Three Lessons of "Hidden Figures"

I just saw a film that sent electric shocks through my body from beginning to end.  The film was "Hidden Figures."  The film tells the story of three remarkable African American women who worked for NASA in the post-war South and in so doing helped the United States reach space.  The film made me laugh, but also cry.  The film inspired me, but also enraged me.  Watching the film, I turned to my 12-year-old boy too often to try to explain the unexplainable.  How do you explain "Freedom Summer" and the "Freedom Rides"?  How do you explain and try to make sense of segregation and the need to walk to a bathroom half a mile away because the bathroom next to your working space is "for whites only," only to return to your desk and find your supervisor in your face because you disappeared for too long?  What do you say when your child asks you, "when did the Klan stop killing people"?

What do you say?

As I watched the film, three over-arching lessons kept racing through my mind.  The first was about the film itself and the history it depicts.  Where did these moments in history go?  Where have they been?  And how do these movies help us recover them?  The film reminds me of the early history of Reconstruction, and particularly the writings of the Dunning School.  This early history understood the freedmen as lazy, unenlightened, and undeserving of the rights that Reconstruction had granted them.  This is no longer the way we remember this period .  How do we explain this change in the historiography of Reconstruction?  This question forces us to ask more general questions: What is history? Who owns it? How do we change it?  How do we make sense of the past?

In thinking about these questions, it is important to remember Eric Foner's warning about revisionist history:

It’s hard for people not versed in history to get the point on why historical interpretation changes. In the general culture “revisionist historian” is a term of abuse. But that is what we do. Revising history is our job. So every historian is a revisionist historian in some sense.

This is what "Hidden Figures" means to me.  History is full of hidden figures.  It is important to reflect on who they are, why they are hidden, and who is hiding them.

The second lesson is about the Constitution.  Our Constitution.  The film offers a subtle lesson about the Constitution and its meaning as lived experience.  One of the three central characters in the film, Mary Jackson, wants to be an engineer yet needs to fulfill some graduate-level courses, which are offered by the University of Virginia through the local high school. The local white high school.  The year was 1961.  Brown v. Board of Education was decided in 1954.  The question whether Ms. Jackson could have taken courses at the local high school should have been settled by Brown, but it was not.  The courtroom scene is important for what it teaches us about our Constitution and the scope of our rights.  Ms. Jackson goes to court to enforce Brown, yet the judge reminds her that this is Virginia.  He ultimately allows her to go to school, but only night school.

The lesson is clear.  The Constitution is nothing but words on paper.  By itself, the Constitution means nothing, but it can mean everything.  The Constitution, those words on paper, are whatever we want them to be.  If you need an explicit example, look no further than the history of the Fifteenth Amendment.  The freedmen came to the polls in large part through the Reconstruction Act of 1867, which forced the former confederate states to allow Blacks to vote and take office as a pre-condition of rejoining the Union.  The Fifteenth Amendment nationalized what the Reconstruction Act had imposed on the South three years earlier.  This is the climax of Black political participation in the 19th Century.  Then, like a slow burn, Black voter turnout began to dwindle.  By the turn of the century, the Fifteenth Amendment had come to mean nothing.  It was a dead letter.  In some parts of the country, Black political participation had decreased by large percentages, in some places by 100%.

This is a remarkable development.  How does it make sense for Dr. King to ask for the ballot in 1957 in a world where the 15th Amendment is the law of the land?  This takes us back to the earlier question: what is the Constitution?  The Constitution is whatever we decide that it is, understood through the sweat and tears of political struggle.  Put a different way: constitutional rights are not given to us.  They never have been and never will be.  In the brave new post-2016 election world, this is a crucial lesson.  The upcoming women's march on Washington is a fitting start.  But it is only a start.

The third lesson is about talent.  And merit.  And the promise of equality.  The women in the film were clearly talented and met whatever definition of merit one wishes to adopt.  And yet, as we raced the Soviets to the moon, we cast them aside.  Racism is really that powerful.  How do we overcome it?  How do we overcome and move past years of oppression and discrimination? That is the question of our time.  But this is not a new question.  One popular conservative answer is that only our stubborn refusal to see and use racial categories will help us to overcome race and racism.  I wish I could believe that.  This is not to say that we will not get there.  It is to say, however, that we have been trying to overcome racism for generations.

Katherine Johnson, the woman at the center of the movie, did get the Presidential Medal of Freedom in 2015.

By our first Black president.  

How to Explain Supreme Court Nominations? (or, An Essay on the Art of Becoming Brilliant)

It is beginning to look more and more that Elena Kagan will be President Obama's replacement for Justice Stevens' seat on the Court. This is true in the face of growing skepticism (see, for example, here, here, here, and here) about her nomination. These concerns are outweighed, at least on President Obama's mind, by the notion that she would be "a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions."


The little evidence we have on the Kagan-as-fearless-counterweight view is scant, yet hardly encouraging. In fact, it is the complete opposite. I have in mind here here what James Doty labels her "occasional obtuseness," or what she herself called "panic." The idea that General Kagan would be a coalition builder on the Court while serving as a counterweight to the conservatives justices is nothing more than "unsupported fawning fantasy."


In light of all of this, two questions keep turning up in my head. First, and for all the noise made about Kagan's qualifications, how far would she have gone in her life in the legal academy without the support of critical networks? And second, what does the fact that she is even a candidate to replace Justice Stevens tell us about President Obama's values and priorities, especially in light of his recent call to voters of color to come out and support the party in November?

Race, Hiring and the Lessons of Becoming Justice

From the moment that stories about the inevitable nomination of Solicitor General Elena Kagan appeared on blogs everywhere, a picture soon began to emerge.  For me, however, it was not the picture her supporters are trying to paint for her.  For the more I read, the more she looks like the anti-Sotomayor.

Further Thoughts on Networks, Connections, and "the people we know"

During their testimony this past week in front of the House Appropriations Subcommittee, Justices Thomas and Breyer conceded that getting a clerkship on the Court comes down to a great extent to a candidate's networks and connections, to "the people you know," in the words of Justice Thomas.

I wonder if the implications of their concessions was lost on the justices, especially Justice Thomas.

Whatever happened to "merit?"

This should not be hard question, particularly for Justice Thomas. The issue of law clerk diversity should be open and shut for him: I only hire on the basis of merit, he should have said, the same way that Michigan law school should admit its students and New Haven should promote its firefighters. Instead, he chose to talk about the pool of candidates and how he basically does the best he can under the circumstances.

In fairness to him, it may be that he was simply pandering to the subcommittee, telling its members what they wanted to hear. But that seems unlikely. I really think he was being honest. For a telling example, consider the case of Duke Law School and its most recent dean search.

Think first about what the concept of merit would entail in such a search. What does it mean to deserve a position of dean at a major law school, not to mention an elite one. Strong academic credentials? Strong fund-raising record? Affability? Good looks and charming personality? All of the above? I don't really have a definitive answer, and anyone who has been part of a dean search knows full well that faculties don't have one either. They simply hire the person they like, or the candidate who feels right, or whatever. They look to the future and hire the candidate they think is best positioned to get them there. Hardly an exact science.

A little over two years ago, Duke Law School found itself in this position. Their three finalists were Erwin Chemerinsky, then a faculty member at Duke and presently dean at UC-Irvine; Kyle Logue, professor of law at Michigan Law School; and David Levi, Chief Judge of the United States District Court for the Eastern District of California.

For someone looking on the outside, the choice seems pre-ordained. But rather than choose Chemerinsky, the law school chose Judge Levi. A surprising choice, it would seem. Upon close inspection, not so much.

Judge Levi is the son of Edward Levi, former attorney general under President Ford, former President of the University of Chicago and former dean of the Chicago Law School. Without question, his credentials are impeccable, and by no means do I intend to impugn them: he is a magna cum laude graduate of Harvard College, graduate of Stanford Law School, where he graduated Order of the Coif and was President of the Stanford Law Review, and clerked for Justice Lewis Powell. Under any measure, Judge Levi is qualified to do whatever he wants in life, including lead an elite law school. But just think: when was the last time you heard of a federal judge leaving the bench to become dean of a leading law school?

In a world where connections, networks, and "the people you know" make all the difference in the world, the appointment of Dean Levi was a masterful one. Could it be a coincidence that Duke law is sending three of its graduate to clerk on the Supreme Court the upcoming term?

Is it also hardly a coincidence that Elena Kagan and Diane Wood, former professors at the University of Chicago Law School -- where President Obama once taught as a senior lecturer -- are leading candidates to replace Justice Stevens.

The bottom line is simple: in a world where networks and connections matter, we already know who will not get jobs and gaudy appointments to important places. We can focus on Mr. Ricci and Ms. Gratz all we want, but the world that conservatives on the Court want us to believe exist, a world where hard work and individual effort will get you places is simply not the real world. In the case of Justice Thomas, it is particularly galling that not only did he get ahead in the world through networks, his race, and the people he knew, but he also fully recognizes and acknowledges the realities of the world. So, when you read his next opinion hiring, admissions, or equal protection in general, keep his testimony from last week in mind. The man is either inconsistent, not smart enough to see the inconsistency, or a hypocrite.

Pick one.

The Justices and Law Clerk Diversity

Justices Breyer and Thomas testified in front of the House Appropriations Subcommittee on the proposed budget for the courts for the fiscal year 2011 (watch it here). The testimony as a whole is not terribly interesting; silly at times, condescending at others. And then the Representatives started asking about law clerk diversity.

Take Representative Crenshaw question:

"there is a disproportionate share that come from either Harvard or Yale. . . . Is the reason for that because people from Harvard or Yale are more qualified to be Supreme Court justice clerks or do a disproportionate share of students from those schools apply? And is that something that you all think about when, the educational diversity aspect of being a clerk?"

Justice Thomas answered by pointing out that he hires from a broad pool, yet conceded that the pool is not terribly deep.

Somehow, that was a good enough answer for Mr. Crenshaw. But not, thankfully, for Barbara Lee. As she told the justices right off the bat, Rep. Crenshaw "asked her question," but she wanted a "broader answer." Her questioning begins around the 54-minute. You knew where this was going when she began to talk about the time when she arrived on Capitol Hill and how hard it was then for women and people of color. She conceded that improvements have been made, but not enough. She then asked the following question:

"I know that the courts want to strive to be representative of the American people in terms of their staffing and their law clerks. . . . Harvard and Yale are great law schools, they are excellent institutions. However, we know that there are few minorities attending these law schools.

And so I wanna find out if you have an actual concerted effort at identifying law clerks from Howard, or Texas Southern or even in terms of regional diversity, Boalt hall, out in California. How do you do this, and is there a way we can look at what these numbers are currently?"

In his response, Justice Thomas blamed the pool of clerks from the Court of Appeals. If this pool is not broad enough, diverse enough, then the hiring process at the Supreme Court will of necessity reflect this lack of diverse. For himself, he stated that he has a broad pool, in terms of law school diversity. He conceded that Blacks and "Hispanics" don’t show up on the pool from which he draws, but it is not up to the Court to increase that pool.

His bottom line? Diversity happens. Diverse candidates just “show up.” In the end, “you have to look at what’s in the pool.”

Representative Lee was not having any of it, and she told Justice Thomas exactly that:

“What’s in the pool has to do, unfortunately, with some of your decisions that really shut out people of color at these institutions. So if we go there, we could have a good, healthy discussion about some of your decisions.”

Of note, Justice Thomas did not have an answer.

To Justice Breyer, this conversation was "not as ‘in-date’ as you might think.” Within his time on the Court, he has seen sea-change" on this issue. As he talked, he ultimately hit the nail in the head: it is all about "networks and contacts." Justice Thomas later conceded that Rep. Lee had a "good point" and concurred with Justice Breyer; in his words, "a lot of our hiring depends on people we know." If this is true -- and I agree that it is -- then candidates of color have a built-in, structural disadvantage. Privilege just continues to reproduce itself. I wonder how the justices could possibly miss the connection.

Change will not happen on its own, in other words, and in this vein Ms. Lee's offered the following suggestion: The justices must try to expand the pool themselves, maybe by issuing an "edict" to the lower courts where it announces its desire for more minority clerks. "Somehow you need to communicate that that's what you'd like to see [a diverse pool], rather than just say we'll take who shows up."

Whatever you do, don't hold your breath.