On the day after the election, President Clinton returned to his rent-free home for four more years and Justice Clarence Thomas spoke.
There’s no doubt as to which act was the greater surprise.
The press wasn’t terribly interested in the U.S. Supreme Court’s labor that morning on an employment discrimination matter, Robinson vs. Shell Oil Co. Not even a handful of the regular beat reporters surfaced for a hearing on whether an anti-retaliation provision of a federal law protects a fired employee from a former boss who provides lousy references to a prospective employer.
“How often do you give references in discharge cases?” Thomas inquired of Shell lawyer Lawrence Butler.
Stop the presses.
A day before, I’d sat in on another case, involving whether a county board is liable for the sheriff hiring as a deputy a citizen-abusing nincompoop with criminal past and no law enforcement background. Eight of the nine justices interrupted the attorneys to ask questions or make comments nearly 60 times in the hour.
Chief Justice William Rehnquist led the pack with 11 pronouncements, not including his brusque cutting off of a very capable attorney for an Oklahoma county as the allotted hour came to a close and Rehnquist’s lunchtime beckoned.
Thomas said not a word. For sure, he whispered a few times to nearby Justice Stephen Breyer, the Bostonian and newest member who tends to exude an air of a scholar’s condescension toward everything from litigants to light bulbs. But, aloud, Thomas said zip.
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In his tenure, he’s sometimes gone months in a similar state of silent attention, or inattention since he can suggest a certain lack of engagement. Various theories can be proffered for his disinclination: insecurity; plain indifference; or maybe he simply isn’t big on jabbering during arguments before the court, unlike others, notably the notorious serial talker Antonin Scalia.
But these days, Stuart Taylor Jr. would surely give Thomas a pretty penny for his thoughts.
Taylor is a former New York Times legal affairs reporter who is now a Washington-based senior writer for American Lawyer magazine. His latest effort, in the monthly’s November issue, features a big photo of former Arkansas state employee Paula Jones on the cover and the headline, “Her Case Against Clinton.”
His thesis is straightforward: Jones’ claims of sexual harassment against Clinton are strong. Further, the evidence, despite the belittling she’s encountered, dwarfs any marshalled by Anita Hill, the onetime Thomas colleague-turned-feminist icon when she very belatedly leveled sexual harassment charges against Thomas.
When Taylor first looked at and wrote about Jones’ suit two years ago, “it seemed pretty clear that then-Gov. Clinton had sent his state trooper to solicit this young woman and bring her to his hotel room. That is fairly clear,” he recalled during a chat last week.
“What I didn’t believe the first time were her claims of his sexual advances being as crude and repetitive as she described. Or that he said the things she said he did, like, `Your boss is a friend of mine’ and, at the end, `You’re smart, so let’s keep this between us.’ “
“Her account made him look depraved,” Taylor said.
So what changed his mind?
In large part it was interviews with two friends, with whom Jones spoke for 10 minutes and 90 minutes, respectively, after the alleged incident in a Little Rock hotel in 1991. There were also his interviews of Jones’ two sisters.
All of their accounts track in great detail the basic Jones assertion, namely that the governor exposed himself and insisted on oral sex after she had fended off his attempts to grope her. It led Taylor to consider three scenarios:
The first is that Jones lied her butt off to everybody. The second is that the two friends and two sisters were joined in a deceitful conspiracy. The third is that Jones’ assertions are essentially correct.
His settling upon the third also fits his interpretation of the White House legal strategy. After an initial flat denial by a White House spokesman that Clinton and Jones were ever in the same room, it has now evolved into what Taylor characterizes as a non-denial denial.
It’s a tack taken as the Clinton camp, led by high-profile defense attorney Robert Bennett, moves mountains to have any trial delayed until after Clinton leaves office, claiming presidential immunity from such a suit. In the best of all worlds, it wants the whole shebang dismissed.
The Taylor piece is rich with the passions and maneuverings of the case in which two Virginia lawyers for Jones find themselves up against a legal army of four law firms, headed by Washington’s Williams & Connolly and the Washington branch of New York’s Skadden Arps Slate Meagher & Flom, whose partners include Bennett (Dan Rostenkowski’s lawyer until they parted company before he pleaded guilty).
The inside stuff includes how Jones came to harm her own case early on by letting herself be used by Clinton-bashing, right-wing wackos and the on-again, off-again settlement discussions by phone in which, at one point, Bennett indicated that his client was in the room.
Neither Bennett nor White House counsel Jack Quinn would talk to Taylor. The reporter conjectures that Bennett is unhappy with an earlier piece in American Lawyer. There, he criticized Bennett for failing to consult adequately with Rostenkowski before deciding to represent Clinton, the ultimate boss for the federal prosecutors on Rosty’s tail.
The reticence is odd, especially for Bennett, who could be cited for largely successful representation of Clinton so far. He has discussed the case, and trashed Jones fiercely, in interviews with lots of reporters and shied from few cameras, including those of CNN’s Larry King, the capital’s top A-list groupie and suckup.
Bennett has effectively sullied Jones, while doing everything a good advocate might in trying to keep a trial on the merits of her claim either delayed or quashed. When William Jefferson Clinton vs. Paula Corbin Jones does make it to the Supreme Court next year, the issue will be whether a trial can even take place while Clinton remains at 1600 Pennsylvania Ave.
The only sure thing is that Clinton lawyers won’t miss a meal. With two insurers paying most of the freight, the four firms have racked up what Taylor estimates to be a stunning $5 million in billings. (He doesn’t mention them but those benefiting include University of Chicago law professor Geoffrey Stone and David Strauss, who helped Bennett on his Supreme Court brief.)
In part, that’s an extrapolation from public documents indicating the Skadden firm was paid about $900,000 by the insurers for services rendered from May 1994 through September 1995. Documents show that Williams & Connolly billed $2.3 million through April of this year.
It is not likely that we will learn Thomas’ thoughts about Taylor’s opus. He’d be violating judicial canons of ethics by doing so since the case will be before the court pretty soon, perhaps by January, in what could be a lovely warmup to the Clinton inaugural parties.
But at least there was confirmation last week that the cat hadn’t gotten his tongue.
After the Shell Oil attorney responded that it frequently gives references for discharged employees, Thomas interjected the following:
By ruling on Shell’s behalf, the court would, for sure, be placing a disincentive for frivolous claims of retaliation against the company. But, he said, one might also be doing likewise for more serious ones in which the employer perhaps told a worker, “You file a claim against me, I’ll see you never work in this business again.”
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It’s not just a matter of the frivolous claims the court should be concerned with, Thomas said, but also those more serious ones.
Whew! A veritable torrent of communication.
Could we only know whether he’ll be inclined to speak on the day, perhaps in January, when those before him include Paula Jones and the memories surrounding him include Anita Hill.