Tainted Witness

Why We Doubt What Women Say About Their Lives

Leigh Gilmore

• Publisher: Columbia University Press
• Year: 2017
• ISBN:
  9780231543446
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

In 1991, Anita Hill's testimony during Clarence Thomas's Senate confirmation hearing brought the problem of sexual harassment to a public audience. Although widely believed by women, Hill was defamed by conservatives and Thomas was confirmed to the Supreme Court. The tainting of Hill and her testimony is part of a larger social history in which women find themselves caught up in a system that refuses to believe what they say. Hill's experience shows how a tainted witness is not who someone is, but what someone can become.

Why are women so often considered unreliable witnesses to their own experiences? How are women discredited in legal courts and in courts of public opinion? Why is women's testimony so often mired in controversies fueled by histories of slavery and colonialism? How do new feminist witnesses enter testimonial networks and disrupt doubt? Tainted Witness examines how gender, race, and doubt stick to women witnesses as their testimony circulates in search of an adequate witness. Judgment falls unequally upon women who bear witness, as well-known conflicts about testimonial authority in the late twentieth and early twenty-first centuries reveal. Women's testimonial accounts demonstrate both the symbolic potency of women's bodies and speech in the public sphere and the relative lack of institutional security and control to which they can lay claim. Each testimonial act follows in the wake of a long and invidious association of race and gender with lying that can be found to this day within legal courts and everyday practices of judgment, defining these locations as willfully unknowing and hostile to complex accounts of harm. Bringing together feminist, literary, and legal frameworks, Leigh Gilmore provides provocative readings of what happens when women's testimony is discredited. She demonstrates how testimony crosses jurisdictions, publics, and the unsteady line between truth and fiction in search of justice.

1

ANITA HILL, CLARENCE THOMAS, AND THE SEARCH FOR AN ADEQUATE WITNESS

For insight into the complicated and complicating events that the confirmation of Clarence Thomas became, one needs perspective, not attitudes; contexts, not anecdotes; analyses, not postures. For any kind of lasting illumination, the focus must be on the history routinely ignored or played down or unknown.

—TONI MORRISON

The trick is then just to keep the light shining.

—ANITA HILL

What justifies a return now to the notorious hearings in which Anita Hill testified in Clarence Thomas’s confirmation process, twenty five years on? For some, what played out in the 1991 hearings in Washington remains a paradigmatic example of “he said/she said.” Broadcast in televised hearings, reported in newspapers, and talked about by seemingly everyone, the event riveted a national audience.¹ For others, feminist critics in particular, the case endures as an indelible reminder of what Toni Morrison refers to as a “history routinely ignored or played down or unknown,” and a display of legally permissible and intertwining forms of racism and sexism. By “keeping a light shining” on Anita Hill’s testimony, we trace how sexual harassment was carved out as an issue for white feminists, while racism was represented as a threat to black men in legal proceedings. Anita Hill was associated with feminist legal reformers targeting workplace discrimination rather than with working women of color, while Clarence Thomas presented himself as a postracial, anti–affirmative action black candidate for the Supreme Court. Hill was managed into a knowable enemy—a feminist—as Thomas’s team tried to prevent him from turning into one—a black man. That is, until Thomas characterized the proceedings as a “high tech lynching for uppity blacks.”² After that comment, Hill shed race but became saturated in gender, while Thomas claimed blackness but struggled to retain the privilege of masculinity granted by law. As Anita Hill put it: “I had a gender, he had a race,” an analysis to which I will return. Following Hill’s advice “to keep a light shining” on race and gender in the hearings, I read how the dueling life narratives Hill and Thomas offered, first as testimony and later as memoir, expose how race, gender, sex, and doubt travel together.

In testament to the continuing relevance of the hearings in public memory, a 2014 documentary, Anita, brings the event to members of a new generation who have no memory of the hearings and lack knowledge of how sexual harassment law improved workplaces over the past twenty-five years. With reference to the documentary, Hill argues for the benefit of historical context in understanding the processes through which sexual harassment can be exposed and the need for vigilance in ensuring legal means through which to seek relief from it. Yet, as Morrison argues, the history of slavery also informs the “unknown” recent history of feminist efforts to create protections for sexual harassment. The context for understanding the raced and gendered witness of the hearings, then, extends back to slavery and its sanctioned forgetting in public life, includes the contemporary context of sexual harassment law and its recent forgetting, and extends into the future in the form of Justice Clarence Thomas’s jurisprudence, which is characterized by an intolerance for prisoners’ rights, civil rights, and reproductive freedom. Here we find a potent case for understanding how the testimonial network teems with histories of violence and legitimacy that exceed any specific case, and how judgments about race, gender, bodies, and the power of life story stick to witnesses who move through it.

Testimonial networks are never neutral. Testimonial accounts achieve a hearing within jurisdictions they never control, although they may expose their limits. When Anita Hill participated as a witness in Clarence Thomas’s nomination process, her testimony exposed the limits of the confirmation hearings to provide an adequate witness to racism and sexism in law, work, history, and intimate life. Hill’s testimony disrupted the carefully managed construction of Thomas as a post–civil rights nominee to succeed Justice Thurgood Marshall, the first African American on the Supreme Court and legendary civil rights advocate who argued Brown v. Board of Education before the court in 1954, the case that ended the legal basis for racial segregation. Thomas and his handlers gravely underestimated the volatility of Hill’s testimony that he had sexually harassed her when she worked for him as an attorney at the Equal Employment Opportunity Commission, an agency of the federal government created by the civil rights act. The legacies of slavery, racial segregation, and civil rights legislation were brought into view by testimony about sexual harassment rather than by a claim about racial bias. As Avery Gordon’s approach to haunting suggests, the racist past overloaded a proceeding about sexual harassment with an intensity of affect it could not address or discharge.³ Yet reminders persisted. The exclusion of people of color from the corridors of power was visually represented by the exclusive presence of white men on the Senate Judiciary Committee. Only Clarence Thomas’s assertion that Hill’s testimony had transformed his confirmation into a “high tech lynching for uppity blacks” materialized the confluence of legality and racial violence. When Anita Hill testified about sexual harassment, she also forced the careful management of race in Thomas’s nomination into view.

During the course of the hearings Anita Hill became a tainted witness. To understand this, we must examine the testimonial network in which she bore witness, its investments in presenting racism in the United States as what Thomas had overcome in his personal journey, and its argument that sexual harassment was an artifact of the feminist movement rather than a part of a racial history the nomination process rescripted in order to suppress the threat to civil rights Thomas’s ideology posed. A fuller examination of the context that Anita Hill was prevented from providing during the hearings reveals how affect, race, gender, law, and history impact witnesses within testimonial networks, which incubate histories of racism that can erupt in formal spaces like the Senate, in testimonial forms like memoir, and in the jurisprudence and ongoing work on rights that have become the opposing postconfirmation legacies of Clarence Thomas and Anita Hill.

Senator Alan Simpson, a member of the Senate Judiciary Committee, was right when he predicted that Anita Hill would “be injured and destroyed and belittled and hounded and harassed, real harassment, different from the sexual kind, just plain old Washington variety harassment” when she testified.⁴ On October 11, 1991, Anita Hill testified during the final days of Clarence Thomas’s confirmation hearings. She stated that while she was Thomas’s employee at the EEOC, he had sexually harassed her by importuning her for dates and, after she refused, discussing in graphic detail the kinds of pornography he enjoyed, his own sexual prowess, whether he found her sexually appealing in particular clothes, and his continuing insistence that “you should date me.” During the afternoon in which she testified, the committee reframed Hill’s description of how Thomas had sexualized the workplace, and the claim of sexual harassment generally, by reinterpreting his conduct as her fantasy, her mistaken impression, or her fabrication. In an effort to manage Hill’s damaging testimony into a he said/she said frame where it could be dismissed with a shrug of undecidability, the committee unleashed a secondary “real harassment, different from the sexual kind,” in Senator Simpson’s terms, to destroy her as a credible witness. In his formulation of “real harassment,” Simpson revealed the game plan for tainting Hill as a credible witness (“to injure, to destroy, to hound, to belittle”), as well as his view of the lesser harm of the “sexual kind” of harassment, the kind of harassment that is less than real. The Republican senators on the committee and a host of other participants belittled both Hill and her claims of sexual harassment. By remaking both into vague rather than substantive entities, they cast Hill as someone whose motives made no sense and sexual harassment as a workplace invention of feminists who shouldn’t be there in the first place. A man’s sexual conduct, according to this logic, as we shall see, should remain private no matter where it occurs, sealed within a bubble of impunity in which he floats from home to office, to government, and court. Under the chairmanship of Senator Joseph Biden, witnesses who would have corroborated Hill’s testimony and burst that bubble were not called, while hearsay about her alleged behavior in other workplaces and in social settings was actively sought and found its way into the record. In other words, her ability to create a context in which her testimony would be credible, notably by allowing another woman whom Thomas had treated similarly to testify, was refused. There would be no meaningful movement of information across the frames of friendship, office, government, and court. Confusion about what would be allowed for Thomas and disallowed for Hill, as well as the commingling of hearsay and testimony, was so rampant that at one point committee member Howard Metzenbaum, an Ohio Democrat, asked the fundamental procedural question of the hearing, “What are the rules?”⁵

Returning to this case now enables us to take Metzenbaum’s exasperated rhetorical query seriously and to pose critical feminist questions from the vantage point of twenty-five years after the hearings burst in klieg-lit intensity onto the public stage. Here we see how women’s witness is tainted through the permissible protocols of legal processes, as well as a range of tactics that amount to smears. These smears rely on stereotype and bias, often have little relation to truth, and can be fed into legal processes where they discredit women as if they were factual.

The time frame of scandal is crucial to tainting women witnesses. Scandal’s temporal signature is acceleration. The rush to judgment encourages framing testimonial conflicts in terms of who is telling the truth and who is lying, with the presumption that this is an adequate and meaningful testimonial test. Such a framing, however, prevents witnesses from providing adequate context for their testimony. The coproduction of tainted and adequate witnesses underscores that testimonial networks embed multiple audiences who use different and conflicting criteria for determining legitimacy. Witnesses cross into jurisdictions in which their accounts lack adequate context. Formal processes restrict what they can say, to whom, and in what language, but they cannot purge the past of its deep damage. However, when the haunting histories that obscurely animate proceedings burst into view, the disruption they engender can continue to mobilize witnesses outside the frame of the jurisdiction in which testimony is initially circumscribed. Haunting can imply hope for new encounters with the painful past.⁶

We can now, in retrospect, review the hearing itself in slow motion and break the tempo of scandal. A number of documents fill the archive: from the transcript of testimony given during the confirmation hearings, to comprehensive investigative reporting by principals who continue to speak to the legacy of the hearings, to edited collections of essays in support of Hill, to memoirs by Hill and Thomas, and the memoirs of those involved in the hearings in many different capacities. From this perspective, we see better what was managed to the sidelines: how Clarence Thomas prepared a path to the nomination over several years and how Anita Hill became collateral damage in a conservative Republican strategy to place an anti–affirmative action African American justice in Thurgood Marshall’s seat; how slavery, Jim Crow, and post–civil rights racism would haunt the hearings; how Anita Hill’s testimony was blocked until a group of women senators demanded that she be heard; how witnesses who would have corroborated her account were not permitted to speak; how Thomas’s and Hill’s postconfirmation paths continue to shape the race-gender-citizenship nexus through Thomas’s jurisprudence and Hill’s public speaking, teaching, legal and popular writing, and film. Anita Hill’s testimony provides a historical opening for this book in order to mark how the hearing shaped the terms for how women would be doubted in public in the post-Reagan years even as they were increasingly present and credible on a public stage. All these processes, though, can still fail to provide adequate context unless the afterlife of slavery and Jim Crow is engaged in thinking on race and gender.⁷ Anita Hill’s testimony demonstrates how a professional African American woman, a graduate of Yale Law and a law professor, a person who understood the forum in which she gave testimony as well as it could have been understood, could be tainted as “a little bit nutty and a little bit slutty” in order for a conservative African American justice with a meager record and no major accomplishments to secure a Republican vote on the court.⁸

In subsequent critical reflection on the hearings, opinion has pursued two lines of analysis: a feminist analysis that places race at the center of inquiry, and a political analysis of the hearings as a struggle to secure a conservative vote on the Supreme Court.⁹ Feminist analysis has attended to the figure and person of Anita Hill, while analyses of Washington politics, often offered by journalists and legal scholars, focus on Clarence Thomas.¹⁰ Taken separately, these analyses focus on the movement of persons and testimony through professional, legal, familial, and media networks and reveal how power smoothed and blocked the paths of witnesses. Each specifies how belief attached to Hill and Thomas variously, how it stuck initially to him, and how it shifted to her.¹¹ A critical question looms large here: what is the relationship between gender and racial violence? How did Hill’s gendered testimony about sexual harassment interrupt Thomas’s scripted narrative of race and expose the narrative of law, gender, and race that Thomas’s narrative sought to tell?

Clarence Thomas’s campaign for nomination to the Supreme Court began early in his career, and its central feature appears to have been the strategic use of his life story. The “Pin Point strategy,” named after the small, rural town in Georgia where Thomas was born into poverty, enabled Thomas to offer a story rooted in the history of slavery and Jim Crow that presented his climb from humble beginnings as something more than the individual narrative of the rise.¹² The Pin Point strategy also offered a way for white conservative politicians to brush aside the history of race entirely. Thomas was a self-made man, and if he could make it on his own, all African Americans could and should. The story, honed over years, moved to tears President George H. W. Bush, who nominated Thomas, and inspired him to bungle his prepared nomination statement, replacing the scripted “best man” for the job to “most qualified,” a glaring falsehood, but one that represents the power of this narrative to travel beyond the frame of life story and substitute the affective glow it was designed to offer in place of professional expertise and experience. The American Bar Association offered Thomas the lowest rating for a nominee: a barebones “qualified.” He had risen within the conservative political network to his appointment to the EEOC and then a judgeship independent of much of a legal record.

The personal narrative of humble beginnings represents politics by other means. It sends coded signals of reassurance to like-minded audiences. It focuses attention on the preprofessional life of the candidate to deflect scrutiny from an inspection of what the past actually was prologue to. Following Robert Bork’s failed confirmation, nominees to the court adopted a “say nothing” strategy about their views. In the absence of discussion of legal principle and precedent, life story represented a pool into which the committee was invited to peer and see only the burnished image of the nominee they sought reflected back to them.¹³ In Thomas’s case, as in others following the unabashedly conservative Justice Bork’s contentious nomination, life narrative provided a Teflon coating over the ideology of nominees and placed what was often the reason for their selection off-limits for actual discussion.¹⁴ More pitch than life story, the nominees’ narratives were honed to elicit the right affect.

The up-from-poverty story begins with Thomas’s birth in rural Georgia. His parents were not married, and Thomas had a sister and brother. His father left when Thomas was young, and his mother worked as a maid for low wages, long hours, and no better prospects despite her toil. With no other options to feed and clothe her three young children, she asked her estranged parents for help. They took in the two brothers, exacted stern discipline and regular corporal punishment, provided private Catholic school education, and gave Thomas and his brother a foundation of care based on the unacknowledged sacrifice his sister and mother made to obtain support for the boys. Thomas did not place his mother’s sacrifice into his public narrative despite the fact that her decision to send him to her parents set his success story in motion. Thomas’s grandparents provided a stable life. His grandfather owned two businesses and supported civil rights and labor, both movements Thomas would disavow to his grandfather’s disappointment.¹⁵ While the Pin Point strategy suppressed his mother’s and sister’s ongoing poverty, it implied a narrative of persistent poverty when he lived with his grandparents. Thomas’s characterization of ongoing economic deprivation surprised people who knew his financially stable grandparents in Savannah or attended school with him. Despite his assertions that he “fended for himself” and received “active opposition” rather than government assistance, Thomas’s actual circumstances were transformed by the advent of civil rights and the affirmative action program that enabled him to attend Holy Cross and Yale Law School. Thomas spoke against Brown v. Board of Education and in support of segregated schooling, despite having escaped the worst version of that system by attending a segregated parochial school founded in 1878 and staffed by white, civil rights–minded nuns.¹⁶ Thomas and his narrative circulated together through conservative Washington circles and assured conservative white contacts that he was reliably anti–affirmative action, indifferent to civil rights, and uncommitted to labor. The packaging of conservative political ideology as a narrative of humble origins magnetized patrician white patrons like President George H. W. Bush and...