The Phone Call

By Mike Dorf

No, not the robocalls of Justice O'Connor's voice.  Apparently, those were sent out without her authorization.  I'm interested in the earlier notorious Supreme Court-related phone call.  Having previously defended Virginia Thomas's political activism as not necessarily inconsistent with her husband's judicial office, I'd like to think that I have the credibility to offer a few observations that are occasioned by her odd phone call to Anita Hill.  The opportunities for humor here are obvious, but other than pointing readers to a very funny piece by Andy Borowitz, I'll play it straight.

1) I'm hardly the first person to notice that the phone call was counterproductive for any aim that Ms. Thomas could have been rationally pursuing.  Most obviously, by leaving a RECORDED message that had a fair chance of making it to--and did in fact make it to--the national media, Ms. Thomas ensured that Americans who had either forgotten or never knew the details of the Hill/Thomas portion of Justice Thomas's confirmation hearing 19 years ago would now have those details rehashed for them.  And it has created interest in Lillian McEwen's story.

2) In light of how predictable all of the above was, one obvious question would be "what was Virginia Thomas thinking?".  I'm as interested as the next guy in a good conspiracy theory but I simply don't see any way in which her call to Hill was aimed at securing some kind of hidden advantage.  It strikes me that Ms. Thomas sincerely wanted an apology from Hill.  The question is why she thought she would get one.  If--as Ms. Thomas likely believes--Hill's 1991 testimony was false, then Hill is the sort of person who would have no reason not to stick with her story.  And if Hill's testimony was true, then, as Hill herself said, she has no reason to apologize.

3) This circumstance is in some ways reminiscent of a dilemma that our sentencing/parole/probation system creates: We tend to give lighter sentences, and to end sentences earlier, for criminal defendants who express remorse.  That makes some sense: Other things being equal, and assuming we can verify that the remorse is heartfelt, a repentant wrongdoer is both less deserving of further punishment and less of an ongoing threat to public safety than is an unrepentant wrongdoer.  But the people most entitled to get out of prison quickly--indeed, entitled not to go to prison in the first place--are those who have no reason to express remorse because they are innocent but have been wrongly convicted.  Such innocents are unlikely to display remorse for crimes they did not commit, and as a result may receive harsher punishment because of their unrepentant attitude.

4) It's not clear what to do about the phenomenon of the unrepentant-because-wrongly-convicted prisoner.  Obviously, we should do a better job of ensuring that people aren't wrongly convicted in the first place, but even once we do so, erroneous convictions will occur, and innocent people will appear remorseless.  Meanwhile, of course, some people who insist on their innocence are in fact guilty.  It's tempting to think that the sort of person who would feign innocence would also feign remorse, and so that we could sort them that way.  But the truth is it's nearly impossible to convincingly assert innocence while simultaneously asserting remorse.  Put differently, there is no good way to express remorse conditionally.  One cannot credibly say "I'm innocent, but if I weren't innocent, I'd be remorseful."  Another figure who sparked a media sensation in the 1990s provides an instructive comparison:  OJ Simpson's effort to explain how he "would have" murdered his ex-wife and Ron Goldman but only if he did it, was widely (and appropriately) deemed offensive.  (And no, I'm not asserting any sort of equivalence between OJ Simpson and Anita Hill.)