The American Spectator

Capitol Games: Clarence Thomas, Anita Hill, and the Story of a Supreme Court Nomination; by Timothy M. Phelps and Helen Winternitz; Hyperion /458 pages/$24.95

The problems with Timothy Phelps and Helen Winternitz’s Capitol Games: Clarence Thomas, Anita Hill, and the Story of a Supreme Court Nomination begin with its title and end with its last sentence. The title is noncommittal, nonjudgmental. It seems to promise a disinterested insiders’ account of events from June 27, 1991, when Thurgood Marshall announced he was retiring from the high court, to October 26, when the Senate confirmed Clarence Thomas for the seat — journalism in its “objective” or “fair” or “balanced” sense.

As for the last sentence, we may take it as an oblique summa of the authors’ position on the truth or falsity of Prof. Hill’s charge that Thomas sexually harassed her: “The Republicans had no appetite,” the authors archly aver, “for investigating the alleged conspiracy that they say had been concocted to sabotage their nominee to the Supreme Court.” It is a detail, the final detail, that the authors seem to regard as “telling.” What does it tell? That even the Republicans, who are earlier described as willing to “stop at nothing” to see their man confirmed, may themselves not have believed Thomas.

This is polemic by insinuation, a practice that should be depressingly familiar to anyone who follows the Washington press corps. Rather than giving the book a proper title based on its contents (for example, Betrayal: How the Senate Wronged a Woman Who Came Forward to Tell the Truth about a Supreme Court Nominee), the authors and their publisher give us a veneer of neutrality. Why? Surely not to lend unwarranted authority to their highly selective presentation of the evidence in this spectacular case.

As it happens, Capitol Games was more or less foreordained to be a fundamentally disingenuous book. Phelps, who covers Washington politics for Newsday, was the second reporter (after Nina Totenberg of National Public Radio) to get Anita Hill to talk about her charges on the record. His story was the first to appear, in the Sunday, October 6 Newsday (whose first editions are printed Saturday evening, at about the same time its important stories are released over the wire services). Totenberg’s broadcast was Sunday morning. Their one-two punch came just after the Senate Judiciary Committee had split evenly on the nomination, and the Senate as a whole was scheduled to vote October 8. Eventually that vote would be postponed, and the nation would be treated to an unforgettable, riveting weekend of television when Sen. Joseph Biden’s committee convened as a sexual harassment tribunal.

Phelps, in short, knows exactly who let that runaway train out of the station. And he isn’t saying. He promised his sources anonymity, and he is keeping his promise.

So Capitol Games is ultimately based on the premise that the charges Anita Hill made are more important than how they came to be made and how they came to be made public. In fact, the last two questions count for nothing to Phelps and Winternitz (though they intermittently pretend to address them). In this, they are hardly unique. It is the essential and paradoxical conceit of journalism that anonymous information conveyed by a source counts as news, but the fact that the source conveyed it doesn’t count as news. Without this conceit, journalism as we know it would cease to exist. All in all, that would be a bad thing; the practice is not indefensible. But reporters who deny that it is a problem are mistaken.

It is hard to imagine a case in which it is a bigger problem than in the case of the Anita Hill leak. The authors’ catty concluding sentence notwithstanding, we have all known a few things at least since last October: interest groups opposed to Thomas’s nomination on ideological grounds were working night and day looking for “dirt” on him; equally committed staffers of senators opposed to the nomination were similarly engaged; the groups and the staffers worked close together; at least some of those who were aware of Anita Hill’s allegations thought they were potentially serious enough to derail the nomination; they further thought the reception accorded the allegations by the Judiciary Committee was inadequate; and they leaked information about the charges to the press with the expectation that a public airing, even at the eleventh hour, would derail the nomination.

The truth or falsity of Hill’s allegations is, of course, the central issue. But it is preposterous to maintain, explicitly or implicitly, that the full history of the surfacing of these charges can tell us nothing about their truth or falsity. Yet that is where we find ourselves, by default, in the partial account offered in Capitol Games.

At the same time, the Phelps and Winternitz account is useful for the snippets it does provide. In this rendering, which rings true, we have a portrait of the Democratic staff and senators of the Judiciary Committee divided into warring camps over the Hill allegations. Staffers for Senators Kennedy and Metzenbaum hear rumors of the allegations from Nan Aron’s left-wing Alliance for Justice, an organization whose principal mission is to derail conservative judicial nominees. But Kennedy, whose reputation has been beaten about the face and head thanks to the goings-on at the family compound in Palm Beach the previous Easter weekend, doesn’t want to lead the charge on the Hill allegations. That creates disgruntled staffer No. 1, Ricki Seidman, who was formerly legal director for People for the American Way. (She is now working for Bill Clinton.)

Metzenbaum’s staff will pursue the matter, albeit cautiously (in the Capitol Games account). The principals are James Brudney, William Corr, Christopher J. Harvie, and Gail Laster. Laster and Seidman (exceeding her instructions?) reach Hill, who is not forthcoming. Seidman makes more headway; Hill will think it over.

Hill calls Seidman back on the eve of the start of the first round of hearings. But Seidman knows Kennedy doesn’t want to head this effort, so she passes Hill on to Brudney. Hill starts to talk.

“Metzenbaum’s staff” (this is characteristic of the book’s willful evasiveness) has told “Biden’s staff” about the matter, and the latter has told the former that if Hill wants to proceed, she will have to contact the committee. The committee will not contact her. She does, talking to Biden’s nominations counsel, Harriet Grant. (The authors say that Grant’s “reputation among the liberal groups opposing Thomas was that she was too straitlaced.” This is not praise. Capitol Games essentially portrays Grant as a stooge, doing no more and no less than her boss’s bidding.)

Biden now emerges fully as the villain of the piece: “To this day, it remains unclear as to whether Biden even tried to understand Hill’s position on this sensitive issue.” In any case, Hill wants to remain anonymous, and Biden will not circulate charges under those circumstances. So nothing happens on the committee.

Or, rather, nothing significant appears to be happening based on the account in Capitol Games. For a fuller account of this period, one must turn to the report of Peter Fleming, Jr., the independent counsel engaged by the Senate to investigate the Thomas leak. From that report, we learn that Brudney is in nearly daily telephone contact with Hill in this period. He is disgruntled staffer No. 2. We also learn that Corr is the one who first heard from the Alliance for Justice. He’s No. 3.

The further machinations of this crew need not detain us here. Suffice it to say that Capitol Games is, at its most interesting, their book. Their unhappiness and even disgust is manifest as the committee takes no immediate action following Hill’s conversation with Grant. The picture they and the authors paint is one of a weak-willed, insensitive Chairman Biden unwilling to follow up serious charges against the nominee. The indictment continues as the harassment tribunal convenes October 11: the Republicans are playing to win, whereas the chairman is engaged in a fundamentally wrong-headed effort to be fair to the nominee — which has the effect of being fundamentally unfair to Anita Hill. Biden rolls over as Republicans demand that the hearing reconvene quickly, before the Democrats and Hill have time to prepare adequately. Biden rolls over once again on the issue of who will testify first and last.

There is a certain through-the-looking-glass quality to Capitol Games. The chairman is praised for his “grasp of the intricacies of such esoterica as the concept of natural law.” As a matter of fact, Biden likes natural law so long as it is understood to be evolving — in other words, so long as it is not natural law. And he is damned for his effort to be fair to accuser and accused.

It is probably too much to expect a fair hearing for conservative views of jurisprudence from a book as tendentious as Capitol Games. Alas, it is too much to expect even a fair description of what a more conservative Supreme Court has sometimes held. Thus Chief Justice Rehnquist is quoted from a ruling that overturned a previous court ruling: “Considerations in favor of stare decisis [sticking with past rulings] are at their acme in cases involving property and contract rights, where reliance issues are involved; the opposite is true in cases . . . involving procedural and evidentiary rules.” The intrepid Phelps and Winternitz describe this as a “startling statement about his philosophy. As far as Rehnquist was concerned, individual freedoms were not nearly so worthy of the court’s protection as property rights.” Well, as even the Rehnquist court has held, we are going to have freedom of the press, no matter how bone-headed the press is.

Which means we are going to have leaks. As for the one that catapulted Phelps to such fame as he enjoys, he is defensive about the term: “a label that sounded erroneously as if someone had handed me the full, ready-to-print Hill story.” He worked hard for his leak, dammit.

Something critical happened on Saturday, October 5, that convinced a reluctant Anita Hill to go on the record with two reporters about her allegations. Both Totenberg and Phelps had heard some of the substance of her tale prior to that and had contacted Hill repeatedly, but she said she wouldn’t talk until the reporters had obtained a copy of the statement she had given to the committee. She would not be the source for that statement.

The independent counsel believes Totenberg had a copy of the statement before that, but she was uncertain about its authenticity, and that Phelps didn’t have it. Phelps’s account confirms that he didn’t. Totenberg hasn’t said, but there is reason to think the independent counsel got it wrong. She may have only had the statement read to her before that Saturday.

But both Phelps and Totenberg placed calls to Ricki Seidman Saturday morning. They described Hill’s reluctance to talk and her reasons. Seidman then spoke to Brudney, who had a copy of Hill’s statement in his briefcase (he had obtained it independently September 25; the other copies were closely held by the committee, mainly in Harriet Grant’s safe). At 2:26 that afternoon, Hill returned a Totenberg call. According to what Hill told the special counsel, Totenberg said she had the statement and read from it to Hill, and Hill agreed to the interview. Phelps was meanwhile calling around frantically. “It was getting late,” he writes, “and the deadline for the Sunday paper had passed when one of my telephone calls made it through to someone who knew what was going on, and was willing to talk.”

The special counsel’s account describes Phelps reaching Corr between six and seven o’clock, purportedly looking for a phone number for Senator Metzenbaum. It is hard to believe that that is the only question Phelps asked Corr, since he was pressing all members and staff of the Judiciary Committee he could reach for details of the allegations.

Phelps does not mention Corr in this passage of the book at all. But after speaking with his “someone who knew what was going on,” the next conversation he reports is one with Hill, in which she confirmed his source’s statement that Thomas “made suggestions to her about what kind of sex he liked to engage in, asking her in detail about different forms of sex.” The special counsel dismisses the possibility that Corr was Phelps’s source on the grounds that Phelps’s article described the source as someone “who has seen her statement to the FBI.” Corr had seen neither the FBI report nor Hill’s statement to the committee.

It is interesting, however, that Phelps does not repeat in Capitol Games the claim from his article that his source had “seen her statement to the FBI.” We hear instead from “someone who knew what was going on” and was in a position to describe “what Anita Hill had told the Judiciary Committee.” That sounds more accurate than the attribution in the initial story, which is a muddle: there was Hill’s statement to the committee and there was the FBI report, of which Hill’s statement was a part. But someone who is scrambling to describe this under deadline pressure and comes up with “her statement to the FBI” isn’t making that distinction and probably is unaware of the finer points of what is what. The special counsel goes too far in asserting that the description of the source (which is in any case absent from Phelps’s account in the book) is enough to exonerate Corr.

The leak didn’t work, since Thomas is on the high court, but the leakers did get away with it. Whoever they are, they lied under oath to the special counsel. Perhaps the full text of the interviews and depositions his office conducted, read against other independently derived evidence, will yield a definitive circumstantial case.

We will indeed have an opportunity to review the special counsel’s raw material — when the records are unsealed in 2042. In the meantime, it is safe to say that the leaks originated somewhere in the ranks of Thomas’s extreme ideological enemies in the Senate — Brudney, Seidman, Corr, and so on. It is only fitting, therefore, that Capitol Games is a tribute to them, the radicals’ revenge.