Preet Bharara:

A big part of what makes our show special is you, our listeners. That’s why we’d like your help to plan for our future by filling out a short survey. Your responses will help us understand who’s listening, what kind of content our audience is interested in, and how we can reach even more people. Go to CAFE.com/survey. That’s CAFE.com/survey. From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Anita Hill:

Those processes haven’t changed. They’re still in the hands of people who control the Senate Judiciary Committee. What that says to me is that it could happen again. That is a real travesty, and it’s a travesty not just to me and Christine Blasey Ford. It’s a travesty to every survivor, every victim who has tried to address their own problem, who has come up against a system that wasn’t meant to solve their problem.

Preet Bharara:

That’s Anita Hill. She’s a professor at Brandeis University and the author of the new book, Believing: Our Thirty-Year Journey to End Gender Violence. You most likely know Anita Hill. In 1991, she testified before the Senate Judiciary Committee during the confirmation hearing for then Supreme Court nominee Clarence Thomas. She detailed the sexual harassment she endured by Thomas when she worked for him at two different government agencies as a recent law school graduate. The historic hearing started a long overdue conversation about the pervasiveness of workplace sexual harassment. Now Professor Hill is dedicated to addressing and ending gender-based violence across all facets of our society. That’s coming up. Stay tuned.

Preet Bharara:

Before I get to your questions, I just wanted to remind folks to sign up for the CAFE Brief, our free weekly newsletter. It features articles that analyze issues at the intersection of law, history, and policy, including every week an essay by Elie Honig, and our newest project, Office Hours, a series of conversations with experts that explore undercover topics. To get it in your inbox free each Friday, head to CAFE.com/brief to subscribe. That’s CAFE.com/brief. Now let’s get to your questions.

Preet Bharara:

There are a lot of swirling, urgent questions about what kinds of information in terms of testimony and documents the 1/6 Committee is going to be able to get. Lots of stuff is being objected to. Some people are defying subpoenas. There is litigation on a number of fronts. I’ve gotten a lot of questions about that. But the thing that happened most recently this week I have a question on. This is an email from Mia, who says, “Federal Judge Tanya Chutkan ruled that the House Select Committee should have access to records from Trump’s presidency regarding January 6th. Trump has already appealed. What do you make of the decision, and where do you think things will progress from here?”

Preet Bharara:

On Tuesday night, pretty late on Tuesday evening, that judge issued a ruling, which was much anticipated, a long, I think deftly supported 39-page opinion, basically giving the Select Committee everything it wants. I think it’s very soundly reasoned, and it makes a number of points that we’ve been talking about on the show for a number of weeks now. One, on the question of whether or not Trump can stop documents from being released by the National Archives, Trump is really not in the position to make that call. Biden, not because he’s Joe Biden, but because he’s the sitting President of the United States, is in the best position. She agreed with the committee’s arguments on that score.

Preet Bharara:

Executive privilege and other related privileges are the province of the Office of the Presidency, not in any particular named president. In this case, as you all know, Joe Biden and his office decided not to assert privilege over a number of documents that the Select Committee has sought. The judge says that is owed a tremendous amount of deference. She also noted that the public importance of the nature of the materials is also at issue and also counsels in favor of those documents being released.

Preet Bharara:

One thing that I thought was interesting was how she seemed to change her mind based on some comment she made at the hearing last week. You may recall, or you may have read, that the judge was pretty much on board with the Select Committee’s requests, but with respect to some materials, she thought they were very overbroad because the committee was seeking not only communications and documents relating to the exact events of January 6th and the days leading up to January 6th, but also some documents including polling materials going back many, many months prior, to the summer of 2020. She pressed the committee counsel on this point, saying at the hearing, “Some of the stuff is overbroad.” She seemed to feel like it was kind of attenuated from what they really wanted to focus on.

Preet Bharara:

Joyce Vance and I, this week on the CAFE Insider, kind of predicted that she would narrow the document requests somewhat, give them most of what they wanted, but not some of the other things. Well, turned out that maybe she wasn’t so concerned in the first place, or she had a change of heart based on the arguments made by the committee’s counsel. But she has allowed all of it to be produced and turned over as soon as November 12th. One of the reasons that is so, and one of the reasons for her overall ruling that these documents should be produced, was that the Select Committee has broad discretion and has broad authority and has a duly authorized legislative purpose, namely to figure out what laws need to be amended or changed or repealed in connection with protecting the Capitol itself.

Preet Bharara:

One other note I’ll make about the opinion. Often, it’s the case that controversies turn on very technical analyses of law or statute. It can be hard for laypeople to follow. But sometimes judges speak with great clarity. She said this, and it’s been much quoted in the couple of days since the opinion came out. Quote, “Presidents are not kings, and Plaintiff is not president,” end quote. The plaintiff, of course, is Donald Trump. That’s an example of a judge speaking not only to the particular litigants in the case, but a judge speaking to the public and for history.

Preet Bharara:

Now, minutes after the ruling came on Tuesday, very predictably and understandably, the Trump team appealed. As we’ve said before, the default here is that if no judge or court intervenes, the first tranche of documents gets released on Friday, November 12th. It’s not all the documents, but the first set of documents. I’ve been discussing the possibility of the appeals court intervening and issuing a stay so that doesn’t happen on November 12th, and there’s some debate among my friends, Joyce and I, and some others. I am more optimistic that the court will not intervene. Some other folks who I like and respect very much think that the court will and that we still won’t have a resolution to this for many, many weeks yet.

Preet Bharara:

I think a lot of it depends on the particular panel. Who are the three humans on the panel that get to decide this issue? I’m recording this on Wednesday morning. It may be that by the time you listen to this podcast, the appeals court has made some decision one way or another. By the way, the other thing I want to mention is there seems to be a real ramping up by the Select Committee. An additional 10 subpoenas were issued this week to a lot of people, some of whom are kind of well-known, Kayleigh McEnany and others, spokesperson for the Trump White House, but also some people who are lesser known, like personal assistants. It seems to me the thrust of those subpoenas, and I think it’s important to understand where the committee is going, is to try to get as much information about what was in the mind of Donald Trump on or about January 6th.

Preet Bharara:

Some of the witnesses who have been subpoenaed in this last round are people who had direct communications with Donald Trump on the 4th, the 5th, the 6th, or, in the case of the personal assistants, were in a position to hear or overhear conversations and communications with Trump and other folks. I think that’s one of the most important parts of this exercise, is to find out to what degree Trump wanted the insurrection to happen, wanted to overturn the election, was directing other people to do so. To get a full picture of that, you need these witnesses plus a whole lot more.

Preet Bharara:

By the way, the backdrop to all of this is there is a ticking clock. The Select Committee is properly constituted. It has some Republican members on it who are now estranged from their own party, but they’re Republican nonetheless. Part of the frustration you’re hearing on the part of folks, outside observers, and also some insiders, is a worry that the committee won’t get its work done before it’s disbanded if, a year from now, the Republicans take back the House. Their first order of business under Kevin McCarthy or anyone else will be to shut down the Select Committee. So if you have protracted court battles, and you have a lot of defiance of subpoenas like Steve Bannon is doing, and you don’t get resolution of that, and you don’t get the documents to fill in the blanks, we’re not going to get the transparency that we need. We’re not going to get the information and truth that we deserve. Stay tuned. There’s more coming up after this.

Preet Bharara:

Gender-based violence affects every single person in this country and the world. Professor Anita Hill is working to change that. Since her 1991 testimony about the sexual harassment she endured while working for now Supreme Court Justice Clarence Thomas, Hill has been at the forefront of the fight for gender equality. This fight is as urgent as it’s ever been. Professor Anita Hill, thank you so much for being on the show.

Anita Hill:

It’s a pleasure.

Preet Bharara:

You have this new book. Congratulations. It’s a very good read, but also a very important read. It’s called Believing: Our Thirty-Year Journey to End Gender Violence. Now, of course, we’re going to talk a lot about gender violence, your work on it. We might go take a walk down memory lane, some events that happened 30 years ago. But the first thing I want to ask you about is you think you know someone. I learned something new about you in preparing for this interview, and it has an interesting parallel to my own family’s life. I learned for the first time this weekend that you were the youngest of 13. Is that correct?

Anita Hill:

That is correct.

Preet Bharara:

The reason I mention it is my father is the oldest of 13. I’ve heard a lot of stories about what that was like. Could you give … because I find it fascinating. My father, of course, then only had two. What’s it like having 12 siblings?

Anita Hill:

Well, it’s really interesting. I used to say this at times when I’d speak. I’d say, “Oh, I’m the youngest of 13 children,” and there would be this great applause. I’d say, “Well, really, I had nothing to do with it. I just happened to come along last.” But it was really a really interesting experience. I think one of the things that my parents did very well is that I never heard either my mother or my father say, “I wish you were more like John or Joanne,” or any of my older siblings. I never heard him or her say that to any of us. What you had was you had a lot of people with very different personalities. We were never living together in a house. But with that many people, you learn how to get along with different people and get along in close proximity, in ways that you learn to accept people, and you learn that you can actually love people who are quite different from you.

Anita Hill:

I also learned a lot of things from my siblings. My brother loved music, and I learned that from him. Another sister maybe loved teaching, and I learned to love teaching from her. You learn something from each one of them, but I think the biggest gift was learning to understand that there are different kinds of people, and we’re all not the same, and that you can still really enjoy and even love people who are different from you.

Preet Bharara:

When you’re one of 13, do you have to learn more self-sufficiency, or is it the opposite because there’s so many older siblings and parents to be minding you?

Anita Hill:

Well, I think the one thing was that there was a bigger age difference between me and the sibling who was next older. So, in a sense, I did learn a little bit more independence because of that. There was three and a half years as opposed to two years, which meant that I was alone and with my parents for all of my high school years. That meant, during that really critical period, I didn’t have a kind of interaction or instruction about how to navigate that time as I would have if there had been two years separating. But I think, generally, overall, throughout my life, there have been a lot of people to give me advice. Sometimes I take it and-

Preet Bharara:

Sometimes you don’t.

Anita Hill:

Yeah. They will let you know that sometimes I don’t take their advice.

Preet Bharara:

With that, I want to get to your book on gender violence.

Anita Hill:

Well, can I just say one other thing? And this is related to the book-

Preet Bharara:

Yeah. Please.

Anita Hill:

… about my siblings. I do tell this because I think it’s important. It’s related to the book. It’s related to who I am. We grew up on a farm on Oklahoma, and 10 of my siblings went to and graduated from segregated schools. Only the youngest three of us went to integrated schools, graduated from integrated schools. There is a difference, I think, that when somebody my age hears about segregation and reads about it, it’s different from when you live with someone who’s experienced it directly, a peer who has experienced it directly. You understand it better, I think. In my family situation, I think that was really an important part of our upbringing, that I got to go the segregated schools, and were wonderful communities. Whenever there was a school event that my brothers and sisters were involved in, we’d go to the school, and it was great. I knew their teachers. They knew our family, and in a very different way than we got to know families and teachers when I went to integrated schools.

Preet Bharara:

You write in the preface of your book, quote, “I focus on gender-based violence as a systemic problem. Politicians, courts, schools, and private industry have acted in concert to undermine efforts to quell the varied and complex forms of gender violence,” end quote. You use the term gender violence and gender-based violence, but violence is ever-present. How do you define that? Is it limited to only physical acts?

Anita Hill:

It absolutely isn’t, and I think that’s one of the issues that we need to address in this country. If you look worldwide, if you look at what the UN is doing in studying gender violence, what is recognized in many places around the globe is emotional violence, psychological violence, economic violence or oppression, as well as, of course, the physical that is clearly recognized as gender violence.

Anita Hill:

When you look around the world and you see what they are finally coming to terms with, you realize that our definition is very narrow and that part of the problem with our understanding of how urgent the issue is, is that we don’t necessarily recognize the emotional violence that can happen from harassment. Even in cases of intimate partner and domestic violence, we look for cuts and bruises and broken bones to measure the depth of the problem, as opposed to understanding the psychological and emotional damage that can be done through aggressive and I would call it violent behavior, can impact people in ways that maybe even exceed the physical violence.

Preet Bharara:

Let’s talk about the scope of the problem a little bit more. You have a lot of examples in the book, and you have some metrics in the book, among other things. You cite studies that show that one in four women, one in four, in the United States, experience intimate partner violence, including sexual abuse. What other kinds of things as far as the scope of gender-based violence should people know?

Anita Hill:

Well, let me just go back to intimate partner violence for a minute. What that one in four rate comes down to, the calculation is that 10 million people, 10 million people, are victimized by intimate partner violence. It can include entire households. But just think about that number. I think I calculated it was the population of three states, Oklahoma, Arkansas, and Missouri all put together. What we’re talking about is a huge number of people. And the effects, of course, are the violent acts and the fear and the safety that can go along with it. But what we also know is that a third, or over a third, 38% of those people will become homeless. So the impact is not just on the health and physical wellbeing. Impact can be on housing. It can be economic security. It can be food security.

Anita Hill:

Once you start looking at those numbers like one in four women, then you dig deeper and deeper, and you see that the impact is much bigger than what it initially presents itself as, so that we can get away from this idea that the harm is to individuals, and start to see it as harm to families, to communities, and to our economy, in terms of what is lost, because the victims and survivors are unable to work, go to school in many instances. It’s harmful in terms of the cost of health, providing for health needs and wellbeing of individuals.

Anita Hill:

Those numbers, people like to hear and see the numbers, but it’s almost as though just saying it’s much bigger, it’s much more complex. I think that’s why sometimes people just sort of throw up their hands and say, “We can’t do anything about it,” or “It’s too large a problem to solve.” My feeling is that it’s so large a problem that we can’t afford not to try to solve it.

Preet Bharara:

What’s fascinating to me about the book, well, many things, but one is you recite some history. And I think it’ll come as a surprise to some people. Obviously, the fight for gender equality in certain respects has been going on for a very, very long time. There was an understanding over a century ago that women should have the right to vote. And so, some things, there has been progress on. But you point out that some of these issues related to gender-based violence, including sexual harassment, were really not even on the radar screen until very recently. That might be surprising to some folks, particularly young folks. You say … And this, I didn’t fully appreciate … that the first real survey of how much sexual harassment there is in the workplace came in 1976, and it was not by a government entity. Can you address that?

Anita Hill:

Yes. It was a survey done by Redbook Magazine.

Preet Bharara:

A magazine.

Anita Hill:

I’m told, and I don’t know the entire history of women’s magazines, but that women’s magazines, in the ’70s, they were the ones taking on this issue, the issue of what was going on with women. We know that women were starting to enter the workplace in record numbers and consistently at that point. It wasn’t like the wartime workplaces where women were a part of and then had to leave in the ’50s. But this in the ’70s, women were really moving into workforces outside of the home, and these women’s magazines that had been serving them wanted to know what impact that was going to have.

Anita Hill:

Now, one would’ve thought that our government would be measuring something like that, that there would be an interest in knowing. But that interest only came afterwards. I think it’s an indication of people in the government, most of which, in terms of our representation in Washington, were men. They really didn’t see this as a significant social issue. We know that the workplace has, over the past few decades, changed tremendously. We also now know that the problem of sexual harassment in the workplace has been going on for, I don’t know, forever, maybe.

Preet Bharara:

As long as there have been women in the workplace, right?

Anita Hill:

As long as they’ve been in the workplace, this problem has been occurring. But our government wasn’t out front in attempting to address it, even though there had been a Civil Rights Act in 1964 which contained protections against discrimination for women.

Preet Bharara:

But even though that is so, and I’m going to ask you to trace some of this legal history as well in a moment, in 1976, sexual harassment, including if an employer asked for sexual favors specifically and concretely in return for a promotion, that was not recognized as unlawful in 1976, right?

Anita Hill:

Well, it was a developing theory. There were different organizations, movement organizations, that were trying to move the issue.

Preet Bharara:

But it was not black letter law-

Anita Hill:

By no means. By no means black letter law.

Preet Bharara:

… as lawyers say.

Anita Hill:

It was a concept that was being pursued, and not by the courts.

Preet Bharara:

It had to be fought for by advocates, and it took some time for that theory to be adopted. What’s fascinating to me, also … I keep saying that because there’s lots that’s fascinating in here. You take pains to talk about some of the early cases where judges were being presented the theory of sexual harassment as discrimination under the 1964 law and maybe other statutes as well. I found one to be stunning because it’s not that long ago. There’s a judge who is presiding over a case in which the victim was the subject and target of verbal and physical abuse of a sexual nature. You may remember more of the facts than I do from reading about it in your book.

Preet Bharara:

You write about that judge’s decision, of denying relief, quote, “Invoking the biological inevitability of sexual harassment, Frey concluded,” and this is a quote from the judge, quote, “The only sure way an employer could avoid such charges would be to have employees who were asexual,” end quote. There are other cases that you cite. These are not articles in magazines or general public sentiment, but court opinions written by male judges who basically took the position that boys will be boys. Can you talk about that some more?

Anita Hill:

Well, absolutely. I mean, what the cases indicate was that somehow the judges just thought that this was natural behavior outside of the law. They sort of said, “This is ludicrous to think that you’re going to be able to regulate this, or that it even should be regulated.” I mean, this is fairly recent. It’s in the ’70s. I think that’s the thing that is really distressing in some ways. But we have come a long way. We’ve come a long way. It’s been a hard battle to get there, but there still is this tendency to give these cultural excuses or cultural cover for violations of people’s civil rights. You also know that I talk about Spottswood Robinson.

Preet Bharara:

I was going to come to him next.

Anita Hill:

Okay. Well-

Preet Bharara:

No, go ahead.

Anita Hill:

To me, he is one of the unsung heroes because his peers, the people who were appointed to the bench in relatively the same time, were all saying one of two things. One, “This is natural behavior, and therefore it’s culturally acceptable. It should not be prevented by the law.” Or they were saying, “We have to protect corporations because the nature of this is such that there will be a whole lot of lawsuits. The corporations or employers shouldn’t be responsible for this kind of behavior, because it’s quote-unquote ‘natural.'”

Anita Hill:

Justice Robinson was an African American who, before he got appointed to the bench, had represented Black plaintiffs in race discrimination cases in the South. It was the analogy between the kinds of excuses that were given for race discrimination and the kinds of excuses that were given for this behavior toward women, the harassing and extortion of sex. This analogy allowed him to begin to build the legal theory in the court to say very clearly that sexual harassment is a violation of an individual civil right. When other judges were saying, “No, it’s natural,” or “There’s too much of this. We have to protect corporations,” his position was that women deserve the kind of protection against gender discrimination that we were beginning to afford people of color against race discrimination. That was what the law intended, and that’s what the law should be doing.

Anita Hill:

I like this story because of two reasons. One, we’re starting to finally get it right in terms of gender discrimination. I also like it because I think it’s important for us to link the whole history of just anti-discrimination law and civil rights protection, and understand that, because of the language of the law, Civil Rights Act and Title VII in particular, we’ve got to understand that it was meant to be a very inclusive law, a progressive law. It was meant to undermine cultural myths and tropes and biases. It was meant to upturn all of those things and not just to accommodate because, of course, that’s the way we’ve been thinking forever. I think we have lost that. I think we’ve actually lost that sense, that this law was here to not only change behavior but to really interrogate the cultures which have allowed those behaviors, and allowed courts to be complicit with these violations.

Preet Bharara:

Your discussion of the judges is interesting for a number of reasons. When you talk about Judge Robinson, who began to accept and develop these theories in court, you say that the plaintiff in that particular case, quote, “could not have had a better judge than Robinson,” end quote. You spend time talking about the earlier judges and their backgrounds as white men. It is controversial in some circles to suggest that the identity, background, ethnicity of judges matter because they just call balls and strikes. How is your view about the importance of the particular identity of a judge as far as dispensing justice is … How has that changed over time? And what would you say to people who say, “Judges are basically fungible”?

Anita Hill:

Judges are human. What I think we need to recognize, that, in addition to identity, background, there are experiences. Spottswood Robinson was one example, but I’ve seen over and over, whether they’re lawyers or practicing lawyers or judges in this area, that it’s not only identity. It’s also experience and their understanding of the purpose of the law, that whether they understand the law as a way to really be progressive and to change the way we interact in ways that actually protect the rights of individuals, or whether they see the law as really as a way to balance or to maintain a certain power balance that will, in many cases, favor powerful corporations or wealthy individuals. So I think I don’t know that I would say, “Oh, identity is enough. Pick a woman judge.”

Preet Bharara:

But it’s not unimportant.

Anita Hill:

It’s not unimportant because identity still in this country, it can very well shape experiences.

Preet Bharara:

But it’s not everything. I’m sure that we’ll talk about it in a moment, and that principle can be embodied in the name Clarence Thomas.

Anita Hill:

Well, absolutely. I’m no expert on Clarence Thomas. I often get asked, “Well, what do you think of his jurisprudence?” For that, I would say, “Well, ask somebody like Paul Butler who really does study his jurisprudence. He’s at Georgetown. And it is very, very well-informed.” I don’t do it because, as I try to maintain a perspective, I am not unbiased, and I admit that. And I know that there are plenty of other people who can.

Preet Bharara:

It makes you just like everyone else.

Anita Hill:

Well, absolutely. That’s what I mean exactly. I am not unbiased in terms of what Clarence Thomas does.

Preet Bharara:

This podcast court forgives you that bias.

Anita Hill:

Yeah. I think that there are others who can say very well and spell it out, chapter and verse, what Clarence Thomas’s jurisprudence is.

Preet Bharara:

But you do address one thing with respect to Clarence Thomas and his jurisprudence. You make comment about his reference in his own testimony at that hearing where you participated, about a high-tech lynching.

Clarence Thomas:

From my standpoint as a Black American, as far as I’m concerned, it is a high-tech lynching for uppity Blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.

Preet Bharara:

You point out not only that his situation was nothing like a traditional lynching of a Black man, which was done by people in positions of authority, which you were not, but also that he had a particular view on the Eighth Amendment, prohibition against cruel and unusual punishment, not long after he got confirmed, having said that kind of thing, right?

Anita Hill:

Yeah. But I raise that case specifically because the high-tech lynching metaphor was so effective in terms of cloaking him in this sort of defense against accusations of sexual harassment. The point that I raise is that it was really self-serving. It was not a sincere defense. It was done simply as cover and not because he embraced the whole idea that lynching means to African Americans in this country. It was used as an excuse. Had he been more sincerely connected to that and understood the horror of lynching, that he would be more sympathetic to individuals who, in this particular case, were shackled and beaten by police or prison guards.

Anita Hill:

That’s really why I talk about that case, because I really wanted people to understand that he co-opted the lynching metaphor for his own personal benefit, not because he wanted to show how badly African Americans had been treated historically. That’s the way he used it, but that was really a misappropriation of the metaphor in so many ways, and in particular, using it in a case where the person who is accusing him of violent behavior or inappropriate or aggressive, abusive behavior, is a Black woman. So, historically, it was wrong. It was misplaced. But it was also appropriated just to cover his own bad behavior.

Anita Hill:

It was used as a defense that he was not entitled to use. Because of his own behavior, he wasn’t entitled to use it. I’m not sure that I’m articulating it clearly enough, but I think if he had been more sincere, then he would’ve been more sympathetic to prisoners who had suffered at the hands of police, as well as individuals who have suffered at the hands of vigilantes and done horrible things, and killed and lynched throughout our history.

Preet Bharara:

If you’ll indulge me in a personal reflection for a moment, all this was going on in the fall of 1991. I was a second-year law student at Columbia Law School. We did not have a television. We did not have access to the internet at that time. What I remember day after day during this period, these young law students, we didn’t have a subscription to The New York Times. And what I remember is this big television mounted on the wall outside of the main library at the law school, and in between classes, and I imagine some people were skipping classes, there were dozens of students gathered underneath that television watching your testimony, watching Clarence Thomas’s statements, watching the questioning of the senators. It was a riveting thing. Some of it was difficult to watch. It took a long time to process what happened.

Preet Bharara:

My first question about that is when Clarence Thomas gave his statement about the high-tech lynching, were you watching that live? Did you hear about it later? Did you just read the testimony? What was your reaction as a person as you heard it or read it?

Anita Hill:

Well, I was watching it live. I watched the hearings after I left the witness stand. I went back to my hotel room, and I was watching everything.

Preet Bharara:

Did you ever think about switching it off, or no?

Anita Hill:

No, it was too important. I really knew I needed to face what was being said because, even at that point, even after I had testified, I knew that this was not going to go away and that I needed to really inform myself firsthand and have enough courage just to watch it and listen to it, and to see how the Senate Judiciary Committee members were reacting. I knew at the moment that there would not be a challenge to Clarence Thomas, because when you think about those senators, what you haven’t said and what people who weren’t born might not know was that they were all white, all male, and some of them were southerners, and were from places where lynching was much more prevalent than others.

Anita Hill:

I think I knew that they would not be able to challenge it in part because I didn’t expect that they had invested in learning about the history of lynching. I know from my own experience in education at that time that we were not taught about lynching. It was hardly a subject that came up in our schools or textbooks. So I knew that they would not feel that they had any authority to challenge him, or that they might be fearful of trying to challenge him because he was so clear in showing his dismay for the body that he was sitting before.

Anita Hill:

I knew that it was going to be devastating, but I also knew that what Clarence Thomas was doing was saying that he had to represent the race. He was entitled to represent the race. His experience was entitled to be understood and heard. Whereas, mine as an African-American woman, and there is a history of abuse of African-American women, my experience was not entitled to be recognized, even if his was contrived for the situation, for his own protection against the behavior that he had done.

Preet Bharara:

Who did you think, if anyone, that you were representing?

Anita Hill:

Well, I was representing myself, honestly.

Preet Bharara:

But a broader group than that, or in hindsight? I mean, you have come to represent a lot of things and a lot of people based on your courageous testimony. What were you thinking about at the time?

Anita Hill:

At the time, when I went and I testified, I went because I had information about the character and fitness of a nominee to the Supreme Court, for a lifetime appointment. I represented myself. There are all these theories about who sent me there, what my motives were. My motives were that I had information about a critical appointment to the Supreme Court. As an attorney and as a teacher of future attorneys, I felt I had an obligation.

Anita Hill:

I had an obligation as a citizen to provide the information that I thought was important to the decision that the Senate Judiciary Committee was making. Now, since then, and with the way the hearing unfolded, it became clear that when the public heard my testimony, I began to represent more than one individual’s experience. The way I found that out was because I started to hear from victims and survivors almost immediately after my testimony.

Preet Bharara:

What were they saying to you?

Anita Hill:

Well, let me give you one example of a phone call that I had afterwards. I had started hearing from people who had experienced sexual harassment in the workplace and who had lost jobs, who had lost their livelihood because of sexual harassment in the workplace. I expected to hear from women who had similar experiences as mine. But this call was different. It was a call that I got in the afternoon. I was back in Oklahoma sitting in my office, and the phone rang. I had gotten a lot of negative calls at that point, and I didn’t know what to expect whenever I picked up the phone. I picked up the phone, and on the other end was a man. The first thing that he said to me was, “You’ve opened a whole can of worms.” Instinctively, I wanted to-

Preet Bharara:

Hang up the phone.

Anita Hill:

I braced myself. Let’s just say it there. I braced myself for what was coming next because I had been insulted in so many different ways after the hearing. But he said to me then, he started to describe his experience with trying to tell his parents that a relative was sexually abusing him when he was a child. He talked about how his parents dismissed him and took the side of the relative who was his abuser. He said it reminded him of when he saw my testimony.

Anita Hill:

When he saw the Senate Judiciary Committee hearing, it reminded him of what he had faced as a child, trying to come forward, trying to complain, trying to protect himself and to look to the people he trusted to protect him. It was at that point when I knew that the issues that I had raised, the whole can of worms that he talked about, that the issues were bigger than sexual harassment.

Anita Hill:

Since then, I’ve heard from people who have experienced domestic violence. A woman in Kansas City told me at a book signing. She came up to me, and the first thing she said was, “I left my husband because of you.” We both laughed, and she said she was in a relationship that was an abusive relationship with her husband. Watching the hearings, she knew that she was going to have to take the brave step of getting out of that marriage. And she did. She was successful. She had family and friends who supported her. She was happy to report that to me. But I also know that those stories, I had gotten thousands of letters, and I continue. I’m getting more and more stories even now. Those are really just the tip of the iceberg.

Preet Bharara:

On the other side of the coin, you got a lot of negative letters, too. What were they like? What was their beef? How did you react to those?

Anita Hill:

Well, they were angry. They were hostile. They were violent emotionally. The kind of language they used, the kind of threats that I got, I knew I didn’t deserve. But they still had an impact on my sense of safety, the safety of my family. I remember one day I had a bomb threat at my home, and my mother was there. My mother was about 80 years old at the time. My sister was there with her children, and I got a call that there was a bomb threat to my home. You go through that, and, of course, you question whether you should. I never questioned whether I should’ve come forward. The only regret that I have is that so many people were hurt. Friends of mine lost jobs. People left their jobs because the situations were so hostile to them that they wanted to move on. Those are the things that I do regret. I don’t regret having testified.

Preet Bharara:

We’ll be right back with more of my conversation with Anita Hill after this.

Preet Bharara:

Do you ever think to yourself, gosh, I was so young? You were all of 35 in 1991. Am I right?

Anita Hill:

Yes. At the time of my testimony, I was 35 years old. I think I’m just thankful that I wasn’t 25 years old. That was young, yeah. But I wasn’t 25 years old. And I wasn’t-

Preet Bharara:

Well, to me, as a law student at 23, I thought all of you people were very old.

Anita Hill:

I know. I know.

Preet Bharara:

Because from the perspective of a law student, I teach law at NYU Law School, and I know that they all think I’m ancient.

Anita Hill:

I know. They do. And, in some ways, they’re right.

Preet Bharara:

They are not right.

Anita Hill:

They are young. But at 35, it wasn’t like when I was 25 years old or just experiencing the problem. I really feel like I made the decision as a 35-year-old in ways that I couldn’t have made when I was 25 years old, to file a complaint, A, because there wasn’t really any clear path for me to do so, and, B, because at the time when this was happening, I was younger, and the system wasn’t set up for me. The culture in Washington, D.C., wasn’t set up for me to be heard.

Preet Bharara:

Well, let me talk about that for a second because I watched all the hearings back then, and I’ve obviously read about accounts since. But something that struck me that I’ve kind of forgotten about is you get asked a question by the then chair, and we’ll talk about him in a moment. I don’t know whatever happened to the then chairman of the committee, Joseph Biden. I’m not sure what he’s doing now. But, back then, he asked you a question, something like-

Joseph Biden:

Can you tell the committee what was the most embarrassing of all the incidences that you have alleged?

Anita Hill:

I think the one that was the most embarrassing was his discussion of pornography involving these women with large breasts and engaged in a variety of sex with different people or animals.

Preet Bharara:

What was interesting to me is then Republican, the late Arlen Specter, basically says to you-

Arlen Specter:

You testified this morning that the most embarrassing question involved … this is not too bad … women’s large breasts. That’s a word we use all the time.

Preet Bharara:

You make that phrase, that’s not so bad, a theme and something that needs to be addressed when you talk about the culture of the time. You presented, I think, pretty damning testimony about an environment created that no one would tolerate or should be required to tolerate. And the reaction to that was that’s not so bad. Can you just tell that story?

Anita Hill:

Yes. Well, Arlen Specter became the chief interrogator for the Republicans during the hearing in 1991. His tactic, I think, was to dismiss and diminish. Not completely deny, but to belittle and intimidate, not so much to convince his colleagues, but to give them an excuse for voting whatever way they wanted to, to support Clarence Thomas. But also to convince the American public that the issues that I was raising were not significant enough to warrant the hearing, for one thing, but, certainly any kind of negative vote against Clarence Thomas. I mean, that was his purpose.

Anita Hill:

But what occurred to me when I go back and I look at this is that is exactly the kind of message that we are telling victims today. I’ve heard it over and over again. I would suggest to listeners. Do a little social experiment. It happened in one newsroom. I did an interview with Jake Tapper, and he asked his colleagues, “Is this language that you’ve heard?” What we find when we do this experiment is that is what women are told throughout their lives, that the problem that they’re experiencing isn’t so bad, which then suggests that nobody’s going to do anything about it, that maybe it’s your fault. Maybe you’re oversensitive.

Anita Hill:

But, most importantly, it means that they remain silent. If we start to tell people that early enough, that will almost ensure that they will remain silent. It also will almost ensure that the people who are behaving badly will get the idea that whatever they’re doing isn’t bad enough to warrant any kind of intervention or consequences to them. These are the kind of cultural messages that I think we need to check. I talk about the 1991 hearing in Believing not just because I want to relive it. Certainly, I don’t want to relive it, but I think we can learn from it. And, unfortunately, some of the lessons are still salient today.

Preet Bharara:

Well, that brings me to my next segue, which is people say that history doesn’t necessarily repeat itself, but it does sometimes rhyme. You talk about this as well in your book. 27 years after the Clarence Thomas’s hearing came the Brett Kavanaugh hearing. Allegations of sexual misconduct and other kinds of things were brought principally, but there were others as well, by Christine Blasey Ford. What I hadn’t appreciated was when that was going on, there were people around you who suggested that you should go to the hearing. You, Anita Hill, should go to the hearing and sit behind Doctor Ford in a show of solidarity. You ultimately, obviously, did not do that. How did you think about that, and what did you make of that suggestion?

Anita Hill:

I think that those people were well-intended, but I think that they didn’t really appreciate the political nature of that moment and how my sitting behind her would have been used against her. As a matter of fact, there were people who said that just some references that she had made or that other people had made were essentially signals about what had happened to me 28 years earlier, in an effort to bring back those memories, as though people needed some signals. I think, like I said, those requests were well-intended, but I think it would have been more harmful than helpful.

Preet Bharara:

But now, on the Senate Judiciary Committee, in that Brett Kavanaugh hearing, it’s not all white males. You have a Black woman. She became the Vice President of the United States. You have Cory Booker. You have a number of other women, including Amy Klobuchar and others. Yet I take it that you agree that there were other unfortunate parallels between the two hearings, namely that a full accounting of all the witnesses’ testimony was never had. There were witnesses who were never able to testify at an open proceeding in connection with Clarence Thomas’s confirmation hearing, and there was not a full investigation of the allegations against Brett Kavanaugh. How come that didn’t change in 27 years?

Anita Hill:

Because these structures and processes matter. That’s true whether you’re talking about Senate Judiciary Committee, whether you’re talking about a corporation. If you have the same kind of structures that you had 28 years earlier, you’re going to be able to eliminate those witnesses. You’re going to be able to get away with it. You’re an elected official. You’re going to be able to get away with not calling expert witnesses. You’re going to be able to get away with manipulating the purpose of the hearing from that of evaluating the character and fitness of a nominee to a hearing on whether or not a sexual assault or a sexual harassment was actually proven. That has not changed.

Anita Hill:

As far as I know, the process hasn’t been improved. If someone comes forward and they have information about a nominee today, we don’t know that there will be any different outcome because we don’t know if the process is any different. We don’t know if that person who has information has a place where they can go. We don’t know that they will have a complete investigation. Especially, we know that the Blasey Ford situation, the investigation was truncated and limited by the president, the individual who had a vested interest in making sure that the nominee was confirmed.

Anita Hill:

We don’t know that anything has changed. We do in terms of the process. I mean, I’ll back up a little bit. What we need to start thinking about is that there are three components of gender-based violence. There’s the behavior. There’s the culture that is often complicit, that is often condoning of the bad behavior. And then there are the processes that very often fail. To anyone coming forward and complaining, we know that the behavior hasn’t changed. We are more aware of the behavior now.

Anita Hill:

I think that was true in 2018, that the public was more aware of the behavior. Even perhaps the members of the Senate Judiciary Committee had a better understanding of the problem of gender violence. But one thing that had not changed was a practice and procedure that allowed people with an interest in a specific outcome, like the confirmation of the nominee, to control that. All of the investigation, all of the burdens of proof, all of the witnesses, the number of witnesses who would be called and who wouldn’t be called, those processes haven’t changed. They’re still in the hands of people who control the Senate Judiciary Committee. I think that what that says to me is that it could happen again.

Preet Bharara:

It could happen again.

Anita Hill:

That is a real travesty. It’s a travesty not just to me and Christine Blasey Ford. It’s a travesty to every survivor, every victim who has tried to address their own problem, who has come up against a system that wasn’t meant to solve their problem. It happened, really, to people who have lost trust in the court because of witnessing 1991 and 2018. And it has happened really to the public who has lost confidence in their elected officials.

Preet Bharara:

You write a bit about this, and we haven’t had a chance to talk about it, the overlap of misogyny and racism. But as you’re speaking, it occurs to me to ask another question about 1991. In 2018, you had a white woman stating facts about her experience with a white man. In 1991, it was a Black woman and a Black man. I wonder if you’ve ever wondered or thought, had everything in 1991 been the same, all the facts were the same, but you were white instead of Black, would there have been a different reaction to your testimony?

Anita Hill:

Any answer I give would be speculative. But there’s a piece that was written by A. Leon Higginbotham, who is a former federal judge.

Preet Bharara:

Sure. Third circuit, right?

Anita Hill:

Yes. Now deceased, who really did an analysis of how race mattered in that case. One of the sort of hypotheticals that he presented was what if I had been white and Thomas had been the Black man that he is? He concludes that what happened really was because of my race, that the ease with which I was dismissed was because of my race. I believe that one way for us to think about that is to think about how an individual like Strom Thurmond might have reacted had I not been a Black woman, but I had been a white woman. Think about whether or not Strom Thurmond would have, given his segregationist background and his own personal experience at the time of having fathered a child out of wedlock, whose mother was a housekeeper in his home. Think about whether he would have embraced Thomas in the way that he did and how he might have explained that to some of his lifelong supporters.

Preet Bharara:

Right. Do you think that all those Republican senators didn’t believe you in their heart, or they didn’t care?

Anita Hill:

I don’t think those things are always separable. But I think, in the end, they didn’t care. And that is what I think is happening all over the country now, whether we’re talking about problems in a corporate setting or whether we’re talking about problems in the military. It’s that the value that they’re putting on the victims is outweighed by so many other of their interests, the political interest or the interest in maintaining command, or in cases of universities, the interest, and I think it’s misplaced interest, in maintaining institutional reputation. So they hide behaviors, or they attempt to keep them secret and do away with them without really a public hearing and a public understanding or a real acknowledgment of the harm that is being caused, not only to their reputations, but to the very people who they’re charged with serving.

Preet Bharara:

Joe Biden called to apologize. I found it interesting. Well, first, it took a lot of years. You said, quote, “I wasn’t emotionally invested in a Biden apology.” You say, “Fortunately, I wasn’t emotionally invested in a Biden apology.” What was your principal dissatisfaction with Joe Biden’s conduct of the hearing, and was it a weird phone call to take?

Anita Hill:

Well, my dissatisfaction with the hearing was one that he failed to call all of the witnesses, witnesses who I didn’t know but who had similar experiences with Thomas. That was important. We know now that it takes, in some cases, scores of women coming forward before there’s finally something done about it. Think about R. Kelly recently, or Weinstein, Epstein. That’s really a pattern of ignoring certain people or not calling them, and I think that’s a tragedy. It does a dishonor and disservice to those witnesses who stepped up and were ready to testify, and it may, in fact, have kept others from coming forward as well. There are other things, but that’s the one that sticks with me.

Anita Hill:

Was it a weird call? It was a little strange. But what’s disappointing about it was it wasn’t forward looking. 1991 happened, and a personal apology was certainly not something that I was expecting. But it was something that could’ve been meaningful, especially if it had been paired with a pledge to address the issues that still persist. I think that is the part that was most disappointing, that I’m still looking for that leader who says, “Gender-based violence, the evidence is in. It is clearly hurting all of us as a society. It’s hurting our government, our trust in our institutions. It’s hurting people in multiple ways, and I want to make it a priority to resolve this issue, at least, to begin the work that needs to be done at the level of the presidency.” That was the disappointment. That’s what I still am looking to hear.

Preet Bharara:

Are you optimistic? Sometimes the way I ask this question is do you think the glass is half empty or half full? In some parts of your book, you say, “Look, this kind of conduct and this kind of issue is going to be with us. It’s a question of controlling it and minimizing it.” But you also have in your title Our Thirty-Year Journey to End Gender Violence. Do you think there’s reason to be optimistic? Because the other point you make in the book, we haven’t had time to get to it … I could ask you questions for four hours … is that we think of the younger generation as being very diverse and very open-minded. Some people use the word woke, although I don’t really understand what that word means. There’s a lot of gender-based violence occurring, dramatic and significant, among very young people. So how should we feel about the outlook?

Anita Hill:

Well, first of all, you said is the glass half empty or half full? We haven’t measured the size of the glass yet.

Preet Bharara:

Okay. That’s the first time I’ve heard that answer.

Anita Hill:

So we don’t know whether it’s half empty or half full. I think that’s one of the things that we need to do. We need to measure this problem. We talked about Redbook. Even now, the government isn’t doing enough to measure the harm that is being caused to individuals and to the economy from even one part of the problem of gender-based violence, the problem of sexual harassment.

Anita Hill:

This is what I do know. I know that we know so much more now than we did 30 years ago. We’ve made people aware of the problem. We’ve made people aware of the behavior. People have told their stories, and it’s, in many cases, at great risk to themselves. So I know that we are in a better position than we were. We’ve had research that’s being done. Young people are expecting more. That generational advance, evolution that we thought was just going to happen naturally, isn’t going to happen, in part because the processes that we’re sending them into are still pretty much the same. So it is some of the culture. But we are raising a generation to expect more, and that makes me very, very hopeful.

Anita Hill:

People have invested their lives to this, and organizations have sprung up representing people who would have been completely marginalized, whose stories never would’ve been heard, whose complaints never would have found their way to court but for these organizations. That makes me hopeful. I know that change is difficult, but I also know that change doesn’t take a majority of people to happen. It just takes committed people to make it happen. And I think we have so many more of those people who are committed to change. Their awareness has increased, and their sense of urgency for getting change and getting the leadership that will address these problems is clear. We’ve seen it in workplaces like people walking out of their workplaces in protest. Never would’ve happened 30 years ago.

Anita Hill:

One last thing I will say, and this has to do with race. The whole influence of Black feminism has grown over the past 30 years, so within communities of color, and that same is true of other ethnic and racial communities, where feminism is being heard and understood as ways to resolve some of these issues, or routes to resolve some of these issues. So I’m hopeful. I don’t think we’ve ever had more tools or more people committed to using those tools than we have today.

Preet Bharara:

Well, that’s a good message. I appreciate the optimism. Anita Hill, thanks again so much for being with us. Thank you for your service. Thanks for your work. Thanks for your voice. The book is Believing: Our Thirty-Year Journey to End Gender Violence.

Anita Hill:

Thank you so, so very much for this conversation.

Preet Bharara:

I want to end the show this week to celebrate some exciting news with all of you. We’ve always been proud at CAFE to have hosts and contributors with a deep history of public service to our communities and to our country. Many of them have gone straight from CAFE, as you know, back into public service. There is, of course, my dear friend Anne Milgram, who is my cohost on the CAFE Insider Podcast. She is now the administrator of the DEA, appointed by President Biden for that spot. There’s another friend, Lisa Monaco, who cohosted the national security podcast United Security before becoming the 39th Deputy Attorney General of the United States. There’s John Carlin, who hosted the cyber security podcast Cyber Space before he joined the administration in the Deputy Attorney General’s Office. There’s Vanita Gupta, who was one of my very first guests on Stay Tuned and has returned many times since. She currently serves in the number three position at the Department of Justice as the Associate Attorney General.

Preet Bharara:

And now I’m so excited to share that another former CAFE host has been nominated for an important job by President Joe Biden. Ken Wainstein, who is the former cohost of United Security along with Lisa Monaco, has now been nominated to lead the Department of Homeland Security’s Intelligence Division. That’s an important job. Ken is currently a partner at the law firm of Davis Polk & Wardwell. He previously served as a D.C. U.S. Attorney and as the homeland security advisor to President George Bush. He’s also been a longtime friend and colleague of mine, and I wish him well. Congratulations to Ken and all of these smart, committed people who have been a part of the CAFE community. I’m proud to know you and work with you and call you friends. Thank you for all your service.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest Professor Anita Hill. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me, @PreetBharara, with the hashtag Ask Preet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to LettersAtCAFE.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive director is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, Sean Walsh, Chelsey Simmons, and Namita Shah. Our music is by Andrew Doss. I’m your host, Preet Bharara. Stay Tuned.