6

It’s On Us (1988–94)

“You’re a coward for raising a hand to a woman or child—and you’re complicit if you fail to condemn it.”

In 1989, now fully recovered from his surgery, Biden shook with anger as he saw the news from Canada.

On a university campus in Montreal, a man named Marc Lépine walked into a classroom. He carried a semiautomatic hunting rifle.

“I want the women,” he told the students, holding his gun.

He lined up the women against a wall.

“You’re all a bunch of feminists!” he yelled. “I hate feminists.”

He shot the first woman. Then the second. Soon he had shot and killed fourteen women. Then he killed himself.

Like everyone who saw the story, Joe Biden was horrified by what would become known as the Montreal Massacre. Yet something else caught his eye—as one of his staffers pointed out, if this had happened in the United States, technically, it wouldn’t count as a hate crime.

Huh? How is that not a hate crime, for Pete’s sake?

Biden dug a little deeper, and then he learned that, as one Supreme Court clerk explained, for violence to count as a hate crime, it needs to target a “victim’s race, ethnicity, religion, or sexual orientation….If a woman is beaten, raped, or killed because she is a woman, this is not considered a crime of hate,” a legal technicality that’s “welcome to no one but the misogynist.”

That’s a bunch of malarkey, Biden must have thought. (Quick context: If something is a hate crime, it counts as a violation of civil rights, which gives the victims more protection, and lets them sue in federal court.) The more he learned, the angrier he got.

Biden had been a tough-on-crime guy since the mid-’80s, and he made it a habit to track crime statistics. He noticed something strange: In the previous ten years, violent crimes against men had dropped, but crimes against women had surged. Biden did more research. One appalling survey showed that in the United States, one in ten men thought that it was “okay for a husband to beat his wife if she doesn’t obey him.” One in ten. The math was grim; with 53 million married couples in 1990, this meant that 5 million women were at risk.

He asked one of his staffers, Victoria Nourse, to hit the books and gather more data. “He wanted to hear what a woman had to say about it,” Nourse says. “And this is the thing about Joe Biden. Although he is known for his loquacious behavior, he listens.” Biden and Nourse drilled deeper, spoke to victims, and then held a series of hearings to show that this issue matters, damn it. They provided a platform for victims to come forward and share their stories. One of these women was a college student who had been sexually assaulted by her friend’s boyfriend. Her dorm’s RA later told her, “You were raped.”

“No I wasn’t. I knew him,” she told the RA.

That was the mind-set about rape. That was the culture. More women came forward. In one case, the judge “suggested that a rape victim had invited the attack by wearing a crocheted miniskirt.” (As Biden said, “The stupidity was infuriating.”)

So Biden began his work on what would become, in time, the Violence Against Women Act (VAWA). It seems crazy that this bill was controversial. Who’s against the victims of sexual assault? Yet consider the senator from Alabama, Jeremiah Denton, who seemed fuzzy on why marital rape would be considered a crime. “Damn it,” he said, “when you get married, you kind of expect you’re going to get a little sex.”

It was not easy to muscle a bill through Congress. It took time. So Biden buckled down, just like he had with Bork. He called in experts. He demanded more research.

He urged others to understand that violence against women affects all women, not just the specific victims. Biden understood “the lack of control that is experienced not only by women who are themselves victims but by all the women who have to constrain their daily activities to avoid being a victim,” and that, therefore, “violence against women deprives women of equality,” said Sally Goldfarb, who had helped create the bill.

In 1990, Biden tried to get the bill passed.

Not enough votes.

In 1991, he tried again.

Not enough votes.

He kept working on the bill, but he would soon be forced to deal with a new distraction: a potential Supreme Court nominee named Clarence Thomas.

In 1991, once again, Biden was the chairman of the Judiciary Committee. Once again, Joe Biden would swing his gavel and frame the debate and set the tempo. And once again, Joe Biden zeroed in on that age-old question of the right to privacy.

Things began innocently enough. A quick snapshot of the early days:

Clarence Thomas did believe there was “a right to privacy in the Fourteenth Amendment.”

“Well, Judge,” Biden asked, “does that right to privacy…protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?”

Clarence Thomas was no sucker. Perhaps he had watched the Bork tapes—okay, he had certainly watched the Bork tapes—so he tried to say as little as possible, admitting only that when it came to Roe v. Wade, “I do not think that at this time I could maintain my impartiality as a member of the judiciary and comment on that specific case.”

In other words, No comment. He had parried Biden’s move. It’s just like how in The Karate Kid, Daniel-san’s “crane kick” defeated Cobra Kai and won him the trophy, but it failed him in The Karate Kid II.

“You will be pleased to know I don’t want to know anything about abortion,” Biden said, but hey, why use ten words when a thousand will do? He quickly added, “I don’t want to know how you think about abortion. I don’t want to know whether you have ever thought about abortion. I don’t want to know whether you ever even discussed it. I don’t want to know whether you have talked about it in your sleep. I don’t want to know anything about abortion.”

The pundits rolled their eyes. “Biden’s queries were sometimes so long and convoluted that Thomas would forget what the question was,” write Jane Mayer and Jill Abramson in Strange Justice. “Biden had considered the Bork hearings his finest hour, a high-minded discourse that had engaged the country. Bork was defeated fairly, in Biden’s view, because of his legal opinions. This time Biden’s questions seemed occasionally to be a vehicle to show off his legal acumen rather than to elicit answers.” (What’s that old adage about the sequel never being as good as the original?)

So far, though, let’s speak plainly—YAWN. This is all a bit dry. It’s more C-SPAN than HBO. If the Clarence Thomas hearings had ended right there, then the world might have moved on, and Biden would have pivoted back to his Violence Against Women Act.

The hearings didn’t end there.

Enter Anita Hill.

At the time a professor of commercial law at the University of Oklahoma, Anita Hill had worked for Thomas a decade earlier. Over the phone, she told the Judiciary Committee—Biden’s committee—that she was sexually harassed by Clarence Thomas, but she wanted to remain anonymous.

From the jump, Biden faced some tough choices. Should he grant the request for anonymity? Force her to go public? (Quick clarification: At this point, Thomas was simply being considered by the fourteen-member Judiciary Committee, which would then make a “favorable” or “unfavorable” recommendation, and then Thomas would go before the full Senate either way. That’s how it always works. Back in 1987, Biden’s committee had sent Bork to the Senate floor with a 9–5 “unfavorable” recommendation.)

Hill wrote a detailed memo that laid out the allegations, which was then read by the committee. One of the committee members, Senator Arlen Specter, a Republican, called Clarence Thomas directly to get his take. According to Specter, Thomas said, “No, sir, with God as my witness…it just didn’t happen. I wouldn’t do that….Black men are always accused of that….Never happened, absolutely not.” Specter then wrote, “African American men are often described sexually in terms of prowess and size, and as predators. He told me how painful it was for him to hear Hill’s charges, and how untrue and extraordinary they were.”

Sexual harassment. Race. Gender. This was explosive stuff, and it would be easy to get it wrong. Let’s say you’re in Biden’s shoes. What do you do? The tricky thing is that Hill, at that point, had no desire to go public with her accusations. It would be a big risk, and would mean putting herself in a position where it was her word against a very powerful man’s word—and the cards were stacked against her.

So should Biden force Hill to testify, or let the vote go forward, with most of the Senate unaware of the charges? Biden ultimately decided that since Hill was unwilling to come forward publicly, it wasn’t fair to punish Thomas with an anonymous charge.

The timing was dreadful. The committee was scheduled to vote, so Biden said they should vote. When it was his turn, Biden said that he would not support Thomas for reasons of legal substance (the right to privacy), but, “for this Senator, there is no question with respect to the nominee’s character.”

The committee voted. It was a 7–7 tie—so no recommendation, favorable or unfavorable—and then this live grenade was tossed to the Senate floor.

“I must start off with a presumption of giving the person accused the benefit of the doubt,” Biden said in the chamber. “I must seek the truth and I must ask straightforward and tough questions, and in my heart I know if that woman is telling the truth it will be almost unfair to her. On the other hand, if I don’t ask legitimate questions, then I am doing a great injustice to someone who might be totally innocent. It’s a horrible dilemma because you have two lives at stake here.”

Should Biden delay the start of the full Senate hearings, which would give more time for everyone to take stock of the charges of sexual harassment? He decided not to. Civil rights groups were appalled—Shouldn’t we take more time? Others asked even tougher questions. “What disturbs me as much as the allegations themselves is that the Senate appears not to take the charge of sexual harassment seriously,” said Senator Barbara Mikulski, one of only two women in the entire Senate. (The other was Nancy Kassebaum.) Ninety-eight of the one hundred senators were men. Most of them white. Neither of the two women sat on the Judiciary Committee.

Biden soon gave Hill a call directly. According to Hill’s book Speaking Truth to Power, over the phone, Biden advised her that she get a good lawyer.

“I wish I weren’t the chairman. I’d come to be your lawyer,” said Biden, as Hill remembers. She wrote, “I could almost see him flashing his instant smile to convince both of us that the experience would be agreeable.”

The experience would not be agreeable. In his opening remarks to the full Senate, Biden explained that this was not a “trial” but a “fact-finding hearing.” He acknowledged that achieving fairness in the charged atmosphere “may be the most difficult task I have ever undertaken in my close to nineteen years in the U.S. Senate….It will be easy and perhaps understandable for the witnesses [e.g., Anita Hill] to fear unfair treatment, but it is my job, as chairman, to ensure as best as I possibly can fair treatment, and that is what I intend to do.”

The play-by-play has been extensively covered elsewhere, so we won’t reenact the whole drama, but it’s important to remember the following: This was on TV. The entire nation was watching. At the time, workplace harassment was barely on the public’s radar, and now a woman, an African American woman, was accusing a powerful man of sexual harassment at a time when some senators were saying, openly, that it was okay to rape your wife.

Okay, on that note, let’s dive in.

Summarizing the case for Thomas (read: against Anita Hill), eighty-eight-year-old Senator Strom Thurmond argued that out of a hundred prior witnesses, not one “had one disparaging comment to make about Clarence Thomas’s moral character,” and the “alleged harassment she describes took place some ten years ago.” (Counterpoint: The behavior is still inexcusable. Sexual harassment is not like milk. It doesn’t expire.)

Thomas denied everything, making the case that he was the victim, and that the charges had done a “grave and irreparable injustice” to his family. “Confirm me if you want, don’t confirm me if you are so led, but let this process end. Let me and my family regain our lives. I never asked to be nominated. It was an honor. Little did I know the price, but it is too high.”

Hill took the stand. At this point she had already become the target of insults, smears, and questions about her motivations. “It is only after a great deal of agonizing consideration and sleepless nights that I am able to talk of these unpleasant matters to anyone but my close friends,” Hill said, and then launched into what had happened. She explained that Thomas asked her out. She said no. He kept asking her out. She kept saying no. The details were vivid, pornographic, and uncomfortable.

To boost their case for Clarence Thomas, a few of the senators would latch on to only one strategy: vilify Anita Hill. Arlen Specter charged that Hill was guilty of “flat-out perjury.” Senator Orrin Hatch had a theory: Maybe she made up the entire story, based on the plot of The Exorcist? And Senator Howard Metzenbaum said, “If that’s sexual harassment, half the senators on Capitol Hill could be accused.”

Even though she was not required to do so, Hill took a lie detector test.

She aced it.

Yet Biden, as chairperson, said the test should not be considered. “If we get to the point in this country where lie detector tests are the basis upon which we make judgments,” he argued, “we have reached a sad day for the civil liberties of this country.” (The logic has merit, but still…Hill aced a lie detector test, and it’s inadmissible?)

To both simplify and complicate matters, Anita Hill was not the only woman who accused Clarence Thomas of sexual harassment. Other women stepped forward, such as Angela Wright. Yet none of them testified in person before the Senate, a fact that remains controversial.

Biden insists that he had welcomed Angela Wright to testify. “[T]here’s a myth that’s grown up that we somehow denied her,” Biden told Jules Witcover in 2009. “We had her in town to testify, we expected her to testify, we prepared her to testify; she chose not to testify. She had her own reasons. I don’t know exactly what they were. And people say, well, why didn’t you have her testify anyway? Well, that’s like calling a hostile witness in a case.” There’s evidence to back him up. A letter dated October 13, 1991, corroborates his statement. “If you want to testify at the hearing in person, I will honor that request,” he writes.

Biden has also been criticized for not calling in more expert witnesses, people who could help inform the Senate—and educate America—about sexual harassment. Biden says he wanted to do just that. “I wanted a panel on sexual harassment to come and testify, so we could put in context what we were talking about,” he said in 1994. “And it was decided by the Hill people that they didn’t want that panel to come on. Again, there was a feeling—communicated to me secondhand—that Anita Hill had won this thing. She had made her case. And I kept saying, ‘Wrong, this ain’t over.’ I was very disappointed.”

There would be no expert witnesses. There would be no in-person testimony from the other women who accused Thomas of sexual harassment, which clearly would have buttressed Hill’s allegations. (Written testimony was admitted, but did that have the same impact?)

The Senate confirmed Thomas 52 to 48, and that was that. Would he have squeaked through if the other women were allowed to testify? Or if the hearings had been given more time? Or if a panel of experts had testified? And how much should we blame Biden for the way Hill was treated?

Years later, Hill spoke about what she saw as Biden’s failure in the hearings. “I think he did two things that were a disservice to me, that were a disservice more importantly to the public,” Hill said in a 2014 interview. “There were three women who were ready and waiting and subpoenaed to be giving testimony about similar behavior that they had experienced or witnessed. He failed to call them.”

She continued. “There also were experts who could have given real information as opposed to the misinformation that the Senate was giving…and helped the public understand sexual harassment. He failed to call them.” At the time, a Biden spokesperson responded simply: “The Vice President continues to wish nothing but the best for Anita Hill.” (In Biden’s 365-page memoir, Promises to Keep, the name Anita Hill appears exactly 0 times.)

On the other hand, some argue that Biden has gotten a bad rap. “Then-Senator Biden felt that he had an obligation to try to sit in a neutral position as chair, and that was his priority—presenting a fair hearing,” his counsel on the Judiciary Committee, Cynthia Hogan, later argued. “I don’t think anyone was happy with the hearings. I think then-Senator Biden was surprised by the way the Republicans went on the attack….It wasn’t that he didn’t take sexual harassment seriously.” Joe Biden, like the nation, seemed to be grappling with the proper way to address sexual harassment, how to put it in the right context, and how to understand it. He was learning. And in the end, he did try to give Hill a full-throated defense. “There is absolutely not one shred of evidence to suggest that Professor Hill is fantasizing,” he said on the Senate floor, steel in his voice, scolding his colleagues. “There is no shred of evidence for the garbage I hear…that the only answer we can come up with is that she must be fantasizing….So I hope you will drop this stereotypical malarkey.”

At least one thing is crystal clear: Anita Hill’s life would never be the same. “I am no longer an anonymous, private individual—my name having become synonymous with sexual harassment,” she writes in Speaking Truth to Power. “To my supporters I represent the courage to come forward and disclose a painful truth—a courage which thousands of others have found since the hearing. To my detractors I represent the debasement of a public forum, at best, a pawn, at worst, a perjurer. Living with these conflicting perceptions is difficult, sometimes overwhelming.”

In 1991, Patricia Ireland was the acting president of the National Organization of Women (NOW). “This is not to say that there’s anything good about the Thomas hearings,” she says, “but there were a whole lot of women in this country who saw the hearings, and who had experienced sexual harassment, and started talking about it. And then there were men who loved these women, and they heard these stories, and they started talking about it. Husbands, brothers, fathers. There was an explosion of public consciousness.” Her NOW offices received so many calls that she had to install a new switchboard. She says it’s not a coincidence that 1992 would be labeled “The Year of the Woman,” with the election of four women U.S. senators: Barbara Boxer, Patty Murray, Carol Moseley Braun, and Dianne Feinstein.

Something else seemed to change, too: There was more willingness to talk about domestic violence against women. Biden’s staffer charged with spearheading the Violence Against Women Act, Victoria Nourse, says she noticed the shift. “The country changed, and the Senate changed, after Anita Hill,” says Nourse. “Women made themselves quite clear—that [hearing] was a mess.” She says that helped open the minds, and ears, of other male senators. The votes were more gettable. In the background, Biden’s team had continued work on what would become a three-year investigation into the deeper causes of violence against women. They hatched a report designed to evoke real emotions, and to focus on something specific: Violence Against Women: A Week in the Life of America, with involvement from both Democratic senators (including Ted Kennedy) and Republicans (including Orrin Hatch).

The report was unflinching. It found that in 1991, there were at least 21,000 domestic crimes against women…every week. “These figures reveal a total of at least 1.1 million assaults, aggravated assaults, murders, and rapes against women committed in the home and reported to the police,” Biden writes in the introduction. Yet he knew that statistics alone wouldn’t shake people to act. He wanted to look at “the human face” behind the numbers. From the report:

This gruesome report ran twenty pages. Biden says that if his team included every event they knew about, the report would run seven thousand pages. Sometimes Joe Biden can goof around, and sometimes—likely more than we know—he’s deadly serious. “What do these stories tell us? At the most basic level, they tell us that no one is immune,” Biden writes. “Violence happens to young women and old women, to rich women and poor women, to homeless women and working women.”

The Violence Against Women Act included $300 million to train police, prosecutors, and victim advocates to help survivors, fund education programs, and toughen prosecutions of abusers. It also helped define sexual assault as a hate crime, letting women bring civil suits against their attackers.

Cynics might think of the VAWA as a PR move, a way to atone for his role in the Anita Hill testimony. Only one problem with this theory: Biden launched this crusade in 1990, and he had already tried, twice, to get the bill through Congress, even before the world had heard of Clarence Thomas.

He tried again to get the law passed in 1992.

Not enough votes.

1993.

Not enough votes.

Finally, in 1994, he cracked the logjam. All those years cultivating friendships with Republicans had paid off. People trusted him. “Everyone knew that it was personal for him,” says Nourse. He listened to the victim hotlines, talked to survivors, and heard more stories of abuse. “[Republicans] knew that he wasn’t going to let the crime bill forward if they took it [VAWA] out. And it wouldn’t have happened if he didn’t have that strong moral compass.” To secure Republican support, Biden bundled the VAWA with the $30.2 billion Violent Crime Control and Law Enforcement Act, which put 100,000 cops on the street. If that sounds like a mouthful, you can remember it by what senators called it at the time—the “Biden Crime Bill.” Biden is proud of the win. (The nuance, like always, is complicated. According to some, the bill led to a stunning long-term drop in murders and other violent crimes. According to others, it accelerated the nation’s incarceration problem, and disproportionately hurt minority communities. The debate is not simple.)

When President Clinton inked the legislation into law, the Democratic majority leader said that Biden was “the one person most responsible for passage of this bill,” calling him “the most underrated legislator, the most effective legislator in the Senate, bar none.”

Most underrated legislator. Most effective legislator. Biden was no longer the golden boy. He was no longer the young vision of hope, the silver-tongued orator, or the guy with a spotless record. He now had bruises. Graying hair. The scars of politics, the scars of bad PR, and the physical scars from life-threatening surgery. Yet with the passage of the Violence Against Women Act and the crime bill—along with his globe-trotting work on the Foreign Relations Committee (more on that soon)—he seemed to relish his role as a senatorial doer, not just a talker.

It had taken more than four years for the bill to become a law. But Biden stuck with it.

WISDOM OF JOE

Play the long game.

“When I look at Biden and the Anita Hill hearings, this is the lesson, for me: People are complex. I see that people make mistakes, and they make huge mistakes,” says Patricia Ireland, the former president of NOW. “I don’t want to be held to who I was in 1991. I’ve grown and learned and changed since then.” She pauses, thinks. “But Joe Biden came back. He didn’t go hide in a corner. He didn’t go feel sorry for himself. He just doubled down on doing good work, pushing hard on issues that affect women’s lives. And that goes a long way for me. He gets credit for persistence and determination over a long number of years.”

The most important legacy of the VAWA, says Ireland, is that it helped change the culture about the way we think about these issues. “Whether it was sexual harassment, physical harassment, sexual assault, or violence in families—that was a shame that you didn’t talk about, a private matter, a family matter. You looked the other way,” says Ireland. “Biden was part of changing that perception to say, No, that’s not a problem that an individual woman has. It’s a structural problem. It’s a cultural problem.”

Biden’s work did not stop with the Violence Against Women Act. He would spend the next twenty-five years working to further change that culture, spreading awareness about sexual assault, and how it was not just a “women’s issue,” but one that needs to be owned by the men, too. It’s not just on women…it’s on us. Whether the crime is the Montreal Massacre, domestic violence, sexual harassment, or sexual assault on campus—it’s on men to look the evil in the eye, to do the right thing. (Is it a coincidence that Biden saw his colleagues tear into Anita Hill, while too many men stayed silent?) “You’re a coward for raising a hand to a woman or child—and you’re complicit if you fail to condemn it,” he said in 2014, on the twentieth anniversary of the VAWA. He then worked with President Obama to launch an initiative—to fight sexual assault, to educate, to get men on board—that he continues to champion to this day: It’s On Us.