Speaking Truth to Power (14 page)

I do not like the heat. By mid-July I am out of sorts. I pant from air-conditioned home to air-conditioned car to air-conditioned office in the morning, and in the evening I reverse the routine. I wonder how I managed all those un-air-conditioned years in the fields and at home. I remember how I looked forward to visits to my cousins, whose big cooler bellowed water-saturated air into their family room. I delighted in the temperature of that room until it was time to go home, where the only respite was the night breeze through an open window.

The summer of 1991 was a difficult one for me even before the temperature reached one hundred degrees. I was suffering from a medical condition that seems to run in my family. My uterus was covered with tumors that caused me considerable pain and discomfort. Each day I would rise to moderate pain that increased as the day wore on. I have an even stronger aversion to medication than to heat—even over-the-counter
medication—but some days the pain was such that I would take the anti-inflammatory pain relievers my doctor prescribed. Since these had side effects, I would try to manage without them when I could.

O
n the morning of July 1, 1991, like most lawyers in the country, I waited in anticipation of the president’s announcement of his choice to replace Justice Thurgood Marshall on the Supreme Court. The White House had circulated a number of names as potential nominees. Political commentators, in the business of speculating about such things, were predicting that President George Bush would name a Hispanic judge to succeed Justice Marshall. Prominent among the possibilities floated were Judges Ricardo H. Hinjosa and Emilio M. Garza, both of the Fifth Circuit Court of Appeals, and Judge Ferdinand F. Fernandez of the Ninth Circuit, all Reagan appointees with solid Republican credentials. Judge Jose Cabranes of the Second Circuit was the only Carter appointee under consideration, and Judge Clarence Thomas of the D.C. Circuit Court of Appeals was the only African American. Two white women, Judges Edith Jones of the Fifth Circuit and Pamela Rhymer of the Ninth Circuit, were reportedly on the list too, along with two white males, Kenneth Starr, the solicitor general, and Judge Patrick Higginbotham of the Fifth Circuit.

The New York Times
reported that television journalists were declaring forty-three-year-old Judge Garza the front-runner. Compared to some of the others under consideration, Judge Garza had limited experience on the court of appeals, having been appointed early in 1991, from a federal district judgeship he had taken in 1988. However, he had more overall federal judicial experience than Thomas, also forty-three, who had only been appointed to the court of appeals in 1990.

Amid all the speculation, President Bush maintained that race was not a consideration in his deliberations. He insisted that he would “go for the best-qualified candidate.” Many observers, including Justice Marshall himself, commented that race would undoubtedly be a factor in the
president’s selection of the successor to the first and only African American on the Court. Having heard and read the reports of the journalists, I mentally dismissed the idea that President Bush would choose Clarence Thomas to fill Marshall’s seat. Following the cue of the media (perhaps for the last time in my life), I awaited the announcement of the country’s first Hispanic Supreme Court nominee.

Early in the day, I went to the university to prepare the examination for my contracts class, which consisted of about thirty students, a relatively small number that made teaching more enjoyable than usual. Despite my interest in the nominations, my thoughts were elsewhere—about thirty miles away in the Oklahoma City office of a gynecologist I was yet to meet. At midmorning I left the law school for the drive to my appointment in the city. Like too many doctor’s visits, this one was frustrating and disappointing. My new gynecologist, chosen primarily because my health plan covered his fees, speculated that a hysterectomy was inevitable but said he would treat my condition with painkillers until the discomfort became unbearable. I reminded him that the internist who had referred me thought that immediate action was in order. He responded with a smile, “They tend to overreact. They don’t see as many of these as we do,” and added, “I treated one woman whose tumors were the size of a seven-month fetus. Yours are nowhere near that big.” Somehow I was not reassured. Finally, he suggested that he had spent far too much time answering my questions, and that was the end of my visit. Never mind the time I had spent in the examining room waiting for him. I returned to Norman praying that I could find a gynecologist who’d be both responsive to my condition and covered by my health plan. By midday I had completely forgotten the president and the Supreme Court.

Late that afternoon, back at the law school, I got a call from David Margolick of
The New York Times
. Through him I learned that President Bush had selected Clarence Thomas as his nominee to the Supreme Court. I was caught completely off guard. I had spent most of the day waiting in an examination room. All morning, whenever I thought about the nomination, I assumed that Garza would be picked. I was guarded in
my comments to Margolick. Whether honestly or as part of a journalistic ploy, he seemed dissatisfied. He told me he was doing a “psychological profile” of the nominee, and I responded that I was not qualified to give such a psychological analysis of Thomas or anyone else.

Margolick neither quoted me nor referred to our conversation in his article, which appeared a few days later. But his call made me wonder: if, on the very day of the nomination, a
New York Times
reporter knew that I had worked with Clarence Thomas, who else might know and what might that mean in terms of future inquiries? I did not mention Thomas’ conduct toward me to Margolick. In fact, I had not mentioned it to anyone in years, until later that evening, during a conversation with my friend Karolyne Murdock, whom I had come to know in 1988 when we were both serving as members of the board of directors of the Women’s Resource Center. This local organization offered counseling services for rape victims, sponsored group sessions for marital and family crises, and provided shelter for victims of battering and other forms of domestic violence. Karolyne, a bank vice-president with over twenty years in banking, and I, the commercial law teacher, had hit it off immediately. I was very impressed by the professional demeanor and the financial expertise that she brought to the board. Our friendship was based partly on our common concern for community issues—Karolyne followed her membership on the center board with a membership on the board of a local child advocacy group—and partly on our mutual love for movies. On July 1 it was the movies that brought us together.

Karolyne and I drove from her office to the local theater to see
Batman
. At first we focused on our work weeks. Then we talked about my visit to the doctor. Despite the news from Margolick, my health concerns were by far the greater distraction. But on the way home, Karolyne asked my opinion of the Thomas nomination, unaware that I had worked with him. She wanted to know what I thought both as a member of the legal profession and as an African American. When I told her about my experience with Thomas, her response was immediate. “You have to disclose this information, don’t you?” Oddly enough, as I think about it, this was the first time someone had suggested that I should raise a complaint
about the behavior. I wish my reaction had been so certain. “I’m not sure what I’ll do,” I said. She looked concerned but did not push.

That evening, for the first time in several years, I spoke with Susan Hoerchner. Upon hearing about the nomination, she had instantly recalled our conversations about Thomas’ behavior. As far as she was concerned, Thomas was a complete scoundrel. She reacted as someone witnessing the pain of a friend. She had not forgotten. She did not suggest that I go to the Senate or anyone else with the information. She simply expressed her dismay that inexcusable behavior had seemingly been rewarded.

For years I had spent considerable time and effort convincing myself that what happened to me no longer mattered. For the first time I was forced to consider that it
did
matter—that the behavior was not only an offense to me but unfitting for someone who would sit on the Supreme Court. I had paid little attention when Thomas was nominated to the D.C. Court of Appeals. He had been confirmed before I had any real idea what was occurring. In February 1990, when Thomas was before the Judiciary Committee for that nomination, I was preparing to go to Europe. Now it suddenly hit me that the behavior I knew about was no longer simply a personal concern, that the Supreme Court mattered to me as an attorney and as a citizen, and that I had a responsibility to provide the Judiciary Committee with relevant information. At the same time, it occurred to me that this nomination was a political move, despite George Bush’s declarations to the contrary. The depth of the political force behind the nomination would not be revealed until weeks later, but even then I knew politics was an inescapable factor. As the controversy over the nomination emerged, my course of action became even less clear.

I am by nature a cautious person, and on July 1, 1991, I had not had a chance to weigh all the factors. Moreover, even if I decided to disclose my information, I was not sure whom to contact. At the time, I was convinced that my name would surface in a thorough Senate investigation. I relied on the process to find me instead of interjecting myself into the process. In retrospect, this may have been my way of deferring responsibility
for making a decision. I reflected on my experience, and I waited to hear from the Federal Bureau of Investigation or the Senate Judiciary Committee. The wait lasted from July to September.

Much of the spring I had been preoccupied with trying to get the correct prognosis and treatment for the condition. In late summer, after seeing several doctors, I found a female gynecologist who had had the same condition. She discouraged me from simply taking pills to alleviate the pain and recommended exploratory surgery. She performed the surgery in July 1991 and confirmed the condition but could not determine the tumors’ size or location. The surgeon recommended their removal, with the possibility that a hysterectomy would become necessary. I was thirty-five years old, and for the first time, being without children and single weighed heavily upon me.

Surgery was unavoidable and I knew it, but I also knew it might alter my life forever. I had never had a burning desire to have children. And I looked at JoAnn’s children with the sense that they were partly mine. But now that it seemed I might never have them, I had to stop and think seriously about whether I was willing to give up that capability.

Meanwhile, I tripped through my house along trails from the kitchen to my bedroom, the only two rooms that had not been overtaken by a renovation project that had begun in mid-June. I wondered how the enclosure of a deck outside could absorb so much of the space inside. Each day the workers left me a new coat of plaster dust, a final reminder that they had control of my space. It seemed impossible to find a place to work at home, though I kept trying: there was no work space in the galley kitchen; my bedroom was too small for a desk; and my study was cluttered with dining room furniture.

Though it was summer and classes were over, I had plenty of work to do. I had agreed to be the faculty representative in the office of the provost, a year-long assignment that involved splitting my time between the law school and the main campus. I was to teach as well as to work on special projects for the provost, including updating the faculty handbook. In addition, I was preparing for the American Bar Association annual meeting which was being held in Atlanta in August, and would feature
events focusing on minority involvement. I had become active in the ABA Business Law Section, and in particular with the Uniform Commercial Code Committee. As chair of this committee’s membership subcommittee, I was organizing a reception for local attorneys who might consider joining us. Packing for my trip to the bar association meeting was a challenge. I had to find clothing that would accommodate my protruding stomach (the tumors had by now grown to the point that my waist was two sizes larger than my hips) and the heat and humidity of Atlanta in August.

Atlanta was the perfect site to encourage greater participation by African Americans in the ABA. There also seemed to be more white women than usual. I saw more former classmates and old friends than I had ever seen at an ABA meeting before. Events were well attended, and presentations were well received. Everywhere, conversation turned to Clarence Thomas, the first black man to be nominated to the Supreme Court since 1967. And everyone at the meeting seemed to take particular care in assessing his abilities. In accordance with its standard practice of reviewing the qualifications of judicial nominees, the ABA was considering its rating of Thomas.

After one session, I ran into a friend from law school, George Jones, who was one year ahead of me and one of the most thoughtful and analytical law students I knew. Jones believed that the Thomas nomination should not be challenged because he would serve the black community better than any of the potential white nominees. I found the nomination questionable because of Thomas’ lack of experience. I thought the black community would fare better challenging the nomination, even at the risk of a white replacement. The conversation left me disheartened. I knew that many in the black community would not want to “give up” Thurgood Marshall’s seat to a white justice, no matter what.

At the same session, I also ran into Carlton Stewart, who had been at the EEOC with me before he was transferred to the commission’s Atlanta office. Carlton was ecstatic about Thomas’ nomination. He and Earl Grayson, who was with him, both gushed their support for Clarence Thomas and mentioned scornfully that a local NAACP group had been
censored by the national office for supporting him. I allowed that the nomination was a great opportunity for Thomas. Stewart and Grayson were two friends elated by their buddy’s personal success. Merit did not seem to enter into their response. After my conversation with Jones, I realized that it was senseless to argue the nomination with such diehards, and I changed the subject when a law student approached us to talk about teaching as a career. Later, at the hearing in October, Stewart and Grayson would claim that I said the nomination was “wonderful” and spoke of it in “glowing terms.” I did not. Their own enthusiasm undoubtedly colored their recollection of the conversation.