Tainted Witness: Why We Doubt What Women Say About Their Lives

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 Senator John Danforth to Thomas. Used as a set-piece in his public appearance, Thomas’s narrative also circulated in popular media during the confirmation hearings, remained the standard version in the press and his paid lectures thereafter, and was later revived in Thomas’s memoir.

Clarence Thomas represented a convenient paradox for white Washington politics: the self-made man who benefited from the opportunities of affirmative action but disavowed them as corrosive to self-worth. The paradox between the claim of being self-made and the benefit of civil rights legislation would need to dissolve in order for the self-made man narrative to succeed as his political autobiography. In an effort to resolve the juxtaposition of a self-made man who had pulled himself up on his own and benefited from affirmative action, Thomas denounced affirmative action programs publicly and frequently in emotionally charged statements. He identified affirmative action as an injury: neither racism, poverty, paternal abandonment, nor the loss of living with his mother and sister would figure as strongly.

The Pin Point strategy celebrated virtue and moral rectitude as the fruits of Thomas’s disciplined rise from poverty. It did not include three key issues: his evolving views on civil rights, his enthusiasm for watching and discussing pornography, and his history of using the work places he supervised as dating pools. First, his early commitment to civil rights and his friendship with Lani Guinier, the civil rights and social justice theorist, with whom he had planned to pursue civil rights law after law school, fell outside the official narrative, and his evolving views of civil rights were not discussed during his confirmation.¹⁷ Second, the well-known fact that Thomas enjoyed pornography and talked about it with friends and at work, as Anita Hill testified, similarly fell outside the authorized narrative. Third, Thomas’s behavior as a supervisor included sexualizing the workplace, as Angela Wright was prepared to confirm, though she was blocked from testifying. Thomas’s friends recognized the man and behavior Hill described, and not the pure nominee on view up until she testified. Yet the Pin Point strategy, which restricted attention to a pinpoint-sized frame of its own creation, was so successful that Thomas’s patron Senator John Danforth was shocked to think Thomas could even utter a profanity and could not reconcile the prayerful, somber Thomas he knew with the pornography enthusiast.¹⁸ The life story had done its intended work, but it rendered the person it purported to represent unrecognizable to those who knew him.

Thomas’s life story was not the only one shared with a national audience. Indeed, the hearings offered twin autobiographical narratives of the rise from poverty by African Americans in the South through elite education to professional success. Both Thomas’s and Hill’s experiences were rooted in Jim Crow; both had living relatives who remembered a family member who had been enslaved. Both spoke of family love and support, and the sustaining presence of church and faith (Catholicism for Thomas and the Baptist church for Hill). Yet there were differences. Anita Hill had an equally compelling story of rising from humble origins, but no “Lone Tree strategy” had been prepared for her. Instead, her life story spoke in the key of history rather than myth. She was the thirteenth of thirteen children born to African American parents in Lone Tree, Oklahoma. Her great grandparents and maternal grandmother were born into slavery in Arkansas. The family had a strong Baptist faith. Hill was the valedictorian of her high school graduating class, earned honors at Oklahoma State, and attended Yale Law, like Thomas. Yet, as Hill would later say, her life story could not find traction during the hearing: “I had a gender, he had a race.” It was as if the story of a woman’s rise, unburnished by strategists, carried too much historical reality. His story shed history, as well as other people, and rose to myth; hers was rooted in family and care, confirmed her discipline and talent, and remained stubbornly particular. Rather than engage with her actual life story, Thomas’s supporters presented Anita Hill as incoherent and baffling: either she was a liar outright, as Thomas insisted, or she was a careerist, a professional woman willing to maintain ties with Thomas for the sake of her professional network. That she could also have been sexually harassed was denied.

The he said/she said framework of judgment that was organized through ignorant and hostile questioning, and reported in news accounts, replaced the testimonial significance of how race and gender informed these his-and-hers life stories. As Anita Hill commented, the prominence of Thomas’s life story coupled with the perfunctory treatment of her own repressed the connections between race and gender. But their stories provided far more context for understanding the routes by which they arrived at the Senate confirmation hearings than could gain adequate witness. Although their humble beginnings inspired comparison, Thomas’s upbringing was defined by paternal abandonment, and Hill’s, by a large and supportive family. Whereas Thomas is recalled as a boisterous consumer of porn and something of the “class clown” in his needling of straitlaced colleagues in his first job working for Senator Danforth, Hill was “bookish” and “sheltered,” as her relatives described her, protected by her mother and immersed in moral lessons drawn from life and the Bible.¹⁹ There are no stories of her breaking out of this mold when she arrived in Washington, of telling a lie, or behaving unethically. Thomas’s life story framed race as apolitical: Thomas was not angry, militant, or activist; or, if he did have an activist period, it was enfolded into a developmental narrative as a youthful enthusiasm. In contrast, Hill’s politics stuck to her in this public forum: she was a pro–civil rights feminist.

When Hill did bring forward her public account of sexual harassment, it was because she was subpoenaed. Arizona Democrat Senator Dennis DeConcini explicitly misrepresented how Hill’s account of sexual harassment reached the committee. On October 7, as her statement was provided to committee members in response to requests from the committee itself for information, DeConcini said, “If you’re sexually harassed, you ought to get mad about it, and you ought to do something about it, and you ought to complain, instead of hanging around a long time and then all of a sudden calling up anonymously and say, ‘Oh, I want to complain.’ I mean, where is the gumption?”²⁰ Her description of why she informed about Thomas’s conduct baffled members of the Senate Judiciary Committee. Their response became a tactic, intentional or merely reflexive, to shift the focus away from Thomas’s conduct and place it on Hill: How did she feel when she was subjected to unwanted conversation about porn? Why did she continue to work for Thomas? What kind of dating relationships did she have? Was she, in Alabama Democrat Howell Heflin’s memorably florid characterization, “a scorned woman…a zealoting civil rights believer…[someone with] a militant attitude relative to the area of civil rights…[someone with] a martyr complex…[seeking to become] a hero in the civil rights movement”?²¹ Heflin and others concocted extreme scenarios to explain away a simpler version of events and motivation. Witnesses in support of Thomas were encouraged to speculate without basis about motive, too, as if to render the details of workplace harassment increasingly specular and unstable. Interpretation replaced testimony. In this new construction, Thomas had not sexually harassed her, or, if he had, she was a participant. She was lying about it happening at all, or she was lying about her previous participation, or she had fantasized such interest from Thomas and invented an account of it with which to punish him. Her motives were either political, intended to block the nomination of a conservative justice to the Supreme Court, or merely personal. Thomas went the furthest in his characterization of Hill and his denunciation of her testimony: a friend turned betrayer, she was in league with a conspiracy to undo him: “Senator, I believed that someone, some interest group—I don’t care who it is—in combination, came up with this story and used this process to destroy me…. I believe that in combination this was developed, or concocted, to destroy me…. [M]y view is that others put it together and developed this…. All I know is that the story is here and I think it was concocted…. The story is false, the story is here, and the story was developed to harm me.”²² Yet in the nearly twenty-five years after Thomas alleged that Hill perjured herself, no one has brought forward any evidence that Hill lied, that she had been a part of any conspiracy, or that anything other than exactly what she reported happened. How, then, could such an elaborate smokescreen successfully occlude her testimony?

Hill’s testimony revealed huge gaps in public knowledge about sexual harassment, a workplace dynamic that was coming into view as women were challenging discriminatory practices and everyday sexism in the workplace. Hill’s experience at the EEOC was saturated with unwanted sexualization. There was no sexual harassment law to which she could appeal for relief, no sexual harassment prevention workshop or human resources officer to whom she could report. If she wanted to stay in the job, and also if she wanted to move to another one, Anita Hill had to wade daily through the sticky, ugly atmosphere, knowing that her boss was likely to say something vulgar that would knock her off her game, distract her from work, and diminish her professionally and personally. When Hill appeared before the committee, the senators lacked an understanding of sexual harassment and used public unknowing about sexual harassment strategically to facilitate victim blaming. The lack of an available public and feminist discourse through which to make the significance of this widespread harm knowable showed in the questioning. Hill called attention consistently both to what had happened and to how to understand it. In an unmistakably lawyerly method, Hill returned to the facts, established principles, and pressed her points. Her signature phrase, “Let me try to explain again,” threaded throughout her testimony in response to the false leads and blind alleys down which the Republican senators were intent on journeying.

Because Thomas’s vulgarity was central to her testimony, Hill was compelled to find his words in her mouth. His notorious comment, “Who has put pubic hair on my Coke?,” had the kind of real-world specificity that persuaded some commentators that Hill was credible.²³ The stereotypical sexual harassment scenario at that time featured the handsy male boss chasing a female secretary around the desk. Thomas’s preferred mode was verbal harassment, and his preferred subject was dating and pornography. In her recollection, Thomas enjoyed using his power over her, punishing her with this talk, and subjecting her to discomfort. With comments about rape scenes in pornography and whether he found her outfit sexy ringing in her ears, Hill would leave Thomas’s office rattled, but she disciplined herself to remain professional.

Hill lacked an advocate in the hearings who could have filled in the context crucial for a new understanding of sexual harassment to emerge in public. At least an advocate could have educated the other committee members, deflected their most egregious statements, and called for greater fairness to Hill in the process she joined under subpoena. Massachusetts Democrat Edward Kennedy would have been an obvious candidate for the role, but his role in a recent rape scandal involving his nephew muted him. Even without providing advocacy, Senator Joseph Biden as chair failed to balance the hearings: “‘He was basically playing judge,’ Susan Deller Ross, a Georgetown University law professor and expert in workplace sex discrimination, said of Mr. Biden, adding ‘the other side was playing advocate’ for Mr. Thomas. ‘I’m sure you remember nobody played advocate for her. I don’t think he did well and he bears responsibility for Mr. Thomas being on the court.’”²⁴ Instead, Biden introduced the standard of a criminal proceeding to face Hill’s testimony. Thomas would enjoy the presumption of innocence.

Biden has been described as tilting the process to favor Thomas in multiple ways. In a crucial decision, for example, Biden did not permit Angela Wright to speak. Wright was the key suppressed witness who had worked for Thomas, dated him, recalled his pornography enthusiasm, broken up with him, been fired by him, and then been actively managed by Thomas’s team into a quid pro quo for her ongoing silence with a positive letter of recommendation from Clarence Thomas.²⁵ Wright’s testimony could have diluted the taint of Hill alone having to speak Thomas’s words that she found so degrading. In a further concentration of responsibility for bearing witness to sexual harassment to Hill alone, Biden did not permit affidavits from an expert on whether a pattern of behavior needed to be established to prove sexual harassment. Susan Deller Ross, also a member of Hill’s hastily composed legal team, concluded: “He did everything to make it be good for Thomas and to slant it against her.”²⁶

Despite her admirable life story, unblemished record as a government employee and law professor, and uncontroversial life as a private citizen, Anita Hill was subjected to two forms of witness tainting: one on view within the hearing and the other a hastily undertaken smear campaign that fed misrepresentations, wild allegations, and theatrics into the hearings through committee members’ questions.²⁷ The boundary of the hearing would prove porous when the project was tainting Hill. The first unfolded under Senator Biden’s control as committee chair and the second as he presided over the hearing. Thomas’s team had prepared for the hearings well. One task had been to manage Angela Wright offstage and to buy her silence with a positive job recommendation. Further damage to Hill was permitted through the failure to uncover what journalists Jane Mayer and Jill Abramson documented and what could have informed the proceedings once Hill began to testify. The second took the form of all-out character assassination as Thomas’s supporters, shaken by Hill’s testimony, stirred outright lies, hearsay, and calumny into a “witch’s brew”²⁸ and flooded the media with misrepresentation. Among these participants was Senator John Danforth, Clarence Thomas’s patron and supporter throughout his confirmation hearing. As Danforth described in his posthearing memoir, he sought to dig up as much dirt as he could throw at Hill. He actively sought affidavits from former and current students at Oral Roberts University and University of Oklahoma College of Law and from former peers at Yale Law School meant to incriminate Hill.²⁹ Danforth even provided Wyoming Democrat Alan Simpson with a couple of dubious faxes and letters, which Simpson multiplied to “sound like an outpouring of seriously disturbing truths about Hill. But almost all of them were from students who had never studied with her and had no firsthand knowledge.”³⁰ Danforth took it as his mission to generate what he knew to be unsubstantiated and scurrilous smears of Hill: “getting those affidavits was my obsession that afternoon. I knew that Anita Hill was going to be demolished…. In my quest for affidavits I was showing no concern at all for fairness to Anita Hill.”³¹ Because the time from Hill’s testimony to the confirmation vote was brief, no one could run so many assertions to ground in a few days’ time.

The jurisdiction in which Hill testified was an amalgam of parliamentary procedure and stagecraft. The event had all the trappings of an official hearing, including the swearing in of witnesses, but kept mutating with an improvised quality that gave rise to genuine befuddlement and exasperation, as Metzenbaum’s query, “what are the rules?” reveals. The improvisation that informed the hearing drew on the practices of both private and public prosecution.³² The majority of the members of the Senate Judiciary Committee, Anita Hill, Clarence Thomas, and many of those whose testimony was elicited were trained as attorneys, and the reserves on which they drew to shape their questions and statements reflected this expertise. Through the public prosecutor’s role, the state expands its power to punish individuals. Through private prosecution, an individual can press a claim. Hill was treated by many of the committee members as if she were pressing a claim, despite the facts of how her testimony reached the committee. It was offered in response to a question about Thomas, Hill insisted it be sealed and that she retain confidentiality, and she became publicly known only when NPR correspondent Nina Totenberg acquired Hill’s statement as it was about to be leaked to the press and asked Hill to comment on it. Her testimony was all the more shocking for the tight control Thomas’s supporters and handlers had exerted over all aspects of the nomination and confirmation processes. Yet from the moment Anita Hill placed her hand on the Bible and submitted to questioning, punishment hung in the air because that is what legal proceedings, backed by the power and legitimacy of the state, deliver.

The hearings were described as traumatic and mesmerizing, which alerts us that while harm was unfolding in real time, another history was looming there, too, in search of an adequate witness and contemporary forms through which to make itself felt.³³ Within the testimonial space of the hearing, the racial past sought a witness. The relationship between racial violence, segregation, sexual violence, and workplace harassment represented the necessary context for understanding Anita Hill’s and Clarence Thomas’s intertwined lives. Although this context was never permitted to appear, it haunted the proceedings. The jurisdiction that took shape around and fostered judgment against Hill was animated by the histories of racial and sexual violence and the legal cover offered by slavery, Jim Crow, and lack of adequate law to protect against their reorganization after civil rights. From the all-male, white committee members intoning about processes they were improvising for their own benefit, to the presence of Hill’s family seated in silence behind her as she was compelled to repeat the words of Thomas, to the dueling life stories of southern African American families who had emerged from slavery to forge lives in Oklahoma and Georgia in which women were still unable to protect and provide for their children, the past broke through the managed forum of the hearings and was opaquely reenacted. In the Hill-Thomas hearings, a black woman’s sworn speech informing about the conduct of a nominee to the Supreme Court in his position at the EEOC became both vivid testimony about sexual harassment and a proximate and public reenactment of it.

The array of gendered and raced power became a forum of judgment organized around Hill’s speech, despite the fact that she was neither on trial nor pressing a legal claim. A tainted witness is not who someone is but who someone can become in the process of bringing an account into the public sphere. Inadequately in control of the forum of judgment, unable to offer appropriate context, and reliant on ethical norms that are unequally applied to witnesses, Anita Hill as witness found herself in a precarious position. As a tactic to taint her, Senators Orrin Hatch and Arlen Specter most vigorously pursued shaming and suggested Hill herself had a penchant for pornography, on which she drew to create her account of Thomas’s behavior. Both Specter and Hatch suggested Hill sought contact with Thomas; or, if she did not seek it, she tolerated it; or, if she did not do either, her inability to make it stop represented a kind of assent.

The volatility of this testimony was evident as it pitched and circulated around the testimonial cast of characters. To whom could it be made to stick? Who could be tarnished by this particular muck? Toni Morrison observes that by virtue of the association of racialization and sexualization, Clarence Thomas himself was in danger of becoming a tainted witness. Once the “dirt,” as he called it, of Hill’s testimony was conjured, it threatened to stick to him through the racial stain associating black masculinity with sexual depravity. He and his supporters ensured that the stickiness of this judgment would attach to Hill. They questioned her motives and her actions; they told lies about her past and his. Morrison observes that Hill’s testimony was not witnessed so that it would reveal truths; instead, “it produced an exchange of racial tropes.”³⁴ Kendall Thomas observes that the “metaphorics of dirt” that saturated the hearings in the “associated figures of pollution, contamination, and defilement” were figures of judgment drawn from the sexualization of racism.³⁵ The persistent association of filthiness with black skin threatened the “purity” of the hearings with excremental fantasies of pollution represented by the presence of Hill and Thomas in the chamber.

Specter and Hatch took the main roles in shifting responsibility and blame onto Hill. Thomas’s persistence was presented as something Hill failed to stop, and, more than that, her failure to halt Thomas’s behavior redefined his ongoing harassment as if it were something she incited. Her failure to stop him was placed on one side of a scale, with his harassment on the other to create a false appearance of balance. The creation of a false appearance of equality conforms to the popular notion that culpability in cases of sexual violence is notoriously difficult to determine because only the parties present know what really happened. When their stories conflict, the shorthand judgment “he said/she said” misrepresents a cultural bias against women’s testimony as the false equality of rational skepticism and objectivity. He said/she said represents the creation of a false pairing of culpability in the face of unequal harm, action, and exposure to risk. If she was sexually harassed, the proof would be in her actions: she would cut off contact with Thomas, bad-mouth him, or otherwise burn her professional bridges. Here is where the twenty-five-year gap is relevant to reassessing Hill’s testimony and Thomas’s: currently, by law, places of employment require training to inform about and prevent sexual harassment. Additionally, whistle-blower protections prevent retaliation against the kind of information Hill brought forward. None of these protections were in place in 1991 when Hill risked both professional harm and retaliation. Yet many senators argued that Hill shared responsibility with Thomas precisely because she failed on her own to make him stop harassing her. Obviously, it would have been more favorable to Clarence Thomas in his confirmation hearing if it could be demonstrated that the sexual harassment simply did not happen. To create this impression, Anita Hill had to be shown to have invented the story out of her thwarted desire to gain Thomas’s attention. To this end, Senators Hatch, Specter, and Heflin painted Hill as a “scorned woman,” a fantasist, and a retaliator. In the end, the committee recommended Thomas and he was confirmed by the full Senate by 52–48, the slimmest margin ever.

Although the hearings followed Thomas’s historic nomination, Hill’s testimony dominates cultural memory. The image of an African American woman testifying at length on television was unprecedented. Her image became iconic: the blue linen dress, professional demeanor, and calm delivery of details that were unfamiliar in American public discourse.³⁶ Hill’s family traveled from their home in Oklahoma to act as a gallery of silent witnesses to her testimony. With her large family arrayed behind her, Anita Hill offered her life story. With that formality dispatched, she was asked to repeat again and again the raunchy remarks Thomas had so frequently made and heard herself characterized as part of a political conspiracy against Thomas, a liar, an opportunist, and vengeful fantasist. Commentators often mention the racially charged tableau created by the fourteen white male senators grilling an African American woman, but there is a more potent image created by looking beyond Hill at the witnesses seated behind her who also faced the all-white figures of law and power. The image of a black woman being made to describe her own sexual degradation by a panel of white men while her family sat in silent witness provides the indelible testimonial image of the hearings. It offers a tableau vivant of the racist association of black bodies and sexuality. Kendall Thomas has described how the “racial pornography” of the hearings was purposefully exploited by Senator Orrin Hatch, who persistently asked both Hill and Thomas to delve into the pornography’s association of racism and sexuality in the guise of a fact-finding innocent, as an enactment of white supremacy.³⁷ By using sexuality as an instrument of racial power, Hatch demonstrated legal power over both Thomas and Hill.

This past burst through when Thomas called the hearing a “high tech lynching for uppity blacks.” Hill’s betrayal of him, he asserted, orchestrated by a political conspiracy and enacted in a televised and public hearing, represented lynching by means other than the noose. Thomas had so successfully rewritten racism in the United States into his own story of rising above it that its appearance in the hearings in the form of Thomas’s anger and his use of the word “lynching” was all the more startling. Once uttered and elaborated through his language of embodied affect, race became his sword and shield, not Hill’s. She would not refer to race or display emotion. Instead, she was a textbook witness: unshakeable and consistent, her answers were precise and closely restricted to the questions posed. She was unable to claim an explicitly raced position as a form of protection, as Thomas had done, artfully and explosively characterizing Hill’s testimony as a “lynching” in a way that rendered his anger apotropaic and proleptic. “I had a gender,” she said, “he had a race.” In this formulation, prying race and gender apart meant she was further exposed.

Hill recognized how the disaggregation of race and gender worked to promote and protect Thomas and to vilify her. Thomas’s supporters cast Hill with the feminist movement as a social movement composed of white women whose interests lay in workplace equality and reproductive rights, and they also encouraged the narrative of her racial disloyalty. Hill was not extended the deference Senator Biden offered Thomas.³⁸ In contrast, Hill remarked that she was turned from credible to tainted witness by lack of a patron or a proxy to power: “The ease with which I was transformed from respected academician to malicious psychotic in the eyes of the public illustrates the tenuousness of my association with power.” Notice how Hill indexes Thomas’s credibility to power rather than truth. “In sum, my license to speak before the committee as a credible witness was revoked by the tribunal and the process. I was cast as just another African American woman who was not to be trusted to describe her own experiences truthfully and who had no place in the decidedly political arena of the moment.”³⁹ The lack of protection for Hill permitted the senators to humiliate and degrade her by drawing out her testimony at length concerning what Thomas had said to her, how she felt when he said it, how she felt about the pornography, and so on. By managing Hill’s and Thomas’s testimonies into another performance of the age-old and undecidable struggles of “he said/she said,” the hearings rendered the victim unpersuasive and her harm unknowable. By prying apart race and gender, the hearings effectively obscured the connections of sexism and racism within larger formations.

The “high tech lynching” comment represents a key to understanding how racial violence haunted the hearings, a history Thomas sought to suppress through his autobiographical narrative. Although the history of slavery, Jim Crow, and racial violence in the South was suppressed during Hill’s testimony, it was nonetheless vividly on display in the form of an all-white male panel that compelled Hill’s family to sit in stoic silence as their brilliant, successful daughter had to say things like “who has put pubic hair on my Coke?” When Thomas said “lynching,” that history burst into the courtroom. When he characterized an official proceeding of the U.S. Senate to confirm a justice to the nation’s highest court, he branded the proceeding with a rhetorical weapon forged through slavery. Yet in his refusal to answer to Hill’s account, Thomas suggested an additional historical context that would be important in understanding the hearings.

The laws of ancient Greece help to contextualize how this peculiar jurisdiction was charged with emotions it contained but did not resolve, specifically, in the animated affect that magnetized to Hill. Law in ancient Greece was proximate to theater and to tragedy, and feelings are central in both. Anger was very much on the minds of the Athenians as they crafted law to deal with feelings like wrath and desire, and they extended to male heads of household considerable sway to manage and punish strong feelings. The invented notion that private and public realms are separate is exposed by the ability of male citizens to exercise and enjoy freedoms in both, including the freedom to restrict women to the home. The public realm in which equals enter into contract exists in contrast to the private realm in which individuals are imagined to be bound by affection. Yet everything about the social contract is predicated on the notion that women have unequal access to enter into it while men are granted a lifetime of relief from it in their relations with women and children. Rationality is thought to be the affective register in which relations in the public realm take place. Here, homo economicus and the rational man dispense and receive justice, engage in contractual relations, and vote. Those denizens of the private realm and their interactions—wherever they occur—are imagined as supporting rationality as what enables civic life to proceed in the midst of conflict.⁴⁰ The emotions have a specified role to play in civic life: they are constrained by rationality and morals, sanctioned by family ties, and expressed in art. However, the extent to which emotions exceed and supercharge the public sphere was formally acknowledged as a feature of law in Athens. Anger, passion, and desire were treated as substantive, personal, and permitted to male heads of households.⁴¹ The air of in-house privilege that characterizes the formulaic civility among the men on the committee continued to extend to Thomas in the form of deference for his dealings with Hill and his intensely emotive response to her testimony. It did not extend to Anita Hill in the same ways. For her, punishment seemed always to be organizing itself in the form of judgment about her motive and credibility.

In 1993 Hill sat for a two-and-a-half-hour interview with journalists Jane Mayer and Jill Abramson. In 1994 they published Strange Justice: The Selling of Clarence Thomas. Over four hundred pages trace Thomas’s rise in Washington and run every accusation hurled at Hill to ground. Strange Justice effectively dismisses Thomas’s allegation of a conspiracy and documents that he and his supporters lied. The first gauntlet the authors pick up is the one with which Thomas led off. Thomas claimed if he had sexually harassed Hill by using such “grotesque” language, surely someone would have overheard it or he would have directed it at other women as well. Since no pattern was admitted into evidence, her story must be a lie, Thomas declared. Mayer and Abramson were able to document precisely the pattern Thomas singled out as exculpatory in absentia: he sought to date women who worked for him, he consistently saw his workplace as a site for relationships, he enjoyed porn, including hardcore, and talked about it, and these, as with Hill, amounted to a persuasive contextualization of her sexual harassment account. Yet of the alleged conspiracy to humiliate him and the concoction of Hill’s testimony to bring down a conservative African American man, Mayer and Abramson found no evidence, nor has anyone else. Mayer and Abramson conclude that the balance of believability on the facts brought to light in the aftermath of the hearing goes to Anita Hill. The natural extension of their analysis is that Thomas perjured himself during his nomination hearings.

For Mayer and Abramson, the truth was an especially relevant issue. Picking up the story three years after the hearings, they were spurred to investigate: “Since two people with such completely contradictory accounts cannot possibly both be telling the truth, it is clear that not only one of them lied under oath but is continuing to lie.” After researching the history of the Thomas nomination for two years, they recognize that the “narrow question of who lied, Hill or Thomas”⁴² failed to provide adequate perspective and analysis. Once the scope of inquiry widened to provide context and corroboration of what he said/she said in the hearings and a fuller study of materials and witnesses available but excluded from the hearings, as well as follow-up on some of the surprise witnesses who were heard, Mayer and Abramson reached several conclusions, none of which have been challenged. First among these was that Thomas had rather consistently used the “grotesque language” Hill alleged.⁴³ Angela Wright, who had a similar experience working for Thomas, let it be known after she saw Hill testify that she would be willing to corroborate the conduct from her own experience, offered a sworn statement, and waited on site during the hearings. Biden never called her. For Mayer and Abramson, Thomas’s lying, Senator Danforth’s complicity in smearing Hill, the orchestration of a baseless attack on her character, and Biden’s mismanagement of the hearings tells an old story of politics as war, with winning at all costs as the goal. The hearing was always a political battleground, Mayer and Abramson conclude, and never a legal process designed to weigh evidence and sift for the truth. Their conclusion, shared by other journalists, is that Clarence Thomas perjured himself in his confirmation hearing. From this we see that questions of who lied and who told the truth deserved to be weighed on a scale not already rigged to balance he said versus she said.

In a further revelation, Mayer and Abramson contextualize Thomas’s consistent habit of diminishing his appointment to the high court as “a job” he had neither sought nor particularly wanted: “Mere confirmation, even to the Supreme Court, seemed pitifully small compensation for what had been done to me,” Thomas remarks in his memoir.⁴⁴ As friends and colleagues reported, Thomas not only frequently expressed his ambition to sit on the court, he also put together a resume, cultivated political contacts, and assiduously presented his conservative anti–affirmative action bona fides throughout the Washington network of conservative politics in order to achieve it. Whereas the Pin Point “I” loathes affirmative action, Clarence Thomas made very good use of it, as was his right, on his rise in Washington. Yet something of the anger associated with the struggle for civil rights percolates as spectral harm within the up-from-poverty account of his singular and self-propelled rise, unattached to racial violence and displaced onto the damage done to African Americans by affirmative action. Thomas’s memoir, published sixteen years after his confirmation, preserves the “seething, aggrieved, wounded”⁴⁵ persona associated with any direct reference to race. He has rendered his own history, as well as his place within history, unspeakable. It is as if the ghost of history can only shake in anger when it is given no voice or place. Thomas’s memoir tells one story, but his anger has a life of its own.

Thomas and Hill both published memoirs after the hearings.⁴⁶ In his, Thomas repeats the Pin Point strategy and amplifies it to memoir length in the voice of the wounded postconfirmation “I.” In introducing Hill in his memoir, he minimizes his awareness of her presence and refers to her as his “subordinate.”⁴⁷ He portrays her as mediocre at her job at the EEOC, possibly due to her “immaturity” but also due to her temperament, which he finds prickly and pestering. She is a minor character. During the time he supervises her, he presents himself as distracted and disorganized. He travels regularly to Savannah to see his ill and aging grandparents and then to organize his grandfather’s funeral. Thomas complains that Hill followed up on a letter of recommendation for a new job while he was caring for his grandparents: “In the midst of my grief, Anita Hill had been nagging me to write her a letter of recommendation, and the sooner I did it, the sooner she’d be out of my hair.”⁴⁸ He takes offense at a routine professional request from an employee but notes that he was not especially attentive at work: “It was excruciatingly difficult for me to concentrate on the day-to-day problems at EEOC that had come to seem to unimportant, especially since I had to fly back to Savannah several times that spring [1983] to settle my grandparents’ affairs.”⁴⁹ Thomas procrastinates long enough in responding to Hill’s request that she has to follow up with his secretary. He opines: “I also had to do something about Anita Hill, who’d been pestering Anna Jenkins” for the letter.⁵⁰ Thomas promotes Hill’s request for professional courtesy on her way out the door into a narrative of her “nagging” him when she wanted something from him.⁵¹ Indeed, all the bothersome examples Thomas offers are of routine professional requests. Yet by relying on the language of “nagging,” a term of stereotype straight out of a Lockhorns cartoon in which the beleaguered husband endures his shrewish wife’s endless importuning, Thomas diminishes Hill as a professional and recasts her as a player in a domestic drama.

Thomas’s wounded feelings formed a consistent core of his public remarks: they informed the Pin Point strategy, swelled operatically during his response to Hill’s testimony, are showcased in his memoir, and, as we shall see, entwine with a jurisprudence of racial pain whose central feature is permissible injury to incarcerated prisoners, notably African American men’s shackled and abused bodies. Embodiment is key here. Of his efforts to recollect any behavior about which Hill testified, Thomas expresses bafflement through embodied metaphor: “[I had to] tear away at myself trying to think of what I could possibly have done.” The betrayal by a friend is a “blow” that “sapped” all his strength and was a source of “enormous pain.” The resultant misery is “so debilitating.”⁵² Thomas attests to the staying power of negative emotion in his memoir in embodied terms. Because he is embittered by racism and by affirmative action, he refuses to visit Yale Law, his alma mater. When he is rejected by law firms, he recalls in a speech that he saved all the rejection letters and remarks, “I felt beaten.”⁵³ Thomas consistently pled injured feelings and described emotional displays in grandiose and embodied terms: he lay prostrate on the floor of his hotel room following Hill’s testimony. He wept and struggled. He appeared biblical.

Hill presented a sharp contrast to Thomas’s heightened display of anger and outrage. During the hearing she realized that even her slightest bodily movement set off a hail of clicking shutters and popping flashbulbs. She knew any movement would betray her: sweat would indicate deceit, mopping her brow would suggest she was withering under scrutiny, and so on. So she willed herself to become still: “‘Don’t move,’ I told myself, freezing almost in midmotion. I resolved to become as motionless as possible. I had to be impervious to the lights and to the heat as well as the natural reactions of my body. Though I felt each one of the senators’ attempts to humiliate me, I vowed not to so much as twitch.” As she recounts in her memoir, Hill suffered from fibroid tumors, a painful and recurrent condition that she experienced during her testimony:

Given his eloquent rage before the committee, it is surprising that Thomas is typically silent during oral arguments before the court. He so frequently concurred in dissents penned by the late Justice Scalia and by Justice Alito that some have concluded that he has no clear jurisprudential views or voice. This would be a mistake. Thomas has authored a coherent, if compact, body of legal writing as a Supreme Court justice denying relief to prisoners who protest their brutal treatment in prison, including being badly beaten by prison guards while they are restrained and, most recently, receiving inadequate painkiller as the first drug in the three-drug sequence used in executions. Without the painkiller, the second two drugs cause great pain. Yet neither claim amounts, in Thomas’s reading, to “cruel and unusual punishment.” If prisoners recover from beatings at the hands of guards, he does not regard such beatings as “unusual.” Thomas’s willingness to permit the punishment of black prisoners is central to how he understands law. Prisoners bringing suit for relief from pain inflicted as part of incarceration and execution find no hearing from Thomas. When inmates are shackled and beaten, Thomas is unmoved by their testimony. Thomas’s ability to feel monstrously wounded translates to a capacity to be infinitely punishing. The centrality of negative affect in his life gives rise to a jurisprudence of racial pain.

Thomas minimizes claims to pain and suffering by black male prisoners subjected to sadistic and brutal treatment by white prison guards in southern U.S. jails. He is unmoved by the experiences of prisoners chained in the sun for seven hours without food, water, or bathroom breaks, or beaten while shackled, including a prisoner pummeled so savagely after the request for a grievance form that other guards intervened. Yet when Thomas testified at his confirmation hearing, he reflected: “You know, on my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, busload after busload. And you look out, and you say to yourself, and I say to myself almost every day, But for the grace of God there go I. So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes, and I can bring something different to the Court.”⁵⁵ By the time he is on the bench, he is not similarly moved. When the issue is the restriction of the Eighth Amendment’s protection against cruel and unusual punishment and whether and how it applies to prisoners, Thomas adds a particular twist to the definition of cruel and unusual. Linda Greenhouse documents his consistent objection to the application of the Eighth Amendment to protect the rights of those incarcerated, but his callous view toward pain is key. Thomas argues that the men who were punched, kicked, beaten, and otherwise abused in jail had not been treated either cruelly or unusually because their punishment did not cause permanent damage. And, one must conclude, the routine abuse of prisoners does not concern Thomas as an Eighth Amendment issue.⁵⁶ In contrast to his assertion during his confirmation hearing that he was the adequate witness who could temper justice with mercy and fellow feeling, Thomas refused to countenance prisoners’ civil rights claims when they came before him on the court.

As legal scholars from Noah Feldman (Harvard Law) to Peter Edelman (Georgetown Law) to Eugene Volokh (UCLA Law) agree, “Thomas is…the most conservative justice, willing to regularly strike down long-accepted case law that has been in place for decades, in some cases for as much as a century.” Thomas is

the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it is unconstitutional to require campaign funders to disclose their identity; the only justice who believes that truthful tobacco advertising and other commercial speech may not be regulated, even when it is aimed at minors; the only justice who voted to strike down a key provision of the Voting Rights Act; the only justice to say that the court should invalidate a wide range of laws regulating business; and he is the only justice who voted to allow the president to hold American citizens in prison indefinitely without charge and without review by the courts.⁵⁷

Overwhelmingly, Thomas’s jurisprudence favors originalism, conservatism, and anachronism and is rooted in the slaveholding history of the nation. His views about prisoners’ rights and civil rights mark an especially sharp contrast to Justice Marshall, whom he followed. Marshall wrote key decisions in cases involving prisoners beaten or denied essential medical care, declaring such treatment a violation of the Constitution’s ban on cruel and unusual punishment. Although Thomas’s comment in his confirmation implied fellow feeling toward criminal defendants being brought to court, just two months following his confirmation, Thomas “dissented from a decision upholding an $800 damage award to a prisoner who was beaten so severely by prison guards that his teeth and dental plate were broken. Thomas, joined only by Scalia, said ‘a use of force which causes only insignificant harm to a prisoner…is not cruel and unusual punishment.’”⁵⁸

Thomas consistently writes separate concurrences or dissents when the subject is race. He often votes against civil rights claims, where his feelings of being harmed by racial preferences emerge in affirmative action cases. When the Supreme Court, for example, “reaffirmed the use of race as one factor that can be used in university admissions, Thomas railed that these programs were ‘nothing more than a facade, a cruel farce of continued racial discrimination that stamp minorities with a badge of inferiority.’”⁵⁹ Thomas’s protections of those who would harm people of color through legal means has drawn repeated dissent from Justices Sandra Day O’Connor before her retirement and Justice Ruth Bader Ginsberg.

Thomas’s rare and consistent selection of prison abuse makes his jurisprudence absolutely about race. As Michelle Alexander argues in The New Jim Crow, because more African Americans are currently incarcerated than were enslaved in 1850, the modern prison is a microcosm of racism.⁶⁰ For Thomas to weigh in against the right of prisoners to be treated without abuse, especially when he comments on no other issue with this consistency, flags this issue as singularly compelling to him.

Tainted witnesses serve as larger-than-life, public examples of what can and will happen to women who bear witness. Commonsense notions like “Nobody knows what really happened” and “It’s a case of he said/she said” deflect inquiry into what we might come to know and even what we already do know. Moreover, they participate in narrowing attention to the immediate time frame of crisis or scandal, restricting the frame temporally, and ensuring that no adequate context for understanding will emerge. For these reasons, Toni Morrison’s comment on the hearings provides pivotal guidance: “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.”⁶¹ Shame was one of the negative affects set loose in the hearings, and it was produced asymmetrically. Hill and Thomas were positioned differently with respect to the risk and benefit of explicit reference to his sexually harassing comments to Hill. She had to report them and be questioned about them. By refusing to answer her testimony, Thomas never said those words in the hearing. Instead, he refused to acknowledge that the process had any authority over him. In so doing, he ensured that the only sexually explicit remarks would be made by white men and a lone African American woman.

Hill’s and Thomas’s life stories offer coded testimonial accounts of the racial past and present in the United States. Together, they referenced the submerged legality of slavery and Jim Crow’s legacy as well as the emergent legal framework of sexual harassment law. They reveal again that testimonial networks are never neutral. They represent contact zones within which clashing claims to credibility and competing methods for judging them circulate. Witnesses often struggle to regain sense and establish contexts necessary for their testimony to be recognized as legitimate once formal and vernacular judgments attach negatively to them. Testimonial acts often expose the limits of the jurisdictions in which they initially emerge. Anita Hill’s testimony exposed the limits of the confirmation hearings when she disrupted the carefully managed construction of Clarence Thomas as Justice Thurgood Marshall’s postracial replacement. When Thomas responded to Hill’s testimony by calling the nomination process “a high tech lynching for uppity blacks,” he exposed the false representation of racial history as “over” that he and his handlers had worked so hard to construct.

The expressive and affective structures of the hearing had been used initially to bind the power of racism from tainting Thomas until Hill testified and racism was unleashed on both of them in a dominant display of senatorial, white power. Through this display, the sexual degradation Anita Hill experienced in a governmental workplace not only was put on stage in the form of testimony but was reenacted and amplified by the legal setting. There, she was accused of pornographic revenge fantasies and punished for bearing witness as the Senate Judiciary Committee enacted the spectacle of exerting power over an African American woman who dared to demand a hearing for her sexual mistreatment. The response exposed the stark rejection that such a demand would be heard by the committee, even as her testimony found an adequate witness nationwide and was lodged in the testimonial network until new witnesses could emerge.