Justice Thomas, Undaunted

At first glance, Confirmation seemed a strange choice to receive the full HBO treatment. The film attempted to turn a 1994 book, Jane Mayer and Jill Abramson’s Strange Justice, into a major 2016 television event. As the book’s title suggests, Mayer and Abramson set out to construct a compelling anti-Thomas case out of themes that had failed to convince the Senate and the American public in 1991. Even the New York Times‘s book reviewer, Christopher Lehmann-Haupt, noted skeptically upon its release that Strange Justice took “a fragile hypothesis and then buil[t] a monumental case out of it.”

Yet, two decades later, HBO​—​and many of Thomas’s critics​—​seemed to think they had a hit on their hands. Strange Justice was adapted for the screen by Susannah Grant, who received an Oscar nomination for her Erin Brockovich script. True to Mayer and Abramson’s approach, Confirmation presented Hill as a courageous truth-teller, a task assisted by the choice of actress to play Hill: Kerry Washington, of ABC’s Scandal, one of television’s trendiest and most attractive stars.

HBO screened the movie at a party on Paramount’s lot, where everyone could revel in the moment. “The film is a lot about courage and being up against forces that feel more powerful than you,” Washington told Women’s Wear Daily. Senator Barbara Boxer agreed wholeheartedly: “I think the overwhelming power of the film is just how much courage it took [Hill] to stick with it,” she told Variety. “The taunting, the way she was treated by my colleagues in the Senate.”

The real guest of honor on the Paramount lot was Hill herself, who later appeared on NBC’s Today to stress the importance of HBO’s upcoming broadcast. “It’s important for us, I think, to relive the story and continue to learn the lessons from it,” she told Savannah Guthrie, who beamed while lobbing softball questions.

Yet those who hoped to reignite the political turmoil of 1991 would be sorely disappointed. For all of the promotion, relatively few people bothered to tune in to Confirmation. It drew a live audience of 940,000 viewers​—​far fewer, noted Deadline Hollywood, than HBO’s dramatization of Lyndon Baines Johnson a few weeks later (1.11 million viewers), and fewer still than HBO’s profile of singer Bessie Smith a year earlier (1.34 million). Indeed, on April 16, the premiere of Confirmation barely outdrew TNT’s rerun of Back to the Future a few hours earlier (830,000).

Confirmation was intended to make a powerful statement, and it did​—​just not the statement that its creators intended to make. The fact that HBO and others dedicated so much time, effort, and money to Confirmation served as a stark reminder of the disdain that Clarence Thomas has faced in certain circles ever since President Bush nominated him to the Supreme Court on July 1, 1991. A tidal wave of contempt overtook his nomination, degrading the confirmation process into what Thomas famously denounced as “a circus .  .  . a national disgrace .  .  . a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.”

The 25th anniversary of that nomination offers us the chance to think once again, in Kerry Washington’s words, “about courage and being up against forces that feel more powerful than you.” It is an apt description of Clarence Thomas’s service on the Court. Undaunted by the abuse directed towards him by a small but relentless army of opponents, Justice Thomas succeeded alongside the late Justice Antonin Scalia in fostering tectonic changes in modern American constitutionalism. And with Justice Scalia now gone, Justice Thomas’s voice on the Court is more important than ever.

Mob Mentality

From the moment that nominee Clarence Thomas appeared likely to be confirmed by the Senate, he has been the subject of truly disturbing attacks, privately and publicly. Juan Williams first exposed this in the midst of the confirmation process, in a Washington Post essay, “Open Season on Clarence Thomas.” Thomas, he wrote, was being hunted by Democratic staffers on the Senate Judiciary Committee, who approached Williams because he had covered Thomas for the Post in the early 1980s:

In short, Thomas had been “conveniently transformed into a monster about whom it is fair to say anything, to whom it is fair to do anything.” And it didn’t end when the Senate rejected Hill’s allegations and confirmed Thomas; at that point, Capitol Hill staffers’ private questions were replaced with liberal journalists’ public statements.

From the outset of Thomas’s service on the Court, many on the left attempted to paint him as nothing more than Scalia’s lackey. “Thomas has come on as Scalia’s puppet,” wrote Mary McGrory, Williams’s colleague at the Post. Newsweek quoted an ACLU lawyer’s complaint that “Thomas and Scalia are one person with two votes,” before suggesting that Thomas was really controlled by one of his own clerks, a former Scalia clerk who “exerts considerable influence over the rookie justice.”

In Strange Justice, Mayer and Abramson added to the list of Thomas’s alleged intellectual masters, pointing to his earlier stint on the U.S. Court of Appeals for the D.C. Circuit, where “Thomas developed an unusually close friendship with​—​some would say reliance on​—​his fellow jurist Laurence Silberman.” These critics found it easy to believe that Clarence Thomas, former chairman of the Equal Employment Opportunity Commission and D.C. Circuit judge, was either too dumb or too compliant to think for himself on the bench.

From the beginning, such insults were unlikely to persuade anyone not already disposed to believe the worst that Justice Thomas was a puppet of his conservative, white colleagues. But it is impossible to take them seriously now, thanks to CBS reporter Jan Crawford. In her 2007 book Supreme Conflict, Crawford reports that Thomas charted an independent course from the very beginning; indeed, in some cases Thomas successfully influenced Scalia, beginning with the third case that he heard on the Court. In a criminal rights case that all nine justices were inclined to decide in favor of an inmate, Thomas was the first to change his mind, and soon his draft dissenting opinion persuaded Scalia and Chief Justice William Rehnquist to change their votes and join him; Justice Anthony Kennedy would eventually change his vote, too. And not for the last time: Scalia would change his mind to side with Thomas “on several other occasions,” Crawford recounts. “But these maneuvers were unknown to outsiders and Court watchers. Instead, journalists insultingly cast Thomas as Scalia’s apprentice.”

Of course, liberal journalists have called him far worse than an “apprentice.” In 1994, USA Today columnist Julianne Malveaux told PBS audiences, “I hope his wife feeds him lots of eggs and butter and he dies early like many black men do, of heart disease. .  .  . He is an absolutely reprehensible person.”

Indeed, for all of the anger that some liberal journalists direct toward Thomas, they love to paint him as an angry man. In a glowing 1994 review of Strange Justice, NPR Supreme Court correspondent Nina Totenberg called Thomas “an often brooding, angry and contrary man.” Reviewing Thomas’s own memoir for the New Republic in 2007, Jeffrey Rosen described Thomas as “a sputtering victimology-mongerer, constantly fulminating against his enemies and rehearsing every slight.” Reviewing the same memoir for Harper’s, Scott Horton called Thomas “a smoldering, angry, revenge-seeking man.”

Of course, Thomas himself is the first to admit the anger he felt as a student amid the racism he faced, as described by Diane Brady in Fraternity, her biography of Thomas and his friends at Holy Cross. Or, for that matter, in the heat of the Senate confirmation nightmare, as one might expect. He describes this at length in his memoir, My Grandfather’s Son. But on the Court, Thomas is widely known as a gregarious friend and colleague​—​”one with a booming laugh and welcoming word for everyone who works at the marble palace,” writes Robert Barnes, the Washington Post‘s well-regarded Supreme Court correspondent, “from the chief justice to the janitor.” Even NPR’s Totenberg concedes that “within the walls of the Supreme Court, he’s the most well-liked justice,” as she noted in a 2011 broadcast. “He knows the janitors, cafeteria workers, everyone. He knows their names, the names of their family members, where they’re in school, and he is viewed by the law clerks of all the justices as the most accessible of the court’s members.” Nevertheless, Rosen, Horton, and others persist in painting a much darker image.

Perhaps the strangest criticism pertains to his quiet approach to oral arguments. The Court these days is known as a “hot bench,” where justices pepper counsel with questions so aggressively that the lawyers rarely get to answer one question fully before being interrupted by the next. Thomas sees this as a woeful development: “There’s no reason to add to the volume,” he told high-school students in a televised chat in 2000. “I also believe strongly, unless I want an answer, I don’t ask things. I don’t ask for entertainment, I don’t ask to give people a hard time. I have some very active colleagues who like to ask questions. Usually, if you wait long enough, someone will ask your question.” Indeed, from time to time, his neighbor on the bench, Justice Stephen Breyer, would take a question quietly posed to him by Thomas and pose it to counsel himself, as Thomas described laughingly to a Harvard audience in 2013. “Every so often .  .  . I’ll say, ‘What about this, Steve?’ and he’ll pop up and ask a question; [and I’ll say] ‘it was just something I’m throwing out.’ ”

Yet some of Thomas’s critics see less honorable undertones to this quiet approach. According to the New Yorker‘s Jeffrey Toobin, the silent Thomas “strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called ‘not paying attention.’ ” Refusing to accept Thomas’s reasons for not asking questions at oral argument, Toobin curtly complains that “Thomas is simply not doing his job,” a “petulance” that “is demeaning [to] the Court,” treating the lawyers and his fellow justices “with disrespect.” For this reason, Toobin urged, the public should lose “any confidence it might have in Clarence Thomas.”

Another of Thomas’s reliable critics, the New York Times‘s Linda Greenhouse, mocks his quiet approach as “a weirdly compelling example of performance art,” evidencing both laziness (or, as she put it, lack of “effort”) and “his obvious disdain” for the Court’s proceedings.

This is the style of criticism that Justice Thomas has quietly endured for a quarter-century. To the Greenhouses, Toobins, Rosens, Hortons, and McGrorys of the world, Clarence Thomas is a puppet, or angry, or silent, or lazy, or disdainful, or all of the above. As the Post‘s Barnes observed in 2013, “Those who opposed his confirmation dislike him still, and use anything unusual about him to raise old questions about his qualifications.”

But to those less interested in demeaning Justice Thomas, and more willing to take him seriously as a judge and thinker, his quarter-century on the bench reflects immense contributions to American constitutionalism.

Thomas’s Voice

‘Ms. Eisenstein, one question.” Ilana Eisenstein, a lawyer in the solicitor general’s office, had just exhausted the barrage of questions posed to her by the Supreme Court’s justices. With things seemingly wrapped up, she said, “If there are no further questions .  .  . ” And no doubt to Eisenstein’s surprise, on February 29, 2016, Justice Thomas finally asked a question at oral argument.

It was his first in over a decade. (The very act drew “gasps” from the audience, according to various news reports.) Thomas went on to ask many more questions that day, pressing Eisenstein on the intersection of criminal punishment and the Second Amendment.

But the substance of Thomas’s questions seemed less significant than events overshadowing the Court that day. Justice Scalia had passed away two weeks earlier. Thomas was scheduled to eulogize his friend and colleague the next day at a memorial service in downtown Washington. Thomas would, at least for that day, fill the silence left by the man he affectionately called “Brother Nino.” With Scalia departed, Thomas was unquestionably the nation’s leading voice of conservative constitutionalism.

Throughout the years that they collaborated on the Supreme Court, Justice Thomas was no less vigorous an exponent of the “originalist” or “textualist” methodology that Scalia had helped introduce to the public just a few years earlier. “When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text,” Thomas explained in a 2001 speech, “if the meaning of that text is not readily apparent.” And as he further explained in that speech, he takes this approach in the interest of judicial restraint and impartiality:

Thomas has employed that approach in a number of judicial opinions, famous among constitutional lawyers, that attempt to re-anchor the Court’s decisions in the Constitution’s originally understood meaning. In U.S. v. Lopez (1995), for example, Justice Thomas joined the Court’s majority opinion in striking down a federal gun possession statute for exceeding the limits of the Constitution’s Commerce Clause. But Thomas also penned a separate concurring opinion, “to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”

Nor has he hesitated when this approach leads him to conclusions that his fellow conservatives​—​even Scalia​—​stop short of. In McDonald v. City of Chicago (2010), Thomas joined the Court’s majority in holding that the right to keep and bear arms limits states no less than the federal government, but he wrote separately to denounce the route by which the Court reached that conclusion. The Second Amendment’s terms apply explicitly only to the federal government, but the Court’s conservative majority applied (or “incorporated”) that right against the states by the “substantive due process” doctrine, a longstanding body of precedent providing for the recognition of unenumerated constitutional rights. Thomas’s separate opinion rejected the notion of substantive due process as insufficiently anchored in constitutional text: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing,” he wrote, regardless of “the volume of precedents that have been built upon the substantive due process framework.” Instead, he urged, “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

Thomas’s iconoclastic approach has never been more pronounced than in recent years, as he issued a series of opinions calling for the dismantling of the body of precedent undergirding the modern administrative state. For example, in Department of Transportation v. Association of American Railroads (2015), a challenge to Amtrak’s regulatory powers, Thomas wrote at length to denounce the notion that Congress can ever lawfully “delegate” legislative power to agencies, and he defined that prohibition forcefully, concluding that agencies may never lawfully “create generally applicable rules of private conduct”; such power may only be exercised by Congress, “through the constitutionally prescribed legislative process.” Thomas’s approach would eviscerate modern administrative agencies.

Two months later, in Michigan v. EPA, Thomas wrote separately to denounce “Chevron deference”​—​the doctrine by which courts regularly (perhaps too regularly) defer to administrative agencies’ reasonable interpretations of ambiguous statutes, instead of the judges themselves interpreting such statutes. In Thomas’s view, that doctrine “raises serious separation-of-powers questions,” because it causes judges to abandon their constitutional duty “to exercise [their] independent judgment in interpreting and expounding upon the laws.” Here, too, Thomas’s approach would utterly reform the modern relationship among agencies, courts, and Congress.

In fact, Thomas has been writing a lot​—​far more than his colleagues, despite his reputation as a “silent” justice. In the Court’s just-concluded term, Thomas wrote 39 opinions, more than double the next most active writer (Alito, with 19). The prior year, he wrote 37 opinions, nearly tripling the output of his colleague and friend, Justice Ruth Bader Ginsburg. In these opinions and others, Thomas often wrote alone. But in his basic jurisprudential approach, he will forever be paired, rightly, with “Brother Nino.”

The Natural Justice

For all of their similarities, however, Thomas and Scalia differed profoundly on fundamental ideas undergirding their common approach. Unlike Scalia, Thomas rooted his originalism much more explicitly in the natural law principles of the Declaration of Independence. This difference has been explored thoughtfully in books by Ralph Rossum and Scott Gerber. But Thomas himself has stressed these themes throughout his career​—​indeed, long predating his arrival on the Supreme Court, in a series of speeches and articles that attracted the attention of his Reagan administration colleagues.

In a 1987 article for the Howard Law Journal, titled “Toward a ‘Plain Reading’ of the Constitution​—​The Declaration of Independence in Constitutional Interpretation,” Thomas urged readers to recognize “the link between the Constitution and the Declaration of Independence” and to further understand that the Civil War amendments—​including the Fourteenth Amendment​—​are “extensions of the founding principles of equality and liberty.” In 1989, in the Harvard Journal of Law & Public Policy, Thomas once again rooted the Fourteenth Amendment in the Declaration’s natural law principles, writing, “The best defense of limited government, of the separation of powers, and of the judicial restraint that flows from the commitment to limited government, is the higher law political philosophy of the Founding Fathers.” To conservatives worried that “higher law” echoed the liberal Warren Court’s aggressive recognition of rights not prescribed in the Constitution, Thomas attempted to reassure them: “Rather than being a justification of the worst type of judicial activism, higher law is the only alternative to the willfulness of both run-amok majorities and run-amok judges.”

These articles and arguments, which stood in stark contrast to the writings of Justice Scalia, Judge Robert Bork, and other first-generation originalists, caught the attention of the Reagan and Bush administrations. And, for that matter, of Senate Democrats, who peppered him with questions on the subject in the early days of his confirmation hearing​—​especially Judiciary committee chairman Joseph Biden, who made it the focus of his opening statement on the first day. But such discussions were soon swamped by the controversy for which the confirmation is now remembered.

Confirmation Bias

From the moment Anita Hill made her sexual harassment allegations against Thomas, the controversy has been characterized as “he said, she said.” That is true in a sense: Anita Hill levied charges at him, without corroborating evidence, and Thomas denied them categorically. Even NPR’s Nina Totenberg, one of the two reporters who broke the story of Hill’s charges against Thomas, admitted as much in 1992: “Who told the truth?” she asked a Stanford audience. “I have a tentative opinion .  .  . but I don’t know and neither do you.”

In fact, it was less “he said, she said” than “they said, she said.” Not a single colleague of Hill’s came forward to support her allegations. In stark contrast, the very last panel heard by the Senate Judiciary Committee featured eight women, seven of whom had worked with Thomas at the EEOC, the Department of Education, and in Senator John Danforth’s office. They were Patricia Johnson, director of labor relations at the EEOC; Pamela Talkin, Thomas’s former chief of staff at the EEOC; Janet Brown, former press secretary to Danforth; Linda Jackson, a research analyst at the EEOC; Nancy Altman, formerly of the Education Department; Anna Jenkins, a former secretary at the EEOC; and Lori Saxon, a former assistant for congressional relations at Education.

They were called to testify between midnight and 2:00 a.m. on October 14, causing Sen. Joe Biden, the chairman, to open the discussion by apologizing, “It is almost inappropriate to say welcome at this hour of the night, but I thank you all very much for your willingness to be here, and particularly for your willingness to be here at this late hour.”

Each was given three minutes to speak, and each of them forcefully rejected the charges. Johnson, herself the victim of sexual harassment at a previous job, offered the most powerful testimony:

The others reiterated these points over and over. Jackson, who worked with Thomas and Hill at EEOC, testified that Thomas introduced Hill “in terms any mentor would use, explaining that she was very bright and knowledgeable.” Jackson and Hill would meet for lunches, where Hill “referred to Clarence Thomas with admiration and never once mentioned anything was going wrong at work.” Hill “would generally look at him with a smile on her face and have the kind of positive demeanor that would suggest she respected and liked him as a person.” And Jackson shared Hill’s apparent esteem for Thomas: “I believe I know the basic nature of this man better than most people in this room. I believe, unequivocally, Clarence Thomas’s denial of these allegations. This is a very honorable man who has the highest respect for women.”

And so said the others. Saxon spent a year working with Thomas and Hill at Education as Thomas’s confidential assistant, handling congressional relations and public affairs. “I never saw any harassment go on in the office,” she testified. “He never made an inappropriate advance, uttered an off-color [remark], or used coarse language in my presence.” And Brown, another victim of workplace sexual harassment, testified, “Other than my immediate family, the one person who is the most outraged, compassionate, caring, and sensitive to me was Clarence Thomas. He helped me work through the pain and talk through the options.”

There had been still more pro-Thomas witnesses, on an earlier panel. Nancy Fitch, an African-American woman who worked for Thomas for seven years and knew him for nine (and who also knew Hill) testified, “As I told the FBI agent who interviewed me .  .  . I trust Judge Thomas completely, he has all of my support and caring earned by nine years of the most positive and affirmative interacting, not only with me, but with other staff and former staff, men and women, and I know he will get back his good name.”

HBO’s Confirmation quietly attempts to sidestep the dozen pro-Thomas witnesses. It ignores the testimony of Johnson and the final pro-Thomas witnesses, and breezes through other pro-Thomas witnesses in a montage lasting barely 45 seconds. (Much like Mayer and Abramson, who in Strange Justice refused to name or quote any but one of those women, summarily dismissing them as just “a group of former female employees who were eager to testify that the behavior Hill described did not fit the man they knew.”)

Such problems pervade Confirmation, undermining any pretense the filmmakers had that their film was, as Kerry Washington put it, “not a propaganda movie.” It is transparently propaganda. Stuart Taylor, a former writer for the New York Times and National Journal and now a fellow at the Brookings Institution, described this in painstaking detail in the Wall Street Journal the day after the film aired. “As a reporter who covered the at times stomach-churning hearings,” he wrote, “I wondered how ‘Confirmation’ would handle a story that ultimately boiled down, as the saying goes, to one of he said-she said.” His verdict was not kind: “Despite a surface appearance of fairness, ‘Confirmation’ makes clear how it wants the hearings to be remembered: Ms. Hill told the whole truth and Mr. Thomas was thus a desperate, if compelling, liar. Her supporters were noble; his Republican backers were scheming character assassins.”

Indeed, Confirmation never attempts to grapple seriously with the very points that undermined Hill’s case from the start. Even setting aside the fact that Hill had no direct evidence to support her claims, her story raised more than enough questions about its plausibility, none of which Confirmation seriously pursues.

Take, for example, Hill’s decision to follow Thomas from the Education Department to the EEOC long after his supposed harassment had begun. In the film, Hill says simply that she followed her alleged harasser to the new job because the harassment had ended, and “the work itself was interesting.” The hearings themselves made clear that her explanations seemed untenable in light of the vulgar words and deeds Hill had ascribed to Thomas​—​as Patricia Johnson, the aforementioned director of labor relations at the EEOC and herself a victim of sexual harassment, testified in the Judiciary Committee’s final late-night panel.

Nor does the movie grapple seriously with Hill’s persistence in maintaining contact with Thomas long after they parted professionally. First, she denied that she had actually tried to call Thomas, saying instead that any calls would have been simply to return Thomas’s own calls or calls to his secretary—​who testified squarely to the contrary. Hill eventually conceded the calls, yet she struggled to explain why she would leave messages for Thomas such as (in his secretary’s words) wanting “to congratulate you on marriage” or “just called to say hello. Sorry she didn’t see you last week.” Later, she conceded she had kept in touch with Thomas, but only because (as she later wrote in her own memoir) Thomas’s alleged harassment “ended when I left his employ,” and thereafter “[m]y telephone calls to him had each had a work-related purpose.” At the very least, these are questions worth examining (as the testimony of Thomas’s secretary and Johnson make clear), but the Confirmation team evidently felt otherwise.

Similarly, Confirmation attempts to gloss over Hill’s inconsistent story to (and about) the FBI. In her initial meeting with FBI agents, she omitted many of the salacious details that later exploded in the Senate confirmation hearings. As Hill presented a much more scandalous story to the Senate Judiciary Committee, senators Orrin Hatch, Chuck Grassley, and Arlen Specter had questions about why her story had changed so dramatically. “I did not tell the FBI all of the information,” Hill replied to Specter, because the “FBI agent made clear that if I were embarrassed about talking about something, that I could decline to discuss things that were too embarrassing, but that I could provide as much information as I felt comfortable with at that time.”

But her account was immediately disputed by both of the FBI agents who had interviewed her, Special Agents Jolene Smith Jameson and John B. Luton, who observed her Senate testimony and then filed statements detailing what they described as Hill’s untruthfulness. Recounting Hill’s characterization of their meeting, Special Agent Jameson stated, “In fact, SA Luton apologized for the sensitivity of the matter, but advised Professor Hill that she should be as specific as possible and give details. She was further advised if the questions were too embarrassing, SA Luton would leave the room and she could discuss the matter with SA Jameson.” The evolution of Hill’s story, from her initial statement to the committee, to her FBI interview, to her actual testimony before the committee, and her implausible rationalizations for why it evolved, raised major questions and would have attracted at least some scrutiny in a serious, evenhanded film—but not in Confirmation.

There are similar flaws throughout Confirmation, which have been catalogued on ConfirmationBiased.com, a website created to debunk any pretense that the film was anything other than a partisan hatchet job. But one final issue raised by the film deserves special scrutiny: its presentation of Angela Wright as a corroborating witness who would have decisively proved the anti-Thomas case, if only Biden had allowed her to testify. In the movie, Wright​—​played by Jennifer Hudson​—​is subpoenaed by the committee and travels to Washington ready to testify that Thomas had subjected her to similar harassment, only to be left waiting in her lawyer’s office, before Biden finally calls off her appearance.

But as Stuart Taylor explains in his Wall Street Journal op-ed, the film “avoids showing why it was clear to Mr. Biden by then that Ms. Wright had so little credibility that her testimony might have backfired,” especially when Thomas had fired her from the EEOC. A friend of both Wright and Thomas had told the FBI that Wright was “pissed that he had fired her.” The mutual friend further quoted Wright as saying, in the summer of 1991, that she wanted “to get him back.” Wright’s previous supervisor at the State Department gave the FBI similarly damning statements.

Why did Thomas fire Wright? He testified to this in his hearing: “I felt her performance was ineffective, and the office was ineffective. And the straw that broke the camel’s back was a report to me from one of the members of my staff that she referred to another male member of my staff as a faggot.”

“As a faggot?” Sen. Alan Simpson asked in reply.

“And that is inappropriate conduct, and that is a slur,” Thomas answered, “and I was not going to have it.”

Given this background and the statements provided to the FBI, it is unsurprising that Wright did not testify. But even on this point, Confirmation shows significant bias. The movie flatly asserts that Biden, despite Wright’s willingness to testify, unilaterally canceled her testimony when Senator Danforth allegedly threatened to release scurrilous, implausible affidavits about Hill’s conduct with her students. In fact, Wright and Biden jointly signed a document to the contrary. “It is my preference that you testify before the Judiciary Committee,” Biden wrote. “But in light of the time constraints under which the committee is operating .  .  . I am prepared to accede to the mutual agreement of you and the members of the Committee, both Republican and Democrat, that the subpoena be vitiated.” Wright’s interview with committee staff would be placed in the record instead.

Wright signed the bottom of Biden’s letter with her own reply. “I agree,” she stated; the admission of her statements into the record “represents my position and is completely satisfactory to me.”

Finally, the bias of what was said (or unsaid) in the film is matched by the bias of what is shown. In stark contrast to Kerry Washington’s Anita Hill and Jennifer Hudson’s Angela Wright, the film’s Clarence Thomas is played by Wendell Pierce as a shifty, shaky, and shadowy man. Literally: Throughout the film, Thomas lurks in shadows, in his study, in his bedroom, even in a well-lit kitchen. Pierce’s Thomas is incapable of reliably looking senators in the eye at key moments of his testimony. And where Thomas was at age 43 a remarkably young Supreme Court nominee, the Thomas of Confirmation is old and paunchy.

Strange Injustice

Stepping back from all of the questions that Confirmation refused to ask, there remains a more fundamental question: Why did HBO dedicate so much time, effort, and money to producing a tendentious reinterpretation of the quarter-century-old Thomas hearings, based on a similarly tendentious 20-year-old book?

The most obvious explanation owes to the calendar. When the Confirmation project was green-lighted, it seemed perfectly timed to affect the 2016 presidential campaign​—​but not necessarily in the way you might assume. As the Hollywood Reporter observed, “At one point it looked as if Confirmation might premiere as Vice President Joe Biden was running for the White House, putting a spotlight on the then-Senator’s key role in the hearing.” Quite frankly, Confirmation depicts Joe Biden as a weasel, second only to Thomas in deserving contempt for his mistreatment of Hill, Wright, truth, and justice. It would have been a blow to Biden if he had challenged Hillary Clinton for the Democratic nomination.

But even after Biden announced his noncandidacy, Confirmation still was poised to play a political purpose, as the Hollywood Reporter further observed. “Even with Biden out of this year’s presidential race, Confirmation posits the influence Hill had in generating a backlash against the Old Boy’s Club of Washington, so it has some relevance against the current backdrop of Hillary Clinton’s run to become the first female commander-in-chief.”

The film itself seems to hint in this direction, in its closing moments. Amid a montage of news footage, ABC’s Hal Bruno tells Peter Jennings, “what happens now is we’ve got a political issue for the 1992 campaign.” Was this an intentional nod to the 2016 campaign?

Jill Abramson, coauthor of Strange Justice, is happy to draw that connection. In a long essay for the Guardian published the day before the film was released, she painted the Senate’s treatment of Hill as presaging a current political controversy: “Although those hearings were a generation ago, Confirmation brought to mind more recent congressional proceedings with a lone woman witness facing a mainly white, male set of inquisitors, and another striking outfit, this time dark purple. Hillary Clinton was the star of this show trial, the Benghazi hearings last fall.”

Don’t laugh; Abramson wasn’t kidding. “Both sets of hearings were billed as fact-finding exercises, but turned out to be poisonous displays of partisanship,” she wrote. “The Republican attack machine was turned, full force, on both witnesses.” Nonetheless, “With stoicism and poise, both Hill and Hillary withstood the onslaught to fight other, more important battles.” “Over the years,” she added, “the two women have become feminist icons.”

And, she concluded, “What Confirmation reminds us is that Washington D.C. has rarely been a place that respected women’s words, or their authority. Perhaps this is the year that finally changes.” She reiterated these themes in an interview with Fortune, adding that the film “remains studiously neutral of who was telling the truth.”

A final thought about neutrality and truth. At the very end of the film, as Hill offers some reflections, the credits offer a disclaimer: “This film is a fact-based dramatization. Some of the events and characters have been fictionalized or composited for dramatic purposes.” One is tempted to say that the original controversy surrounding Thomas’s confirmation was itself a “fact-based dramatization,” based on “fictionalized” events and “composited” characters.

The flaws that pervade Confirmation reflect the flaws that pervaded Strange Justice​—​and, indeed, the flaws that pervaded the original case against Thomas. To the extent that liberals even want to discuss the Thomas-Hill controversy anymore,* Thomas’s most vocal critics, including Mayer and Abramson, remain uninterested in seriously considering the facts and questions raised in his defense.

Which makes Hill’s remarks, late in the film, particularly ironic. Of her own critics’ refusal to believe her, she complains, “They don’t want to hear it. They don’t care. They only want to win.” One doubts that the Confirmation team paused to consider whether the same might be said of themselves.

As Kerry Washington observed at the movie’s release party, Confirmation tells a story “about courage and being up against forces that feel more powerful than you.” Justice Thomas exemplifies this. So did his predecessor, Justice Thurgood Marshall.

In the days after the Senate voted to confirm Thomas, he visited his new colleagues. These chats included a long talk with the legendary man whose seat he would be filling, the retiring Justice Marshall. “What was supposed to have been a brief courtesy call on Justice Marshall ballooned into a two-and-a-half-hour visit,” Thomas recalls in his memoir, My Grandfather’s Son, “and I loved every minute of it.”

As Justice Marshall recounted tales of his heroic career as a civil-rights lawyer, the upcoming Justice Thomas told him, “I would have been shoulder to shoulder with you back then​—​if I’d had the courage.” “I did in my time what I had to do,” Marshall told him. “You have to do in your time what you have to do.”

“Those words have stayed with me,” Thomas wrote. They surely have, as we all have seen throughout his quarter-century on the Court. And they surely will continue to do so for as long as Justice Thomas serves, in the face of hostility that even today refuses to relent.

Adam J. White is a research fellow at the Hoover Institution.

*Perhaps fewer and fewer of them do, especially among the young. In 2013, Justice Thomas visited Harvard Law School, where he chatted with Dean Martha Minow​—​no conservative activist, to say the least. In the course of their friendly conversation, Thomas appeared to refer jokingly to his Senate confirmation hearings as “a really bad interview.” The entire room burst into laughter, including Dean Minow.