When Justice Thurgood Marshall announced his retirement from the U.S. Supreme Court in the summer of 1991, it didn’t bode well for women. Marshall, the first African American appointed to the court, was best known for his expertise and influence on civil rights law, but he had also been a defender of reproductive rights during his tenure in the nation’s highest court. He was among the court majority that legalized abortion in Roe v. Wade, and he again stood up for abortion rights in two later cases, Harris v. McRae and Webster v. Reproductive Health Services.
The impact of Anita Hill’s testimony went beyond the question of Clarence Thomas’ appointment.
Marshall’s decision to leave the Supreme Court was announced during the presidency of George H.W. Bush, who had campaigned on an anti-abortion platform in his 1988 presidential bid. Predictably, Bush used the opportunity to replace Marshall with a more conservative judge. At a press conference on July 1, 1991, President Bush named Clarence Thomas, who was then one of the few African-American judges on the U.S. Court of Appeals, as his nominee.
Thomas had only served 19 months as a federal judge and, at 43, was relatively young for an appointee. Of the justices currently serving, he was the youngest at the time of appointment. Nonetheless, he had a record of statements and judgments that was enough to satisfy the Republican base. Though he had spent eight years as chair of the Equal Employment Opportunity Commission (EEOC), he had been critical of affirmative action and school desegregation initiatives, and he questioned the very idea that the government should take action to address racial inequality. A product of a Catholic upbringing and Catholic schooling, Thomas had called the right of married couples to use contraceptives an “invention.” Groups like the National Abortion Rights Action League (NARAL) immediately spoke out against Thomas’ nomination, expressing concern that his presence on the court could put Roe v. Wade at risk.
In spite of opposition, the nomination process continued, with early hearings beginning in September 1991. That month, Anita Hill, then a 35-year-old professor of law at the University of Oklahoma, decided to submit a report to the Senate Judiciary Committee, describing her experiences working with Thomas in the early 1980s, first at the Department of Education and then at the EEOC. She felt compelled to share her information with the 14-member committee, believing “his conduct reflects his sense of how to carry out his job,” but she struggled for almost two weeks to write the report. She later described its subject as an “unpleasant issue.”
Hill alleged that Thomas had repeatedly subjected her to sexual harassment. As NPR’s Nina Totenberg summarized, “[Thomas] spoke [to Hill] about acts he had seen in pornographic films involving such things as women having sex with animals and films involving group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts.”
Hill submitted her report on the condition that it would be kept confidential, but in a flurry of miscommunication and confusion, her allegations were leaked to NPR and Newsday, setting off a frenzy of nationwide debate. Once her allegations were made public, the concerns many had harbored over what Thomas’ nomination would mean for women were multiplied.
Just as immediate were the attacks on Hill’s credibility and character. At a press conference, she denied to reporters that she was a political opportunist. Although it was common, then as it is now, for most victims of sexual harassment to stay silent about their experiences, Hill also had to explain at length why she waited almost a decade to come forward with her allegations. Still in her mid-20s at the time of the alleged harassment, she “had not built a resume” and feared that she “would have been jobless” if she didn’t make the best of the opportunity she’d been given.
Hill was no longer able to escape the attention she was hoping to avoid, and the Senate Judiciary Committee came under increasing pressure from women’s rights organizations and Democratic members of Congress to let Hill testify at Clarence Thomas’ confirmation hearings, which were scheduled to take place October 11 through 13, 1991.
John P. Frank
Watching the events unfold were two Arizona attorneys who were called upon to serve as legal advisers to Hill. One of them was John P. Frank, an attorney at the Phoenix law firm Lewis and Roca who had been personally acquainted with the retiring justice, Thurgood Marshall. Years before Marshall sat on the Supreme Court, the two had worked together on Brown v. Board of Education, the landmark case that had advanced the cause of school desegregation. The other Arizona attorney was Janet Napolitano, whom the New York Times described at the time as an associate of Frank’s. Eleven years later she would successfully run for governor of Arizona.
Frank had been both a graduate and associate professor at Yale University, but he left his career on the East Coast in the 1950s when his respiratory problems prompted his friend and mentor, the Supreme Court Justice Hugo Black, to suggest that he move to Arizona to see if the drier climate would help him. In 1954, Frank joined Lewis and Roca, where he practiced law, much of which was pro bono work in the public interest. Frank’s work fighting discrimination didn’t end with Brown v. Board of Education. He carried on that mission at Lewis and Roca. As he told the magazine Arizona Attorney in 1999, “One of the biggest challenges I have faced has been fighting the discrimination [against] women in the practice of law in Arizona.” That meant “breaking the barrier at Lewis and Roca with the hiring of Mary Schroeder,” the firm’s first woman attorney. It also meant mentoring women lawyers in their early careers, including Janet Napolitano.
Early in his own career, Frank had served as a clerk in the Supreme Court, and he was considered an expert on judicial disqualification after defending two Supreme Court nominees and testifying against another. With that background, he was needed in Washington. As Hill’s allegations became a major development in the nomination process for Clarence Thomas, a trio of lawyers quickly assembled to serve as Hill’s advisers: Charles Ogletree of Harvard University and Susan Deller Ross and Emma Coleman Jordan of Georgetown University. The team grew as they sought additional expertise, and soon John Frank, Janet Napolitano, and other lawyers were on board as well. All of the lawyers were willing to work without pay and travel at their own expense to represent and advise Hill before and during her testimony.
In a hearing that was televised to millions of viewers, Anita Hill made her first appearance before the all-male Senate Judiciary Committee on October 11, 1991. Almost eight hours of testimony followed, in which Hill shared graphic details of uncomfortable conversations with Clarence Thomas — and her attempts at deflecting and withdrawing from the conversations. Thomas, she said, had discussed the size of his penis and “his own sexual prowess,” as well as the sexual acts and physical attributes of people he had seen in pornographic films. He had also spoken of finding pubic hair on a can of Coke he was drinking. He had even asked her to spend time with him outside of work.
In those tense hours, Hill was questioned about her motivations for testifying. Attempts to discredit her put her own character, rather than Thomas’, under scrutiny. Although other women who had worked under Thomas had come forward and were prepared to give similar testimony, the committee decided against calling any further witnesses after Hill. Only her own words would stand against Thomas’ denials of all she had alleged. Thomas referred to the impact of Hill’s testimony on his reputation and his nomination as “a high-tech lynching for uppity blacks.” Hill later recounted in an interview with Rolling Stone the absurdity of his rebuttal: “Here I was, an African-American woman essentially being accused by Clarence Thomas of provoking his lynching. Historically, that is just a fallacy. There … is just no evidence that African-American women had ever had the power to call for someone to be lynched.”
In the end, Clarence Thomas was still confirmed as Thurgood Marshall’s replacement, but his confirmation was made by the narrowest margin in history — 52 to 48 by a vote on the Senate floor — and only after the longest confirmation process for a Supreme Court nominee.
The impact of Hill’s testimony, though, went beyond the question of Clarence Thomas’ appointment. Louise Slaughter, one of the members of Congress who was most vocally opposed to the Thomas nomination, remarked that “[t]he indifference that many of our male colleagues in the House and Senate showed toward Ms. Hill was a microcosm of the way women were being treated all across our country.” Many women saw themselves in Hill, especially those who had experienced sexual harassment themselves. A New York Times/CBS News poll at the time found that 4 in 10 women “have encountered unwanted sexual advances or remarks from men they work for.” Few, however, reported the incidents at the time they happened. Seeing Anita Hill take the stand gave more women the courage to report their experiences. After the hearings, the number of sexual harassment complaints filed at the Equal Employment Opportunity Commission more than doubled over the next five years, from 6,127 in 1991 to 15,342 in 1996. Over that same period, settlements to victims increased dramatically as well, from $7.7 million in 1991 to $27.8 million in 1996.
Hill recollected later that during the nomination process she “had lots of support from women, and there were so many men that helped … For instance, John Frank had come from Arizona to volunteer.” She added that he said to her in tears, “I know this is hard for you. I know this is a challenge. But you have no idea how important this is to our country.”
Taken literally, word for word, it may not have been the most elegant statement. Hill testified precisely because she did know the importance of what she was doing. But the emotional content of what Frank said couldn’t have been more on point. Hill at that point “was just trying to get through the rest of the day,” and Frank’s statement helped push her onward, through the rest of the hearings and their aftermath. “It was a testament to people like Frank and to my friends that I was able to continue on after the hearings.”
Frank’s statement about the importance of Hill’s testimony was also prescient. In addition to giving more women the resolve to report their own experiences of sexual harassment, it galvanized many of them to organize — and vote — for change. The effect could be seen in the political makeup of our government. At the time of the hearings, only 2 percent of Senate seats were held by women, but 1992 saw a record number of women run for office — and win. Women candidates won five seats in the Senate and 24 in the House of Representatives.
Janet Napolitano
The political awakening has also been credited with making George H.W. Bush a one-term president, losing the 1992 election to Bill Clinton. Back in Arizona, Janet Napolitano’s role as one of Anita Hill’s advisers helped propel her career. As former Newsday journalist Carol Eisenberg has written, “Napolitano attracted notice as a smart, young Democrat who was going places … A short time later, Napolitano was tapped by Bill Clinton to be U.S. attorney for Arizona.”
Napolitano would go on to serve as attorney general for Arizona from 1992 to 2002, the first woman to hold the position, and then governor of Arizona from 2003 to 2009. She ran on a pro-choice platform and was the state’s first Democratic governor in 12 years.
John P. Frank passed away at the age of 84 on September 7, 2002, before he had the chance to see Napolitano win Arizona’s gubernatorial election.