“Justice Denied”: Federal Judge Faces No Punishment Following Racially Charged Remarks
Last year, Judge Edith H. Jones of the 5th Circuit Court of Appeals spoke to a conservative legal group and made a series of controversial remarks about race. There is no official transcript or recording, but affidavits from attendees pointed to deeply problematic language, especially from a sitting federal judge.
According to an ethics complaint, Jones, a Reagan appointee, told the audience that “racial groups like African-Americans and Hispanics are predisposed to crime.” A veteran attorney who was in the room said Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime.” She was also accused of having said defenses often used in capital cases, including mental retardation and systemic racism, are “red herrings.”
An investigation ensued, but the Associated Press reported yesterday that a panel of judges dismissed the misconduct complaint.
“It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are ‘disproportionately’ involved in certain crimes and ‘disproportionately’ present in federal prisons,” said the panel.
“But we must consider Judge Jones’ comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are ‘prone to commit’ such crimes,” the panel of judges said.
“In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial,” said the panel. “They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system.”
One wonders if Americans from minority communities, whose legal fate rests in Jones’ hands, would have comparable confidence in the conservative judge’s impartiality.
My colleague Kate Osborn noted yesterday that one of the lawyers who filed the original complaint wasn’t impressed with the investigation, and is pushing the process forward. From a press statement:
The D.C. Circuit judges who dismissed the initial complaint this August repeatedly relied on Judge Jones’ own version of the facts about her Penn Law speech – in spite of conflicting sworn testimony from six people – five of whom were law students – who attended the lecture. The judges allowed Judge Jones to testify but did not allow those who filed the complaint or attended the lecture to do the same. The judges also received documents and other secret evidence that they and Judge Jones refused to disclose to complainants.
“Just as concerning as these instances of bias, the one-sidedness and secrecy surrounding the ethics complaint process and the untoward deference to the judge’s denials makes it unlikely that any claims of judicial misbehavior can be handled in a way that gives the public confidence that justice is being served,” said Luis Roberto Vera, Jr., national general counsel of the League of United Latin American Citizens, another party to the appeal.
An appeal has been filed with the Judicial Conference of the United States, requesting its Committee on Judicial Conduct and Disability revisit the complaint.
By: Steve Benen, The Maddow Blog, October 16, 2014
“Under the Dome”: How The Conservative Media Are Keeping The GOP From Moving Past The Same-Sex Marriage Debate
Over the weekend, former Arkansas governor Mike Huckabee issued a call to arms to conservatives not to give up the fight against same-sex marriage, based on his bizarre belief that no decision of the Supreme Court has the force of law unless Congress passes legislation to confirm it. Because of that, Huckabee says, the fight can continue unhindered no matter what the court does. “I’m utterly disgusted with fellow Republicans who want to walk away from the issue of judicial supremacy just because it’s politically volatile,” he said. “Here’s my advice: Grow a spine!” Huckabee’s legal analysis may be idiosyncratic (to put it kindly), but his position — that this isn’t a fight conservatives should abandon just because they’ve nearly lost it — is one with plenty of purchase among the Republican faithful. And he’s hardly the only one with a media pulpit from which to preach it. In fact, the division within the GOP has a parallel in the conservative media. The presence of hard-liners (or dead-enders, if you prefer) like Huckabee is going to make it all the more difficult and painful for the party to evolve in the way its more sober strategists know it must.
Conservatives worked very hard over a period of decades to build up their own media to serve as an alternative and a counterweight to a mainstream press they saw as biased against them. This project was spectacularly successful, particularly with the explosion of right-wing talk radio in the 1980s and early 1990s, and the launch of Fox News in 1996. It wasn’t until the last couple of years that people began questioning whether it was doing the movement more harm than good by encasing conservatives in a self-reinforcing bubble from which it became increasingly difficult to see the outside world clearly.
Just as there are divisions within the GOP, there are divisions within the conservative media. And just as the party’s conservatives make it hard to make strategically necessary shifts — or simply avoid moving too far to the right — the continued power of hard-line media figures can keep the party from modernizing.
Since 2012, Republicans have been fretting about how they can “reach out” to minority groups, particularly Latinos, in order to widen their appeal beyond the older white folks who are the core of the party. The trouble is that it’s hard to reach out when elected officials within your party keep loudly proclaiming their anti-immigrant views. The same is true on gay marriage. The party’s national strategists would like nothing better than for the issue to go away. They know that the policy outcome is inevitable and public opinion is not turning back, so there’s little point in mounting some kind of rear-guard action against it, one that will only make the party look outdated and out of touch. But as Greg and I both pointed out last week, potential future presidential candidate Ted Cruz is going to force a debate on it in 2016 whether other Republicans like it or not.
Some parts of the conservative media will do the same thing. Eric Boehlert of Media Matters observes that in most of its programming, Fox News has all but stopped talking about same-sex marriage. But that’s not going to silence Huckabee (whose show runs on Fox on the weekends), or Rush Limbaugh, or many of the other radio hosts with huge audiences. As long as they press the issue, the Republican base will still demand that candidates proclaim their objections to the changes taking place in the country, and the harder it remains for the party to move past its vehement opposition to marriage equality. Everyone knows that evolution will have to take place eventually, but the conservative media have the power to make the transition inordinately painful.
Fox’s abdication of the marriage issue demonstrates that the network functions as the semi-official organ of the Republican Party. Roger Ailes may be in business to make money, but he won’t do so in ways that harm the interests of the GOP. The same, however, can’t be said of everyone with a large conservative audience. On a whole range of domestic issues, from immigration to marriage equality to reproductive rights, they’re going to continue pulling the party to the right even when it has to turn back to the center or risk electoral disaster (like, say, the election of a certain former secretary of state to the White House). Conservative media have been great at keeping the rabble angry and excited, getting them to the polls and getting them to open their wallets. But when the party needs to take a cold hard look at reality and evolve or get left behind, the same media are going to be an albatross holding it back.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, October 13, 2014
“GOP’s ‘Reparations’ Insanity”: Why Thom Tillis’ Latest Screwup Is So Important
History may ultimately remember GOP Senate candidate Thom Tillis as one of the only Republicans in North Carolina history to serve as speaker of the House. And if he manages to defeat Sen. Kay Hagan this November, history may ultimately remember Tillis as a bona fide member of the United States Senate. But while history’s verdict is still to be determined, my estimation of Thom Tillis is already set. Simply put, he’s the (despicable) gift that keeps on giving.
By the second time Tillis made news by giving voice to the base of the Republican Party’s reactionary id — first for promoting a “divide and conquer” strategy to attack recipients of government support; then for contrasting African Americans and Latinos in North Carolina with the state’s “traditional population” — I was beginning to have my suspicions. But a recent report on a 2007 statement in which Tillis claims a “subset” of the state’s Democrats ceaselessly call for “de facto reparations” is the clincher.
In this instance and others, what makes Tillis so valuable is the way his previous statements show what it sounds like when an ultra-conservative tries to reach his fellow travelers by using language intended to signal his membership within (and loyalty to) the tribe. Indeed, as was the case during both his “divide and conquer” gaffe and his “traditional population” slip, the Tillis we see attacking “de facto reparations” is on the defensive, trying to prove to his far-right audience that he’s still on their team. And everyone on that team, to state the obvious, just so happens to have white skin.
In fact, once you learn about the specific context of Tillis’s reparations remark, the connection between the U.S. far-right’s hatred for redistribution and its negative views of non-white citizens becomes even clearer. According to the report, Tillis’s statement was an attempt to persuade his most conservative supporters that the legislature’s apology would not pave the way for reparations, which was apparently their concern. “This resolution acknowledges past mistakes and frees us to move on,” Tillis assured these right-wingers, trying to spin the apology as a way to put the debate over racism and slavery’s legacy finally to rest.
Guarding against the possibility that his support for the apology be interpreted as a sign of a more fundamental disagreement with the Republican base, Tillis then endorsed the redistribution-is-reparations argument in general, claiming that a “subset” of Democrats “has never ceased to propose legislation that is de facto reparations.” All this despite the fact that, according to Tillis, “Federal and State [sic] governments have redistributed trillions of dollars of wealth over the years by funding programs that are at least in part driven by [the subset’s] belief that we should provide additional reparations.” And there you have it, according to Tillis: modern liberalism itself is little more than an elaborate excuse for giving money to blacks.
For people inclined to see most of U.S. politics as heavily influenced by the country’s shameful history on race — a group amongst which I count myself — Tillis’s argument, his conflation of redistribution and race, couldn’t have been more revealing. Yet for those who are not conservative but are still sometimes uncomfortable ascribing so much of our politics to the consequences of race, there may be a temptation to assume Tillis’s argument, while undeniably racialized, has more to do with the ways Republicans have gone backwards on race during the Obama era. But let’s remember: Tillis’s comments came in 2007, before there was a President Obama, before there was Obamacare and before conservative media began talking about reparations as a matter of course.
So Tillis’s latest flub isn’t about Obama, specifically. Instead, it tells us something essential about the conservative movement today as a whole. Namely, that despite what self-styled centrist pundits and Republican Party leadership may tell you, the debate over the welfare state and redistribution — which has once again come to dominate American politics, and is likely to continue to do so into the foreseeable future — is, especially for hardcore conservatives, a debate about tribal belonging and race. Former Speaker of the House Tip O’Neill famously said that all politics is local; if I could tweak the phrase for the current era, I’d say that when it comes to American politics, all redistribution is racial.
By: Elias Isquith, Salon, October 14, 2014
“In Ferguson And Beyond, Punishing Humanity”: Subordinated People Are Mistakenly Viewed As Brutes Or Even Nonhuman Animals
On Sept. 26, two peaceful protesters were arrested in Ferguson, Mo. Watch this video (warning: includes profanity) and you will see two white officers arresting a young black woman who is wearing a red hoodie. One tackles her in a chokehold and yanks her hands behind her back. She whimpers, and they force her face down on the pavement. They then carry her off with one officer holding her by an arm, and the other holding her by a leg. Her body has gone limp; they dangle her between them carelessly. Why were these two men handling her “like an animal?” asks the protester recording the scene with her cellphone. It is a good question. And its answer is not obvious.
One possibility is that people are treated brutally because those who mistreat them fail to grasp their common humanity — or, similarly, their personhood. The idea is that seeing another person as a fellow human being is not only a prerequisite for ethical relations with her, but also strongly disposes us to treat her as we ought to. In George Orwell’s experience, when you see another person as “visibly a fellow-creature, similar to yourself, [then] you don’t feel like shooting at him.” (Or her — presumably.) Moreover, man’s inhumanity to man (and women, too) often stems from overlooking our shared human capacities, an appreciation of which would tend to give rise to empathy. Subordinated people are mistakenly viewed as brutes, subhuman, or even nonhuman animals.
This line of argument regarding the most virulent forms of racism has been developed in detail by David Livingstone Smith, among others. It is also accepted in some form by many different kinds of humanists in philosophy, variously inspired by Aristotle, Hume, Kant and Wittgenstein. And it has echoed loudly in the blogosphere in the two months following the Ferguson protests — which erupted when Michael Brown, an unarmed black teenager, was killed by a white police officer. It is not hard to see why. When, three days after the shooting, another white officer called the (primarily black) protesters “[expletive] animals,” it cemented many people’s fears that Brown had been slain in a similar spirit — the thought being that the officer responsible, Darren Wilson, saw Brown as an animal, or at least as less than human. Witnesses are on record saying that Brown had his hands up, that he was posing no threat to the officer, but that Wilson “just kept shooting” — even after Brown backed down, in a classic gesture of surrender. Wilson shot at Brown as if he felt powerless to stop him, almost as if he were faced with a bear or an ape or a zombie.
I used to be a humanist in this sense of the term. But I am fast losing my religion. Dehumanization increasingly seems to me to be merely a symptom of the problem. The problem being precisely that black people are being seen as people — and they are seen as being threatening, and taken down, because of it.
The humanist line on Ferguson is unduly optimistic, and rests on a psychologically dubious assumption. Namely, that when people who have historically enjoyed a dominant position in society (in this case white men) come to recognize historically subordinated people (racial minorities, women) as their moral and social equals, they will welcome the newcomers. But seeing others as similar to ourselves can lead to hostility and resentment under certain conditions. It’s true that Orwell’s vision of a person running across the battlefield holding up his trousers during the Spanish civil war transformed an enemy combatant into a vulnerable human being in his eyes — someone who must have been undressed or indisposed moments before the gunfire started. But this humanizing vision involved no loss of status for Orwell. He felt sorry for the man. He saw him as ridiculous.
The situation is different when it comes to white men’s perception of non-whites and women. Over time, as the fight for equality has allowed some advancement and social mobility for racial minorities, as well as for women, toward what we might call the inner circle of humanity, white men have experienced a relative loss of status. And they now have more rivals for desirable positions. Add to that the fact that they may find themselves surpassed by those they tacitly expected to be in social positions beneath them, and we have a recipe for resentment and the desire to regain dominance.
None of this is likely to be conscious, nor to manifest itself at all times; nor is it true of all white men, obviously. Rather, it is likely to come out in momentary flashes of aggression for some white men when they are feeling threatened. That “Bring it, you [expletive] animals, bring it!” that the Ferguson police officer spat at the protesters back in August should be heard in this vein as a slur and a battle cry. As Kwame Anthony Appiah has argued, those accused of dehumanizing others often “acknowledge their victims’ humanity in the very act of humiliating, stigmatizing, reviling and torturing them.” The cop put these people down by likening them to animals — an insult that depends, for its humiliating quality, on its targets’ distinctively human desire to be recognized as human beings. The cop also declared his readiness to fight for his position in the existing social hierarchy. And the hierarchy assumes that we are all people — some of whom are more equal than others, naturally. This is the nature of domination and subordination relations, which have been theorized by Catharine MacKinnon and Sally Haslanger, among others. They require that there be people ranked above and/or beneath you. And it is important that we all know our place, if only tacitly.
Consider, too, what the people involved were doing in two of the above cases. They were engaged in that uniquely human activity of protesting. They were behaving as no animal besides us ever behaves. They were being “political animals,” to use Aristotle’s term for human beings. Many philosophers say that it is our capacity for rationality that distinguishes us as human. But at least as distinctive, one might think, is our capacity to be political.
The humanist line on Ferguson hence fails to explain what seems to provoke the aggression — namely, acts of political and personal defiance, which only people can demonstrate. Moreover, it is hardly surprising that historically subordinated people should be perceived in this way when they try to assert themselves around, or over, dominant group members. They are liable to be perceived as belligerent, “uppity,” insubordinate or out of order.
This is a plausible hypothesis about what happened in Michael Brown’s case as well. The exact events remain in some dispute, but most agree on the same basic sequence. What seemed to set Wilson off was that Brown challenged his authority. The incident began when Brown ignored Wilson’s orders to get out of the center of the street, where he and his friend had been walking. Wilson drove off, apparently cowed. He then seems to have changed his mind, decided to stand his ground, have a do-over. He slammed his car into reverse; by some accounts, he was taunted by Brown, following a physical altercation. In the end, Wilson shot Brown at least six times, including twice in the head, and reportedly kept shooting after Brown surrendered. But at that point, it seems, it was too late for deference.
The humanist line on Ferguson also fails to explain the quality of the aggression, which has a resentful, vindictive tenor. After he was killed, Brown’s body was left uncovered on the street for some four hours afterwards, to add deep social insult to fatal physical injury. And when another young black man, Kajieme Powell, was shot and killed a mere 10 days later in St. Louis, the police officers who shot him did something extraordinary. After they had killed him, they handcuffed his dead body. Powell had been staggering around with a small knife, apparently trying to commit so-called suicide by cop. The man clearly needed some help to raise him up again. Instead, the police shot him down, and arrested him post mortem.
These actions, as well as being shameful, reveal a resentful and punitive mentality behind the aggression, which are classic examples of what the English philosopher P. F. Strawson famously called the interpersonal “reactive attitudes.” These attitudes are held to be both distinctive and central to our dealings with other human beings — that is, with people who we recognize as such, or as fully paid-up members in this club we call humanity. When it comes to animals and children and people we regard as (temporarily or permanently) not in control of their actions, we may try to correct, manage, deter or restrain their behavior. But, ordinarily and ideally, we do not resent it. They are not moral agents. We can’t really blame them.
And resentment and blame, along with punitive behavior and the associated social practices, are precisely what black people in this country are being systematically subjected to at present, at every level of the criminal justice system. Black people are proportionately far more likely to be stopped, frisked, searched, arrested, tased, charged, tried, convicted, incarcerated and executed (by means that are often grossly unconstitutional). Black bodies are routinely being policed and punished without mercy. And we don’t police animals in this way. Nor do we punish them in this spirit.
Unfortunately, seeing people’s humanity is only the moral beginning. Sometimes people will be punished for the crime of being people.
By: Kate Manne, Assistant Professor of Philosophy at Cornell University; Opinionator, The Stone, The New York Times, October 12, 2014
“Fair Housing Act”: The Next Assault On Civil Rights
Last Thursday the Supreme Court agreed to hear arguments in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The case concerns the “disparate impact” rule, a legal guideline embedded in the 1968 Fair Housing Act that says discrimination doesn’t have to be intentional to be discrimination. This rule has been at the bedrock of fair-housing enforcement for more than four decades.
Another way to understand disparate impact is this: It’s a way to confront the realities of racial inequality without trying to prove the motivations of an institution, organization, or landlord. In housing especially, it’s rare to get someone as explicit about his discrimination as Donald Sterling. More often, you must look for patterns of unequal results or unfair treatment that stem from “objective” or “neutral” criteria.
In United States v. Wells Fargo, for example, the Department of Justice sued the mortgage lender over its role in the subprime market. According to the suit, Wells Fargo brokers raised interest rates and fees for more than 30,000 minority customers, and encouraged black and Hispanic homeowners to take subprime loans even if they qualified for traditional financing. We don’t know if malice drove this policy, but under disparate impact guidelines, it doesn’t matter: The government can show concrete harm and act accordingly.
This is an expansive power, but given our history, also a necessary one. We built our housing markets on a structure of discrimination, from bias in lending and state-sanctioned segregation to exclusionary zoning and active attacks on minority homeownership. To fix this, you can’t just ban discrimination, you need a countervailing force; otherwise, inequality would reproduce itself.
Beyond this, there’s the simple fact that racial bias is still alive in vast areas of American life, and it’s a fool’s errand to root out racists—most people who discriminate are too smart to broadcast their prejudice. Disparate impact—backed by both courts and the present administration—is a vital tool in fighting these battles.
But it’s also controversial, with opponents who see it as subversive to equal protection. “Instead of promoting equal protection under the law,” wrote Ammon Simon for National Review in 2012, disparate impact “grasps at ‘ensuring equal results,’ treating people like depersonalized ‘components of a racial, religious, sexual or national class.’ ” Likewise, in his concurrence in Ricci v. DeStefano—an affirmative action case—Justice Antonin Scalia swings at the doctrine, calling disparate impact provisions in employment practices a “racial thumb on the scales” that forces discriminatory “racial decisionmaking.”
Scalia and the conservative bloc of the Supreme Court are hostile to almost all race-conscious policies—from affirmative action (which Justice Clarence Thomas once compared to segregation) to important parts of the Voting Rights Act—and want to end disparate impact as a federal tool. Last year they almost had a chance; a group of New Jersey residents challenged disparate impact in Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., a fight over a neighborhood revitalization plan that plaintiffs claimed would dislocate and disproportionately harm minority residents. But the case was settled before it could reach the high court.
With the latest case, a settlement is unlikely. The court will hear disparate impact, and most likely—following Chief Justice John Roberts’ infamous declaration that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—end it.
It’s hard to overstate the magnitude of such a decision. In the last decade, with Roberts at the forefront, the Supreme Court has chipped away at the major provisions and policies of the civil rights era. With Parents Involved in Community Schools v. Seattle School District No. 1 in 2007, the Roberts court struck down voluntary integration efforts in Seattle; with Shelby County v. Holder, it struck down the preclearance formula for the Voting Rights Act, gutting the law and opening the door to voter suppression; and with Schuette v. BAMN, it gave Michigan voters free rein to block affirmative action through constitutional amendment. At the moment, it’s poised to uphold strict voter identification laws and—if the opportunity presents itself—strike at the core provisions of the VRA.
There’s a reason Justice Sonia Sotomayor swiped at Roberts in her now-famous Schuette dissent—the chief justice has launched an astounding assault on civil rights law that promises huge consequences for efforts against racial inequality. And indeed, Roberts is joined by a whole host of right-wing legislators and conservative intellectuals—perched at think tanks like the Heritage Foundation and the misnamed Center for Equal Opportunity—all united in a “colorblind” vision of American life that doesn’t see a public role for fighting racial inequality, and often holds it as overstated or attributable to “culture,” not the accumulated effects of past discrimination.
What’s interesting is the degree to which this isn’t new. In fact, it sits parallel to our past, where large gains for minorities—and blacks in particular—sit flush with setbacks and challenges.
We don’t think of it this way in the popular imagination, but the United States had two periods of “Reconstruction.” The first came after emancipation, when freed slaves worked in alliance with sympathetic whites to rebuild the South and forge a new path after the Civil War. But weakened by President Andrew Johnson, it never came to fruition. Instead, it was destroyed by ex-Confederates who terrorized the South with violence and drove blacks out of political life. With the Democratic Party as their vehicle, these “Redeemers” would set the stage for Jim Crow, convict leasing, and the march of horrors that marked black life for the next century.
The Second Reconstruction was the civil rights movement, and—as historian Eric Foner writes in his magisterial book on the first Reconstruction, it marks a time when “the nation again attempted to come to terms with the implications of emancipation and the political and social agenda of Reconstruction.”
Where the first Reconstruction had politicians, the second had preachers (and later, again, politicians). And where the first gave us a new Constitution—through the 13th, 14th, and 15th amendments—the second gave force to their provisions, through the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. It’s these laws—and the court cases that followed—that dismantled Jim Crow and integrated blacks into American political life.
Outside the far, far fringes of American life, there’s no challenge to that inclusion. But as we see with large parts of the Republican Party—including today’s conservatives on the Supreme Court—there is a challenge to the race-conscious policies and measures we use to protect and secure the political participation of blacks and other minorities.
This attack has far more to do with partisan advantage than any racial animus—as Texas Attorney General Greg Abbott explained in his defense of the state’s voter ID law, the goal is to limit Democrats, not minorities. Still, the effect is the same: applying new state limits on participation that have their largest impact on minorities, with shrinking protection from the federal government.
In his 1883 ruling against the 1875 Civil Rights Act—which prohibited black exclusion from jury service and guaranteed equal treatment in public accommodations, public transportation—Justice Joseph P. Bradley took a stand that should sound familiar to contemporary opponents of so-called racial entitlements:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.
Replace “slavery” with “Jim Crow” and you have the popular conservative view of race and Constitution. And small setbacks aside, that view is on the march, with its crosshairs aimed at disparate impact and the Fair Housing Act.
Put another way, if the civil rights movement was Second Reconstruction, then—if we need a name for today’s push against its key measures—you could do worse than the Second Redemption.
By: Jamelle Bouie, Slate, October 10, 2014
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