Tuesday, August 20, 2002

More Law Office Sociology - All sorts of mischief has been emanating from the sociologists, who recently gathered in convention. For one thing, they "presented data that they hope will bolster the legal defense of affirmative action." The data, they claimed, supported the charge

that leading undergraduate institutions create a hostile environment for minority students, resulting in their earning lower grades. This phenomenon, they argued, requires that selective law schools and other graduate programs maintain or expand affirmative-action programs in admissions.

A panel of three researchers (link requires subscription) argued that

it is legitimate for the law school to admit minority students with relatively low grade-point averages, because minority students' GPA's tend to be reduced by various forms of discrimination and psychological stress.


The three researchers interviewed minority students at four colleges that send many students to Michigan's law school -- Harvard University, the University of California at Berkeley, Michigan State University, and the University of Michigan's undergraduate college -- and found that minority students at each of these institutions tend to suffer cumulative insults that impede their academic performance.

"Racial microaggressions," one panelist said, "are one form of everyday racism used to keep those at the racial margins in their place."

Another panelist stated:

I truly believe that mundane everyday racial stress is part of the formula for the lower achievement scores, and in some cases the lower achievement, for students in these settings.

"Such pervasive discomfort," she concluded, "warrants remedies such as the law school's affirmative-action policies in admissions."

The only example of these "microaggressions" cited in the Chronicle of Higher Education summary l'm relying on here were "statements such as 'I don't think of you as Mexican -- you speak such good English.'" This statement may not be tactful or tasteful, but I wonder if it is really so destructive. Mexicans, after all, do speak Spanish. Would French/German/Egyptian/Chinese/etc. students be as offended by such a statement as these researchers assume Mexican students were?

In any event, I suspect that the argument that minorities are so stressed out by the "microaggressions" of everyday life they must endure that their grades and test scores suffer is not the best argument in favor of affirmative action.

Also coming out of the sociologists' convention was a statement (link requires subscription) from the American Sociological Association opposing Ward Connerly's Racial Privacy Initiative in California, even though the statement "takes pains to to define race as a fluid social concept, not as a biological phenomenon with meaningful roots in human physiology."

Barbara F. Reskin, the association's departing president and a professor of sociology at the University of Washington at Seattle, said at a news conference that she worries that policy makers will forbid universities to gather information about their students' race. "Universities would no longer be in a position to know the ramifications of [changes in admissions policy]. Even though the existing measures of race are crude, and ignore nuance and variability, without them we wouldn't have any handle on public policy. We'd have no reliable way of knowing what's going on."

Some cynics might suspect that a number of sociologists have trouble "knowing what's going on" even with the current free flow of racial data.

Update - Actually, this is an afterthought rather than an update. I've been thinking about this more, and I can't help wondering why more minorities are not offended by a justification of affirmative action that regards them as damaged goods. I also wonder whether this justification itself doesn't inflict the very sort of damage that it purports to find.

In addition, if Harvard, Berkeley, and Michigan inflict all this damage, as the study claims, why should the Michigan Law School be any different? That is, why use the damage inflicted at Harvard et. al. as a justification for preferential admission to another institution that in all likelihood will inflict more of the same damage? And if it does, won't the minority graduates of Michigan (assuming they do graduate) be even more damaged when they get out? Moreover, if such havens of racial sensitivity as these elite schools inflict such extensive psychic damage, how will the graduates fare when they have to face the much less solicitous no-holds-barred rough and tumble competition of real life, not to mention litigation? If Harvard et. al's treatment traumatizes them into lower grades and test scores, what will life after Harvard, and Michigan Law School, do?

Actually, I wouldn't worry about it because I suspect the study is pure "law office sociology," i.e., hokum dressed up to support a conclusion, in this case affirmative action. Based on the admittedly limited sample of minority students, law students, graduate students, lawyers, etc., that I know, it seems to me that most are made stronger, not weaker, by what they have endured to get where they are.

Thursday, August 15, 2002

Negative View of Affirmative Action - For a discussion of affirmative action by a journalist who has been on the receiving end but grown disillusioned with it, see Linda Walker's eloquent essay in the Christian Science Monitor. (Tip from Howard Bashman.) The gist, and more, is conveyed by the opening paragraphs much better than I could summarize:

Quiet as it is kept, a few corporate jobs are earmarked for people of a particular race. We all know it, but most of us are smart enough not to let on that we know. Not me, of course. I just can't keep a secret.

The managing editor at a metropolitan newspaper once offered me a job as assistant city editor. I had talent, initiative, and the respect of my colleagues, he said admiringly. Then, he quickly got to his real problem. "We need a black on the metro desk," he confided. "We don't have one."

That sort of ruined our special moment together. "You have a job for a black assistant city editor and you wish to give it to me?" I said in disbelief. I could tell by his pained expression he was wondering if somebody had forgotten to send out the "stuff we all know but are too smart to talk about" memo.

My policy of taking actions that affirm my worth began on that day in that room. I turned the job down on the spot. "If ever you have an opening for a white assistant city editor, please let me know," I said. "That is the job I have earned."

Wednesday, August 14, 2002

Double Standard - Tapped disagrees with Jeffrey Rosen's plague-on-both-their-houses article in the Sunday New York Times Magazine on the judicial appointment mess. (Link via Howard Bashman.)

The Tapped view is that "the two sides are not equal" because from 1976 - 2000 Republican presidents have had "a concerted plan to pack the courts with youngish, extremely conservative judges," but the Democrats have had "no such plan." (I will avoid the temptation of replying, "Well, duh! Why would the Democrats want to pack the courts with youngish, extremely conservative judges?")

"Clinton," says Tapped, "was infamous for refusing to devote political capital to appointing liberal judges," while the Republicans showed no such restraint at promoting conservatives. Studies by political scientists are cited.

Since my memory is not what it used to be, I would appreciate Tapped reminding me of all the anti-abortion, anti-racial preference judges Clinton and Carter appointed. What? Oh, that's not what they mean by "liberal"? That must mean, then, that they do not regard judges as "extremely conservative" who are anti-abortion and anti-preferences. Mustn't it?

Otherwise, Tapped would have to be arguing that appointing judges who oppose abortion and preferences is packing the courts with conservatives, but appointing judges who favor abortion and preferences is not packing the courts with liberals. And they couldn't really mean that, could they?

Discrimination Confusion - The Human Rights Campaign has just released a report rating companies on their gay-friendly personnel policies.

According to the Washington Post article on the report, Peter Sprigg of the conservative Family Research Council blamed creeping political correctness for the increasing acceptance of gays and said "protection against bias is appropriate only when a trait is inborn, such as sex or race."

Representing the opposing view was Donald J. Carty, chairman and CEO of American Airlines, who argued:

Taking a stand against discrimination -- whether based on race, gender, religion, sexual orientation or anything else -- is not politically correct. It is simply correct, and it is the right thing to do.

These two deserve each other. According to the Family Research Council, prohibiting discrimination on the basis of, say, religion is inappropriate (unless the FRC belives religious genes are inherited, which I suppose it might). And American Airlines opposes discrimination on the basis of anything at all ("or anything else"). Perhaps the next wannabe pilot who fails an eye exam (physical disability!) should remind Chairman Carty of this non-discrimination policy.

We will never have sensible anti-discrimination policies unless we can agree on what discrimination is.

Striving Mightily for Optimism - National Review Online has an interesting article by Shikha Dalmia, a Detroit News editorial writer, that strains earnestly for optimism regarding the chances of the Bush Administration opposing racial preferences if/when the University of Michigan admissions case reaches the Supremes.

An enormous gray cloud surrounding the possible silver lining of this optimism is the position the administration took in Adarand, where it swallowed its principles -- and that means Attorney General John Ashcroft and Solicitor General Ted Olson swallowed their principles -- and actually defended preferences. (Their argument, not a frivolous one, is that their duty lay with their client, Congress, which had passed the legislation at issue. The Clinton administration never paused over such concerns.)

Rooting around among many other tea leaves and goat entrails, Dalmia professes to find some basis for optimism in what was in, or actually not in, the administration's Adarand brief:

A further indication in the Adarand brief that Olson and the Bush administration intend to oppose the University of Michigan's racial double standard is what the brief leaves out: the Clinton administration's argument that the government's interest in promoting diversity justifies discrimination. The diversity rationale forms the crux of the Michigan case and its exclusion from the Bush brief cannot be a mere oversight.

Probably not oversight, but possibly mere inability of even an administration swallowing its principles to argue, in print and on record before the Supreme Court, that diversity among guard rail contractors is such a compelling national interest that it justifies discrimination on the basis of race. Because Bakke allowed the camel's nose of diversity under the tent, they may not have this reluctance in a college admissions case.

Stay tuned.

Tuesday, August 13, 2002

McKinneyean Moral Equivalence - The Washington Post pointed out today that at least 18 contributors to Rep. Cynthia McKinney's re-election campaign are officers of Muslim organizations under investigation by the FBI, have supported terrorist organizations, or have made inflammatory comments about Jews. Asked about this during a recent television debate, McKinney replied:

All of our contributions are legal. My opponent, on the other hand, has an awful lot of Republican money going into her coffers.

I thought campaign finance reform was supposed to prevent these heinous acts, such as Republicans contributing to political candidates. And -- wouldn't you know it! -- many of the contributors to McKinney's opponent are Jewish! Doesn't that violate church-state separation or something?

One of McKinney's contributors is Professor Sami Al-Arian, who has been filmed saying such things as: "Let us damn America, let us damn Israel. Let us damn their allies until death," and "Victory to Islam, death to Israel."

But not to worry. In a recent press conference he explained:

"Death to Israel" meant death to apartheid, death to oppression. . . . I never incited people to violence or murder. It never happened.

Well, I'm glad that's cleared up. Remind me, though: exactly what is he a professor of?

Monday, August 12, 2002

"Racial 'Colorblindness' Is Silly"? - Stuart Buck links to an interesting piece by Leonard Pitts, Jr., a descendant of Mississippi slaves, arguing that "so-called colorblindness is neither possible nor even desirable."

Actually, the headline is a bit of a come-on. He doesn't defend affirmative action/racial preferences, which is what most opponents of colorblindness have in mind. Instead, he asserts that race is an important component of his identity, but only one component among many.

I'm also a man. I am a native of Southern California. I am a husband and a father. I am a comic-book geek. I am a Christian. I am in my 40s. I am a hope-to-die Lakers fan. I am, in other words, many things, each relevant to different circumstances and occasions.


Here's what bothers me: No one has ever felt the need to not notice I'm from California. No one has ever made a point of not seeing me as Christian....

Given that each of us is a combination of many characteristics, why is it necessary to make such an ostentatious show of not seeing one: race? The unavoidable answer is race isn't perceived like other characteristics....

Unfortunately, much of what passes for racial dialogue in this country is the chatter of two extremes: the Afrocentric-to-the-point-of-paranoia one that says race matters always, and the "colorblind" one that says it matters never.

In my view, race is like one of the characteristics Pitts mentioned: religion. And they are similar for the reasons Pitts mentions: they are form the core of identity for many people. Thoughtful advocates of colorblindness, like thoughtful advocates of neutrality regarding religion, i.e., religion-blindness, belive that it is precisely because those identity-forming features are so important that they should not be the bases for burdens or benefits, especially from the state. It is official notice that they (we) oppose, not personal notice.

Pitts recognizes as much when he concludes by saying that his view does not conflict with Martin Luther King's famous hope that his children "will not be judged by the color of their skin but by the content of their character." As Pitts says, King

didn't say avoid color, ignore color, pretend it doesn't exist. The key to what he said lies in four words: "Not be judged by."

Sunday, August 11, 2002

More Kaminer Komments - Wendy Kaminer begins her American Prospect article, discussed in my immediately preceding post, by discussing the "profound difference" between affirmative action as a remedy for prior discrimination and as a tool for achieving diversity.

Envisioning racial preferences as purely remedial greatly limits their use: An institution that hasn't discriminated against racial minorities in the past may not discriminate in favor of them in the present, and institutions that are guilty of prior discrimination may, in theory, only employ racial preferences remedially, until the prior offense is cured. But if racial preferences are justified in the name of diversity, they may be used by any institution, regardless of its history, and they may be used forever, to benefit any demographic group favored by institutional authorities. It's not surprising that liberals generally promote affirmative action as a means of achieving diversity, whereas conservatives, if forced to accept affirmative action at all, would only allow it to be used remedially.

I think this distinction is often exaggerated. It seems to me that hiring (or admitting or giving some preference) based on race is a true remedy for past discrimination only when actual victims are involved, are "made whole" by correcting the past injustice done to them. But this is not generally what is meant by "remedial" affirmative action. As Ms. Kaminer, typically, states, organizations are often allowed (or even required) to give racial preferences once it is established that they had discriminated in the past, even though the present beneficiaries are not the past victims.

If this is remedial, precisely what does it remedy if not the absence of "diversity" in the present that presumably would exist but for the discrimination in the past?

Once again, it becomes clear that "diversity" (even when dressed in the garb of remedy) requires regarding minority individuals not as individuals but as fungible members of a group. Otherwise, how could hiring black Mr. Jones today be a remedy for failing to hire black Mr. Smith yesterday?

More Nails in Preferential Coffin - Two recent developments suggest that the tide of racial preferences continues to go out. The first is a lawsuit the indomitable Center for Individual Rights has just filed against HUD and the EEOC for employment discrimination, and the second is "Diversity Perversity," an article in The American Prospect questioning the uncritical devotion many liberals display towards affirmative action, an article that is as noteworthy for its source as its argument.

The CIR's lawsuit, Worth v. Martinez, threatens to do to the employment practices of the federal government, the nation's largest employer, what its suits against the University of Michigan's preferential admissions policies may do to college admissions (depending on what, if anything, the Supremes do with the latter). Stanley Kurtz has an excellent summary of the issues in the case, and I urge everyone to take a look at it here. The CIR also has a very impressive and informative discussion of the case on its web site, here.

The CIR and Kurtz discussions are so complete that a summary here would be redundant (though that hasn't stopped me in the past, and I may well revisit this case later), but I can't resist making one observation. Despite the protests of many defenders of preferences that they do not believe in quotas or proportional representation, CIR's evidence demonstrates that the EEOC and those administering employment at HUD believe that "underrepresentation" of any group except white males is not evidence of discrimination; it is discrimination. (In a crucial distinction, the CIR makes clear that its complaint is not with the vast and pervasive "underrepresentation" of white males in the federal workforce but with the discriminatory policies and practices responsible for it.)

Now for another nail lets turn to TAP. Ms. Kaminer, a board member of the ACLU and senior contributor to TAP, is too smart and independent-minded to fit neatly into politically correct liberal boxes, and this article is no exception. She criticizes, for example, the liberal

assumption that the use of group preferences is cost-free and that the socially desirable goal of racial and ethnic diversity can be met without harming individuals or violating fundamental liberties. Racial (or sexual) profiling is, at the very least, problematic, whether it's employed by bigoted police officers or well-meaning educational administrators.

Although it may be going too far to say that criticizing such an article, and one appearing in a liberal publication no less, is looking a gift horse in the mouth, it may not. At any rate, even if what follows is mere nit-picking around the edges of an article whose substance is sound, the picking of nits is one of the many things blogs are for.

A couple of Ms. Kaminer's comments indicate how hard it is even for liberals who are troubled by preferences to criticize them forthrightly. For example, she writes:

Because affirmative action pits the rights of disadvantaged groups against the rights of individuals (and equality against liberty), the problems it poses are not easily or peacefully resolved.

But preferences do not pit "equality" against liberty. They pit one version of equality -- equality as proportional representation -- against both liberty and other versions of equality -- equality as non-discriminatory treatment, equality as equal opportunity but not necessarily equal results.

Moreover, to speak of "the rights of disadvantaged groups" as opposed to "the rights of individuals" assumes, first and foremost, that groups have rights -- as groups, not as individuals who have individual rights not to be discriminated against because of their membership in a group. Most critics of preferences reject the idea of group rights. Everyone should. But assume for a moment (but only for a moment) that groups do have rights. What are they? Isn't some undefined right to proportional representation the only right a group could claim that is not already covered by the individual rights of its members not to be discriminated against because of their membership? Preferences, in short, all but require a belief in group rights, and in turn believers in group rights find it hard to criticize preferences on principle.

Ms. Kaminer also writes:

Considering the arbitrary nature of admissions decisions, with or without racial preferences, it's hard not to sympathize with the majority view. Before colleges and universities employed racial preferences, they relied on class preferences, favoring graduates of particular schools or the children of alumni, as advocates of affirmative action regularly point out. When I entered law school in 1972 (just before the implementation of federal equal-education guarantees), graduate and professional schools openly maintained generous affirmative-action quotas for men. These generated virtually no opposition from conservatives.

But what Ms. Kaminer describes here was not affirmative action for men. It was simple discrimination (combined, of course, with less interest then than now among women for what were then regarded as "non-traditional" careers). Law schools, and others, practiced neither "soft" affirmative action for men, i.e., target outreach, etc., nor "hard" affirmative action, i.e., goals/quotas/targets for specific numbers of men. It is true that conservatives were slow to condemn this sort of simple, everyday discrimination, but then so were liberals.

Finally (at least for this installment), Ms. Kaminer writes that

the fallacy underlying much conservative opposition to sexual or racial preferences is the assumption that without them life would be a meritocracy....

I can't speak for all conservatives (in fact, I'm not sure I can speak for any conservatives, since I'm not sure I am conservative), but I don't share that meritocratic assumption, and I suspect there are many (other?) conservatives who don't. True, I happen to like merit in many situations, but it is never a constitutional imperative. In my view, most organizations should be able to discriminate on almost any grounds they choose, except race, religion, sex, ethnicity (with some obvious exceptions such as theological seminaries).

Those are, or should be, constitutional imperatives.

Thursday, August 08, 2002

Law Office Sociology - A while back I had occasion (or at least took the opportunity) to discuss "law office history," generally regarded as history written using evidence carefully filtered to support a pre-determined conclusion. (See here and here.) I did not defend this sort of history but argued that it was not limited to -- and perhaps was not even prevalent in -- law offices, that much academic history demonstrated the same traits.

Now comes Kathleen Wu, identified as "a commercial real estate lawyer and managing partner in the Dallas office of Houston's Andrews & Kurth," who gives perfect voice in The Texas Lawyer to what might be called, with justified derision, "law office sociology."

Her topic is a recent spate of books that discuss aggression and general nastiness in teenage girls (she cites them; I don't care about them, and so won't). She doesn't like these books. She apparently wishes they hadn't been published. But she doesn't criticize their evidence, argument, or conclusions. Indeed, she even admits, "[my] complaint with this body of research isn't that it's invalid (from what I can tell, it seems to be based on some solid research....)"

So, what's Wu want?

My complaint is that, despite the authors' best intentions, their work ends up doing little more than solidifying the negative stereotypes that have dogged women for centuries.

And by solidifying those stereotypes, they may slow the already glacial pace of creating the kind of support network for women in business that has been the cornerstone of success for men in business.

Her problem with these books, in short, is that they don't

get women in the real world any closer to where we need to be, which is firmly ensconced in a network of professionals who, without even thinking about it, refer business to each other and generally support one another's professional goals.

Good scholarship, on this view, is whatever gets women (or blacks, Jews, Moldavians, Muslims, or your group of choice) where Wu or we want them to be. Unfortunately, this attitude is not rare, and it's just as likely to be found on campus as in law offices.

Turncoats, Converts, Apostates, i.e., Ex-Liberals - Via InstaPundit I found Brad De Long's post on the four methods by which libs, lefties, or neo-libs are "seduced" by the wackos on the right. This was also linked by ELECTROLITE, which has by far the better comments.

Of course, to say that former liberals have been "seduced" over to the right implies that normal, rational people are naturally at home on the left. Saying they are "seduced" into leaving has the added benefit of implying that they have weak wills and generally low character. How satisfying that must be for the De Longs who are still on de liberal plantation.

Here's another theory, or maybe even meta-theory, of why some liberals have become ex-liberals that I will float before you, sort of a slow pitch to see if it gets the stuffings knocked out of it before I try it anywhere else.

Over the course of the 20th Century there have been several Great Migrations from left to right. The best known one is "The God That Failed" generation of ex-communists who became anti-communists. Somewhat similar were the hard-line Cold War Democrats who moved right when the Democratic Party, largely as a result of Vietnam, abandoned its anti-communism (or at least that's what the Scoop Jackson/Jean Kirkpatrick Democrats et. al. charged on their way out the door).

I'm not talking about either of those left -> right migrations. If I stick with my theory I may return to them and try to work them in. For now I'm talking about three distinct waves of liberal emigrants to conservative shores who were sent on their way by domestic concerns.

1. Liberalism in the U.S. had its roots in Jeffersonian/Jacksonian agrarianism and hostility to a strong central government. This began to change at the end of the 19th Century when the Populists urged greater governmental activism; the corner was turned in the Progressive period when many liberals turned to Hamiltonian means to achieve Jeffersonian ends (as Herbert Croly, early New Republic editor, put it); and the conversion was made complete by the New Deal. At the core of this transformation were the twin themes of a) the sanctity of private property and b) the propriety of governmental regulation. For liberals on this transforming course, "a" waned as "b" waxed. Many liberals, however, got off the train. Unable to stomach the Hamiltonian means (strong central government, regulatory agencies, discretion displacing clear rules, etc.), they remained Jeffersonian, and became conservative.

2. From the 1830s through the 1960s people who opposed slavery, segregation, and discrimination were firmly committed to the principle of colorblindness, i.e., that everyone should be treated "without regard" to race, ethnicity, religion. Indeed, this principle was widely regarded as the most fundamental of American core values, what Gunnar Myrdal called "The American Creed." Then, in what historically was the blink of an eye at the end of the 1960s, most liberals abandoned that principle and adopted "race-conscious" remedies as necessary to achieve racial equality. Again, many now former liberals were unable to make that change and either were ex-communicated from the church of liberalism or converted to a form of conservatism on their own. (IMPORTANT NOTE: I am making no argument here about the propriety of any of these transformations; I am merely noting that they occurred. How and why this one occurred, along with a discussion of its pros and cons, is the subject of an, er, longer work in progress.)

3. From John Stuart Mill on one of the central commitments of liberalism was to free speech. Insofar as American liberals have had a religion, one of its central tenets had always been the sanctity of the First Amendment's free speech protections. In the late 20th Century, however, much of mainstream liberalism turned away from that formerly firm conviction. Feminists favored laws against pornography. Civil rights advocates favored punishment of hate speech. Campaign finance law reformers even favored limitations on political speech, and leading liberal academics (Owen Fiss at Yale, Cass Sunstein at Chicago) began to argue that the speech of some should be limited so that the speech of others could be enhanced. And once again, many who had thought of themselves as liberal were not able to negotiate this transition and began to feel uncomfortable in their now not-so-familiar political surroundings. More conservatives were created.

It's interesting to note that all three of these conservative-creating transformations involved liberals moving to regulate an area that had formerly been regarded as off limits to government regulation: private property, race (using racial preferences to accomplish "diversity" is, among other things, the regulation of the race/ethnicity "market"), speech. None required "seduction." All involved newly minted conservatives getting off a train that, in their view, went around the bend and changed destinations.

Wednesday, August 07, 2002

States Rights, or Not - Recently liberals cheered when a Florida judge held that a school voucher program violated the state constitution. Perhaps freedom-loving state and local officials around the country could still maintain that wall of separation and the evil Supremes would not succeed after all in establishing religion by naked judicial fiat.

But they jeered when a Pennsylvania judge temporarily enjoined an abortion. According to ABC News's THE NOTE, "[t]hat decision momentarily raised the worst fears of abortion rights advocates" -- local judges blocking federal constitutional rights.

Eugene Volokh has a typically thoughtful post on the issue of incongruent state and federal constitutional rights, but for most combatants in the culture wars states rights does not seem to be a matter of principle so much as which states, and which rights, are involved.

Tuesday, August 06, 2002

POP! (Piling On the Post - I apologize for piling on, but even after InstaPundit and Volokh there is still something to say about yesterday's unusually dumb editorial in which the Washington Post took aim at Ashcroft but wound up shooting itself in the foot.

The Post blamed Ashcroft personally for propounding a view -- that the Second Amendment protects an individual, not a state, right -- that is in fact so widely shared among even liberal law professors that it has come to be known as the "Standard Model." But never mind. There's nothing new or noteworthy about using the Attorney General as a convenient villain and vilifying him over this or that. What was striking about the edit is that the Post could not comprehend Ashcroft's willingness to enforce a law he opposes.

Mr. Ashcroft has insisted that he will defend this country's gun laws, even as he has contended that the Second Amendment to the Constitution creates an individual right to own a gun -- subject only to reasonable regulation to keep guns from criminals

The Justice Department has, so far, gotten around this problem by playing legal games. The D.C. Court of Appeals, it has argued in several cases, has held that there is no individual right to own a gun. And while the attorney general may disagree with this holding, it is binding law in Washington; hence, gun prosecutions here may proceed. But it is hard to see why the government should be locking people up for conduct it has plainly said -- before the U.S. Supreme Court, no less -- is constitutionally protected.

Our point is simply that the government cannot both embrace an individual rights view of the Second Amendment and prosecute people for wielding guns.

The Post's editors (there are editors there, aren't there?) seem to have forgotten that Ashcroft's willingness to enforce laws with which he disagrees was at the very heart of the battle over his confirmation as Attorney General. Democrats feared he wouldn't, and all but 8 of them voted against him. He swore that he would. And now that he has -- and not for the first time (defending racial preferences in Adarand also comes to mind) -- the Post can only regard his behavior as "playing legal games."

Given the editors' obviously short memories, it would have been helpful for them to consult their own paper's back issues. If they had done so they would have found the following description of the opening of nominee Ashcroft's confirmation hearing before the Senate Judiciary Committee:

"I understand that being attorney general means enforcing laws as they are written, not enforcing my own personal preference," the former senator said in his opening statement to colleagues on the committee where he served until a few weeks ago. "It means advancing the national interest, not advocating my personal interest."

"When I swear to uphold the law," Ashcroft declared later, raising his right hand, "I will keep my oath, so help me God. . . ."

". . . I well understand that the role of the attorney general is to enforce the law as it is, not as I would have it. . . . I will follow the law in this area [abortion] and in all other areas."

Imagine that. Someone in Washington actually doing what he said he would do. You might have thought the Post would find that newsworthy.

Sunday, August 04, 2002

News from Winston Salem - Tony Hooker sends word of two interesting stories from Winston Salem. In one, there was a poignant class reunion of what would have been the Class of 1972 of Atkins High School. "Would have been," because Atkins, a black high school, was closed abruptly two weeks before school opened in 1971 as part of Winston Salem's integration plan, and what would have been the Atkins senior class was distributed to other schools across the city. You don't have to lament the passing of segregation to see that integration, or at least the transition to integration, especially when done poorly and with little apparent regard for the people treated as integratees, also had some costs.

The other article discusses a police shooting that did not lead to a racial conflict, at least in part because both the police officer and his 14 year old victim were black. The shooting appears to have been accidental, but, the columnist observes, "seeing beyond race is always a tricky matter."

Weaver [the officer involved in the shooting] is also named in a lawsuit filed against the city last June by a white former officer, Charlotte Disher, who alleges that the police department holds white officers to a higher standard in cases alleging excessive use of force. She was fired after she used pepper spray to defend herself, her lawsuit says. Weaver was Disher's boss.

Weaver is on administrative leave. "Basically," said a local County Commissioner, "it's hard to believe a black officer would have deliberately shot a youth."

Does this imply that it's easier for him to believe a white officer would have? I don't know.

A Smear By Any Other Name Is ... - You may or may not be able to tell a person's race from his or her speech (see "You Talkin' To Me?" two posts below), but you can certainly tell the profession ... if it's politics.

Responding to the Senate Ethics (?) Committee's severe admonishment of Sen. Robert Torricelli, Atlantic County (N.J.) Democratic chairman Chuck Chiarello said the Democrats would just have to work harder. To defend Torricelli, or remind voters that at least he's on their side, etc.? No, according to an article in the Philadelphia Inquirer, to dig up dirt on Douglas Forrester, his Republican opponent.

And Chiarello suggested that Democrats would continue digging into Forrester's business practices: "Everybody has some baggage, so there's a lot of counter-integrity work that's going to happen over the next couple of months."

Uncle T[h]om[as]? - The Washington Post Magazine has a fascinating if disturbing article about the continuing bitter rejection of Justice Clarence Thomas in the black community.

The entire article is well worth reading, but I found the following vignettes the most revealing:

"I hope his wife feeds him lots of eggs and butter and he dies early, like many black men do, of heart disease," Julianne Malveaux, the liberal commentator, once cracked on a talk show.

Emerge, a since-departed African American-oriented newsmagazine, twice parodied Thomas on its cover--once wearing an Aunt Jemima-style headscarf and another time as a lawn jockey. The editions were among the magazine's bestsellers. For the past six years, Ebony magazine has not listed Thomas among its 100 most influential African Americans.

Having Thomas debate affirmative action would be no different from "inviting Hitler to come speak on the rights of Jews," said Eric Ferrer, one of the Hawaii [ACLU's] three black board members. The ACLU initially decided not to invite Thomas but later reversed itself. Ferrer and another black board member resigned.

This spring, five black law professors boycotted his visit to the University of North Carolina. Though the professors had not protested visits by Justices Scalia and Sandra Day O'Connor in preceding years, they noted that Thomas was more than just a jurist with whom they disagreed. In a nation "in which African Americans are disproportionately poor, undereducated, imprisoned and politically compromised," the professors wrote in explaining their position, "identity--racial identity--very clearly matters...."

How ironic that the most vocal advocates of "diversity" are the most determined to stamp out any traces of actual diversity inside the black community. On second thought, this is not so ironic after all, for the very theory of "diversity" requires individual members of minority groups to be fungible.

Saturday, August 03, 2002

You Talkin' to Me? - The July/August issue of Legal Affairs, the new magazine from the Yale Law School, has an interesting article on "linguistic profiling," the ability to identify speakers' race by their speech and thus to engage in long distance (or at least out of sight) discrimination. The theory will be tested in an upcoming housing discrimination case in San Francisco that, according to the author, "offers a potential breakthrough in discrimination law."

Since the article indicates that listeners are able to identify black "dialect" when it is street language rather than "professional English" spoken by a black, it would be interesting to see whether landlords discriminate more against callers they identify as black than against, say, hillbillies or rednecks. Could an accused landlord offer in defense the excuse that "I run a high class joint and won't rent to ungrammatical riff raff of whatever pigmentary persuasion"? But wait, that might exclude editors at the New York Times! (See my comment on them here).

Y'all come, y'heah!

Friday, August 02, 2002

Whither the Democrats, or Maybe Whether... - In discussing the close Michigan Democratic primary race between old bull John Dingell and spring chicken Lynn Rivers, senior Washington Post political correspondent David Broder writes:

It has become not just a personal rivalry of genders and generations but also a test of strength between two forces competing for control of the national Democratic Party. Dingell represents the traditional blue-collar, union-oriented, largely male-dominated and culturally conservative coalition forged in his father's New Deal era. Rivers is backed by the academic, cause-oriented, environmental, anti-gun, abortion rights and largely female groups that have come to play a dominant role in the party.

Insofar as Broder is right, and being a Democrat means indentifying with one of these two camps, there must be many wannabe Democrats looking for other alternatives.

Disparate Impact, Redux & (With Luck) Finis - I think Garrett Moritz has written the last chapter, at least for now, of our ongoing discussion of disparate impact.

I would like to thank him, again, for his generous comments, and urge you take a look at his post. Although I might not have summarized the nub of our differences the same way he has, his summary is both fair and succinct. These are difficult issues; reasonable people can disagree; and I would like to think there is enough substance in our backs and forths on the subject to assist others in clarifying their own thoughts on the matter.

Raines of Error - The New York Times has come under withering criticism from the blogosphere of late, usually for some variation on abandoning its old gray lady image of objectivity in favor of arguing itself blue (as in the Gore counties on the famous 2000 electoral map) in the face on (and in) issue after issue. Recent examples of the criticism can be found on InstaPundit ("Why, exactly, does the New York Times feel obliged to distort its reporting...."), Kausfiles ("Stop Me Before I Bash the NYT Again"), and Andrew Sullivan (most days).

Now there's another problem. Perhaps this new turn toward advocacy journalism in the news pages has gotten the editors all discombobulated, but, whatever the reason, they seem to have lost their ability to produce agreement ... between subjects and verbs.

In an editorial today in which most people will notice only the criticism of Hillary Clinton (for favoring "loopholes" in the new campaign finance reform law), the following sentence appear (no sic; I'm using the NYT's new grammar):

At issue are a set of regulations that delineate the law's ban on raising, directing or receiving unlimited funds from corporations, unions and rich donors for state parties.

At issue are a set of regulations? At issue also, it would appear, are whether the editors' grammar book have gone missing.

Thursday, August 01, 2002

Sleazebag Image of All Pols A "Silver Lining" for Dems - Democrats used to protest when Nixon's defenders said "they all do it." More recently Democratic defenders of Clinton(s), and now Torricelli, protest that they are no worse than the Republicans (an interesting argument, given how bad they think the Republicans are).

Over the years these arguments have worked, at least in New Jersey. (A receding tide lowers all boats?). According to the Washington Post today, "N.J. Voters Unfazed by Torricelli's Troubles."

"Don't forget we've had mayors and members of Congress go to jail," said political scientist Ross K. Baker of Rutgers University. "We had a senator ensnared in Abscam. The mayors of Camden sort of queue up to go to jail."

In June, a Star-Ledger/Eagleton-Rutgers poll found that 64 percent of New Jersey voters think that most people who go into politics do so for personal gain, and 69 percent think that once in office, politicians "look out more for their own interests than for those of the public." The poll also found that voters think that for every 10 politicians, about half are corrupt.

And they think politicians elsewhere are no cleaner than theirs, the poll found.

Democratic officials invoked these findings today as a silver lining to the gloomy news.

It would appear that, at least in New Jersey, the sleazier all politicians are regarded, the better the Democrats' chances.

Washington Ethics (?) - Washington ethics, it could be said, is to ethics what military music is to music, legislative history is to history, and legal fiction is to fiction. I refer, of course, to Sen. Torricelli escaping from the Senate Ethics (?) Committee with being only "severely admonished."

Escape? What do you mean escape? According to the Washington Post, the three page rebuke of the sleazeball Senator (I can say that now with a clear conscience, because it's official) was "one of the sternest condemnations of a member in recent years." And it may well be, but what does that say? At least the Ethics (?) Committee thought it had done some heavy duty sanctioning because, according to the Post, their "use of the word 'severely' appeared to signal that committee members did not regard the offenses as trivial."

But others did. Senate Majority Leader Daschle (no doubt unrelated to his desire to aid Torricelli's re-election so that he can remain Majority Leader) even issued a written statement all but proclaiming Torricelli's vindication:

It is now clear from the committee's extensive review and findings that the sensational allegations made against Sen. Torricelli by Mr. Chang have been proven false and without foundation.

And why shouldn't he? As Torricelli's lawyer told the press, "the committee went out of its way to say, in most instances, that Torricelli didn't knowingly break Senate rules."

No reason to censure or expel him if all he did was lie, take illegal gifts from someone he then helped (they all do that, right?), and knowingly broke Senate rules only some of the time.

Who said defending Clinton would lower ethical standards?

Tuesday, July 30, 2002

Moral Equivalence in the Washington Post – The Post ran another of its unintentionally revealing news articles today, about the troubles of Sen. Robert Torricelli (D, NJ), who is about to appear before the Senate ethics committee investigating the illegal contributions to his campaign and possibly illegal gifts he is alleged to have received. After a long discussion of the allegations against “The Torch,” which are pretty sleazy (but even politicians are innocent until proven guilty, and the Justice Dept. did refuse to indict him), the Post then discussed the threat these allegations, especially if proven, pose for his upcoming campaign for re-election. It noted, however, that he still had some things going for him. Then came this priceless sentence:

And Forrester [Torricelli’s Republican opponent], little known among Garden State voters despite his GOP primary win, carries some political baggage himself, having run a company that manages prescription drug plans for large employers.

Disparate Impact Disputation, Continued... - Garrett Moritz is back with more disparate impact defense. Or is it forth? As he points out, we have gone back and forth so many times now that it is hard to keep straight who's on forth and who's on back.

Rather than beginning my response at the beginning let me first turn to the end and both acknowledge and second Moritz's generous comments in his closing paragraph about the substance and the tone of our long-running exchange. (Go read it now.) Such civil and pleasant disagreements are unfortunately rare. Indeed, he is too kind; even for a geezer like me, keeping up with "a whippersnapper" like him is a smaller feat than he imagines.... Now, if I can just force these decrepit old fingers (and the mind to which they are tenuously connected) to slow-dance across the keyboard (boogieing is out of the question), let us go back to the beginning and return to our debate over disparate impact.

Now that you've read Moritz's last paragraph, you need to return and read the preceding paragraphs if you haven't already, for I'm not going to summarize his points here. These posts are already too long, and in any event my summary would no doubt not do justice to his own thoughtful presentation.

One more preliminary observation: my basic argument, put forth to some degree in most of my exchanges with Moritz and elsewhere on DISCRIMINATIONS, is that disparate impact -- theory and practice -- represents a degradation of the civil rights ideal. By draining the concept of discrimination of any requirement for intent, it is of necessity based on the assumption that statistical disparities alone (absent compelling justification) are a violation in need of a remedy and that fairness itself requires something approaching proportional representation.

Seem too strong? Consider the following, from Rick Hertzberg's review of a new book by political theorist Robert Dahl in the New Yorker (link via Stuart Buck, whose comments on Hertzberg/Dahl are devastating):

Imagine, if you can, that African-Americans were represented "fairly" in the Senate. They would then have twelve senators instead of, at present, zero, since black folk make up twelve per cent of the population.

This assumption, and the new conception of fairness that it has spawned, in turn requires that racial preferences be implemented, that group rights take precedence over individual rights, and that the government be engaged in a never-ending process of racial and ethnic regulation to ensure that the numbers in all areas of American life don't harbor "underrepresentation" or "overrepresentation." It requires, in short, abandoning the core American value -- arguably THE core American value -- that every individual be judged "without regard" to race, religion, or national origin.

Now, notice that virtually nothing in Moritz's current long post, or his earlier ones, actually defends disparate impact. Instead, he is at pains to show that such policies are legal, that Congress has a right to implement them, that courts shouldn't interfere, etc., etc. I am definitely not one to disparage lawyers or law -- quite the opposite -- but most of this discussion misses, if not the point, at least my point. For the sake of argument, assume for a moment (but only for a moment) that everything Moritz says is persuasive. That still would tell us nothing about whether disparate impact is a Good Thing. It isn't. Even if Congress or private organizations can impose it, they shouldn't.

Turning, finally, to a few specifics:

1. In my last post I took issue with Moritz for leaning on the weak reed of "legislative acquiescence" to bolster his view that the Supremes should avoid ruling now on the propriety of disparate impact in the Fair Housing Act, but in doing so I noted that "pursuing this controversial theory of 'legislative acquiescence' here would take us too far afield." Like a determined hound chasing stray rabbits into every nook and cranny when he should remain on the trail of bigger game, however, Moritz does pursue it, although he admits in the end that it was "a detour." Nevertheless, as he says, it was "fun" even if diverting. It was a virtuoso performance, and may even be right, whatever that would mean here.

2. Moritz obviously relishes word games, but it's hard to believe he seriously believes that an insistence on some consistency in our understanding of what equality entails -- equality, after all, is a value at the very heart of our Constitutional enterprise -- is comparable to such silly examples of words having different meanings in different contexts as "He's on fire! Get him the ball!" v. "He's on fire! Get a bucket!" Even Sasha Volokh's entertaining example of the changing meanings of "gift" hardly rises to the level of Constitutional gravity.

It is certainly true that words can have different meanings in different contexts, a point that was addressed head on by Justice Powell in his Bakke opinion:

The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for as Mr. Justice Holmes declared, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425 (1918)

The question in Bakke was whether the vision of equality Congress wrote into Title VI of the Civil Rights Act imposed a different standard from what the 14th Amendment required. All agreed that it did not, that Title VI was intended to mean what the 14th meant (though there was disagreement over precisely what that was, with the minority arguing that both required a colorblind standard). Our society can survive different meanings of "fire" in different contexts, and even different meanings of "gift," far more easily than it can conflicting meanings of the requirements of equality -- individual rights here, group rights there; official neutrality here; racial/ethnic/religous preferences there; etc.

Before blowing the whistle on our word games, however, I think it is necessary to observe that Moritz's own apparent understanding of exactly what "disparate impact" means misses the mark. Once some confusing conceptual underbrush is cleared we may be able to narrow somewhat the range of our disagreement. Consider:

[T]here is a fundamental difficulty when it comes to stopping discrimination: some discrimination, the worst kind of discrimination, discriminates without speaking its name. Sometimes an employer fires every black employee and no whites, and yet does not say "I hate blacks, so I fire them"; instead, they say, "I am committed to racial equality; however, I am also a businessman and these particular workers were simply not cost-justified." If that's true, it's a legitimate business purpose and will rebut the prima facie case proved by a showing of disparate impact; for instance, if the employer shows data on employees which proves the point. However, if the employer has no data, or data that shows that the workers were just as productive as anyone else, they'll probably lose.

The trouble here is not with who would win or lose; it is the larger point that this is not a disparate impact case at all. Back to basics: disparate treatment is depriving someone of some right or benefit because of/based on/due to race, and it requires intent. Disparate impact is following a policy or practice that adversely affects minorities disproportionately, without any intent to do so, unless the policy or practice can be justified as reasonable or necessary (the threshold a challenged policy must surpass tends to range from amorphous to elastic).

Moritz's hypothetical employer fired all and only black employees. If he can justify each firing with relevant business or performance data he should win; if he can't he should lose. This is a classic disparate treatment case. Not even the harshest critics of disparate impact argue that "effects" should be ignored. They are nearly always relevant (it's hard to imagine victims of discrimination in the absence of any discriminatory effects); they can raise a prima facie case of discrimination; and in certain circumstances, such as the hypothetical Moritz has in mind, they can even provide sufficient evidence of ... disparate treatment. If the adverse affect on minorities is sufficiently severe and is unpersuasively explained, discrimination can be inferred even in the absence of clear evidence of a discriminatory intent. Moritz seems to believe that if disparate impact were done away with no discrimination complaints would succeed unless evidence of clearly stated intent were found. Not so, but in order to avoid that imaginary fate, disparate impact theory severs the concept of discrimination from intent altogether, and that is going too far, for reasons I will address below.

3. One of the biggest problems with disparate impact is determining what standard a challenged policy or practice must meet. Is it absolute business necessity, such as the business failing without it? Pretty high business necessity, such as less profitability without the challenged policy? Or mere reasonableness, such as it seems like a good idea? Moritz argues "it is not true now, nor was it ever, that disparate impact under civil rights statutes necessarily equals a finding of discrimination. Rather, it serves a burden-shifting function." This is pure fancy, or wishful thinking. On the contrary, burden-shifting is not mere burden-shifting. It can be onerous if the justification standard the challenged policy must meet is too high, as it quite often has been in real cases.

Take the original case of Griggs v. Duke Power Company, where Duke Power's policy of requiring all new hires to have high school diplomas was found to be discriminatory. What would a justification of such a policy look like?

Duke Power's argument was that a diploma was a valid and reasonable proxy for such essential qualities as ability to complete a task, punctuality, responsibility, willingness to work, delayed gratification in the form of foregoing grasshopper pleasures for ant drudgery (I'm putting words in Duke's mouth here, but you get the drift). There was no evidence that this argument was disingenuous or dishonest. Perhaps Justice Moritz disagrees. He and at least four of his brethren or sistren think Duke Power (and its shareholders) should suffer whatever loss would flow from abandoning this policy so that it could hire more minorities. (In doing so the majority dismisses Justice Jessie's cost-benefit analysis demonstrating that the devaluing of education in the majority's decision will produce far greater long-term social harm than the benefits that result from hiring a rather limited additional number of minority employees.) Is society better off with Justice Moritz (or Justice Jessie, for that matter) making these decisions instead of management, admissions officers, etc.?

Speaking of admissions officers, what exactly is the defense of the SAT against disparate impact attacks? Assume that it does predict with some accuracy grades in the first year of college. So what? Does it predict grades in later years? Do grades predict success in life? What is success in life? Should Congress and even judges of the quality of Justice Moritz be making these decisions for all of us?

Now for one of my favorites, the under-noticed but real phenomenon of what could be called reverse disparate impact (though I would never use such a term, for the same reason I don't believe there is such a thing as reverse discrimination). Take, for instance, the newly popular policy of giving admission preferences based on overcoming adversity, etc. (Look here for a discussion of the spreading "sob story sweepstakes.") What if such a policy were challenged by white plaintiffs claiming that this policy benefited minorities so disproportionately that it amounted to disparate impact discrimination, citing Justice Moritz's penetrating observation in an earlier case that "some discrimination, the worst kind of discrimination, discriminates without speaking its name."

4. Should it matter whether the college in the above example is private? I ask, because to Moritz it seems to make all the difference in the world. Once again he spends a large portion of this even larger post insisting on the centrality of the distinction between "the Equal Protection context," which he describes as "a limitation on what legislatures can do," on the one hand, and "the axis of Congressional power," usually under the Commerce Clause, on the other. He is untroubled by courts striking down as discriminatory activity in one area what Congress allows or even requires in another.

And once again, I think Moritz makes far too much of this distinction, real though it is. State action, for example, extends far beyond "legislatures," and similarly Congress regulates far more than private businesses. Title IX, as readers of these exchanges know too well, has been interpreted (by colleges themselves, and others) to require colleges to eliminate men's teams in order to equalize participation rates between men and women.

Whatever weight one chooses to place on this distinction, however, if a future Supreme Court were to decide that the 14th Amendment requires pure colorblindness (hope springs eternal on my side of the aisle as well) that would put the kibosh on Congressional power to decide otherwise. And in the alternative, even though the 14th is not now interpreted to require pure colorblindness, on Moritz's own theory Congress is free to do so. Indeed, in the foundational Bakke case a four-justice minority held that Title VI of the Civil Rights Act of 1964 went beyond the 14th Amendment and required a colorblind standard. (I think they were right.) If a future Congress, over the strenuous objections of Rep. Moritz (D, Harvard), were to adopt (or re-adopt, if you agree with the Bakke minority) this strict colorblind standard, would Justice Moritz still argue so eloquently for judicial restraint, or would he side with today's liberals who argue (like yesterday's conservatives) that the original intent of the framers of the 14th Amendment clearly was to allow racial discrimination when it was reasonable?

If this uncertainty over the depth of Justice Moritz's commitment to judicial restraint seems uncalled for, recall that in the legal attack on Proposition 209 in California, which committed the state to colorblind racial neutrality in contracting, admissions, etc., the ACLU and its friends actually argued that the 14th Amendment barred the state from banning preferences! Not the legislature, but the state itself, in the form of the people amending their Constitution. Really. I'm not making this up. I don't have ready access to a law library, but I've searched all Justice Moritz's prior opinions that I can find and I can't find anything he's written rejecting this bizarre view held by a number of his ideological fellow travelers.

5. Moritz has gotten himself so entangled in the separation of powers and judicial restraint that he has not focused on what discrimination is or what I regard as the central problem of disparate impact -- that it is based on, and indeed requires, a conception of equality that distorts what has been (and should remain) a fundamental core value, the belief that rights inhere in individuals and not groups and that foremost among those rights is that the state must treat its citizens "without regard" to race, creed, or color.

Wherever policies that have a disparate impact are regarded as discriminatory (again, in the absence of a persuasive justification), the "remedy" -- whether imposed by a court or undertaken "voluntarily" by an organization, quite possibly to head off litigation -- will inevitably require "racially conscious" hiring, admissions, etc. Further, it will require constant monitoring and regulation to keep the numbers in line with various guidelines, expectations, and requirements. In short, it will tend to insure that race remains contentious, which I suspect is one of the goals of its adherents. This will inevitably result -- indeed, for substantial numbers of people it has already resulted -- in a conception of equality that elevates proportional representation (since that is regarded as the "natural" result of any non-discriminatory system) over the "without regard" principle. Indeed, failure to "regard" race will come to be seen, as it is already seen by many, as the essence of discrimination. "Diversity" will become, as it has already become for many, the most fundamental value, and its implementation and maintenance will have turned yesterday's vice -- assigning benefits and burdens on the basis of race -- into today's mandatory virtue. Disparate impact theory, in short, turns civil rights inside out and upside down. Finally, as I have argued (here and here), if the assumptions on which disparate impact is based catch on it will not only do away with neutrality regarding race and ethnicity but regarding religion as well. This is not good.

6. Boy, I sure hope the Whippersnapper delays his reply long enough for me to get my warm milk and nap....

Understanding or Sympathizing? - Sasha thinks I was being too harsh on the Post Style section in this post on this article on Moussaoui's linguistic genius. And perhaps I was. Some of Moussaoui's insults are funny, certainly, and the article was only in the Style section. I shouldn't have called it news, although in my defense, someone quickly reading it from its position on the front page of the Post's website might not have noticed it was in the Style section. And besides, it's frequently difficult to tell the difference between Post news stories and style/opinion pieces.

Still, I think the article's overwhelmingly sympathetic tone is a bit excessive. True, Moussaoui feels that we are abusive and hypocritical. But, the article states that truth and uses it to indicate that Moussaoui is not as bad as many think he is, that's he's only misunderstood. I'm all for understanding one's enemy, but understanding him shouldn't have any bearing on what he did. If he wants to kill as many Americans as possible, that's simply bad, whatever tricks he can play with three-letter acronyms. The Style section article suggests that once we finally understand Moussaoui, we'll see that he's not crazy, he's not evil, he's just a different kind of genius. Moussaoui, clearly, is only afraid for his own safety in a hostile, unfair environment and trying to defend himself the best way he knows how, with humorous, insightful motions, and "playful," "tweaking" asides.

He asks rhetorical questions, makes sarcastic asides and sometimes indulges in an almost whimsical irony.

Sasha agrees, and calls this "creative use of language."

I think that is giving Moussaoui too much credit. I can understand why someone with Sasha's verbal dexterity would be impressed by, well, verbal dexterity, but surely he gives too much credit to occasional expressions of cleverness. I don't think Moussaoui is clever. I think he's nuts.

An excerpt from one of Moussaoui's motions, after he fired his lawyers, from The Smoking Gun:

Taking account of the viciousness of the tactic employ (no legal assistance, no phone, no information, 24 h light and surveillance.) I expect anything from the US government. Lee Harvey Oswald [?] end is a distinct possibility. Alexandria jail is constantly having new Deputy, it will be easy to claim that a distraught Sept 11 family member gain employment and shoot me. Or they might claim that I committed suicide after all they already have done the ground work by claim that I was mentally unstable, paranoid.

From the Post article:

Taken out of context, Moussaoui's individual requests seem erratic, at best. In an effort to prove that the FBI had him under surveillance long before his August arrest, he asked for a forensics expert to examine an electric fan that he claimed had been bugged by federal agents. He claimed that the fan had been left "on my car" and that he had unsuspectingly taken possession of it. The FBI, in his account, could claim he had stolen the fan, willingly taking possession of the bug and thus, whatever it revealed would be admissible in court. In pleading after pleading, his demand to see the fan becomes obsessive, the request shortened, and syntactically garbled into something that sounds manic and delusional: "Where is my Bug FAN!" and, "The FBI must give me the bug fan."

Even with the background, it still seems erratic, manic, and delusional. This guy is dangerous. I think he should probably have been tried in a military tribunal in the first place; if they can hold US citizens militarily incommunicado, why not an insane propaganda-spewing foreigner? But, for some reason they didn't, so here Moussaoui is, in a civilian court, with people understanding and sympathizing with him because of his requests for his "bug fan." And it looks like the Post is helping him.

Sunday, July 28, 2002

Just the Ticket - One of the difficulties of diversity/multiculturalism, as with racial or ethnic preferences in general, is knowing when you're supposed to take "racenicity" into account, and when you're not. (I know "racenicity" isn't a word, but perhaps it should be; it's at least as good "ethno-racial identity" and its variants.)

Take the recent lawsuit against the U.S. Soccer federation. Humberto Martinez, who emigrated from El Salvador 20 years ago, alleges that he was refused a ticket to a seat in the lower half of RFK stadium in Washington when the U.S. team faced Honduras because the owners wanted those seats close to the field packed with fans of the U.S. team. Martinez was denied a ticket, he claims, because he is Hispanic and it was assumed he would root for Honduras. Discrimination on the basis of national origin is and should be illegal, but it is legal for teams to assign tickets based on geography or team loyalty, i.e., preferences for the home team fans.

This problem of distinguishing illegitimate "racenicity" consciousness from legitimate consideration of non-racenicity qualities that overlap considerably with race/ethnicity is analogous to the controversies over racial redistricting that have so agitated the courts. Racial redistricting is not allowed, but partisan redistricting is. Since blacks overwhelmingly vote Democratic, in real life this is a distinction without much of a difference, but last year the Court honored it in Hunt v. Cromartie when, with a 5-4 majority, it finally upheld a North Carolina district at the heart of this controversy because "one could not easily distinguish a legislative effort to create a majority-minority district from a legislative effort to create a safely Democratic one."

Many conservatives were disappointed in this decision, and particularly angry at Justice O'Connor for switching sides, but I think they were mistaken. The decision should be applauded for its insistence on intent as a necessary ingredient of discrimination. Since the liberals on the Court (and off) insisted on intent here, it should be harder for them to ignore it in other cases where policies or programs have a disparate impact.

But I digress. Well, not really, for where Mr. Martinez gets to sit in the stadium raises interesting questions about where his supporters stand on diversity and multiculturalism, which they vociferously support. Here, Mr. Martinez wants to be treated as an individual, or possibly as a Salvadoran-American, and not lumped in with all Hispanics. But if and when his sons or daughters apply to college they will no doubt be classified as Hispanic, and probably awarded a preference on that basis. We know what the ACLU, MALDEF, La Raza, et. al. will say then, and it won't be a demand to treat the little Martinezes as individuals.

If "culture" is as hard and fixed as the multicults claim, and if there is a "Hispanic" culture shared across nationalities and even ethnicities, then perhaps it was not so irrational to assume that Mr. Martinez would cheer for the Hondurans after all. But if, as I believe, that assumption is not accurate, then it is as unreasonable to make it for admission to college as for a good seat at RFK stadium.

Saturday, July 27, 2002

Disparate Impact Disputation - Garrett Moritz once again valiantly assumes the Sisyphian burden of pushing a coherent and morally compelling argument for disparate impact up the hill for our inspection. Once again it rolls back down, leaving shards of both interesting observations and wishful thinking in its wake. In the process he attributes a number of opinions to me, some of which I actually hold. (See here, here, and here for earlier salvos.)

I argued in my most recent post that, contra Moritz, disparate impact wasn't yet dead but that a fair housing case the Supremes recently agreed to hear might put one of the final nails in its coffin. Moritz agrees that he had been "overly broad" (don't you love how lawyers talk?) in pronouncing its death, but now he argues that "the kind of disparate impact we were talking about earlier," i.e., "whether a statute or government policy ran afoul of the equal protection clause," is substantially different from "the context of government regulation of what individual economic actors can do -- e.g., regulation of landlords." The former, he says, really is about dead; the latter might live (hope springs eternal) if only an activist Supreme Court would rein itself in and defer to Congress's interpretation of the Fair Housing Act, as Moritz (presumably a believer in judicial restraint, at least when conservative courts must judge liberal legislation) believes it should.

I suspect Rosenberg may feel this distinction is a cop-out -- he likes to think of "discrimination law" as one single concept -- but there actually is a pretty big difference between what the Constitution forbids legislatures from doing and the way Congress chooses to regulate private actors in the economy.

Well, yes ... and no. First the no, or rather the no's: it's not so much that this distinction is a cop-out -- there is a distinction between Constitutional and statutory interpretation -- as that it's overblown here. "[T]he kind of disparate impact we were talking about earlier," after all, was precisely the sort that involved government regulation of private economic activity. Griggs v. Duke Power Co., in which the Supremes gave their blessing to disparate impact, involved the question of whether the Civil Rights Act of 1964 barred a private actor (Duke Power) from adopting, without any discriminatory intent, a racially neutral policy (requiring a high school diploma of all hires) that had a disparate impact on minorities.

Another no: what Moritz wants here is not judicial deference to Congressional action, but to Congressional inaction. Moritz writes that in an earlier case, Town of Huntington v. NAACP (1988), the Supremes held that "the question of whether disparate impact may qualify as 'discrimination' for purposes of the FHA should be left to Congress." In fact, the court expressly "reserved" the issue. That is, writes Roger Clegg, general counsel of the Center for Equal Opportunity,

it raised and recognized the question but then decided not to resolve it. In that case, the Reagan administration had filed a brief urging the Court to rule against the "disparate impact" approach. The first Bush administration continued this policy, but the Clinton administration reversed it

It is thus entirely proper for the Court to revisit this issue. Moreover, even if Moritz's and not Clegg's view of Town of Huntington were correct, what Moritz is arguing here is that the current Court should regard the failure of subsequent Congresses to reverse it by legislation (which it can do when it believes the Court has misinterpreted a statute) is a reliable indicator of Congressional intent in the original fair housing legislation and should be regarded as binding.

It is hard enough to interpret what Congress actually does, much less what it doesn't do, but pursuing this controversial theory of "legislative acquiescence" here would take us too far afield. One of the many problems with the theory that Congress can in effect rewrite a statute by failing to override a judicial misinterpretation is that statutes must be signed by the president to become law. How can a president veto Congressional inaction of which he disapproves? I don't have access to Lexis or Westlaw (anyone want to give me a free subscription? I'd settle for cheap), but as I recall a search on this topic would turn up many references to the theory of legislative acquiescence as "a weak reed upon which to lean" and "a poor beacon to follow."

But Moritz is right about one thing, or at least almost right. I don't "think of 'discrimination law' as one single concept." Constitutional and statutory standards can differ, as can state and federal. But I do believe that in order to be coherent discrimination law, of whatever variety, must be based on a coherent sense of what discrimination actually is. Now it is possible that I may prefer -- no, insist on -- coherence here because I am not a lawyer. Lawyers (and I'm sure Moritz is or will be a very good one) recognize that for better or worse Congress is not always coherent, that it may write one standard into one law and another elsewhere, and that courts must honor each and all unless they run afoul of the Constitution. Thus my argument is not that discrimination law is coherent, but that it should be. It is worse than awkward for "discrimination" to mean one thing under the 14th Amendment and something else under the Civil Rights Act or Fair Housing Act.

Calvin Trillin once wrote that barbecue not made in Kansas City could be very good ... but it wasn't barbecue. Similarly, policies or practices that have a disparate impact may be very bad, and may even deserve to be prohibited, but they're not discrimination. Justice Scalia notwithstanding, it may be necessary to impute an intent to Congress when it acts, but it will almost always be futile to attempt to do so when it doesn't.

Friday, July 26, 2002

Reproducible Results - Hanah just sent me this very balanced article from the New York Times about individual scientists asking scientific journals of microbiology to withold information from their papers, so terrorists could not benefit from the knowledge. I was very impressed that, even when the scientists worked for government organisations, the scientists, and not the government, were the ones requesting that the information go unpublished. Still, if crucial information is not included in the paper, the editors of the journals worry that the results published might not be reproducible.

I am very skeptical about the ability of terrorists to reproduce cutting edge scientific work. This summer, I'm working for NIST (National Institute of Standards and Technology) - the government, I know... - in chemical physics. Nanotech, to be precise. Anyway, I have spent all summer, with a pile of about 100 papers (I'm serious!), trying to reproduce results. We have state-of-the-art equipment, a group of first-class scientists, and complete papers, but we still can't do it.

Reproducing results is just plain hard. No matter what, your equipment is not going to be the same as that of the group in the paper, and the miniscule things that the authors didn't bother to put in are always going to trip you up (you need to clean your glassware with sulfuric acid, if you expose that to the air it burns up, if you put that in all at once your experiment blows up, etc...). Sure, papers are endlessly helpful, but they simply can't tell you everything in a quick and easy ten pages.

I know nothing about microbiology, and certainly I bow to the judgement of the microbiologists who think their work is dangerous. Still, I can't imagine that biological materials would be less touchy than what we're working with. How are the terrorists going to order expensive custom-order bio molecules? How are they going to get the necessary equipment? How are they going to get highly trained scientists to help them?

The article states a precedent:

In June 1940 ... the academy secured the cooperation of 237 journals in withholding papers on uranium and related matters, resulting in "the almost total cessation of publication on nuclear physics."

The academy, however, circulated the articles privately among American physicists.

Perhaps that was needed, then, I don't presume to judge. However, this isn't Germany we're dealing with.

Muslims & Multicults - Joe Katzman has a brilliant post today on his Winds of Change about Muslim integration in the West (or lack thereof) and the multicults (via InstaPundit). As I read him (I hope he and you will think fairly), he emphasizes both the reality and centrality of certain core values (denied by PoMo), one of which certainly must be racial and religious neutrality.

You can see why this fits so perfectly into the groove of my one-track mind.

Locked and UNloaded - In a 7/23 email to subscribers Gun Tests magazine announced that its August issue will contain a story that National Guard troops deployed in many airports after 9/11 carried unloaded weapons.

Knight-Ridder newspapers have reported that armed National Guard troopers deployed to airports for security following September 11 did not always carry ammunition in their pistols or M16 rifles, though they may have had access to magazines loaded with live rounds. National Guardsmen called up for security remained under the control of their state's governor, who determined policy on firearms. According to Guardsmen who served at Philadelphia's airport for seven months following the terrorist attacks, the armed soldiers at 16 airports around Pennsylvania were forbidden from patrolling with loaded firearms. The newspapers report that New York Guardsmen were also required to keep empty magazines in their rifles and pistols.

Pardon me if this is old news to everyone, but I missed it earlier. A quick check revealed that the Philadelphia Inquirer published the leading article on this matter on May 26. An excerpt:

The Pa. guardsmen's presence was intended to reassure passengers. But they say their ability to handle an emergency was compromised....

For seven months, more than 80 National Guard troops watched almost 12 million passengers walk through the gates and security checkpoints at Philadelphia International Airport.

Among the most visible responses to the war on terrorism, the soldiers stood ready, dressed in Army fatigues, their 9mm pistols strapped to their sides.

But the guns had no bullets.

Sounds like someone in authority went off half-cocked.

Thursday, July 25, 2002

Moussaoui's Deeply Hidden Genius - The Washington Post Style section is defending Moussaoui as a misunderstood genius.

... they [the motions] show an angry man focused on what he feels is American hypocrisy and determined to hold this country to its stated principles of freedom and justice. Even as observers speculate about Moussaoui's mental stability, his writings suggest that he was developing a legal strategy, if not to save himself then to call to account those who he feels are abusing him.

Hypocrisy? Abuse? Where? Since Moussaoui believes we are being hypocritical and abusive, though, the Post can state his beliefs as truth, without presenting any evidence.

... they're also playful at times, especially when tweaking or goading Judge Leonie Brinkema or his court-appointed standby lawyers.

So, according to the Post, tweaking and playful is saying Brinkema has a "legal pathological killer instinct with ego [boosting] dementia to become supreme," and calling his court-appointed lawyers "death lawyers."

Here's the concluding paragraph:

Strictly speaking, he wasn't one of the 19 hijackers. He was arrested in Minnesota on immigration charges almost a month before the Sept. 11 attacks. Between intending to do something -- whether it's murder or marriage -- and actually doing it, lies an existential gulf. Sitting in prison for almost a year, Moussaoui, still a young man of 34, is aware of at least two roads not taken: that of marriage and family and life, and that of martyrdom. It's not clear to what degree he regrets the former and feels guilty about the latter. The difference between Moussaoui and the terrorists of Sept. 11 is that he has, for now, time to ponder these questions. [emphasis added]

By twisting a statement of complete lack of knowledge, the emphasized sentence manages to portray Moussaoui in a favorable light.

Is this compilation of loaded language, reprinted beliefs, and unsupported interpretation supposed to be news?

Monday, July 22, 2002

The Neas Have It - Judicial Activism: Noun phrase. A judicial opinion with which you, and by implication all right-thinking people, disagree.

Ralph Neas, president of People for the American Way, is (surprise!) opposing the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals. According to Neas, "When she doesn't agree with a law passed by the Legislature, she tries to amend that law by her judicial opinions."

I am now taking bets from anyone who believes Neas believes what he said, i.e., that he will consistently apply this anti-activism principle to the next liberal judge who flexibly interprets a staute to reach a conclusion he approves.

Incidentally, the SFGATE article quoting Neas (linked above) identifes People for the American Way as a "liberal-leaning advocacy group." If PFAW is only liberal-leaning, I wonder who SFGATE regards as a full-fledged liberal group.

Death to Disparate Impact - Recently Garrett Moritz and I lobbed some friendly blog comments at each other over disparate impact. Look here. Moritz's point, or one of his points, was that I was "tilting at windmills" because disparate impact was already a corpse, executed and interred by conservative courts.

It still lives in a few legal nooks and crannies, however, one of which is federal housing law. For a good discussion of this issue see Roger Clegg's excellent article on NRO about an unheralded case the Supremes agreed to hear at the very end of the last term. I agree wholeheartedly with Howard Bashman that Roger Clegg's essays are worth your time.

Sunday, July 21, 2002

The Buck Returns Here - Thanks to Stuart Buck for linking us on his newly revived site. It deserves the praise InstaPundit has recently given it.