Wednesday, July 22, 2009

The last entry suggested that the real question behind the HL Gates story is how to integrate the context and procedure. While I can't pretend to answer that question for law enforcement officials, the question itself is related to the complicated role of race in our legal norms.

Nowhere was this more apparent than in the development of the Ricci (New Haven firefighters) case, and in the subsequent reaction to the case and to its treatment by the U.S. Court of Appeals.

At issue in the Ricci case was a true matter of interpretation. What does it mean for a test to have disparate impacts on members of a minority group? When does that remedy go too far and violate the guarantee of equal protection?

Sotomayor's role in the case is mostly a perfect and irrelevant storm - she and her fellow judges followed precedent and deferred to the judgment of New Haven's elected officials. I am more disappointed in seeming lack of interest in the underlying interpretive questions than in the outcome, although I personally agree with the SCOTUS decision.

But what if the conservative nightmare scenario had proven true? What if the case had reached the high court, Sotomayor had been a member of the high court, and she had thought about her own identity when considering the meaning of such loaded, crucial, and conflictual ideas as disparate impacts and equal protection?

I don't know what would have happened. What bothers me about the discourse of last week's hearings was the repeated implication that there is a clear right answer to legal questions, and then there is the answer driven by particularistic and wrong-headed identity politics, by passion, by preference, by emotion. There are two problems here.

The first is that there is not one right answer when dealing with matters of legal interpretation. Constitutional law boils down to concept and application. What are disparate impacts? What is equal protection? Originalism is one way of answer these interpretive questions. The "living constitution" approach of justices like Souter and Breyer is another. Neither school of thought implies fixed meaning, it just posits different sources of authority for interpretation. Republicans on the Senate Judiciary Committee proved their anti-intellectualism by suggesting that legal cases had clear correct answers, and that interpretation and -gasp- judgment have no place in the legal world. One might ask, why not simply design Scantron machines to make legal decisions, then?

The second concern is more pernicious and brings us back to the matter of race as part of our relevant political context. Clearly, we are all supposed to pretend that this doesn't matter, that we don't see race or take it into account, and yet it remains a major part of public discourse and is an unmistakable part of American political history. Instead of acknowledge this, it seems that some politicians and commentators have opted to layer racial perspective onto the idea that there can be only one correct answer. That correct answer must be "neutral" and thus not driven by identity in a minority group, by the perspective of women, the disabled, or any other underrepresented group. The "neutral" perspective is defined as being free of any of this other baggage. Particularistic perspectives can sometimes bring be very negative and unproductive baggage. The problem is the implicit equation of white and male with "neutral."

Why not just admit that law is a matter of intellect, debate and interpretation? Why not then admit that people bring their own perspectives to the table in the process of interpretation, particularly when navigating the legally ambiguous and historically fraught topic of race? It seems that otherwise, the burden of proof of "neutrality" falls mostly to members of minority groups, with the white perspective implicitly seen as "neutral." And that seems to me to be a clear example of disparate impact.

A new meaning for the word professorial

The Henry Louis Gates story has me steamed. But not for the reason you might think.

I wasn't there, so I can't weight in on whether Gates was rude or uncooperative or the police were abusive or what might have happened. And I'm not a black man, so I can't pretend to have had that experience.

I am a young, female professor, so it irritates me to hear the word "professorial" thrown around to describe Gates. This term seems to connote older, male, and "distinguished" looking. I confess that, particularly in my summer wardrobe, I couldn't look less distinguished. But I have a PhD. and hold the title of assistant professor, and spend many of my waking hours working on research. I teach several classes each semester, all of them specialized. I think that's pretty professorial.

But on a less personal note, the stereotype displacement has gone even further. CNN's Soledad O'Brien (whose depth has never impressed me very much) kept saying "this man in a polo shirt and slacks!" The tone of the debate is not about how to properly incorporate social and contextual cues that we, as people, all use to assess a situation with the responsibility of police officers and other state actors to coolly apply the law to all citizens equally. There's a real question there to be asked, but instead, the commentary on this decision has essentially shifted race to age and class. Pundits are basically saying "we know what kind of person gets arrested, and this wasn't it."

So much for equal protection. What might a wise Latina have done?

Slightly outdated social issues commentary

Regarding Mark Sanford and social conservatism - The underlying logic of the anti-gay marriage position leaves an important question open: what, then, are gay people supposed to do? Would the social conservative have them live in committed relationships, but without social or legal sanction (some religious institutions do recognize these unions, which is the irony cherry on the idiocy sundae of this entire debate)? This hardly seems like a consistent position. The best logical answer I can discern is that, according to social conservatives, people with a gay orientation should seek remedy and work toward the goal of a heterosexual life style; to live as they think God intended.

Mark Sanford's tearful confession a few weeks ago illustrates the human side of this very messy equation. I would like to note that I am not seeking to equate loving and exclusive gay relationships with the choice to have an extra-marital affair. Rather, Sanford's predicament and response demonstrates the incredibly powerful role of love, and, yes, sexuality, in people's lives.

A consistent worldview isn't too much to ask of an ideological movement that seeks to curb others' civil rights, and to imply instructions about how others should live their lives. If social conservatives want to try and impose their model of society on tolerant Americans of all faith traditions, on secular Americans, and on LGBT Americans, they should provide some better models of how to deny one's most basic emotional needs.

Monday, July 6, 2009

Bootstraps and the Beauty Queen

Despite the occasional gloat that the collapse of the economy signals the end of culture war politics, at least for awhile, the culture war has been prominently on display in the past few weeks. Culture war politics are often framed in terms of moral issues, but they are just as much about identity politics. Overemphasis on identity politics in the Democratic Party constituted a key source of support for the conservative side of the emergent culture war, starting in the 1960s. In later iterations, culture war politics are not limited to the identity issues linked to gender, sexuality, race, and ethnicity. Religious and class identity inform the "other" side of the culture war coin.

As Ross Douthat points out in the NYTimes, attacks on Sarah Palin during the 2008 campaign, and in light of her recent decision to resign as Governor of Alaska, have a distinct class tone. On this point, I agree with Douthat (with whom I agree on matters of analysis not infrequently). I can't really disagree, as I've engaged in such commentary myself.
I part company with commentators who take up the argument that Palin was unfairly attacked for daring to be an average American who sought the presidency. To be fair, Douthat gives blame where blame is due: "With her missteps, scandals, dreadful interviews and self-pitying monologues, she’s botched an essential democratic role — the ordinary citizen who takes on the elites, the up-by-your-bootstraps role embodied by politicians from Andrew Jackson down to Harry Truman."

This is true, but it misses the essential point about those leaders, as well as boot-strappers Nixon and Clinton. Ordinary Americans can aspire to great things, but you must accomplish something. In addition to Jackson and Truman, neither George Washington nor Dwight Eisenhower were known for piercing intellect. But both were highly accomplished generals. Truman, who at any rate ascended to the presidency accidentally, had a strong anti-corruption record. The bootstraps are missing in Palin's scenario. She took advantage of political opportunities and became governor- a clever move to be sure- but failed to turn that into any kind of real accomplishment for anyone other than herself. In a world in which it is increasingly useful to be able to name foreign leaders and match concepts (maverickiness) with actions (just cite McCain-Feingold, dammit, the example was right in front of your sculpted little face!), someone who does not possess Ivy League credentials or innate sharpness must be able to boast real capacity to produce results for other people. It's not enough to scramble up a ladder of empty rhetoric and problematic opponents. Credentials are not meaningless. There are many ways to demonstrate merit, but Sarah Palin remains utterly unconvincing. This isn't a product of a botched campaign or a elite conspiracy. It's her. Her biography, resume, and record. Not everyone can be president - it's not about class, it's about skill and achievement.

Up next: what the Mark Sanford scandal really tells us about the gay marriage debate; commentary on the Ricci decision.