You may have seen the new HBO movie, Confirmation. It's about the battle over the 1991 nomination of Clarence Thomas to the Supreme Court and the courageous effort by Anita Hill to tell her painful story of sexual harassment and Thomas' unbecoming behavior when they worked together at the Department of Education and the Equal Employment Opportunity Commission.
At the beginning of the movie, a scene takes place in the office of Sen. Ted Kennedy that propels the whole tale forward. A phone call comes in for his staffer, Ricki Seidman, and a voice on the other end of the line says, "Hey, Ricki, this is Nan at the Alliance for Justice. You know that thing we've been hearing all summer about how Thomas treated women who worked for him. I've finally found a name."
Well, that "Nan at the Alliance for Justice" is me.
Although many younger people are discovering the remarkable Anita Hill and that hideous episode in American history for the first time, the story still feels fresh to me, and remains infuriating all these years later.
There are many ways to assess the Thomas hearings and the role of Professor Hill. On the one hand, it's an all-too-common story about sexual harassment in the workplace and the unwillingness of men (and some women) to take the issue or victims seriously. At the same time, it was a tale of mean-spirited, ruthless hard-ball politics. It was also an exercise in gross cynicism as President George H.W. Bush chose a radically conservative African-American man to replace Thurgood Marshall, one of the most revered fighters for civil liberties in our history. And, for many of us, it was, in the end, an inspiring profile in courage, a testament to a strong woman facing down humiliation, personal abuse, and outright lies. Truth was being spoken to power, and power didn't like it one bit.
But as fate would have it, Confirmation has come out in the middle of another confirmation fight that once again is very contentious, although lacking the personal rancor or scandalous elements of the Thomas fight. Of course in this case it can't get personal because the Republican majority in the Senate refuses to acknowledge the nomination and the nominee even exist.
President Obama has chosen the universally respected Merrick Garland for the seat previously held by Antonin Scalia. There is no question the stakes are as high in this circumstance as they were when Clarence Thomas was nominated. Garland, by any measure, is well within the legal mainstream, respected by people across the ideological spectrum. Scalia, on the other hand, was known for what might politely be called extreme conservatism. Nevertheless, when Garland joins the Court it will alter the ideological balance in a way that last occurred when Thomas replaced Justice Marshall.
The nomination has become an election-year political donnybrook, with Republicans refusing even to hold a hearing, let alone a final vote. Americans aren't buying what Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley are selling, though. Over 500 editorials have been written across the country denouncing their tactics. National polls consistently show that their stubborn, unprincipled, unprecedented obstruction is deeply unpopular and will affect some Senate races.
Some might find it ironic that the person who helped bring Anita Hill into the Clarence Thomas fight is complaining that a nomination has gotten too political. But that's not what I'm saying at all.
Article 2, section 2, paragraph 2 of the Constitution makes the nomination and confirmation process for Supreme Court justices inherently political. One political actor, the president, has to get approval from another set of political actors, the Senate, in order to put someone on the Court.
We may like to imagine that the Supreme Court itself isn't a political body in the same way the executive and legislative branches are, but no one can say that the process of assembling that court is anything but.
But what the Republicans are doing to Merrick Garland and Barack Obama is not legitimate politics. They aren't just actors in the drama of American democracy; they are acting in a way that is actually in opposition to democratic principles.
The Republicans have justified their obstruction of Garland by saying that the decision about the next justice needs to be deferred until after the election so that the people can weigh in. But the relevant election has already taken place. It happened in 2012 and Barack Obama won. He gets to make the nomination. To say otherwise is to deny the legitimacy of the last presidential election, disenfranchise the 66 million people who voted for him, and to unilaterally truncate the president's term of office to three years. That's not democracy. That's not politics as it's supposed to be played. This unprecedented obstruction is an act of disrespect of the presidency, the constitutional system, and of Barack Obama himself, who has endured over seven years of endless delays and callous disregard for his judicial nominees.
Republicans won't even give him a hearing, and certainly not a vote. But, remember, even the most controversial nominees, including Robert Bork and Clarence Thomas, had hearings, combative though they were. They even had final floor votes, in spite of the fact that Democrats controlled the Senate. Bork lost; Thomas was narrowly confirmed. Two of the most controversial nominees in history got hearings and votes, yet Merrick Garland, who is hardly an ideological lightning rod, gets neither.
If Republicans are concerned about the consequences of putting Merrick Garland on the Court, they should hold hearings, ask him questions, assess his record and life story, listen to what he has to say, and vote their conscience on the floor of the Senate in full view of the American people. That's what happened with Clarence Thomas and it's what should happen now.
When Anita Hill risked everything to tell the truth to the Senate Judiciary Committee, she showed extraordinary courage in the face of a political culture that didn't want to know the truth. But she believed in the system and trusted the process, even though in the end it betrayed her. The Republican obstructionists today have disrespected the system, turned their back on the process, and taken the coward's way out. If Mitch McConnell and Chuck Grassley had one-tenth of her guts and devotion to the Constitution they'd stop this farce and do their damn jobs.