Recycle a fairness standard for the Brett Kavanaugh hearings

Do not victimize any witness who appears here and …treat every witness with respect.  

– Senator Joseph Biden, Chair, Senate Judiciary Committee, 1991

Today begins Day 5 of Senate Judiciary Committee’s hearings on the nomination of Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States.

Twenty-seven years ago, Senator Joseph Biden opened similar hearings for Clarence Thomas’ nomination to the Supreme Court by setting a fairness standard.

“Sexual harassment is a serious matter and, in my view, any person guilty of the offense is unsuited to serve, not only the nation’s highest court, but any position of responsibility, of high responsibility in or out of government. . . . . .

I want to reiterate my view that the primary responsibility of this committee is fairness. That means making sure that we do not victimize any witness who appears here and that we treat every witness with respect.  And without making any judgement about the specific witnesses we will hear from today, fairness means understanding what a victim of sexual harassment goes through. Why victims often do not report such crimes, why they often believe that they should not or cannot leave their jobs.  Perhaps 14 men sitting here today cannot understand these things fully. I know there are many people watching today who suspect we never will understand but fairness means doing our best to understand, no matter what we do or do not believe about the specific charges. We are going to listen as closely as we can at these hearings. . . .

In the end, this hearing may resolve much or it may resolve little, but there are two things that cannot remain in doubt after this hearing is over:  First that the members of this committee are fair and have been fair to all witnesses, and second, that we take sexual harassment as a very serious concern in this hearing and overall. ” 

The 1991 Judiciary Committee failed to meet this standard. 

As I sit here in 2018 I wonder was it even possible for the Committee to meet Senator Biden’s fairness standard.  Go back and read the headlines and articles from 1991.  As a nation we may have been focused during the hearings  on sexual harassment, but we also grappled with racial stereotypes and truths.  Mr. Thomas served as chairman of the Equal Employment Opportunity Office when the alleged misconduct occurred.  Many wondered how could the man responsible for setting policy to ensure workplace equal opportunity be engaged in workplace sexual harassment?  The seat Mr. Thomas was slated to fill had belonged to Justice Thurgood Marshall, the first African American on the Supreme Court and a legend in civil rights.

Fairness during the Brett Kavanaugh confirmation hearings

This hearing to determine Mr. Kavanaugh’s suitability for the Supreme Court should be different.  First, gender is foremost; the fabric of the discussion does not contain race.  Second, the Senate Judiciary Committee is different.  Senators , Chuck Grassley, Orrin Hatch and Patrick Leahy are still on the committee, but the Democratic representatives are more diverse.  Four  women sit on the committee, including  Ranking Member Senator Dianne Feinstein who was elected in 1992.  That year has been called the Year of the Woman because more women were driven to run for office in response to the way the sitting Senators treated Professor Anita Hill.  Three people of color are on the committee:  Senators Cory Booker, Kamala Harris, and Mazie Hirono.  The facts are, in some ways, more stark.  The conduct Dr. Christine Blasey Ford alleges did not occur in the offices of the EEOC.  Rather, the setting was a prep school in the early 80’s.  She was a child.  She alleges physical violence. Finally, #MeToo has been a catalyst for consequences related to sexual misconduct.    

Despite these differences, the forces that made the Senate Judiciary Committee fail to meet Senator Biden’s fairness standard are still at work today.  Dr. Blasey Ford got outed, as did Professor Hill.  Both women are in the midst of a credibility battle.  Pertinent witnesses are not being called.  So, what should we do?  

Senator Biden’s fairness standard is still a good one

Keep pushing fairness.  As we watch the hearings to confirm Mr. Kavanaugh, find ways to reinforce Senator Biden’s fairness standard.  Even seemingly small actions, like signing your name on a proclamation, can reverberate through the decades.  Write and call your legislators.  Demand that truth and equity, not bipartisanship, prevail in the discourse. 

Beyond today, remember that small actions will continue to matter.  Help people register to vote; remember a vote is not only about choosing our representatives, it is also about ensuring juries of our peers.  Help someone learn to read. Go to a community meeting and tell law enforcement that you want accountability. Learn about the Innocence Project.  My college roommate, Robin Johnson, is on Day #704 of taking a political action each day:  a phone call, writing postcards urging people to vote, campaigning for candidates around the nation.

Don’t stop.  Keep going. And when things don’t quite go the fairness route, stand up and testify.  Tell the story.

Want to revisit the Justice Clarence Thomas Senate Judiciary Committee hearings?

If you did not watch them, or if you want to experience them again, you can watch them online at C-Span.  Here is the link for the first day on which Professor Anita Hill testified.  

For those of you who like to read, you can find The Complete Transcripts of the Clarence Thomas — Anita Hill Hearings:  October 11, 12, 13, 1991 in the public library.  


Did you sign African American Women in Defense of Ourselves proclamation in 1991?  If you did, tell us your story.

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