Wednesday, February 18, 2009

Cowards, eh?

The new Attorney General, confirmed despite apparently approving some foul-smelling last-minute Clinton pardons, says America is a nation of cowards unwilling to discuss race frankly.

Now that I have been invited by the new Attorney General to discuss race frankly, I'm happy to explain that the "cowardice" he sees is in fact the result of years of careful training by bigot-baiters and thin-skinned self-righteous political correctness advocates, which in the aggregate has left quite a few people frankly scared to be targeted for label as evil racist discriminators. People have learned to keep their heads down, even when the prescription for cure for racism is something as distasteful as some of the things that have been called "affirmative action". There is a serious problem with the effort to coddle unhappy members of various racial groups by lowering standards to help beef up percentage representation of those races in employment and education.

The problem can be illustrated anecdotally. Not many years ago I stayed one night in a hotel in the District of Columbia while attending a function in the District. The hotel was, at the time, hosting a law school recruiting conference that drew recruiters from around the country in the hopes of interviewing individuals seeking tenure-track positions as law professors. You couldn't walk without hitting a lawyer, and the elevators were never empty the whole time I was there. It was a high-traffic zone every daylight hour. At one point, I found myself in an elevator with two "white" men.[1] They began discussing their success conducting interviews, and traded notes on what they were looking for. They didn't explain in what fields of law their schools required expertise, or explain what kind of publication record they hoped to find in their recruits. The shopping list was pretty simple. The first one said he needed a black with a pulse. The second said that was his mission, too. I don't know how the whites did at the conference, but I feel pretty sure the black candidates I saw around the hotel had a lot going in their favor.

I have a dream that is deeply rooted in the American dream. I have a dream. I have a dream that one day former quota backers and formerly turned-down-because-they-weren't-the-right-color-to-balance-the-profile-percentages employees will sit down together at the table of brotherhood and merit-based employment practices. I have a dream. I dream that one day organizations will be judged by the content of their output and not the percentages in their racial distribution profiles. I have a dream today. I have a dream that, having become the majority of the population in Harris county and having swept into every level of government and having obtained the highest office in the Nation and having attained positions on the Supreme Court and at the helm of the United States Department of Justice, citizens who believe their ancestors were discriminated against on the basis of their race will believe that the vast and overwhelming majority of voters and employers really prefer quality work output to some kind of warped aesthetic conspiracy that prefers photographs to be filled with similar-colored faces, and just let people hire on merit. I have a dream that one day, this belief will be sufficiently grounded in fact that it won't make people with their eyes open roll them. I have a dream that the non-uniform racial distribution across professions -- like cultural distribution across professions -- will be recognized as a result of factors utterly unrelated to the kind of invidious and intentional racism against which employment equality statutes were erected, and not inspire attacks on every little organization whose racial profile steps out of line with the profile of the nation. I have a dream. I dream that we will work and play with an eye toward the quality of our neighborhoods and the meaning of our professions, and seek excellence for its own sake, and not for a moment consider that someone's race was somehow involved in their recruitment, promotion, retention, or discharge. I have a dream.

But then I wake up.

When I wake up, I see professional members of races thought to be discriminated against -- and Lord knows, they certainly were -- who make their livelihoods by competing against members of other races for elected office, for competitive employment, and the like simply on the basis that their race should be preferred by the involved decisionmakers. I don't want to say that professional blacks are particularly to be noted, because I've seen professional women, professional Asians (if you doubt anti-Asian historical discrimination, let me direct you to the history of the railroad and to the nineteenth-century opinions of the Supreme Court), and others whose chief claim to qualification is their pedigree instead of their personal accomplishments. (Of course, after a few years being a professional _______ (fill in your favorite race/gender/sexual orientation), the fact one has beaten out opponents on the basis of their race (or gender, etc.) creates an illusion of illustrious success, and being a professional member of the class begins to look to the unobservant eye like being a member of any other successful professsional group. The difference is not too hard to spot sometimes when you try to look at their actual personal accomplishments in the various positions held. That, of course, is the acid test.)

So when I hear that Obama was a law school professor for a little while, you have to forgive me if I chuckle. If the recruiters I heard were any reflection of their class, Obama needed only to arrive with a law degree and a pulse. I'm much more interested in what Obama actually does with his legal training than that someone paid him a salary because of it.

What I've seen Obama do with his legal training is to state, in full view of cameras, that Justice Clarence Thomas is the member of the Supreme Court that he would most speedily identify as someone he would not have confirmed. Justice Clarence Thomas has stuck his neck out with a courage only possible because the Supreme Court's members enjoy life tenure, to state in writing where anyone can find it that the Constitution of the United States must be read to mean what it says, and that if we intend changing it we should do it by amending the Constitution rather than by pretending it said something different all along. This view, of course, is the bedrock of a written Constitution, and the only way to enjoy the rule of law subject to one supreme set of governing fundamental principles.

Obama, by contrast, has said that he wants judges who don't just rule on the law but judges who have a heart. Obama doesn't say exactly what that means, but I can tell you what Judge Calabresi said when he spoke in Houston a few years ago, about ruling with heart. He said he was very happy when he woke in the middle of the night with some theory he could sell to a fellow member of the Second Circuit Court of Appeals -- that all he needed was one more justice to get the case to come out the right way -- and he seemed happy to admit he thought about how cases came out as much as he thought about the law. Now, exactly where does that leave us?

As it turns out, Judge Calabresi showed us exactly where that leads.

To Hell With The Law
Judge Calabresi offered his audience a hypothetical. This was before 9/11, mind you. There was no serious threat of cataclysmic terrorist attack, and there was no recent history of systematic torture of enemy combatants for data on national security threats. In the pre-9/11 world, Judge Calabresi asked his audience to imagine this:

Before the Court, an attorney begs for release of his client on the ground that he is being held by officers of the law and subjected to intense and excruciating physical pain while being interrogated. Thereafter, an attorney for the government agrees with the facts: it is true, Your Honor, that the defendant is being held incommunicado and is being subjected to excruciating physical pain, on purpose, while being questioned. However, Your Honor, the defendant has set a nuclear bomb to explode in New York within two hours, and there is no way to evacuate the populace; if we cannot locate the bomb before it detonates, we will lose millions of innocents.

Judge Calabresi left this to hang in the air: imagine New York, its millions unwittingly moving about their lives, with no hope of survival other than through pressure of the defendant to confess -- not to a crime, the confession would be useless in a criminal court due to its method of extraction -- but to confess the location of his instrument of death. Cold chills ran down my spine. There was no legal way to bless what was obviously necessary.

Guido Calabresi, sitting judge of the United States Court of Appeals for the Second Circuit, asked --rhetorically, you understand -- what we, the members of his audience, would do. He observed our stricken faces. But Mr. Calabresi had already figured it out, you see -- exactly how Judge Calabresi would handle the problem, without actually violating the law. He said -- and this is a direct quote, it sticks with me after the years:
"I would call a recess."
Judge Calabresi would not say he was allowing the torture, but on the facts as he described them, including the outright admission of torture, he would not order it stopped. Judge Calabresi said he'd put off ruling on it until the government was done with the torture, in which case either (a) the victim would be vaporized with New York, or (b) New York would be saved, and the plea for injunctive relief mooted by the cessation of the torture. (This was before Judge Calabresi was publicly admonished for comparing Bush to Hitler in a speech given to an event connected with the American Constitution Society.)

This is what we get when we decide that we want a big heart instead of attention to the law: we get people who flout the law to get the results they want. What we need is consistently-applied law, so that we can determine quickly when the law needs to change in order to accomplish justice. This mealy-mouthed "they need a heart" crap is an invitation to judicial activism, prevents legislators from having any idea what will be made of their (admittedly often terrible) work product, and ensures that cases will come out differently on the basis of the salesmanship of attorneys pitching cases as sympathetic rather than having cases come out consistently on the basis of the rule of law, which in principle should be the driving force for justice in a society governed by the rule of law.

If the law is bad, we need to change it. The solution is surely not to have members of the courts simply hand out different results on whim, pretending to apply the law while really following the their whimsical hearts.

Cowardice and the Law
What we need is the courage to stand up to do what is right. We need the courage to identify and eliminate bad law, and the courage to maintain the rule of law even when it seems more convenient to forget all this rule-of-law crap and do our buddies a favor, or let some kindly-looking fraudster off easy because she winked at the court, or what have you. We need to hope like hell that President Obama doesn't get a chance to nominate many to the United States Supreme Court.

The last thing we need is to institutionalize forever the promotion of preference for the employment and promotion of individuals based on the fact their skin looks like the skin of people who, in a prior generation, were loathed because of the color of their skin. We have Asian, African, Native American, and Indian professionals of every stripe. While some professions may attract more Asians and others more Europeans -- for whatever cultural or social reason we may not yet comprehend -- the solution isn't to have less stringently vetted professionals simply so the photo at the annual picnic looks like the photo taken in the local public school, but aged twenty or thirty years. We need quality output much more than we need to coddle people who don't feel "included" enough.

We have more work to do in racial equality, to be sure. This equality will not be advanced by promoting incompetents into positions that will infuriate better-qualified subordinates and ensure that another generation will be taught that members of some races don't belong at the top. To do achieve the laudable objective of genuine equality, we need race-blind advancement, not the supposedly pro-race advancement we've had thrust upon us for so long.

It's time for sanity.

What it's not time for is the decision to ignore the law unless and until it is politically advantageous to enforce it. Who's the real coward? It is not the time to invent doctrines like "heart" to replace good law. If the law is unjust, we should have the courage to amend it and try the new law, not simply begin applying bad law in an arbitrary manner.

That way lies only evil.

[1] I am very bad at guessing races. I once worked in an office for months before realizing the principal of the organization identified himself as "black". I'm either an extra-special dufus in such matters, or an example of what Martin Luther King hoped for when he prayed for a race-blind society. Interestingly, I never seem to get any credit for this race-blindness, only chastizement for insensitivity. And here I thought the object was genuine equality, and judgment based on character not skin. Go figure.

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