Justice Thomas's Memoir

Wed Dec 5 06:20:55 PST 2007

Picking scabs off old wounds that will only reopen them and doing that in 
public is not strange? 

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax

Ilya Somin <isomin at gmu.edu> 
12/04/2007 10:01 PM

To
DavidEBernstein at aol.com
cc
zimmermi at shu.edu, conlawprof-bounces at lists.ucla.edu, 
CONLAWPROF at lists.ucla.edu
Subject
Re: Justice Thomas's Memoir

Just to add to the points made by David Bernstein:

I was not suggesting that there is no evidence on either side, merely that 
the evidence is murky enough that there is genuine doubt about who is 
telling the truth, and that in the absence of partisan bias, we would not 
see opinion aligning in such rigid lockstep.

I agree with Michael Zimmer that Thomas had much to gain by denying Hill's 
accusations. But Hill also had much to gain by making them, including 
becoming a heroine to the left and - possibly - getting back at a former 
boss whom she disliked for ideological and other reasons. The former 
benefit could only occur if her accusations were made public, of course. 
But the latter might have happened even if the remained secret, but still 
influenced the Senate to vote against Thomas.

That doesn't prove that she was lying, but by the same token Thomas' 
self-interested reasons for denying her accusations did don't necessarily 
prove that he was lying.

As for Thomas "reopening" the issue today, I don't think there's anything 
strange about that. He had decided to write a memoir. In doing so, he 
could hardly avoid addressing the most famous public controversy he had 
ever been involved in and restating his side of the story.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: DavidEBernstein at aol.com
Date: Tuesday, December 4, 2007 10:01 pm
Subject: Re: Justice Thomas's Memoir

>
> If she had nothing to gain, why is she now a well-known chaired
> professor
> and feminist icon at Brandeis, as opposed to an obscure professor
> at  University
> of Oklahoma?   She had nothing to gain, but did gain, big  time,
> doesn't make
> much sense.
>
> Of course, her original allegations were confidential, and she
> didn't
> anticipate they'd become public (and I believe was told as much by
> her "friends"
> working on the Democratic side on the Judiciary Committee, who
> then leaked it
> anyway just before the scheduled vote on his nomination).  In
> which case,  she
> also thought initially she had nothing to lose.  If one could
> imagine that
> Hill held a grudge against Thomas for any reason, or just didn't
> like him
> ideologically, her allegations in that context would make perfect
> "logical" sense.
>
> The "logic of the situation" therefore does not tell us who was
> being
> truthful.  There is additional evidence on both sides, some of
> which  seems highly
> persuasive (many women who worked for Thomas swearing that he
> never  behaved
> the way Hill described; Hill complaining contemporaneously about
> her  boss).
> But weighing such evidence is quite different than stating that
> the  "logic of
> the situation" dictates the conclusion.  I could just as easily
> (maybe more
> easily) say that logically, a controversial black conservative
> running the EEOC
> in the Reagan adminstration would "logically" go out of his way
> to avoid any
> conduct that if revealed would ruin his reputation and  career.
>
> In a message dated 12/4/2007 8:26:46 PM Eastern Standard Time,
> zimmermi at shu.edu writes:
>
>
> I don't think the issue is so starkly  partisan, especially as to
> Professor
> Anita Hill, as you suggest.  For  Justice Thomas to reopen that
> whole issue is
> just  very strange. His  raising the issue again is unlikely to
> convince
> anyone to change their mind  about what happened.  She had no
> personal agenda to
> advance in coming  forward when she did and certainly has a right
> now to defend
> herself when he  attempts to yet again cast aspersions on her.
> While radicals
> sharing  Justice Thomas' viewpoint  want, and need, to believe him
> very
> desparately, the rest of us have a variety of viewpoints.  To say
> it is
> he-said-she-said as if there could never be a finding of truth or
> significance  is just
> wrong. While people can come to different conclusions and those
> conclusions
> can be shaped by our different values and world views, to deny
> that there is
> significance because it is simply he-said-she-said suggests the
> whole thing
> is inconsequential. And it is not. Certainly not for Justice
> Thomas; otherwise
> he would never raise this up again only to reopen old  wounds,
> particularly
> his own. That it will be to no good effect  does  show that it is
> not
> inconsequential.
>
> The logic of the situation still points in one direction, even
> after  all
> these years:  Then-Judge Thomas had all to gain by denying
> Professor  Hill's
> claim and she had little to gain, but doing her civic duty, by
> coming  forward.
> She was and continues to be subjected to attacks that she did not
> bring on
> herself.  I know for a fact that she was interested in the
> developing law of
> sexual harassment years before the confirmation hearings.  This
> was at a time when
> she was teaching far from any area that had to deal  with it.
>
>
>
> Michael J. Zimmer
> Professor of Law
> Seton Hall  Law School
> One Newark Center
> Newark, NJ  07102
> 973.642.8833
> 973.642.8194 fax
>
>
>
>
>
> David E.  Bernstein
> Professor
> George Mason University School of  Law
> http://mason.gmu.edu/~dbernste
>
>
>
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