Speaking Truth to Power (15 page)

At that ABA meeting I revealed to only one person my doubts about Thomas’ ability to carry out the responsibilities of an associate justice of the Supreme Court. Over lunch in an Atlanta hotel, I confided in Cathy Thompson, a classmate from Yale Law School. Cathy and I shared similar backgrounds that separated us from others in our class at Yale. Both of us had attended state colleges not known for their sophistication, yet both of us had done well and made many friends among our more “urbane” classmates. Cathy grew up in North Carolina and had returned there to a successful legal practice. By the time we met in Atlanta, we were eleven years out of law school. As we had lunch at the swank Hotel Nikko, we both felt quite successful. She had served as president of her state bar association, and I was a tenured faculty member at the only state law school in Oklahoma. We were two small-town girls who had beat the odds.

Cathy and I hadn’t seen each other since the American Bar Association meeting in 1989. We spent most of our lunch catching up. The nomination of Clarence Thomas came up, as it inevitably did that week. Cathy knew I had worked in Washington but not that I had worked for Thomas. Either by nature or by experience, Cathy is a matter-of-fact, pragmatic person. She listened calmly, though I could tell that she was shocked by what I told her. Mostly, I described how Thomas had pressured me for a social relationship, deliberately omitting the graphic details, to spare myself as much as her. Those details seemed inappropriate in any context, and certainly at an ABA lunch. I was near tears even
disclosing what I did. Talking to Cathy, I felt that she could have been me, that my experience might well have been hers, and maybe even had been in one form or another.

After lunch neither of us knew what to say. We left feeling a little less sophisticated, and a little less secure about the trappings of “success.” My career had been less about success than survival. Success was simple for me. It meant having work that I found meaningful, being intellectually challenged, and doing the work well. I had not set a goal of attaining a particular status within a certain time frame, as some of my peers had—partner in a major firm or full professor at a top twenty law school by age thirty. My goal for success was modest and unstructured. Yet at each turn I was hampered by obstacles that turned me away from success and drove me down the path of mere survival. I tried to remind myself that despite the obstacles, I had achieved more than my grandparents could have imagined.

A few weeks after I returned from Atlanta, another member of the press contacted me. At the urging of a relative who worked at
The Washington Post
, I spoke with Sharon LaFraniere, a reporter who was doing a profile on Thomas. She seemed to be focusing on Thomas as a boss, but she also mentioned some rumors she had heard about his strict upbringing of his son. I declined to comment on the latter. About the former, I contributed that while Thomas could be a demanding supervisor, I thought his professional expectations of his employees were consistent with his responsibilities. This time, when asked what I thought of Thomas’ views on civil rights, I was more critical than I had been in my conversation with Margolick. LaFraniere’s story, which ran on September 9, 1991, read:

At a conference for black Republicans in 1980, Thomas had said of his sister, “She gets mad when the mailman is late with her welfare check. That’s how dependent she is.” Political commentators had cited this remark as a key to Thomas’ rise in popularity with the conservatives of the Reagan administration. Ellen Wells, who has since changed party affiliations, attended the conference. She recalls that Thomas painted his sister as an odious, unworthy individual who had chosen slovenliness over industry and fraud over honest work. Moreover, according to Thomas, his sister had schooled her children to do the same. When I spoke to LaFraniere, I did not know that Emma Mae Martin had gone on welfare in order to care for an ailing aunt and was now self-supporting, working two jobs. Thomas’ characterization of her had just stuck with me for years. I had even mentioned to Thomas himself how unduly harsh I thought it. He shrugged off my reaction. Had I known the truth about his sister, I would have been even more critical of Thomas’ indifference to her situation in the early 1980s. But most detestable was Thomas’ willingness to malign his sister as a ward of the state to further his own political ambitions. That demonstrated a level of duplicity of which even I would not have believed him capable.

Once again I chose not to go into the details of that experience with LaFraniere. Like Margolick,
The Washington Post
reporter seemed to me to be missing the point that the significance of the nomination was what it would add to the jurisprudence of the Court. While neither expressed any hostility toward Thomas, both seemed to be pursuing a line of questioning that relied primarily on personal opinion with little attention to Thomas’ record. I was certain that opinion would be mixed. It is hard to imagine anyone getting to the point of being nominated to the Supreme Court without a number of vocal supporters. But from my observation of him and his own early assertions about his lack of popularity, I knew that there were many who would be critical too.

T
he debate over the merits of the Thomas nomination continued throughout the summer. The American Bar Association gave Thomas its lowest rating ever, reflecting a lukewarm if not chilly reception to the nomination in the legal profession. The Leadership Conference for Civil Rights, a coalition of 185 national organizations, opposed the nomination forcefully, stating two grounds: that Thomas “let his personal opinions interfere with his constitutional and statutory responsibilities to enforce civil rights laws” and “demonstrated a consistent hostility to many of the Supreme Court’s most fundamental civil rights decisions.”

Though President Bush had declared that race was not a factor in his selection of Thomas, the White House chose to focus on Thomas’ personal background in pointing to his qualifications for the post. All but ignoring his judicial record, the White House spun a tale about his childhood poverty and his triumph over discrimination. One Thomas proponent remarked that his hard work and self-discipline sent a message that it is possible for blacks to succeed in American society. Much of the media coverage followed suit, tracing Thomas’ history to the small town of Pin Point, Georgia, where he had spent a portion of his youth, through his education at Holy Cross and Yale and his nomination to the Court. Some of the coverage mentioned his comments about his sister, but few saw the irony in the contrast between the choices he had in life and those of his sister.

After a fire destroyed his mother’s home, Thomas and his brother, Myers, were sent to live with their grandparents in Savannah. Martin, their sister, remained in Pin Point and lived with an aunt. Both Thomas and his brother graduated from private school. Martin graduated from public school. “I had the opportunity to go to college if I wanted to, but I made the choice,” she told an interviewer. “I took care of the older people.” While Thomas was in law school, Martin survived by working two minimum-wage jobs. Later, when her aunt suffered a stroke, Martin
quit work to care for her. Her husband had abandoned the family in 1973, and she and her two children lived on a monthly public assistance check of $169. By 1991 Emma Mae Martin had returned to the workforce.

Yet the media stories about Thomas rarely called attention to the different opportunities and expectations for him versus his sister, namely the educational opportunities and the freedom from caring for the elderly that were his and not hers. Inequities that can be reasonably attributed to her gender alone went undiscussed, as did the programs that enabled him to enter the best schools. Even Thomas’ early job with his mentor, Jack Danforth, seemed to come from Danforth’s own style of affirmative action. As the story goes, Danforth, who was attorney general of Missouri at the time, sought recommendations from Dean Guido Calabresi of Yale for a black law student who might want to work in his office. Yet in 1991 the press coverage focused on Thomas’ own efforts rather than the social programs that had benefited him throughout the 1960s and 1970s. Thomas contributed to this shift in the discussion when he contrasted himself with his sister, condemning her lack of initiative and extolling his self-initiative and resourcefulness.

Nowhere was the discussion of Thomas’ nomination more intense and divisive than in the African American community. Some polls said that 52 percent of blacks supported Thomas’ nomination. In retrospect, though that figure was used by Thomas supporters, it seems incredibly low given that one would expect some measure of support from African Americans for another already prominent African American. Blacks who supported the nomination seemed split into two camps. One line of thought suggested that any black nominee would be better than any white nominee because a white nominee would mean losing what was seen as the “black” seat on the Court. Others thought that Thomas would be better than a white nominee because his background and the circumstances of his upbringing would make him empathetic to poor blacks. Despite what his detractors described as his dismal civil rights record, this camp believed that he would change once secure in a lifetime appointment. (At his confirmation hearing, Thomas suggested the same
when he distinguished his early positions as those of a political appointee rather than those of a jurist.) Both groups believed that he should be given a chance.

Thomas’ critics in the black community maintained that his views were so antagonistic to the well-being of the community that his race was secondary, even problematic, as it would lend credibility to an anti-civil-rights agenda. Some were convinced that the community would be better off with a conservative white person on the Court than with Thomas. One black congressman argued that the question should not be Thomas’ “skin color” but rather whether he was “going to be on our side in the dark of night when the chips are down.” Christopher Edley, who would later testify against the nomination, said that only Thomas’ color accounted for his selection over Starr. And more than a few pointed to what they called President Bush’s cynicism in declaring that Thomas was the “best man” for the job. Thomas’ supporters in the African American community accused his detractors of being elitists; African American critics accused his supporters of putting skin color over principle. In nominating Judge Clarence Thomas to succeed Justice Thurgood Marshall, Bush created a situation in which the community would lose whether the nomination failed or succeeded.

The divisive nature of the political debate surrounding the nomination made it even more difficult for me to think about coming forward. I had no desire to become embroiled in the drama that was unfolding in the African American community or the political community as a pawn for either side. In fact, one friend, a Washington attorney and law school classmate to whom I mentioned Thomas’ behavior, bluntly advised me, “Don’t get involved. It wouldn’t be worth it.”

I didn’t get involved. Instead, I continued to wait for a call from the investigators. I struggled with the information that weighed heavily on me and my inaction in the face of it, and as the humid days of August stretched on, I prayed for some direction.

B
y midafternoon on August 19 the temperature in Norman threatened to reach one hundred degrees. My first class of the fall semester was about to begin. Outwardly, it was a typical beginning to a fall semester. As always it seemed too hot for fall, too hot to begin the school year. But despite the intense heat, more than two hundred students of the incoming class entered their first year, primed with anticipation. Their energy was contagious and the intensity of their enthusiasm and anxiety eclipsed the summer heat. Happy to be back in the classroom, I found myself ignoring the weather altogether. But some matters I could not ignore.

When Shirley Wiegand, my close friend and colleague on the faculty, returned for the school year, we charged back into our exercise routine—five-mile walks three times a week. Our feet slightly slowed by the heat, we recounted at full speed and in detail our respective summer experiences. After we had covered all the personal grounds, I finally asked, “Did I ever tell you that I worked for Clarence Thomas?” “No, you did not,” she said. The pace of our conversation slowed as I confided in her.

I told Shirley that I did not know what to do. Together we approached the situation as we had been trained—as attorneys, even law professors. True to our profession, we discussed the situation in a series of what-ifs. First, we discussed how I would go about raising the issue if I
decided to proceed—to whom I might speak, how much I would disclose initially, whether my statement should be written or oral. Second, we tried to consider what might happen and who might be affected if I raised the claim. We reached no conclusions, and our intuitions fell far short of what was to come. Prepared to respond to an inquiry, but by no means eager to answer, I kept waiting for the call from someone in the government doing a background investigation of Thomas.