investigation takes place a person seeking to provide information to the Senate should be advised of the process by a competent staff person. Secrecy about the process resulted in my own insecurities and perhaps delays in the investigation. Nevertheless I proceeded. However, others may be discouraged altogether from engaging in a procedure about which they are told they are entitled to no information. If the committee expects a citizen to participate in the
process with this kind of information or information of any kind, the committee must extend the citizen the courtesy and benefit of knowing what the process is.

The investigation should be handled by a nonpartisan body or individual in the role of a neutral fact finder, experienced in investigating sexual harassment matters. In investigating sensitive issues follow-up interviews should be the norm, not the exception.

As the circumstances surrounding the hearing proved, the investigator’s neutrality is crucial. The FBI proved not to be a neutral fact finder in investigating my complaint. As part of the executive branch there is, at the very least, an appearance of alliance to the president whose nominee is being investigated. The danger in this alliance was realized later as the FBI was ordered to review my testimony for the purpose of spotting additional information or inconsistencies. The bureau received no such orders with regard to Thomas’ testimony. The conflict of interest is apparent: not only were the agents trying to defend their investigation but they were acting at the direction of a party whose interest was in seeing that the nomination went forward. Even though the use of the FBI in this manner was unusual, its occurrence illustrates the problem of relying on an investigator who may not be neutral or who can be utilized to serve an interest other than the fair resolution of the complaint. Secondly, the FBI has little formal experience in the handling of sexual harassment claims and no apparent knowledge of the law of employment discrimination. The agency’s expertise lies in criminal investigations and background checks. Sexual harassment is a social and a legal problem—a civil rights violation. The FBI agents may be aware of the legal definitions involved but may not be aware of how to elicit adequate information about a claim.

The standard for sexual harassment information should be no different than for other information about the nominee. Thus, the claim need not present a violation of the law to be considered relevant to the nomination process. The committee should consider competent information which negatively reflects on the competency and fitness of the nominee and the ability of the nominee to fulfill his obligations to the Court. This requirement
and standard of review give credibility to the process and help prevent concerns about political manipulation of such issues.

A written report with a recommendation on whether the committee should pursue the information should result from an investigation. The committee should then determine whether the information should be kept private or made public. The entire handling of my statement in this manner could have been concluded in a week to ten days. Under this time frame, had I been advised of the procedure on September 9, when I confirmed the rumors about harassment to Ricki Seidman, Senator Kennedy’s investigator, or on September 12, when I contacted Harriet Grant of Senator Biden’s nomination staff, the matter might have been concluded by September 23, which was the date on which I sent a statement to the committee. More important, had the matter been handled promptly and in the manner I describe, you might have avoided the leak of the information to the press. Fewer people would have known about the information and there would likely have been greater satisfaction with the process internally among the staffers.

I make these suggestions for the sake of the process and others who may have information relevant to a future nomination. I have made peace with the action I took in my own claim and have only one thing to ask of the committee. Many of you have extended to women your regrets for your insensitivity in handling my claim. Others have apologized to the American public for your poor showing in the hearing. On a personal note, I would like to remind you that none of you have apologized to my parents. At the time of the hearing they were nearly eighty years old. They have worked hard all their lives and attempted to raise their children to fear God, seek the truth, and to respect the authority of the government. Six of their seven sons served in the armed forces over the course of nearly twenty years. Putting aside my bias, I know and their community knows that they are individuals of the highest character. Your malicious indictment of me was an indictment of them and all that they have taught me. At a time in their lives when they should be enjoying carefree days of leisure activities, they still fear for my safety and well-being. At the very least, they deserve a public apology from each of you.