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.

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