Speaking Truth to Power - Anita Hill [175]
Evidence which has not been ruled to be a violation of the law by a court (such as the evidence presented in Ms. Baird’s nomination hearing) but which raises a colorable question of a violation or suggests a disregard for the law also must be considered. This is especially so when a committee is passing on a person seeking a law enforcement position, such as a position on the Supreme Court or in the Justice Department. Often, absent a court ruling, a person offering evidence of illegal activity cannot establish with certainty that the information that they are seeking to present represents a violation of the law. Placing the burden of obtaining a court ruling or otherwise establishing a violation with absolute certainty does not serve the public interest in making a thorough determination about the nominee. Moreover, a requirement that someone coming forward establish a violation of the law in many circumstances is unreasonable. As one letter writer asserted in responding to the hearing, Thomas’ behavior “indicated an attitude toward women which is not only offensive but which I fear will be harmful to all of us as we seek equality.” Another declared that Thomas’ confirmation “sent a clear message to those in our society who are prone to abuse the human dignity of others that it is indeed permissible to do” so. Thus, the information about his behavior was relevant regardless of whether it fit within the definitions of behavior which was outlawed. In addition, violations of public trust and evidence of such should not be excluded as relevant to the nomination of an individual to high office. Likewise, such violations are not personal information because they reflect on how an individual comports oneself in a position of authority and guardianship. As such, evidence of the behavior of Professor Ginsberg, Ms. Baird, and Judge Thomas was not private.
Consequently, certain behavior by its nature is public, not private, when a person is being considered for a high office. Illegal behavior and evidence of it must be considered regardless of whether the source of the law which makes the behavior illegal is civil or criminal in nature. Colorable claims of illegal behavior must also be considered, as should violations of public trust or evidence thereof, because the latter relates to the handling of a position of civic responsibility. These activities by their nature are public, not private. Actions which by their nature are private but which the nominee has introduced into the public arena such as the workplace or in congressional gatherings are subject to review in considering a nominee as well.
Again we must not overlook the context from which these reviews arise. A federal judicial appointment is a life-term placement subject only to removal by impeachment. Judicial appointments, which occur at the conclusion of nomination proceedings, are independent of the democratic process and should be, if they are to serve and to protect the rights of the majority as well as the minority. Such a nomination or an appointment is a prize, not an entitlement. Even presidential selection for a position does not give one the right to be confirmed to such a post. Two key factors argue in favor of heightened scrutiny of the nominee’s background and qualifications—the standard