In November 2016, Sen. Dianne Feinstein (D-Calif.) made history by becoming the first woman to serve as ranking member of the Senate Judiciary Committee. In a statement on the milestone, she tipped her hat to the influence of Anita Hill, who launched a movement when she testified about Clarence Thomas’ sexual harassment in 1991.
“I became a senator in 1992—the Year of the Woman—and became the first woman to serve on the Judiciary Committee in the wake of the Anita Hill hearings. So it’s a special honor to be the first woman to become ranking member of this committee, not to mention the first Californian,” Feinstein said.
Feinstein was one of four women elected to the Senate in 1992. A record number of women joined the House. Many of them were spurred to change the representation of the overwhelmingly male Congress after Hill’s electrifying testimony.
Sexual harassment was still mostly talked about among women, privately. But Hill brought it out into the open. And the imagery couldn’t have been starker: A young black woman testifying before a committee composed completely of white men.
The men on the Senate Judiciary Committee either couldn’t understand or simply didn’t care about what Hill was talking about. Sen. Howard Metzenbaum (D-Ohio) may have summed up senators’ reaction to Hill’s allegations best when he reportedly declared, “If that’s sexual harassment, half the senators on Capitol Hill could be accused.”
At the time, Joe Biden was the chairman of the Senate Judiciary Committee and could have been Hill’s biggest advocate. But, as she has made clear in her memoir and comments since then, he let her down. He seemed to go out of his way to appear fair to Thomas and never brought forward women who could have lent credence to Hill’s accusations.
The country has moved significantly on the issue of sexual misconduct. Powerful men like Harvey Weinstein and Matt Lauer have lost their jobs when women spoke out in the #MeToo era.
But in many other ways, very little has changed ― even with a woman heading the Judiciary Committee.
Twenty-seven years after Thomas, another man up for a position on the Supreme Court is facing a sexual misconduct allegation and appears set for confirmation. A woman, who remains anonymous, has accused Brett Kavanaugh of attempting to sexually assault her when they were both in high school. Kavanaugh has denied the allegation.
Feinstein has known about the woman’s story since July, and rumors have been swirling on Capitol Hill among senators, aides and reporters for some time. But only on Thursday, after a report in The Intercept about the letter, did Feinstein finally acknowledge publicly that she had received a letter and forwarded the matter to the FBI.
Sources close to Feinstein told The New Yorker that she has been quiet about the letter to protect the privacy of the woman, who wants her identity to remain confidential. But other Democrats say that Feinstein also seemed reluctant to even bring up the issue. According to The New Yorker:
A source familiar with the committee’s activities said that Feinstein’s staff initially conveyed to other Democratic members’ offices that the incident was too distant in the past to merit public discussion, and that Feinstein had “taken care of it.” ...
Feinstein also acted out of a sense that Democrats would be better off focusing on legal, rather than personal, issues in their questioning of Kavanaugh. Sources who worked for other members of the Judiciary Committee said that they respected the need to protect the woman’s privacy, but that they didn’t understand why Feinstein had resisted answering legitimate questions about the allegation. “We couldn’t understand what their rationale is for not briefing members on this. This is all very weird,” one of the congressional sources said. Another added, “She’s had the letter since late July. And we all just found out about it.”
Feinstein was no doubt aware of the risks of mishandling a sexual misconduct complaint after what happened with Biden. But her hesitation is a reminder that there is still a significant amount that’s the same as in 1991.
In a statement on Friday, Hill called on the Senate Judiciary Committee to put in place a fair and neutral process to deal with these types of complaints. And she, too, noted how it remains difficult for women to come forward.
Gossip, Trickling Information And The Media
According to The New Yorker, Kavanaugh’s accuser approached members of Congress ― Feinstein and Rep. Anna Eshoo (D-Calif.) ― in July about her experience with Kavanaugh. His nomination revived the pain of the incident, which happened in the 1980s, and she struggled with whether to come forward.
After speaking with Eshoo and Feinstein ― and watching Kavanaugh march toward what seemed like inevitable confirmation ― she decided not to go public.
Hill, too, was initially reluctant to speak out. She had told only a limited number of people about what had happened to her, but as with the Kavanaugh accuser, rumors started to spread in Washington and eventually, Senate aides began reaching out to her in early September, just a couple weeks before the committee would vote on Thomas.
Hill was willing to share her story, believing she had a public duty to give investigators all the information she had. But she didn’t want a public hearing, she didn’t want the press to know, she wanted to make sure that there would be a robust investigation, and she wanted an indication of whether there were other accusers.
Hill eventually heard from Biden’s office. But as she wrote in her memoir, she quickly became frustrated that they weren’t taking her seriously and wouldn’t keep her updated on their process as she had requested. The FBI interviewed her, and she wrote a statement that she wanted to accompany any report the agents put together. Biden’s staff circulated her statement to committee members without her knowledge. On Sept. 28, about three weeks after Hill first heard from a Senate staffer, the committee voted to approve Thomas.
On Oct. 3, Hill received a call from NPR’s Nina Totenberg, and the following day, she heard from Newsday reporter Tim Phelps, who both eventually published stories publicly identifying Hill. After those stories, her life was never the same.
It was only then that senators seemed to realize Hill’s story was serious. And even after the public outrage, many senators didn’t seem to know what to do ― or thought they couldn’t stop the nomination from moving forward to the full Senate on Oct. 8.
Hill faced a significant amount of skepticism. Sen. Dennis DeConcini (D-Ariz.) said that a woman who is sexually harassed “ought to get mad about it, and you ought to do something about it and you ought to complain, instead of hanging around a long time.” In other words, Hill was probably lying because she wasn’t acting like he believed a victim should.
Sen. Alan Simpson (R-Wyo.) warned that if Hill testified, she’d be “injured and destroyed and belittled and hounded and harassed, real harassment, different from the sexual kind.”
Hill faced her harshest treatment during her testimony from Sen. Arlen Specter (R-Pa.), who was designated to be the Republican attack dog in defending Thomas. But she received very little support from Democrats.
Without Allies On The Democratic Side
The true defenders of Hill were the female members of Congress. Barbara Mikulski was the only female Democratic senator at the time. But on the day of Thomas’ scheduled confirmation vote before the full Senate, seven female House members marched across the Capitol and demanded to speak to the Senate majority leader, George Mitchell (D-Maine). They eventually convinced him to delay the vote.
Biden was under pressure from Republicans as well ― primarily, Sen. John Danforth (R-Mo.), Thomas’ chief sponsor. Biden initially wanted a two-week delay, but Danforth convinced him that fairness demanded the proceedings to move faster. Biden scheduled Hill’s testimony for Oct. 11 and agreed that the Judiciary Committee would not take another vote before sending Thomas to the full Senate on Oct. 15. He also said he would keep questions about Thomas’ general sexual conduct ― such as his interest in pornography ― out of the hearings.
“Joe bent over too far to accommodate the Republicans, who were going to get Thomas on the court come hell or high water,” Metzenbaum later told Jane Mayer and Jill Abramson, who wrote a history of the Thomas fight.
Biden also handed a major victory to Republicans in agreeing to let Thomas testify both before and after Hill ― most crucially, scheduling his response to her allegations for 9 p.m. on a Friday, when millions of people were tuned in for their primetime broadcast.
In her 1997 memoir, Hill said she felt Biden betrayed her in doing so. She wrote that three days earlier, Biden had told her over the phone that she had the “option to testify whenever I wish … first and last.”
“[Dianne Feinstein] has let down the victim, the Senate, and the entire country who may now have a 2nd #MeToo Justice on the Supreme Court unless other Democrats step up to lead.”
Biden had originally planned to have Hill close out the hearings. But he gave in to pressure from Thomas’ handlers, who threatened that the Supreme Court nominee would hold a press conference saying he had been denied the opportunity to defend himself.
“I must start off with a presumption of giving the person accused the benefit of the doubt,” Biden told The New York Times two days before Hill was set to testify. “I must seek the truth and I must ask straightforward and tough questions, and in my heart I know if that woman is telling the truth it will be almost unfair to her. On the other hand, if I don’t ask legitimate questions, then I am doing a great injustice to someone who might be totally innocent. It’s a horrible dilemma because you have two lives at stake here.”
Biden’s most divisive and perhaps most significant decision was not calling the three other women who could have strengthened Hill’s allegations against Thomas to testify. While the women’s interviews with committee staff were entered into the record, that did not have the same impact as public testimony.
Biden has maintained that no one was more eager to hear from the women than he was. But one of his top aides told Mayer and Abramson that wasn’t true ― Biden, like the other senators, simply wanted the hearings to be over.
While Biden saw himself as Hill’s ally ― albeit one in a tough spot ― Hill does not see it that way.
“There were three women who were ready and waiting and subpoenaed to be giving testimony about similar behavior that they had experienced or witnessed. He failed to call them,” she told HuffPost Live in an interview two years ago. “There also were experts who could have given real information as opposed to the misinformation that the Senate was giving ... and helped the public understand sexual harassment. He failed to call them.”
Criticism Of Feinstein
Democrats largely stayed away from so-called character issues during his confirmation hearings last week. They focused on his views on abortion, health care, executive power and why Republicans weren’t allowing them to see all the documents from his time working in President George W. Bush’s White House.
But since those hearings, the focus has shifted. In follow-up questions, senators asked whether he had a gambling problem or what he was talking about in an email exchange with friends after a guys’ outing.
Kavanaugh opponents say they understand Feinstein’s reluctance to go public when the woman accusing him wants to remain confidential. But they’re baffled that she would consider an incident of attempted sexual assault to have happened too long ago to be relevant or to be too off-topic for the hearings.
“Dianne Feinstein, What in the Hell Were You Thinking?” is the headline in a Daily Beast column by liberal writer Michael Tomasky. He faulted the senator for sitting on the allegation for months, noting she could have shared the claims with her colleagues without revealing the woman’s identity.
“There was clearly no 11th hour strategy to leak the letter’s existence because there has been no strategy at all,” said a Democratic activist who requested anonymity to speak candidly. “She has let down the victim, the Senate, and the entire country who may now have a 2nd #MeToo Justice on the Supreme Court unless other Democrats step up to lead.”
Kevin DeLeon, a Democrat challenging Feinstein in November, said the senator’s actions were “a failure of leadership.”
“The American people deserve to know why the Ranking Member on the Senate Judiciary Committee waited nearly three months to hand this disqualifying document over to the federal authorities, and why Sen. Feinstein politely pantomimed her way through last week’s hearing without a single question about the content of Kavanaugh’s character,” DeLeon said.
“Senator Feinstein was given information about Judge Kavanaugh through a third party,” said a Feinstein spokesman. “The Senator took these allegations seriously and believed they should be public. However, the woman in question made it clear she did not want this information to be public. It is critical in matters of sexual misconduct to protect the identity of the victim when they wish to remain anonymous, and the senator did so in this case.”
Although the woman is still anonymous, she’s facing similar skepticism from some of the same quarters as Hill. Sen. John Cornyn (R-Texas) retweeted a tweet that made light of the allegation as just another game of telephone.
Senate Judiciary Committee chair Charles Grassley (R-Iowa) released a letter from 65 women on Friday morning in which they said they had always seen Kavanaugh treat women with “decency.” Similarly, in 1991, the committee allowed women to testify in support of Thomas and his character, saying they never saw him harass Hill and they didn’t believe her anyway.
It’s still not clear what effect the latest Kavanaugh revelation will have. Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), the Republican senators considered most likely to vote against Kavanaugh, have not yet commented on the assault allegation.
Sen. Orrin Hatch (R-Utah) used the fact that Democrats didn’t reveal the letter until now as a reason to be skeptical of it.
“I do not intend to allow Judge Kavanaugh’s confirmation to be stalled because of an 11th-hour accusation that Democrats did not see fit to raise for over a month,” he said. “The Senator in the best position to determine the credibility of these accusations made the conscious decision not to take action on them, and the authorities to whom the accusations have been referred have decided not to take action either.”
And on Friday, Republicans announced that they would be moving forward with the previously scheduled committee vote on Sept. 20, just as if nothing had changed.
Parts of this piece were originally published on Jan. 12, 2017. Read the full story here.
CORRECTION: A previous version of this story misstated how many years have passed since Clarence Thomas was confirmed to the Supreme Court.