To be or not to be [brilliant]

Judge Kavanaugh is in line to replace Justice Kennedy on the US Supreme Court. The nomination dance is about to begin in full force. Critics will raise questions about past cases, judicial temperament, law and the judicial role; and supporters will point to his past accomplishments and the judge’s professed belief in judicial restraint [and general support of conservative causes and ideas]. There is one fact upon which critics and supporters will agree: he is brilliant. Not smart; not clever; not bright; not astute.

BRILLIANT (and yes, I pulled out a thesaurus for help).

This post is a confession on my part. I don’t know what “brilliance” means. I’ve met a lot of brilliant people in my life, but the reason I know they are brilliant is because they tell me so, or others tell me in their stead. And as soon I think I have a handle on what it means, one of our esteemed justices retires and I am back to square one. Let me explain.

Judge Kavanaugh is brilliant, which we know because we are told incessantly. What exactly qualifies him for the distinction is less clear. Here’s what we know: he is a graduate of Georgetown Prep, Yale College and Yale Law School; clerked for Judge Kozinski and Justice Kennedy; worked for the Justice Department and the White House; was a partner at Kirkland & Ellis; and served as judge on D.C. Circuit since 2006. He clearly checks all the boxes for a seat on the Court. But that’s not the question. The question is, is he brilliant, and what makes him so? I can’t tell.

For another recent example, consider Justice Gorsuch. Same story: Georgetown prep, Columbia University, Harvard law, and a Marshall Scholarship at Oxford, where he earned a degree in legal philosophy; clerkships with Judge Sentelle and Justices White and Kennedy; DOJ; judge in the 10th Circuit since 2006. And also brilliant.

So here’s what I have: brilliance lies in elite academic achievements and fancy clerkships and jobs post-graduation. That is, Harvard and Yale graduates are brilliant; lawyers at DOJ and the White House are brilliant; circuit court judges are brilliant. Or in fairness, maybe is the confluence of all of these. So a brilliant person is one with Harvard, plus fancy clerkships, plus a DOJ position, plus a judgeship on his resume. That must be it.

But then I go back to the spring and summer of 2009 and the nomination of Justice Sotomayor. To refresh our memories: Sotomayor was born in the Bronx of parents both born in Puerto Rico. She attended Cardinal Spellman High School in the Bronx and was valedictorian of her graduating class; attended Princeton University on a full scholarship and graduated summa cum laude and Phi Beta Kappa; and attended Yale Law School. She was an assistant district attorney in New York County and later became partner in Pavia and Hartcourt. She served as judge in the U.S. District Court for the Southern District of New York from 1992 to 1998; and on the 2nd Circuit Court of Appeals from 1998 to her nomination to the Supreme Court in 2009.

She matches up fairly well on paper with both Gorsuch and Kavanaugh. But pundits and the legal community responded to her nomination very differently. Not only was she not “brilliant” in the traditional sense, she was “not nearly as smart as she seems to think she is.” Her qualifications for the seat were questioned openly. Critics accused President Obama of sacrificing “biography over brain.”

Unsurprisingly, the claims do not stand up to empirical analysis. Justice Sotomayor’s stint as appellate judge matched up with her peers as well as judges widely considered “brilliant.” More importantly, can any of those critics look at her body of work on the Supreme Court and consider her an exemplary justice, or at the very least, on par with all the others? And yet, “brilliance” was not a word used during her nomination, but the opposite was true. Something is amiss.

Here’s what I think is going on. Yes, merit is socially constructed. No question. This means, more crucially, that merit is not an intrinsic individual quality, akin to the way we think of IQs or personality traits, but a mark of status within a community. We cannot begin to think about “brilliance” outside of the communities within which the moniker is used. This is why Judge Sotomayor was never accorded the honor that the label bestows. She was an outsider, even as she achieved honors at Princeton University, honors that, incidentally, neither Gorsuch nor Kavanaugh achieved. But they didn’t need fancy labels for those in the community to know how brilliant they were. Who needs summa cum laude or Phi Beta Kappa to see those things “we” already “know”?

And yes, this also means that people of color, as outsiders, are swimming against the tide.  As Justice Sotomayor herself once put it, “I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit. I am always looking over my shoulder wondering if I measure up.”  Or President Obama, who once told us of his “constant, crippling fear that I didn’t belong somehow, that unless I dodged and hid and pretended to be something I wasn’t I would forever remain an outsider, with the rest of the world, black and white, always standing in judgment,”

An applicant of color is seldom if ever “brilliant,” and becoming so is never easy. Some never do. This is true even for those people of color who dare become Supreme Court justices, or president of the United States.

[cross posted in Race and Democracy]

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.  

What makes a great coach, or a great applicant, or a great anything? And what does race have to do with it?

A few days ago, Terry Bradshaw, hall of fame quarterback, offered his thoughts on Pittsburgh Steelers coach Mike Tomlin.  They were not kind:

“I don’t think he’s a great coach at all. . . . He’s a nice coach. To me, I’ve said this, he’s really a great cheerleader guy. I don’t know what he does. I don’t think he is a great coach at all. His name never even pops in my mind when we think about great coaches in the NFL.”

The quote raises obvious questions.  What makes a great coach?  What does a great coach do?  What is a "great cheerleader guy," as opposed to a great coach?  Who is a great coach in the NFL today, or ever? And most importantly, what does Mike Tomlin's race have to do with any of this?

A great coach

Is Mike Tomlin a great coach?  His numbers at least put him in the conversation.  In his ten years as head coach of the Steelers, he has compiled a 159-102 win-loss record.  That means that he has won 64% of his games.  In those ten years, he has led his team to the playoffs 7 times, has won the AFC twice, and won one Super Bowl.  On its face, this is an impressive record.  By way of a comparison, look at everybody's hall of fame coach Bill Belichick.  In  22 years, Belichick has a 67% winning percentage, 6 AFC championships and 4 Super Bowl wins.  

How do we measure these numbers?  How do we compare Tomlin's numbers to all great coaches in the league, past, present and future?  I cannot pretend to know.  But the beauty of this particular debate is that a lot of people have lots of answers, and they do not always agree with each other. Here's an answer, from Paul Zeise of the Pittsburgh Post-Gazette: Tomlin is a good coach, not a great one, "but numbers without context are meaningless."  And the only context that matters, according to Zeise, is that Tomlin "has never had to coach even one season without an elite/Hall of Fame-level quarterback."  This means that "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  Tomlin also inherited a great team.  And his drafts have been mediocre.  He could be a great coach, Zeise concludes, "but he needs to win at least another Super Bowl, and it wouldn’t hurt if he had a run of successful seasons after [his hall of fame quarterback] is gone."

This is the line that sticks with me: "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  I am not about to fact check whether most hall of fame coaches of the last 35 years have had a hall of fame quarterback or not.  But we know this: Belichick has won four Super Bowls with the best quarterback of his generation, maybe of all time. Does that take away from his accomplishments?  We also know that John Gruden won a Super Bowl in Tampa Bay with what may be, at best a pedestrian quarterback.  Does that make him a great coach?  And we also know that Don Shula never won a Super Bowl with hall of famer Dan Marino as quarterback.

Is the point, then, that Mike Tomlin's record is as-of-yet incomplete?  Is the point that we ought not anoint Tomlin as a great coach until he coaches for longer than ten years?  Maybe so.  But that's not the point that Bradshaw was making.  He was not making an epistemic claim but an ontological one.  The point was not whether Tomlin's record was the record of a great coach, but whether Tomlin is a great coach irrespective of his record.  He is not, according to Bradshaw.  Rather, he is "a great cheerleader guy."  That's who he is, and this is something that a better record will not change.

Think about that for a second.  What makes a great coach and how do we know?  These are old questions.  What is merit and how do we determine it?  I don't pretend to know.  And anyone who pretends otherwise is probably lying, or hasn't given these questions the thoughtfulness they deserve.

A cheerleader guy

Bradshaw did give Tomlin credit for being "a great cheerleader guy."  I think I know what that means. Tomlin is not a strategy guy, and Xs and Os guy, a coach who will out-scheme and out-smart the opposition.  What he will do, according to Bradshaw, is rally the troops and cheer them on.

This quote reminds me of something I read years ago about Sir Alex Ferguson, one of the greatest managers in English soccer history.  Ferguson's greatest strength as a manager, or so I read, were his leadership qualities, the way he could rally a team to fight for a common goal.  One could even think of it as "cheerleading."  I never thought of it as a negative thing.  To be sure, "cheerleading" may be a negative as applied to Tomlin. But without question, the term, standing alone, is loaded.  Think of how many Super Bowl winning coaches you know who are considered "cheerleader guys" and nothing more.  I can't think of many.

The look of a coach...and race

And this brings me to the elephant in the room.  Mike Tomlin is Black.  He was hired only after the NFL instituted the Rooney rule, which required teams to interview an applicant of color before moving forward with a coaching hire.  Tomlin was not in the team's radar, and the interview was extended only as a courtesy.  But Tomlin blew away the interview and got the job.  The hire turned a lot of heads around the league.  It was unexpected, to say the least.  Ten years and a Super Bowl win later, we are still debating whether Tomlin is a good coach, or a great one.  

This debate also reminds me of hall of fame quarterback Warren Moon.  Or Doug Williams.  Or Randall Cunningham.  They were all very good quarterbacks, even great, but the football world had a hard time seeing their greatness.  They did not look the part of "great quarterback."  They were Black quarterbacks before they were great quarterbacks.  And yes, race had everything to do with it.  

I would love to believe that we don't see race, that we only see merit, and that the world is ready to move past race conscious policy making.  But I know better.  And if you don't believe me, do a simple thought experiment.  Imagine a white coach who has won a Super Bowl and been to the playoffs in 7 of his first 10 years in the league, and whether we would be debating if he was a great coach or merely a cheerleading guy. Or think about how many mediocre coaches get second chances, and how many coaches of color get only one chance.  

Just imagine.

Alt-Right and "race realism" taken with a dose of history

The Diane Rehm show had a terrific discussion about race and immigration this week.  You can find it here.  Of particular interest to me is the conversation began by Jared Taylor, editor of American Renaissance magazine, a self-described "race-realist, white advocacy organization".  This particular exchange, early in the conversation, is particularly revealing:

REHM
Help me to understand what the term race realism means.

TAYLOR
Well, this has to do with the central element that does unite the alt-right. Among the many positions held by the alt-right, we reject the notion that race is some sort of sociological optical illusion. Race is a biological fact, whether we wish to recognize that or not, and we completely reject the idea that all races are exactly equal and equivalent and in effect interchangeable. 

TAYLOR
It's obvious that if a nation goes through substantial racial demographic change, many aspects of it will change, and a majority has the right to remain a majority. This is taken for granted in all non-white countries. You would never expect the Japanese or the Nigerians or the Mexicans to countenance some kind of immigration or other program that reduced them to a minority within a period of decades. They would laugh at it. 

REHM
Of course the United States has, from its very beginnings, taken in far more of a variety of races, some voluntarily and some otherwise. 

TAYLOR
Yes, but the very first immigration law established in 1790 by the very first Congress of the United States, when these fellows were sitting around trying to decide what sort of nation they are going to be, the very first naturalization law was going to restrict naturalizations to free, white persons of good character. 

REHM
And that's how you'd like to keep it. Is that correct? 

TAYLOR
Nations have a right to maintain some kind of cultural, racial and historical homogeneity, yes indeed. Furthermore we had an immigration policy, up until 1965, that was explicitly designed to keep the nation majority European. There was absolutely nothing wrong with this. The United States, people like to call it the American experiment. I don't like to think of my country as an experiment, a bunch of chemicals sitting over a Bunsen burner. 

TAYLOR
We have not suspended the laws of human nature in the United States of America. We are a nation like any other, and the extent to which we lose any kind of cultural, racial homogeneity, the extent that we become a multi-culti mishmash, we will become an ungovernable place...

This is breathtakingly refreshing.  It is a testament to Diane Rehm and her wonderful show.  I am particularly intrigued by Mr. Taylor’s gloss on the past.

Mr. Taylor argues that the white majority has a “right” to remain a majority.  Diane Rehm pushes back, and rightly so: the US has admitted a multitude of races and nationalities from the beginning of the country, “some voluntarily and some otherwise.” Taylor responds with the 1790 Naturalization Act, which reserved U.S. citizenship to “any alien, being a free white person.”  Mr. Taylor appears to read this language as a hardened racial classification.  One need not do so, of course; instead, this language could reflect a racialized baseline that accounted for the reality of slavery as it existed in the late 18^th Century.  In other words, the language of “free white person” is simply to draw a line between black people and everyone else.

Note that this second reading is much kinder to the founding generation and their conflicted views about race.  In contrast, Mr. Taylor’s reading sides with Dred Scott and the reading of our founding generation as racist and white supremacist.  He further ascribes this view to subsequent generations, up to 1965 and the Immigration and Nationality Act, which replaced the national origins quota system with a preference system.

So there you have it.  Mr. Taylor is essentially calling into question the First Reconstruction, which overruled Dred Scott and extended rights of citizenship to the former slaves, and the Second Reconstruction, which continued the earlier struggle.  Mr. Taylor objects to racial progress, diversity and multiculturalism.  He objects to the very things that many of us see as what makes the United States an exceptional country. 

More generally, what I find most interesting about Mr. Taylor’s views is how he deploys history and his reading of our shared past in order to tell a story of where we should be as a nation.  But of course, Mr. Taylor is telling you the story he wants you to hear.  I wonder what he would say, for example, about the Treaty of Guadalupe Hidalgo and its treatment of those living in the annexed Mexican territory.  I also wonder how he would fit Hawaiian and Alaskan statehood within his narrative, or the 1917 Jones Act, which extended US citizenship to the people of Puerto Rico, or the 1924 Indian Citizenship Act, which conferred US citizenship to American Indians born in the US.  Or the McCarran Walter Act of 1952, which removed race as an exclusionary category in immigration.

I imagine he would revert back to his view of the founding generation as racist and white supremacist.

Refreshing indeed.

Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

A word on Justice Kennedy's "surprising" turn to the left

A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas.  The big story of the case was Justice Kennedy's apparent switch on questions of race.  How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?

This was the leading narrative in the wake of Fisher.  Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.  

Making Sense of Schuette; or, it might be time to give back the 14th Amendment

In the wake of Grutter v. Bollinger, Michigan voters approved Proposal 2, a measure designed to prohibit the use of race in admission to state universities.  It stood to reason that the Roberts Court would uphold this proposal, and so it did, in the recent Schuette v. BAMN.  According to the plurality opinion, authored by Justice Kennedy, this case involved a fundamental right held "by all in common:" "the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process."

I wonder what he means by that.  Assume that citizens of the state of Michigan return to the polls ten years from now and reverse Proposal 2.  Assume, that is, that they continue todebate, learn, and act once again through a lawful process.  What if the citizenry takes it further and in fact demands that state universities take race into account during their admissions processes?  What would the plurality say then?

This is when our bizarre constitutional world kicks in.  Opponents of race conscious policies can eliminate these policies through the political process and the Court stands aside.  Were supporters of these policies able to overturn this outcome through the same political process, the Court will be ready to stand in their way, in the name of constitutional justice.

This is a  perverse constitutional world.  If this is what the 14th Amendment demands in fact, it must be time to give the Amendment back.

How does anyone committed to an originalist jurisprudence make sense of this?

Better question: is there anybody left in the world who believes that our race jurisprudence is guided by law and not ideology and the justices' personal preferences?

Thoughts on Evan Kaufmann, Terrence Cody and Memory

This past Sunday, the New York Times' Sports section featured a story about Evan Kaufmann, an American-born hockey player who plays for the German national team.  This is a gripping story and a must-read.  For me, it connects to an issue that I've been thinking about for quite some time about the uneasy relationship between Black high school athletes and major college sports.  The question is one of historical memory: How do we choose to remember, and why do we sometimes choose to forget?  More importantly, do we have a  responsibility as individuals to honor these memories, whatever they may be, and to live our lives accordingly?

For here's the thing: Evan Kaufmann is an American Jew, playing in Germany and for the German national team because, according to the Times, this is "his best pro opportunity to play hockey."  Should Kaufmann have the right to do that?

This is not the easiest of questions.

Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

“Our whites are so much better than their whites” (or still waiting on my apology from Ann Coulter)

Imagine that it is 1998 and the House has filed articles of impeachment against Bill Clinton for perjury emerging from his affair with Monica Lewinsky.  A political pundit, who happens to be African-American, remarks that Bill Clinton is being persecuted because of his efforts to help minorities in this country, and that efforts to impeach him are consistent with conservative goals to effectively “end” the middle class in this country and relegate minorities to permanent underclass status.  This unnamed pundit ends his comments by observing that the efforts of Bill Clinton to help minorities and his persecution by conservatives is indicative of the fact that “Our whites are so much better than their whites.”  

What would follow these comments is the immediate resignation of this pundit from the network and an apology to all who were offended.  This fact pattern is obviously a spin on Ann Coulter’s recent defense of Herman Cain, who is currently under fire for sexual harassment allegations made against him while he was the head of the National Restaurant Association.  She noted that “there is nothing liberals fear more than a black conservative” and she observes that, ““Our blacks are so much better than their blacks” because “you have fought against probably your family, probably your neighbors. . . that’s why we have very impressive blacks.”

Despite the controversial nature of these comments,  I suspect that there will be no apology or resignation, but here is why there needs to be an apology for a couple of reasons.  First, I think Ann Coulter is continuing a theme that Herman Cain himself started – that African-Americans who support the Democratic party have been brainwashed into doing so.  This view of African Americans as passive participants in politics, reinforced by a cowherd mentality, is a statement that in and of itself suggests a hierarchy within the race that is reinforced by Coulter’s remarks.  In other words, “the talented tenth” vote Republican and are rich because they “choose” not to be poor.  This is not a theme that the Republican Party, who has already been accused of being anti-gay and pro-death, wants to run with going into 2012.      

Second, Coulter’s statements bring to mind many of the divisions that were present during the Antebellum period – notably, the division between house slaves and field slaves as a result of the fact that house slaves were treated better and therefore more loyal to the master than field slaves.  That is why her statement, which claims possession over African-American conservatives and references the dissension caused in African-American families when an individual family member decides to vote Republican, is so troubling.  In fact, the reason I started this post with “Our whites are so much better than their whites” is because I want readers to get a sense of how ludicrous it sounds when a minority claims ownership over a group of white people and how this would be discrediting to the speaker, but how troubling and disturbing it sounds when a white person claims ownership over a group of minorities because it harkens back to a historical truth.  Coulter paints African-American conservatives as the “house negros” who are brave and loyal because they dare to stand up to the “field negros” who would betray the master.  This makes her comments dangerous in a way that demands a response, either from Fox News, the so-called “liberal” media, bloggers, Bill Maher, Herman Cain --- someone needs to remind Ann Coulter that this is 2011, not 1811. 

The Ghost of Clarence Thomas: Herman Cain, Sexual Harassment, and “High-Tech Lynchings”

Politico posted a story alleging that Herman Cain, who is running for the Republican presidential nomination, sexually harassed two female employees of the National Restaurant Association while he was head of the Association in the 1990s.  Given that Cain is running for the Supreme Court, this story immediately brought to mind the Clarence Thomas/Anita Hill dispute during Thomas’s confirmation proceedings to the Supreme Court and what, if anything, we have learned since then.  Thomas has publicly stated that he felt like he endured a “high tech lynching” and Hill, a respected law professor, also had her credibility and integrity attacked throughout the proceedings.  In the twenty years since Justice Thomas’s confirmation proceedings, I think that there are some powerful lessons that we (hopefully) learned that resonate in the Herman Cain controversy. 

The first is that men of power often abuse that power, and this is true regardless of race.  But black men who abuse their power (or are accused of doing so) have to factor in that it is going to be potentially more costly, even if the allegations are later proven to be false.  In fact, Justice Thomas referred to his confirmation hearings as a “high tech lynching” in part to give the impression that he was treated more harshly because he is a black man.  The reality is that there are still stereotypes about black masculinity that impact the public’s perception of black men who are accused of wrongdoing, independent of the actual truth of the allegations.  This has particular force in the context of sexual harassment, given that the stereotype surrounding black masculinity often turn on black men being portrayed as aggressive and sexually deviant.  Contrast this with Arnold Schwarzenegger, who was elected governor with 48% of the vote (with the candidate who came in second receiving only 32% of the vote) despite admitting to 25 years of sexual inappropriateness on various movie sets, but Justice Thomas was barely confirmed to the Supreme Court by a vote of 52-48.

The second lesson has to do with how the public treats the victims of black men who abuse (or are alleged to have abused) their authority.  What gets lost in the Clarence Thomas controversy is that his accuser is a well-respected law professor who was also crucified in the national media and by some leaders in the black community for telling her story.  There is a racial dynamic that is relevant when the harasser is an African-American who has “made it” and that success is potentially undermined by another African-American who should understand how difficult the journey is.  Thus, instead of Anita Hill’s background lending to her credibility, it was used to discredit her.  For this reason, I was very relieved to see that Politico opted not to publish the names of the women who filed sexual harassment complaints against Cain.  But I think that we should not be surprised if these allegations put an end to Cain’s frontrunner status to be the Republican nominee.               

Guest Contributor Terry Smith: Transracial Universalism

Obama’s “transracial universalism,” as Randall Kennedy calls it in The Persistence of the Color Line, assumes something about White voters that history doesn’t bear out.  It assumes that White voters are capable of ascertaining and willing to vote their own self-interests.  If they can’t or won’t, there’s little point is seeking non-racial common ground, for that common ground will remain obstructed to White voters.

The 2008 presidential contest is instructive.  Even when the country was on the brink of an economic depression; even after the Republican brand had been badly damaged by eight years under George W. Bush; and even against a Republican nominee who recklessly selected a running mate with neither the background nor intellect to lead a country, more than 55% of White voters voted for John McCain. If ever there were a moment when transracial universalism should have taken root, it was during the perfect storm of 2008.

To be sure, Obama assembled a winning coalition from that storm, but not without significant caveats.  If one examines regional and demographic data from the election, certain misperceptions are dissipated.  For instance, while it is true that Obama took the female vote, McCain actually carried the White female vote.  This is important because the media portrays females as more liberal and amenable to a candidate like Obama—and hence more likely to entertain transracial universalism.  But while White women were somewhat more likely to support Obama than White men in 2008, Black women were twice as likely to support Obama as White women.  In other words, once we refract the election results through race, we begin to see a basic reluctance on the part of White voters to find common ground with Blacks even when Whites are suffering severely, as they were in 2008.

Which leads to another questionable assumption of transracial universalism:  that Americans can transcend race without first grappling with racism and its lingering effects. Race is always a subtext for national elections in the United States.  It speaks whether or not a candidate like Obama speaks back to it.  The South, teeming with poor and under-educated Whites, delivered abysmal results for Obama in 2008.  Surely many  White southerners have a vested interest in the progressive, race-neutral themes sounded by Obama as a candidate.  But not even the precipice of a depression could pry them from their self-defeating habit of supporting Republicans who work against their economic interests.  To the extent that race misguides them, confronting race is a pre-condition to transracial universalism.  Contrary to the way President Obama has attempted to govern, transracial universalism is not a means of race avoidance.

Forgetting that Race Matters: Troy Davis, AEDPA, and the Death Penalty in Georgia

David Baldus was a brilliant legal scholar who is best known for his work on race and the death penalty.  Professor Baldus and several of his colleagues conducted a study of the death penalty in Georgia and found that, when controlling for 230 different factors, defendants accused of killing white victims were four times more likely to be sentenced to death than defendants accused of killing black victims.  In the 1987 case of McClesky v. Kemp, the Supreme Court, in a 5-4 decision, found that this evidence, which indicated that race discrimination was a systemic problem in the Georgia criminal justice system, did not prove that the conviction and death sentence of Warren McClesky was racially motivated.  Justice Powell, writing on behalf of the majority, found that the risk of racial bias in the administration of the death penalty, even if supported by social scientific research, was not constitutionally significant in “light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants.”  In particular, McClesky did not show racial bias on the part of the law officials associated with his case and therefore was not entitled to relief. 

The safeguards that Justice Powell pointed to in McClesky---procedural rules that allow defendants to introduce mitigating evidence that might influence the jury not to impose the death penalty, the fact that death sentences are automatically appealed to the state supreme court among other things---do not mean much if the entire system is racially biased.  This issue has come to forefront again because of the case of Troy Davis, an African-American executed yesterday in Georgia for the 1989 murder of Mark MacPhail, a white police officer.  Davis was executed despite the fact that 7 of the 9 eyewitnesses who testified against him recanted in the years since his jury trial.  Moreover, there was no conclusive evidence such as DNA linking him to the crime, and the ballistics evidence has also been called into doubt in the years since Officer MacPhail’s death.  Davis’s many supporters believe that this far exceeds the reasonable doubt necessary to overturn his conviction.

The problem is that, once convicted, the standard for a prisoner challenging his conviction, at least in federal court, is not reasonable doubt.  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that a person collaterally challenging their state conviction in federal court show that the state court’s resolution of their case involved an unreasonable application of clearly established federal law or that their conviction was based on an unreasonable determination of the facts.    

In his appeals, Davis argued that the witness recantations cast doubt on his conviction, but thanks to AEDPA, Davis had to forego any other arguments challenging his conviction that did not fit within the narrow grounds outlined by the statute.  AEDPA also does not leave much room for subsequent courts to consider the context in which the death sentence has been imposed.  For this reason and others, throughout much of this dispute over Troy Davis there has not been a great deal of focus on what Professor Baldus showed us more than twenty years ago about Georgia: race matters in the implementation of the death penalty.  Race has certainly been lurking in the background of this debate, but it has not been as prominent as it should be given that we have solid empirical evidence that race really does influence whether someone is sentenced to death.  The McClesky decision, although declining to find that the defendant was entitled to relief, does not undermine the validity of the Baldus study and its conclusion that race matters in this context.  

Given this, it is entirely possible that since Davis was convicted of killing a white police officer (and in 1989, only two years after McClesky), the jury considered the race of his victim in sentencing him to death.  Moreover, racial considerations made it unlikely that new evidence, such as the eyewitness recantations, would have convinced a trier of fact to disturb the original sentence on appeal.  Whether the trier of fact has given appropriate weight and consideration to new evidence could conceivably be affected by the larger systemic issues of race that infected the system.  And even if there is only a small probability that race was a factor in Troy Davis's case, the fact that the system as a whole is infected by racial bias still matters and should matter in implementing something a final and irrevocable as the death penalty.    

 

Indeed, Troy Davis’s execution leaves us with important questions about race and the future of the death penalty.  Given the systemic problem of race discrimination that has been empirically proven to exist in Georgia’s criminal justice system, what kind of “safeguard” can effectively minimize racial bias against defendants convicted in this system?  Federal habeas relief used to be one avenue (and it is questionable whether this was sufficient), but AEDPA has limited both the legal and factual questions that defendants can raise in order to challenge their state convictions in federal court. 

At the end of the day, Troy Davis may, very well, have been guilty---we will never know.  Mark MacPhail’s family cannot be faulted for seeking justice against a man whom they believed committed the ultimate wrong against them.  Let us not forget the human side of all this.  But what still remains is an uncertainty in the process that we must rightly consider, as a society, in punishing those who wrong us.  The possibility that race plays any role in the administration of the death penalty should make us hesitant to use it.  This is especially true when our system relies on fallible human beings to weigh the evidence in determining whether to impose the ultimate punishment; moreover, AEDPA has limited the scope of the inquiry that subsequent courts can engage in to assess the propriety of the decision.  As a society we have to figure out if, when we make these life and death decisions, we care about getting it right.    

Dr. Ronald Fernandez, RIP

What a remarkable story.  On his way home from work, Ronald Fernandez was detoured by a police barricade because a Wells Fargo robbery was underway.  Anyone who grew up in Puerto Rico would appreciate the historical significance: this was the robbery perpetrated by Los Macheteros, the militant Puerto Rican independence group.  When I grew up in Puerto Rico in the 1970's, every school boy new of Los Macheteros.

This day in the life of Dr. Fernandez led him to a lifelong scholarly project documenting the colonial history of Puerto Rico. His first project, “Los Macheteros: The Wells Fargo Robbery and the Violent Struggle for Puerto Rican Independence,” was the first of his five books on the subject.  

Dr Fernandez died last Tuesday. He was 67.

Two things about his life's work bear mention.  One is the focus of his work.  From the Times:

[Four of his books] were deeply footnoted histories of American military and economic domination of a tiny island that has existed in a kind of limbo since becoming a United States possession in 1898, among the spoils of the Spanish-American War: neither colony nor part of the union.

This is a remarkable history, often ignored or neglected in the United States.   The history of the relationship between the United States and Puerto Rico should be a treasure trove for students of democratic theory.  For example:

The nearly four million residents of Puerto Rico are United States citizens, subject to federal taxes, but cannot vote in federal elections. They are represented by a nonvoting representative in Congress. Tax and regulatory exemptions given businesses based on the mainland raise perennial public complaints about environmental and economic exploitation.

A second important aspect of Dr. Fernandez' work is his focus on race and ethnicity as understood in the Caribbean. This is something that every Latino in the United States experiences when asked to fill out the Census, or any other time we are asked to indicate our race.  We are asked whether we are Latino or some other ethnicity, and the next question usually asks if we are black or white.  But this makes no sense.  As Fernandez wrote in his last book, “America Beyond Black and White: How Immigrants and Fusions Are Helping Us Overcome the Racial Divide:"

Americans want Jamaicans or Puerto Ricans to think (and act) in black and white . . .  Qualifications never exist; you see skin color or you do not. When Caribbean people try to explain that their world is much more complicated, we too often write them off as hypocrites and miss one of the most remarkable features of life in many Caribbean nations: When it comes to race and ethnicity, they are among the most civilized people on earth.

May he rest in peace.

Race and Merit Return to the Firehouse

The question of hiring practices in fire departments is not new.  But it sure seems troubling.  This is the context that gave rise to the Ricci case and the decision by the city of New Haven to throw away an employment test that would have had a racially disparate impact.  The U.S. Supreme Court, in a 5-4 opinion, strongly disapproved of this action.

The city of New York is no stranger to this debate.  Currently, the city's fire department is in the middle of an effort to diversify that is unprecedented in the history of the department.  According to a recent report by the New York Times, "[i]n 18 months, officials say, recruiters have sought black candidates at more than 6,100 events at high schools, colleges, shopping malls, boxing gyms, softball games and military picnics, all but begging them to apply for the next entrance test, in January, by the Sept. 15 deadline."

This is remarkable in many ways. Commendable, to be sure, and also necessary; but this is not what caught my attention.

After one of his many recruiting speeches across the city, the fire commissioner explained his stance on the issue. 

After his speech, he sat near the church’s basketball court, where he avowed, remarkably, that while he had obviously always known the department was predominantly white, he never understood, until the suit was filed, that others viewed this whiteness through a lens of racial bias." 

“It never dawned on anyone,” he said. “We never looked at white or black. We looked at good firefighter or not so good. Me? I made it in this department by what I did, not who I was. But then you suddenly realize: people may actually think we’re discriminatory.” 

Looking almost hurt, he paused and said, “That’s why I’m here today.”

This is a remarkable passage.  Hurt?  Dumbfounded, as in, how could anyone think we discriminate? This is an old refrain: I made it far in _________ (fill in the blank with your profession of choice), and surely, if I made it, anybody can.

I suspect the fire commissioner is not alone. But such is the beauty of white privilege. Imagine the amount of guilt and unnecessary angst if he were to give any thought to why he rose through the ranks as he did.  It is much easier to think of his achievements as stemming from individual hard work and determination than as a measure of one's racial standing in the world.  

If only life were so simple.

The same day I read this account of the diversity struggle in NYC, I also read Nate Silver's insightful account of the difficulty inherent to differentiating, from the many available teams, which two teams deserve to play for the BCS national championship in football.  This piece is a remarkable read. Silver asks the following question: are the people who participate in the polls used to determine who deserves to play in the championship game "judging teams based solely on their performance? Or do biases and preordained notions about the teams’ quality enter into the equation?"  Unsurprisingly, Silver concludes that "[t]he evidence points toward the latter. A team’s preseason ranking has a modest but statistically significant effect on its B.C.S. ranking at the end of the season, even after controlling for its quality of play as determined by computer systems."

It gets better.  According to Silver, "[t]here is also evidence that teams with wider fan bases are more likely to be treated favorably by B.C.S. voters — meaning that the surveys are a popularity contest, at least in part. A marquee name like Notre Dame is likely to finish a couple of ranks higher than, for instance, Mississippi State or Northwestern given equivalent performance on the field."  This is another way of saying that teams are not treated equally, and that "merit" is more of an aspiration than a political reality.

So much for the objectivity of computers and fancy formulas.

Next time your boss brings out fancy tests or formulas to prove to you why you are not getting a raise or a promotion, think twice about he's telling you.  (It is particularly amusing when a dean pulls out a sheet of paper where he ranks the faculty according to a formula that is only understood by whomever designed it, as if to prove objectively why you are not getting what other people are).  These are probably the same fancy tests and formulas that determined that he should have a raise or a promotion.  It is likely that he became your boss thanks in great part to these same metrics.  That fact alone makes them true.

Maybe this is not so remarkable after all.

White Vick

I generally agree with Luis both in his reaction to the the white-faced Michael Vick and his reaction to the accompanying article by Toure, a black cultural critic. I don't see the problem with putting Vick in whiteface (nor would I see the problem with say putting Ben Rothlisberger in blackface if the point is to talk about race and racial privilege).  Race and phenotype matter.  One of my all time favorite academic articles is this one, entitled Looking Deathworthy, by Jennifer Eberhart and colleagues.  From the article's abstract:

—Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

 Notice that we're not simply talking about race but also phenotype.  Thus, in my view, it is perfectly acceptable to change Vick's race and phenotype and ask whether our reaction to him is driven in by one or both.  When I medidated on the picture, it dawned on me that I found white Vick quite palatable, less menacing.  It reminded me of this Jason Williams.

As for the accompanying article by Toure, I thought the article was itself confused.  To ask whether Vick would be treated differently if he were white is not a "meaningless" question.  This is just a question of baselines.  The concept of equality requires a baseline.  In the American context, whites have always been the baseline.  In many ways, the comparison is a basic tenet of American law.  Compare here 42 U.S.C. section 1981(a), which provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

I remember the first time I read this provision, I was struck by how explicitly the baseline was asserted.  Now one may say that whiteness as a baseline is incomplete, which is how one may charitably read Toure's piece.  But ultimately, the piece really is just confused. Consider Toure's closing lines:

 And to those who believe we should judge a man by how he responds when dealing with the worst life has to offer -- with how he climbs after he hits rock bottom -- Michael Vick has become heroic.

And that has nothing to do with race.

Huh?  Did Toure miss the fact that the reaction to Vick is completely racialized. If Toure had done some research, he would have found this article in the social science quarterly, which examined the racial reaction to the Vick case.  Specifically,

 Using data from 400 adults, we examine how race affects perceptions of criminal punishment and subsequent reinstatement into the National Football League in the case of Michael Vick, a star professional quarterback who pled guilty to charges of operating an illegal dog-fighting ring.

This is what the authors found:

 Attitudes toward both criminal punishment and NFL reinstatement vary across race such that there exists important divides in how individuals perceive the system meting out punishment and subsequently reintegrating offenders back into society. These results underscore that white and nonwhites perceive the law and its administration differently.

 Shocking!

Thinking about a white Michael Vick

I can hardly think of a quarterback who has accomplished as little as Michael Vick has accomplished yet with as much press.  I am not saying it has never happened.  I just cannot think of any.

Here's the latest, which thankfully is not related to his football life: would Michael Vick be treated the same way for abusing his dogs if he were white?  This is from a piece for ESPN the magazine:

All of that is why, to me, Vick seems to have a deeply African-American approach to the game. I'm not saying that a black QB who stands in the pocket ain't playing black. I'm saying Vick's style is so badass, so artistic, so fluid, so flamboyant, so relentless -- so representative of black athletic style -- that if there were a stat for swagger points, Vick would be the No. 1 quarterback in the league by far. 

Race is an undeniable and complex element of Vick's story, both because of his style as well as the rarity of black QBs in the NFL. A decade after he became the first black QB to be drafted No. 1 overall, about one in five of the league's passers is African-American, compared with two-thirds of all players. But after his arrest for dogfighting, so many people asked: Would a white football player have gotten nearly two years in prison for what Vick did to dogs?

As soon as the reporter wrote this question, he began to hedge about its import.  For example, "[t]his question makes me cringe. It is so facile, naive, shortsighted and flawed that it is meaningless. Whiteness comes with great advantages, but it's not a get-out-of-every-crime-free card. Killing dogs is a heinous crime that disgusts and frightens many Americans. I'm certain white privilege would not be enough to rescue a white NFL star caught killing dogs."  All the same, he thought to ask it, and on a mainstream magazine to boot.

From what I gather, the reaction has been deafening, and largely negative (see here and here; but see here). But it appears that the negative reaction is largely a response to a decision by ESPN to offer a picture of a white Michael Vick.

I don't get it.  The idea itself is hardly crazy, that a white person would be treated differently than a black person for the same offenses.  So is the problem here with the picture?

Help me out, Guy.

The Canard of Judicial Diversity

My ninth grader tried out for the high school soccer team a few weeks back.  And as I watched a practice here and there and wondered who would make the team and who would not, I could not help but think about debates over judicial diversity.

The question is this: how do you choose the eighteen best deserving players to join the team?  Is it the players who best handle the ball?  The ones with the best shot?  Or is it the ones who run fastest, or who hustle on every play?  In a nutshell: who deserves to make the team?

This is not an easy question when talking about putting together a soccer team, and nobody pretends that it is.  Yet somehow we pretend otherwise as soon as we translate this question into debates over racial diversity.  Here is an example, from Curt A. Levey, the executive director of the Committee for Justice:

Diversity is a good thing, but how do you achieve it — by quotas? . . .  Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?  The more you focus on race and gender, . . . the less you’re going to focus on other traditional qualifications — that’s simply the math of it.

This is a canard, plain and simple.  But there is no denying that it is a very effective canard.

What makes a deserving judicial candidate?  This is a very difficult question.  We ought to stop pretending otherwise.

Gangsta, Minstrel, & House Negro: Race and Obama's Critics on the Left

An observation on the racialized critique of the President from those on the left.  The new left fashion is bashing President Obama, see here, here and here.  It is still two long years away from 2012 and many in the President's own party have started writing him off.  My crystal ball is not working today, so I can't say what will happen in 2012. If I were a betting man, I would bet on the President.  After all, the man did pull the country back from the brink of financial disaster, not to mention other significant accomplishments such as the historic healthcare bill.  And until a serious Republican challenger emerges, Chris Christie?, the odds should favor the Obamas holding on to their current abode for a another four years.

There's nothing wrong with criticizing the President and many of us would not be honest if we did not engage in good faith criticism of the President.  But some of the criticisms of President, and I mean to single-out the recent criticism from the left, have a particular racial tincture to them that leaves me quite uncomfortable. These types of critiques rely upon certain familiar racial tropes: the gangsta or thug, the minstrel, and the house negro.  An example of the thug is from comedian Bill Maher's explicitly racial critique, where he complains that the President should be a real black man and start shooting up people.  Recently, Maher followed up his early critique with the following:

"I thought, when we elected the first black president, as a comedian, I thought two years in, I'd be making jokes about what a gangsta he was, you know?" Maher said. Instead, Maher said we've got "President Wayne Brady."

For Bill Maher, Suge Knight is his vision of who Obama should be.  Interestingly, his vision of Obama is actually another racial stereotype, that of the black jester, the minstrel.  While few critics have been as explicitly racial as Maher, many of the left criticisms implicitly rely upon the gangsta/minstrel stereotype: We expected a black gangsta as a President, instead of we got an effete shuckin' and jivin' president.

There is another set of criticism that is less overtly racial but perhaps just as troubling.  In this set of criticisms the President is chided for not being sufficiently progressive.  These writers tend to talk down to the President as if he's a schoolboy who did not learn his lesson.  They remind him that the only reason that he is the first black president is because of them and their good graces.  Otherwise, he'd be another Jesse Jackson or Al Sharpton.  The President is not viewed as the pragmatic politician/scholar that he is, but like a house negro.  These folks are constantly reminding the President that if he does not behave, they'll return him to the field.

The house negro is both good negro and servant.  You expect the house negro to be a grateful negro because he knows (or should know) that your good grace is the only thing that preventing him from being a field negro.  And if the house negro ever gets out of line, your remind him that he is one step away from the field.  You expect the field negro to lead the revolt, but you expect the house negro to be docile and obedient.

If these critics were coming from the right, many of these same folks would be crying racism because it would politically expedient to do so.  I'm not ready to cry racism, but some of the President's critics need to be more thoughtful; their racial bias is showing.

Fuentes-Rohwer in the NY Times

Luis has an essay in the Times that you can find here.  The essay is about race and merit in college admissions.  Well done Luis.