There’s no way to go back in time and fix all the things that enraged people about the Senate Judiciary Committee’s 1991 hearings on Anita Hill’s charges against Supreme Court nominee Clarence Thomas. But today’s Judiciary Committee – led by a chairman who participated in those hearings and a ranking Democrat first elected in the wave of reaction to them – can learn from that experience, and can do better.
Here are three ways the panel could do things differently as it investigates Christine Blasey Ford’s allegation that Supreme Court nominee Brett Kavanaugh sexually assaulted her when they both were in high school – and one fundamental change that simply must take place.
n First, have professionals ask the questions. In 1991, senators questioning Thomas and Hill became the subject of national opprobrium. Some senators – then and now – are good questioners, others are not, but the more important point is that senators are, above all, political actors – as they should be. What these hearings require, however, is focused questioning designed to elicit facts; a quest to learn about events, not demonstrate opinions. This involves sensitive issues of memory and gender dynamics. Senatorial questioning – racing against the clock, making points for voters at home – is not the right model.
Outside counsel with experience in sexual harassment and assault, with particular skill in examining witnesses and developing factual records, should be employed to pose questions at the hearings – one attorney for the Republicans and one for the Democrats. Senators can suggest questions to these counsels and be given an opportunity to raise concerns that the counsels overlook. But the best way to avoid speech-making, repetition, grandstanding or political bickering is to have expert counsel pose the questions to the key witnesses while senators focus on listening to their answers, not on formulating their next statements.
n Second, take the time to get prepared before the hearing starts. Yes, both sides feel pressure to get the hearings going, and Republicans are particularly anxious about any unnecessary delay. But in 1991, that same time pressure created some of the worst dimensions of the Thomas-Hill hearings, held just five days after Hill’s charges became public. That was not enough time for all the prehearing witness interviews to be completed or for reaching clear understandings about what would happen at the hearing. Half the staff was taking private statements from witnesses in a back room while the other half was listening to live testimony on television.
The decision to hold these hearings on Monday – just seven days after Ford went public with her allegations – risks repeating this mistake. Hearings should not start until every witness is first interviewed by the FBI and then by committee investigators, follow-up questions to those interviews are resolved, a clear understanding on the roles of committee members is established, rules of conduct for the hearing are set and the witness list is formalized. These events will be etched in our history: A rush to hold this hearing will wind up reflecting poorly on all concerned.
n Third, every witness with relevant information must be summoned to testify. For 27 years, the question of why – on a Sunday evening, at the end of a proceeding with an artificial time limit – one of Hill’s Equal Employment Opportunity Commission colleagues, Angela Wright, was removed from the witness list has been controversial. There should be no mystery or confusion this time.
Any witness with potentially relevant information should be directed to testify. This includes anyone who was present at the party where the assault is alleged to have taken place and others those people might have talked to or individuals with whom Ford discussed the incident. Testimony that turns out to be irrelevant can always be ignored; testimony that is never heard cannot help the Senate make this historic decision.
Perhaps the most important change from 1991 is one that no rule or procedures can fix: It is the test of fairness and balance. In 1991, Republican senators largely took on the mantle of defenders of the nominee, lobbing softball questions at him and hurling disparaging points at Hill. Democrats cast themselves as fact-finders, putting neutral questions to both protagonists and declining to ally themselves with Hill specifically. A repeat of that asymmetry would be a grave mistake.
Let lawyers ask the questions, in a well-designed, balanced hearing that is not rushed, and with a witness list that is complete. If the Republicans go after Ford, Democrats should come to her defense – in that case, neutrality would be the opposite of fairness. But best of all would be for the senators on both sides to listen, learn and stake out their positions outside of the hearing room.
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