In the days before Clarence Thomas‘ Supreme Court confirmation hearing in 1991, he was known chiefly as a black conservative who didn’t support affirmative action. That his actual legal and judicial record otherwise yielded slim pickings was also known, and was indeed the whole point: The country had recently embarked on an era in which court nominees (and their backers) were terrified of a newly coined term – a verb that in common usage took the past participle, “borked.” The term nowadays implies a vicious campaign to discredit a nominee before and during the confirmation process, but more particularly – as in the case of Robert Bork, whose doomed nomination created the term – it implied that the nominee had been much too loose-lipped expressing his or her thoughts on the Constitution. Those as confident and articulate in their opinions as Bork has been, so it was deemed, might as well have been handing sharp, pointy sticks to their opponents.
(You could also argue that Bork, for all his controversial legal theories, was cooked as soon as David Letterman said he looked like Victor Buono, the portly, goateed actor who had played King Tut on the old Batman TV series. But the word “Daved” never took.)
This, at any rate, was the setting in which Thomas came before the Senate.
Then Anita Hill, a black law professor at the University of Oklahoma who had worked with Thomas, came forward and testified to a pattern of sexual harassment. (Most notoriously, she claimed, he once picked up a can of Coke and asked: “Who has put public hair on my Coke?”) This was beyond borking – this was going nuclear. Thomas, who’d had so little to say for himself, was suddenly confronted with a track record no one would ever want. The ensuing national debate, which ended with Thomas on the bench and Hill retreating from a media storm, was probably the country’s most heated, deeply felt political moment until 2000, when the Supreme Court heard Bush v. Gore (on which Justice Thomas voted with the majority).
You won’t experience that crisp, adrenaline excitement if you watch Confirmation, HBO’s movie treatment. Confirmation is cautiously methodical and dramatically sensible – in other words, a work mostly of negative virtues – as it sets up the confrontation and brings on the major players, who include Joseph Biden (Greg Kinnear), at the time chairman of the Senate Judiciary Committee, Republican Senator Orrin Hatch (Dylan Baker) and, acting on behalf of the White House, lobbyist Ken Duberstein (Eric Stonestreet). They all go about their business in a grim, crabbed, clenched, furrowed, clammy way. Obviously this isn’t going to be (and shouldn’t be) the near-satire of Game Change, the 2012 HBO movie about Sarah Palin’s wild ride as John McCain’s vice-presidential candidate. Still, the film could use some of The Good Wife’s sharp, witty appreciation for suspense under oath.
Hill and Thomas, of course, would pose a challenge to any writer, director or performer hoping to tease out some unexpected dramatic texture. Seldom have two people been so uncomfortable about assuming major public roles, and in the same chamber, at that. But a challenge doesn’t mean you throw up you hands. An inability, an unwillingness to be “spun” can suggest singularity, honesty, obstinance, cunning, even cluelessness or pigheadedness – it can be meaningfully ambiguous.
Hill is played with quiet dignity, restraint, resolve and intelligence by Scandal’s Kerry Washington. It’s a fine performance, but it has little spark or immediacy: This Anita Hill seems already to has figured out the spot where history will place her, and is ready to move there.
Wendell Pierce’s Clarence Thomas, unexpectedly, is more compelling, not because we know or understand Thomas any better, but because we scarcely know or understand him at all, even after 25 years on the Court. Unlike the late Justice Scalia, his closest associate on the bench, Thomas doesn’t unload his opinions whenever he feels like it. He doesn’t have easygoing, teasing friendships with liberal justices. He doesn’t belong to a hunting order whose members wear stylish green capes. He’s quiet, possibly a brooder, blunt. (In his memoir he referred to Hill as “my most traitorous adversary.”) In Confirmation he’s often seen sulking, or not necessarily even sulking. He stands around the house. He’s a stander. He’s inscrutable.
And yet somehow Thomas would come up with the scorchingly angry “high-tech lynching” speech that (as we would say now) allowed him to pivot and ultimately prevail: The hearings were no longer about Hill’s sworn accusations of sexual harassment against Thomas but about his indictment of everyone’s racism. And since then he has spoken barely a peep.
How did he do it? Where did that speech, which Confirmation acknowledges was a devastatingly effective piece of political theater – where did it come from?
Confirmation is excellent history – it can’t help but be – but it gives the impression that it’s afraid somehow of being borked. Odd.
Confirmation premieres Saturday at 8 p.m. ET.