Race and Michigan Law

A week or so ago, I received the most recent copy of the Michigan Law Quadrangle, the one with a picture of Chief Justice Roberts on the cover. The picture alone intrigued me enough to open it up and page through it, rather than recycle it off-hand as I usually do. And what I found inside almost shocked me. Almost.



I started from the back of the magazine, in the great tradition of Harry Burns. This is the portion entitled "Faculty news." I paged through it quickly, and my eye caught something that almost surprised me: of the 26 pictures included, 6 were women, and only one was a professor of color. This is exactly the way I remember the place: a lot of white guys walking around the halls up in the faculty wing, a few women, barely any professors of color.

I kept looking, and next they showed me pictures of the new faculty; and out of 9 new hires, three were women and not one was a person of color.

This really made me curious, and I almost went to the website and looked around a bit. I was also inclined to page through the entire magazine and see how many faces of color were included. But alas, I have real things to do with my time.

Honestly, though: how do they do it? Students at the time I was there would talk about it and laugh amongst ourselves about how few women and professors of color there were. We still do. From where I sit today, I hear the same talk coming from other academics about Michigan law and their hiring practices. I don't claim to be a statistics super hero, but surely, doesn't a blind man hit a free throw every now and then? How does Michigan law, the birthplace of the Michigan cases (if that irony doesn't tickle your funny bone, you are way more hardened than I) manage to have as few faculty of color as they do?

This debate often boils down to the issue of merit. The argument is disarmingly simple: those who call Michigan law home got there on the strength of great academic credentials, of "merit" as defined by the institution itself and the legal profession as a whole.

It amazes me that anybody who has ever sat on an appointments committee would be moved by that argument. But that might be a topic for another time. For now, I can only say that the more things change . . .

But really: HOW do they do it?

Terrorists detainees in civilian courts

Attorney General Eric Holder has received a lot of criticism from the right for his decision to try some terrorist suspects in civil courts. He has also received criticism from the left for his decision not to try all of the detainees in article III civilian courts. On doctrinal grounds, I am deeply sympathetic to the argument that the Constitution requires trials in civil courts for those who commit crimes against the United States. (See for example the posts by Professors Fred Schauer and Steve Calabresi in Politico). My question however is whether in a context in which the President and the Attorney General have virtually guaranteed a conviction, civilian courts can withstand the political pressure to provide the process that is due to the defendants.
This is an empirical question for which I don't have the answer. But I think it is worth raising especially by those who believe that a rule of law analysis requires trial by Article III courts. Can you imagine what it would be like to be the juror who votes to acquit KSM or any of the detainees? Is it possible that there is only one outcome to these cases in the civil courts? If so, would a military tribunal be more hospitable to circumstances that dicate acquittal. Again, I am not saying that civilians courts cannot do the job here. My point is simply that I'd like to see more analysis of that question.

All Four Finalists for Seattle's Deanship are Black

Seattle University School of Law has posted the finalists for its Deanship and all four finalists are black. They are an exceptional and tremendously talented group: Karen Brown of GWU, Michele Goodwin my fabulous former colleague at Minnesota, Barbara Holden-Smith at Cornell, and Mark Niles at American.
Too often scholars of color are token finalists for deanship. This is clearly not the case at Seattle. Kudos to Seattle. This is a huge statement.

Gender and Race in Legal Academy: Retrenchment?

I was intrigued by this post from Ann Bartow over at feministlawprofessors on the absence women academic as presenters at NYU Law's colloquia series (ht: thefacultylounge.org) and this post from Rebecca Tushnet on the underrepresentation of women as writers of law review notes (ht: feministlawprofessors.com).

My unscientific sense is that we're going backwards in terms of both gender and race representation in law schools. I've seen conferences will all white and mostly male presenters. Law school faculties do not seem to care today as much as they once did about gender and race underrepresentation. I don't know whether this is true or not, but that is my sense.

David Brooks' Therapy

I like David Brooks very much and find that he is one of the more thoughtful commentators, left or right, on the commentariat. I think he actually tries to get things right and to struggle with difficult issues. As much I like Brooks, I found his latest commentary on Maj. Nidal Malik Hasan, the Fort Hood shooter, quite wanting and much too facile.

Brooks' basic argument is that Hasan suffered from a particular brand of Muslim extremism and evil but the media, in its attempt to be sensitive to Muslims and to limit the public backlash against Muslims, played down. Instead of ascribing the actions of Hasan to evil, specifically of the radical Muslim variety, we made excuses for him, "there was a national rush to therapy."

But I think Brooks is wrong, profoundly so. In the immediate aftermath of the shooting few facts were available. We knew that a lone gunman who was both a therapist and a Muslim murdered about a dozen individuals and wounded at least two dozens. We did not have any information that he was associated with Al Qaeda or any religious extremist group. Had we reached for the familiar stereotype of radical evil Muslims who are jealous of our way of life and thus seek to destroy America from within, we would be encouraging the "great mass of unwashed yahoos in Middle America" to "go off on a racist rampage." For once, the media did the right thing.

Leaving all of that aside, the explanation that Brooks offers is what got us into two wars in the first place. I don't understand how Hasan is any different from Timothy McVeigh or John Allan Muhamad. Blaming Hasan's actions on the evil of radical Islam is facile, too facile. Brooks is usually better than that.

The Meaning of the 09 Election

The big task after election day is always to try to figure out what it means. Many commentators have wisely advised not to read too much into this election and that is smart advice. But this election did provide us new data that I think tells us some things.

First, it tells us that the Republican Party is not dead as many thought following the 08 elections and President Obama's historic win. Had the Republican Party lost in Virginia, New Jersey and NY House 23, legitimate questions would have and could have been raised about the near-term viability of the Party as a national force in American democracy. The fact that Republicans won two governorships so convincingly in two different types of states, shows that the Party is alive and well.

Second, medium voter theorem works. The Republican candidates who did well were the ones who ran as moderates and downplayed divisive social issues. This is an important lesson for Republicans from NY 23 and also what explains (in part) NY and VA. So, if Republicans believe that they can turn their Party over to extreme candidates on the right, they should be prepared to get used to results like NY 23.

Third, this is also a lesson for Democrats. While the Republican Party is waging a very public fight between its very conservative and moderate parts, Democrats are threatening to do the the equivalent between their moderate and progressive wing. If this becomes the lesson that Democrats learn from 09, and it looks like it is, then I think Democrats are in for a real struggle in 2010 and 2012. President Obama won in 08 because he ran as a centrist. It is true that his base and progressives were energized, but not because promised a left-wing agenda. Obama capitalized on the anger against Bush, the economic collapse, and the historicity of his presidency. While I might prefer more progressive policies, I have a stronger preference for winning elections than winning ideological battles. Call me a pragmatist.

Fourth, let us not blame the President for these high-profile losses. If the economy turns around, all of this handwringing by Democrats will be just that. If the economy does not turn around, you can pass all of the progressive legislation you want, Democrats will be in trouble in 2010 and 2012.

Why Are Black Americans So Satisfied with the Direction of the Country?

Gallup is reporting that black Americans, particularly blacks who identify as Democrats are the most satisfied demographic group with the direction of the country. 51% of black Democrats reported being satisfied with the direction of the country. By contrast, only 38% of white Democrats reported being satisfied with the direction of the country. The question is why are black Democrats so optimistic, in contrast with whites and Republicans?


Princeton political scientist Melissa Harris-Lacewell points out that there has long been a racial divide in the public opinion of blacks and whites. This divide track a racial divide in partisan identification. For example, the Gallup poll found that more than 8 out of 10 blacks identified with the Democratic Party. But as Lydia Saad from Gallup reported, the differing perception of the direction of the country is not colored only partisan lens but also by race. So what accounts for this?

There is very little doubt that black Americans have been hit the hardest by the recession (see for example this article). I suppose the optimism of African Americans reflect both their support of President Obama and the hope that his policies will have a disproportionately positive impact on the lives of black americans.