Clarence Thomas, again

Why doesn’t Anita Hill sue for libel? She might not win, but it would be fun to watch.

David Bernstein thinks that Clarence Thomas’s ideological wandering “from young Catholic seminarian to radical student activist to non-religious libertarian (including an apparent Ayn Rand phase), to Straussian natural law follower, and, finally, to Catholic conservative with a libertarian streak” makes it “clear that he is a very thoughtful man.”


What thoughtfulness is displayed by changing ideologies as if they were fashions in clothing? All I notice from that list is that Thomas was consistently extreme rather than moderate, and consistently under the sway of some doctrine that gave him access to some ready-made source of Truth denied to hoi polloi. This suggests to me not a thoughtful person but one whose ego is bigger than his intellect, and who wants to be wise in his own eyes without ever having to think for himself. Having been a radical when radicalism was popular and then a Reaganoid when Reaganoia was popular hints at a simpler, uglier motivation: the desire to be on the winning side.

[“If the Left had won,” Pather-supporter-turned-reactionary David Horowitz once said to a liberal acquaintance, “you would have been the first to go to the wall.” “If the Left had won,” his acquiantance replied, “you would still be part of it.”]

The late Leon Higgenbotham had a different take on Thomas, based on personal interactions. Early in his Thomas’s career, according to Higgenbotham, Thomas approached him for advice. Higgenbotham had succeeded (he was at the time Chief Judge of the 3rd Circuit Court of Appeals); Thomas wanted to know how. “What was your game plan?” he asked. Higgenbotham’s reading, which is fully consistent with the record as we know it, is that Thomas was and is an arriviste, a careerist for whom ideology subserves ambition.

Bernstein”s co-blogger Ilya Somin wants to know why opinions about the facts of the Clarence Thomas-Anita Hill matter line up so closely with political ideology. That’s a fair question; the simple answer is “cognitive dissonance.” But I think Somin goes too far when he asserts that “only Thomas and Hill themselves really know what happened.”

I thought at the time, and still think, that Thomas gave clear evidence of deceit. Hill had testified that Thomas had regaled her with tales of a porn-movie character named “Long Dong Silver.” Thomas denied ever having seen any such movie, which if true must have meant that Hill’s claim was false. The Senate Judiciary Committee staff tried to get Thomas’s video-rental records, which could easily have resolved the question. Thomas and his supporters immediately went into a hissy-fit about how it would be a horrible invasion of privacy for anyone to look at those records.

Thomas’s concern that his porn-viewing habits might discredit him with his moralistic right-wing supporters was legitimate. But of course it would have been easy to ask the FBI to review the records for the sole purpose of determining whether the film in question was or was not among those Thomas had rented. Joe Biden, showing his usual competence and courage, immediately folded, and the video records were never reviewed.

When one side wants evidence produced, and the other side demands that it be suppressed, it’s not hard to guess which side expects that evidence to support its side of the story. It seems to me a reasonable inference that a review of those records would have shown that Thomas had in fact seen the “Long Dong Silver” tape; otherwise, he should have been eager to have them examined to as to refute his accuser. So without pretending to be impartial, I claim that I had and have a good reason to think that Clarence Thomas lied under oath at his confirmation hearings. Whether or not his treatment of Anita Hill was reason enough to keep him off the court, his perjury surely was.

Now Thomas has chosen to attack his accuser once again. Some of his charges simply seem implausible. (What was a “left-winger” be doing teaching for three years at Oral Roberts University Law School?) Other charges, which he makes and she denies, ought to be subject to proof or disproof: documents and witnesses ought to be able to answer the question whether she was or was not “asked to leave” her law firm.

No doubt Hill is a “public figure,” and Thomas is therefore free to tell damaging untruths about her unless he can be shown to have done so with “actual malice.” Still, I hope that Hill gives careful consideration to suing Thomas for libel, and that if she wants to do so some firm could be found to take the case pro bono. Having voted in the majority on the question of whether a sitting President could be sued, surely Justice Thomas couldn’t argue that a mere Associate Justice is somehow immune. And of course if he is lying, and if his lies could be brought home to him in the course of a libel suit, there’s no statute of limitations on impeachment proceedings.

Footnote If Justice Thomas chose to perjure himself in the civil case as he did before the Judiciary Committee, we might yet see the great opponent of prison condition litigation experiencing the problem from a different perspective. I wonder if Justice Thomas would regard having teeth loosened and a dental plate cracked by the fists of two brutal prison guards, with their supervisor watching and telling them “not to have too much fun” as only a “minor injury,” too slight to warrant any judicial interference, if the teeth and dental plate involved were in his own mouth?


One reader objects to my characterization of Justice Thomas’s dissent in the prison-conditions case, and I respond.

Another reader provides what would be the smoking gun in a libel suit: a letter to Sen. Biden, covering a sworn affidavit, from the chair of the associate development committee of the firm where Hill worked. Apparently the junior partner who asserted that Hill was asked to leave was confusing her with a different black female associate. (They all look alike, you know.) The junior partner had never supervised Hill, but had supervised her less competent colleague. By asserting the false claims in the discredited letter as fact after being put on notice of their falsity, Thomas arguably displayed “actual malice.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: