Advice and descent.

THIS is not America," Judge Clarence Thomas told the Senate Judiciary Committee in his opening statement during the "special hearing on a charge of sexual harassment," and of course his nightmarish confirmation process was not America. Yet, after listening to Thomas and Committee members criticize the process for two days, Chairman Joe Biden decided he had had enough. Preposterously, he tried to defend the indefensible: The confirmation process was imperfect, but it's the only system we have. "It's kind of like democracy," he said, landing a low blow to the latter.

The special hearing would never have occurred but for the well-timed leak from a Committee member to Timothy Phelps of Newsday and Nina Totenberg of National Public Radio. Biden earnestly deplored the leak, and said he would ask for a Senate ethics-committee investigation. (What was that phrase a witness used-the fox guarding the henhouse"?) But now that the leak had occurred, Biden argued that he had to proceed Senate instructed-to investigate the accusation of Anita Hill, who before the Committee was as cool and confident as another infamous congressional witness, John Dean.

Biden strived for fairness, rebuking Democrats and Republicans alike for excesses. But however "fair in form" the proceeding might on rare moments have seemed, it was manifestly "discriminatory in practice"-against the nominee, a nationally televised smearing of his character.

It became that because Biden could not control the most liberal members of the Committee-Senators Kennedy, Metzenbaum, and Simon-or their staffers. They, in turn, could not control themselves; here was liberalism eating itself. The end of defeating Judge Thomas justified any means, including violations of Senate rules, possibly federal law-and basic decency. Biden was right when he wondered "how we can call ourselves civil libertarians."

On July 28, the Boston Globe reported: "The major civil-rights and civil-liberties organizations, many of them led by veterans of the Bork battles, are sharing research and coordinating strategy.... The official said, for instance, that opposition groups have been withholding some damaging information about Thomas's record, and will time its release to achieve maximum impact." The Globe piece neglected to point out that those "sharing research and coordinating strategy"-polite words for digging for dirt and passing around the mud-included not only the civil-rights and civil-liberties (so-called) groups but also the staffers of senators including Kennedy and Metzenbaum.

Before the special hearing it was established that a Kennedy aide, Ricki Seidman, formerly a lawyer with the falsely named People for the American Way, contacted Anita Hill on September 3 to see whether she was willing to come forward." By September 9 she was, and she did-to James Brudney, a law-school classmate of Miss Hill's who works for-Metzenbaum. Brudney, a Labor Committee staffer, directed her to Judiciary Committee staffers. At first reportedly reluctant to attach her name to her accusation, she eventually did so-after the general hearings were concluded. The committee then asked the FBI to investigate. Biden passed the results-including Miss Hill's statement-to each Committee Democrat on September 27, the day the Committee sent the nomination to the full Senate. Note that no Democrat asked for further investigation before voting, although any one could have.

Metzenbaum, Kennedy, and Simon all deny that they or their staffers leaked the report. Believe that, and you will believe Anita Hill. Unfortunately, Committee Republicans missed two excellent opportunities to develop important facts relevant to Thomas's charge that "this dirt was searched for by staffers or members of this Committee [and] was then leaked to the media."

Senator Arlen Specter raised an October 9 report in USA Today in which Keith Henderson, a friend of Miss Hill, said that she had been advised by Judiciary Committee staffers that "they would approach Judge Thomas with the information and he would withdraw and not turn this into a big story." Miss Hill's early and later testimony on the Henderson story differed, leading Specter to say she had committed "flat-out perjury." Her answers were at least fishy, but Specter might well have drawn some interesting testimony had he worked her chronologically, probing every relevant action and phone call from the moment of his nomination until her testimony.

The other opportunity came and went with Susan Hoerchner, the California workers-compensation judge who went to law school with Anita Hill. Hoerchner divulged three interesting facts: She called the day Thomas was nominated and asked Miss Hill whether she would publicly say anything about sexual harassment (she said Miss Hill told her she would not); she had talked at some point with James Brudney, a law-School friend of both hers and Miss Hill; and she had talked with NPR's Totenberg. Why no Republican senator took these facts and ran with them is beyond me. When next did she talk with Anita Hill, and how many times did they talk? Exactly how often did she talk with Brudney or other staffers? With members of People for the American Way, NOW, and so on? And what was said in all these conversations?

There are more questions to be explored, among them the inconsistent positions of the unctious Simon. To NPR's Totenberg, Simon said he had not known the Hill allegations until "after [the Committee's] vote." His spokesman told me, however, that the day before the vote Simon had read the FBI material on the charges and in fact talked to Miss Hill by phone. How come Simon, pressing Anita Hill's cause everywhere (including in the news-breaking Phelps and Totenberg stories), wasn't concerned enough then to ask his Committee colleagues to postpone a vote and do more investigating.? Asked in Totenberg's story why he and other members hadn't known about the charge-as Simon had just represented it-he told her that this was a question you'd have to direct to the chairman."

I'd say there are some questions that should be directed at Simon. And Kennedy and Metzenbaum, and their staffers. There's a story to be teased out here-that of how Anita Hill, unwilling to oppose Thomas in July and reportedly ebullient about his nomination at the American Bar Association meeting in August, somehow came to speak critically of him to the press before deciding, conveniently late in the "process," to accuse him, in effect, of sexual harassment in a statement to the FBI-just the sort of thing whose release via the leak could be timed to achieve "maximum impact."

At the heart of the story, I suspect, is ideology, specifically Roe v. Wade. Asked by Senator Hank Brown (R., Colo.), whether she "perceived a significant difference between [you and Thomas] on abortion," Miss Hill, who suddenly had a worried look on her face, said, yes," whereupon Biden ended this line of questioning on grounds of irrelevance. My hunch is that her perceived difference with Thomas in this area is entirely relevant. The radical feminists were furious with the Senate for failing to impose the litmus test of fidelity to Roe on David Souter. The Senate was ready to fail in that respect once again. A way had to be found to stop the Thomas nomination. The way could not involve Roe directly, but required something else, say a charge of sexual harassment, which everyone opposes. Enter Anita Hill, whose proabortion credential was only barely glimpsed.

The full truth of the Hill story cannot be known until it is thoroughly probed. President Bush must call for a criminal investigation of the leak. It is unlawful under the Privacy Act to disclose a confidential statement about another person that has been made to a government agency. The Speech and Debate Clause may or may not shield leaking senators and their aides, if they can be identified; the facts would determine that. But the facts should be known and cases brought, if indicated. Acting on his own discretion, President Coolidge named two lawyers-one Democrat, one Republican-to investigate Teapot Dome.

That is the precedent President Bush should follow, asking the outside attorneys to report to him.

Such an effort cannot redeem the injustice committed against Thomas, who had the good sense to retire Kenneth Duberstein and other "handlers" and to take on the Senate himself. Thomas, finally, was Thomas, carrying himself to a confirmation victory that is an epochal event in our politics. Still, "no American should have to go through" what Thomas did, as he put it before the Committee; the advice-and-consent process cannot again be turned into a mission of search and destroy. Bush should emphatically say never again," then back up his words by ordering a thorough, aggressive investigation, now.