Even before Anita Hill went public with her sexual harassment allegations, women’s rights groups were convinced that Clarence Thomas was bad news.
“The record shows that if confirmed, Judge Thomas would indeed vote to take away this fundamental right [to abortion], to take this nation back to the days when women had no alternative but the back alleys for health care,” said Kate Michelman, the director of the National Abortion Rights Action League.
Michelman and other reproductive rights advocates testified before the Senate Judiciary Committee in September 1991, urging the panel composed entirely of white men to think about what effect Thomas would have on abortion access if confirmed to the Supreme Court.
“I did not find anywhere in the record on that issue where he evidenced extreme views ― where he said ― where he, on the face of what he said, as anything extreme or an explicit endorsement,” Biden said to the women who testified on Sept. 19, adding that they showed a “failure of logic” in coming to such a conclusion.
Biden’s performance in the Thomas hearings with respect to Hill has been much discussed both in the media and by the candidate himself. But his comments and views on abortion during that same confirmation fight have received far less attention.
“Sen. Biden always has had complicated views on the issue,” Michelman recalled. “His recent remarks about the Hyde Amendment are evidence of this rather complicated view. So it’s clear that it wasn’t one of the issues the senator was particularly troubled by in relation to Thomas’ potential threat.”
Faye Wattleton was president of Planned Parenthood at the time, the first African American person to ever hold the position. She testified against Thomas that day and told HuffPost that she didn’t consider Biden an ally in the abortion fight.
“It was just a continuation of the uncertainty of dealing with him on this issue, well before the Anita Hill or Clarence Thomas hearings came along,” Wattleton said. She also called his behavior later, handling Hill’s allegations, “inexplicable and outrageous” and “almost circus-like in its comedy.”
“I do not share the certainty of some who are voting against Judge Thomas that he will be as extreme as some of his statements could lead one to believe he might be.”
Just four years earlier, Democrats ― led by Biden ― had defeated Robert Bork for a Supreme Court seat. Opponents relied on his long record to argue that he would be an extremist, a sure vote to ban abortion rights. Bork’s nomination set the stage for the modern, highly partisan Supreme Court confirmation fight.
After that, presidents knew better than to nominate someone with a track record on controversial issues, and nominees knew better than to state their views outright. So senators and activists had to rely on the scant evidence out there to figure out where nominees stood.
For Thomas’ views on abortion, the key piece of evidence was a speech he gave at the Heritage Foundation in 1987, in which he praised an essay by a conservative scholar, Lewis Lehrman, that argued a fetus had an “inherent right to life” and called abortion “a holocaust.”
Thomas characterized this article as “a splendid example of applying natural law.”
Thomas’ speech was about natural law and conservative politics, not abortion, but abortion rights advocates saw in that line a troubling embrace of a far-right stance that could mean a vote to overturn Roe v. Wade.
In his hearings, Thomas said he didn’t endorse Lehrman’s conclusions on abortion, although he refused to give his personal opinion on Roe v. Wade or abortion rights.
“My view is that there is a right to privacy in the 14th Amendment,” he said, adding that he couldn’t comment on Roe v. Wade while maintaining his “impartiality.”
“Whether or not I have a view [on abortion] is irrelevant,” he added.
Biden was also concerned and frustrated with Thomas’ unwillingness to be more forthcoming, at one point calling the nominee’s reply on abortion and privacy rights “the most inartful dodge I’ve ever heard.”
On Sept. 8, he wrote a Washington Post op-ed saying he wanted to know whether Thomas would “use natural law to impose a national moral code,” calling it a “critical question for the hearings.” And from Bork to John Roberts, Biden has pressed Supreme Court nominees over the years on the right to privacy.
But Biden also seemed more willing to give Thomas the benefit of the doubt at the Sept. 19 hearing (emphasis added):
Now, as I ask you to comment, keep in mind I’ve heard several of you have say something I have not found in the record, and I think I sat here for almost every word Judge Thomas uttered. And if I wasn’t here, I walked in the back to go to the restroom or to get a cup of coffee and could watch it on television in the room in there while getting the coffee. I doubt whether there are very many Americans who have been more attentive to what he’s said than me. ...
But I did not find anywhere in the record, and I spent a hundred hours on this researching every word that he ever wrote I could find before the hearing, and listening to every word he said afterwards where he did anything that remotely approached endorsing the Lehrman article. I agree you could go to the issue of whether or not he was being candid, whether or not one should believe him or not believe him.
But I did not find anywhere in the record on that issue where he evidenced extreme views ― where he said ― where he, on the face of what he said, as anything extreme or an explicit endorsement.
In response to Biden, Wattleton pointed out that Thomas had used the adjective “splendid” to refer to Lehrman’s article, which, she said, “can only be viewed as very complimentary and supportive.”
Biden also chastised another senator for saying that a clue into Thomas’ views on abortion was the fact that he attended a church in Virginia that was active in the anti-abortion movement.
“I think that’s absolutely, totally completely irrelevant as a matter of principle, and I also think it’s irrelevant as a matter of fact,” Biden said. The Associated Press, in a Sept. 19 article about the hearings, said the comments “were the first indication that he did not agree with the argument of other Democrats that Thomas was disingenuous when he insisted that he had an open mind on the issue of abortion.”
And even when he voted against him out of committee, Biden said that in his “heart,” he did not believe Thomas would be extreme:
I do not share the certainty of some who are voting against Judge Thomas that he will be as extreme as some of his statements could lead one to believe he might be. As a matter of fact, my heart tells me he won’t. My heart tells me he’ll be a solid justice. So some might ask, why not vote your heart, Biden? Why not vote your instincts?
I might be prepared to vote my instincts and my heart were the state of the court and the state of the nation different than it is now. But I am not prepared to rest on an instinctual feeling and in my heart, at a time when the court is on the verge ― separate and apart from the issue of choice ― on the verge of making some truly profound decisions that will or could reverse the 40 years of progress. ...
And so I’m casting this vote with my head and not with my heart.
Thomas, of course, has become one of the most extreme far-right justices on the Supreme Court. Since winning confirmation, he has ― as the reproductive rights advocates warned ― repeatedly said that Roe v. Wade was a mistake and recently warned that abortion could lead to eugenics.
“Joe Biden voted against Clarence Thomas in committee, he voted against him on the floor, and he did not believe that he should be a Justice on the Supreme Court,” said Biden spokesman Andrew Bates. “Vice President Biden supports a woman’s right to choose and he believes we are in a moment of unprecedented assault on choice in this country. He has called for the codification of Roe into law and as President he would fight to preserve the right to choose.”
When Barack Obama chose Biden as his running mate, both NARAL and Planned Parenthood put out press releases praising him for his “support for a woman’s right to choose” and calling him a “strong supporter of women’s rights and women’s health care.” And while in the White House, he helped elevate the issue of sexual assault against women to national prominence.
But Biden has stumbled on the issue of abortion in recent days. Last week, he called for overturning the Hyde Amendment ― which prohibits federal funding, like Medicaid dollars, from going to abortions ― after insisting the previous day that he still supported it.
Wattleton told HuffPost that she was “not at all confident” that Biden would be a strong supporter of abortion rights if he became president, although she underscored that he would be an improvement over President Donald Trump.
“It’s really hard to even say what he might do in that regard,” she said. “He certainly has not been a full-throated, committed and vocal advocate for reproductive rights.”
The Thomas hearings were not a high point in Biden’s career. Even with regard to Hill, he has only reluctantly expressed regret for what she “endured,” but he has refused to take any direct responsibility for what happened.
Notably, in his 2007 memoir ― which runs 366 pages ― Biden talks about the Bork hearings 221 times. Thomas gets zero mentions.