Anita Hill Saw History Repeat Itself at Ketanji Brown Jackson’s Supreme Court Hearings

Remnick: Jane, do you see this as a systemic chilling effect on not only the justice system but on future nominees who might come before the Senate for confirmation?

Mayer: I do, and I think the signal that it sent, loud and clear, is basically that, from now on, there will be no Supreme Court Justice who is confirmed unless the President has the majority in the Senate.

Remnick: How do you both look at this in historical terms? As you well know, the Republican argument is “you guys started it,” with Robert Bork—that the highly politicized confirmation process began with the confirmation hearings for Robert Bork and Ted Kennedy’s accusations against him, and so on. Do you see that as legitimate?

Hill: Oh, absolutely not. When you look back at the Bork hearings, you will see that there were Republicans who joined the Democrats voting against his nomination. It wasn’t as though there was a Democratic attack on an individual that no one on the Republican side agreed with. The decision not to confirm Judge Bork was bipartisan. But, secondly, the attack was really on legitimate differences in constitutional interpretation, and so I don’t see it as the same. But, even if you say there was an attack on Robert Bork, it did not reach the depths that the attacks on Judge Jackson have reached. I would just want to be clear: if we do not understand how racism and sexism played into what became a political campaign against her—and racism played into these tropes and myths about Blacks being soft on crime—it played into this idea that any effort to address racism is itself racist. Their attack was built on the lie that she had somehow been a part of teaching critical race theory in an elementary school, and the evidence that Ted Cruz presented was a picture book, a child’s picture book. You know, it just shows the absurdity of his positioning, how far they were willing to go. I had not had a picture book waved—brandished—but, in the Thomas hearing, Orrin Hatch waved the copy of “The Exorcist” around. Again, these kinds of tactics and approaches—none of that happened in the Bork hearing, but it did happen when the people that they were confronting were two Black women.

Remnick: Anita Hill, thank you so much for joining us. Now, Jane, I want to talk about Justice Clarence Thomas, and I should probably say that Anita Hill prefers not to talk about Thomas after those nomination hearings, so many years ago. But you’ve been covering the huge controversy over the political activism of Ginni Thomas, who was encouraging Trump’s chief of staff, Mark Meadows, to help overturn the 2020 election. Give us some sense, first of all, of how Ginni Thomas became such a political force.

Mayer: Well, she’s always been a political activist. Even from the time that Clarence Thomas married her, she was working for the Chamber of Commerce and working against equal pay for women, so she’s been involved on the right in politics for a very long time. But, during the Trump Administration, her role really grew. It was behind the scenes, for the most part, but she was trying to get meetings inside the White House, trying to meet with Trump—which she managed to do at some points—carrying lists of people that she thought he should fire. And she was becoming someone who was recycling some of the most fringe theories in America, including, sort of, QAnon theories. And what surfaced when we finally got to see her messages to Mark Meadows were just how far out her views were and just how deeply, deeply involved she was in that effort to try to overturn the 2020 election.

Remnick: What you hear in Washington, in some quarters, is “Well, you know, this city is filled with married couples. Both have political careers. Aren’t people allowed, in a marriage, to have their own separate politics and views, no matter what you think of those views?”

Mayer: Yeah, of course they are, and the critics of the critics here have sort of said, “Oh, this is sexist, to go after Ginni Thomas,” which is really a red herring, because nobody’s saying she can’t have her own views. What they’re saying is a Supreme Court Justice, like any other judge, is bound by—there’s a specific law that says that no judge, no matter which court they sit on—federal law. It says they cannot sit on a case in which their spouse has an interest in the outcome. And what we learned from all of this was that Justice Thomas actually sat on a case that involved the January 6th investigations, and we now know his wife was part of the effort to overturn the election that is under those investigations, and so he was basically sitting on a case that involves his wife. And there are many other examples, which I tried to lay out in the New Yorker story, issues in which Ginni Thomas has a stake—and, in one case at least, she had a financial stake. Basically, the issue is whether he should recuse. It’s not an issue of whether she should have her own opinions.

Remnick: Does he decide recusal on his own, or can, say, Justice Roberts say, “Hey, you better recuse yourself on this.” How is recusal decided?

Mayer: It’s kind of amazing, in this day and age, but the Justices completely decide on their own, and there’s no enforcement method over them. The Chief Justice could certainly suggest that Clarence Thomas recuse, but it hasn’t been done. It’s really not the norm, and the Chief Justice, despite the higher title, doesn’t really have any specific authority over any of the other Justices on recusal.

Remnick: So there’s really no recourse, is there, other than the pressure of politics or embarrassment?

Mayer: Well, under the Constitution, the only recourse is impeaching a Supreme Court Justice. It’s only been tried once, and it was in 1804 and failed. There is actually a lot of legislation that is being suggested right now. There’s a bill called the—I think it’s the Twenty-first Century Courts Act—but it only has Democratic sponsors in the Senate and the House to try to bring in some enforcement method of ethics on the Supreme Court.