The Thomas/Hill Hearings; R. McKenzie

Unlike many of the Congressional orators, how ever, I was never outraged by the language or inci dents described in graphic detail. I have often heard explicit language from female and male col leagues, and even from teenagers. While many reacted in disgust, I suspect that everyone in the hearing room was familiar with the sexual particu lars being aired. The senators seemed to know exactly what activities were at issue, even though exotic descriptions at times were used. I had to wonder who was acting. My disgust also had nothing to do with my posi tion on sexual harassment. Then again, it had everything to do with my more fundamental posi tion: No one should have to endure harassment in any form in any place. It wasn't until after Thomas's confirmation vote that I began to understand my revulsion. I had wit nessed the perversion not of sex, but of govern mental processes and authority. The inconsisten cies and contradictions that came out of the Richard McKenzie is Walter B. Gerken Professor of Enterprise and Society in the Graduate School of Man agement at the University of California, Irvine, and John M. Olin Adjunct Professor in the Center for the Study of American Business at Washington University, St. Louis.

hearings didn't involve the testimony, but the hear ings themselves. Here we had someone asserting that she was harassed by another and calling for Congress to address the matter. But there was little or no hope that any of the claimscould be corroborated or val idated. The committee members, and everyone else, were being called upon to divine the truth about events supposedly played out behind closed doors-totally private, out of the sight of everyone but God. The difficultyof seeking the truth without objective means was part of the problem. In addi tion, the alleged events were old, and their descrip tions were likely warped by the passage of time. Given the conflicting tales of woe and the rotat ing testimonials, it is no wonder polls revealed that Americans rode an emotional roller coaster during that long October weekend. In September, before the Thomas/Hill confrontation, 63 percent of those surveyed supported Judge Thomas's con firmation. However, on Tuesday of the hearing week, support for Judge Thomas fell to 50 percent, only to rise to 59 percent the following Monday.

I suspect that many people, like me, were upset by the apparent incongruities: One person's charge of harassment was, in effect, harassing another person. And the charge was being made, not to bring to light Judge Thomas's alleged trans gressions, but because he had become important. To that extent, the Goddess of Justice was being asked to pull down her blindfold and exact punish26 THE FREEMAN • JANUARY 1992 "Human relationships are murky areas for governments because they are so complex, delicate, and involve millions offacts and variables-few of which are objective. " ment based on who the accused was and the posi tion he might hold. As an observer, I was being asked, in the name of justice and fairness, to sus pend one of the most fundamental tenets of a good and just society-that allmen and women are to be treated equally under the law, not only when they are considered for the Supreme Court.

Professor Hill is obviously a decent, credible, and responsible person in most ways, and her sin cerity showed. However, in making her belated charges, she asked us to atone for her failure to expose Judge Thomas's alleged behavior at the time it supposedly occurred, to believe that there was no political motivation in the timing of her charges, and to make a judgment and take puni tive action within the course of a few days that she had been unwilling to make and take for almost a decade. Professor Hill and her supporters beseeched us to condemn a man with whom she stayed in cordial contact for nearly 10 years, and whom she didn't report to legal authorities at the time. What a ter rible request to make of others. WhatDid We Learn? The lessons from the Thomas/Hill hearings are deeper than sensitizing men to sexual harassment. The most important lesson is that the powers of government are limited because public officials are human, because judicial and Congressional resources are expensive, and because there are limits to how many public resources can be devot ed to any purpose. Judges cannot be everywhere and all-knowing.They must be detached, and they must rule by what is objective-what they can see and hear and touch.

It is extraordinarily difficult for government officials, juries, and Congressional committees to make judgments based on the word of one person. This is because the potential volume of complaints based on a single person's statement will likely exceed the available resources to handle them, and because the person making the charge might be no more honorable-and might be less so-than the person being charged. Human relationships are murky areas for gov ernments because they are so complex, delicate, and involve millions of facts and variables-few of which are objective. What is appropriate in one context involving two consenting adults might be totally inappropriate when another context or two different people are involved. The minute details of the Thomas/Hill relationship that could not be told in the committee setting, because they couldn't be articulated (even if they could be remembered) in the time allowed, were crucial to the judgment that senators in the hearing room and Americans in their living rooms were being asked to render.

Regrettably, women's rights advocates would have us believe that broadening the definition of sexual harassment and dropping the burden of proof would fortify social behavioral norms and legal protections for women. They don't seem to realize that standards are standards-for all. When applied generally,loose standards of proof are sub ject to gross abuse-to the potential detriment of women, especially in a male-dominated world. The Thomas/Hill hearings obviously prompted women to re-examine their own past harassment problems. However, they lowered the standard of what constitutes sexual harassment, causing many women to look upon unwanted and overly aggres sive verbal advances as "sexual harassment," a phrase formally reserved for significant abuses of power relationships accompanied by provable damages. It is understandable that, as the hearings pro gressed, the percentage of women claimingto have been sexually abused rose. On October 8, an ABC survey showed that 16percent of women indicated THE THOMAS/HILL HEARINGS: A NEW LEGAL HARASSMENT 27 Clarence Thomas is sworn in before testifying to the Senate Judiciary Committee.

they had been sexually harassed. By October 14, the number climbed to 33 percent. Broadening the legal scope of sexual harass ment may lead to more government penalties, but it also can undercut the stigma that otherwise would follow the harasser. With a broader defini tion of harassment, many might assume that the guilty party had done nothing more than make an unwanted advance. Individual women (and men) always will be the first and most effective line of defense against sexual harassment. Professor Hill, however, apparently took no such action; she even fol lowed Judge Thomas to another job. She never used the first line of defense, if the events she described in fact occurred. As Federal Judge Alex Kozinski recently reminded Wall Street Journal readers: "[W]itnesses, generally believed to provide the most reliable evidence, in fact are highly unreliable. They filter events through the lenses of their biases, perceptions and perspec tives; they forget; they embroider; they lie. Per haps most dangerous is the witness who is firmly convinced of something that just didn't happen: Imagination insidiously fillsin gaps of memory so the witness is able to tell a vivid, detailed and con vincing story, but one bearing little relationship to reality." This is why charges of criminal conduct are best relegated to trials where strict procedural and evidential rules apply.

Sexual harassment charges that are brought for judication must have some objective content, some manifest evidence, some means of clear resolution by outside observers, and they mustn't be minor. Otherwise, we as a society run the risk of creating a harassment problem -official harassment by the state and devious people who would exploit state powers -that is potentially no lessodious than the harassment of one individual by another. I watched the Thomas/Hill hearings with a growing sense of apprehension. I feared that the American system is being perverted, and that I was observing a new and destructive form of legal harassment. Before the weekend was over, it was plain that both Thomas and Hill had been harassed beyond belief-legally. D 28 Attack in the Adirondacks by Michael W. Fanning R on Liccardi, the owner of Liccardi's Fam ily Restaurant in Keeseville, New York, had ambitious plans for his property. By filling in a portion of his 10 acres with stumps, brush, dirt, and other debris, he hoped to construct a driving range, develop a picnic area and camp ground, and expand his parking lot. The State of New York,however,had other plans for the small town diner owner.