MY REPLY TO BOB.

Bob-

It becomes increasingly apparent to me that we don’t share even the same premises on which this conversation rests. To put it less formally: I think you’re off your rocker.

The most important area of disagreement between us, I think, is how we view our country’s history. You view segregation and racism as artifacts of some time in the (distant) past with no impact on our society today. I think this view is profoundly naïve; racism still plagues our country. (You ask for examples or evidence: how about—in varying levels of importance—the disparities in wealth and income, in law enforcement, the death penalty, in business, in the NFL coaching and the Oscars? To say nothing that in this supposedly enlightened age the Republicans would elect a governor based on appeals to one of the most racially noxious symbols in our history.)

Even if I were to accept the idea that all racism had fled from people’s minds, and that all segregation was destroyed, I still cannot fathom how you can so neatly parcel the effects of the last 200 years. History is stream, not a series of independent and unrelated steps. For too long the stream of our nation’s history was polluted with racism and segregation, and to suggest that somehow that pollution no longer affects our society, or that the government has no interest in remedying those effects, strikes me as bizarre. To answer one of your questions: we would be a better society today if twenty million white families switched places with twenty million black families, if not for the social disruption and upheaval that would accompany such a move, because there is something fundamentally unfair about societies where wealth and social opportunities are distributed along racial lines—especially when the federal and state governments created, maintained, and condoned those lines.

Nor do I think it adequate to complain, as you do, about the unfairness of penalizing those who did not have a direct hand in the creation and maintenance of our segregated system. Whether we created or supported the system or not, we benefit from it (or, more conservatively, from its remnants) yet today. The unfairness of racism’s legacy lies not only in its victims, but in the advantages that it gives to others. Think about Lyndon Johnson’s famous line about the race—that it isn’t just enough to remove the shackles, point to the starting line, and say “off you go.” It isn’t only the black runner whose position has been affected: the white runners standing next to him benefit unfairly from their competitor’s disadvantages. I think it is the same with our society today: the unfairness lies not just with the attempted suppression, but with the advantages that accrues to others as a result of that suppression. (To put it yet another way: I think your assertion that society has no interest in having those who have neither discriminated nor benefit from discrimination pay the cost of remedy past or present discrimination is based on faulty premises: there isn’t anyone in this society who hasn’t either benefit or been harmed by our past and present.)

Speaking of race—I can understand your discomfort in the use of the that term; too often in the past it has been terribly abused. But surely you go too far when you say that “races are not things that . . . suffer.” Are you denying the tragic shared experience that was slavery? Is slavery best understood (or even comprehensible) as occurring to an aggregation of individuals? Or did it, in some significant sense, happen to a race of people? If you say that it didn’t, are you arguing that it was all some tragic coincidence that they shared the same skin color?

You accuse me of being a racist because I believe that 1) races are real things; 2) that the self is constituted from one’s race; 3) that it is morally acceptable to discriminate against people based on race; 4) that ‘races’ have social interests that government can take into account; and 5) that a social good is accomplished by benefiting one race at the expense of the other. Then, in fit of real charity, you compare me—and the millions of other supporters of affirmative action—to Hitler.

I do believe that races are real, in the sense that society (or people within society) recognize and classify (in a non-pejorative sense) people by their race. So far as a person’s self is partially constituted by how others view them, and by the groups with which we associate ourselves, then it stands to reason that a person’s race is part of what constitutes the self. I would agree that discriminating against people based on race is always morally suspect, to say the least, but like most general moral statements, we have to think carefully about the boundaries of that statement (what about remedial programs which address direct past discrimination?) Finally, I think that to the extent that racial groups are created and used by society, and — you should remember — by government, then it follows that they might have social interests which the government might recognize. (After all, they definitely had social harms imposed by the government.) From that, it isn’t such a far leap to say that some social good can be achieved by reversing the processes by which the government previously distributed race-based preferences.

I’m not going to dignify your comparison with Hitler with the response that it deserves (have you ever even opened Mein Kampf ?), but at least think about the differences in intent, means and results between those of us you assault today and our Nazi forebears.

Along these lines, I can’t see how separate-but-equal doctrines and anti-miscegenation laws have anything to do with affirmative action. The former was created for the express purpose of continuing (either de jure, de facto, or both) the racial hierarchy of the pre-Civil War South. The latter was based on a view that there was something wrong about America’s social mixer. Affirmative action relies on neither sort of argument: it is designed (rather specifically) to eliminate the remnants of those racial hierarchies, and it says nothing—good, bad, or otherwise—about the “proper” place of biracial Americans in our country. (Some opponents seem to think that affirmative action stigmatizes its beneficiaries, as if they, rather then society, have something to apologize for). I’m not completely dense—I understand the argument that the means that affirmative action relies on seem to skate awfully close to the means that imposed these evils, but I think your argument is too blunt.

To put the point more broadly: your view of equal protection (or, more specifically, of heightened scrutiny equal protection) continues to puzzle me. At one point in your last response you seem to come close to acknowledging that the correlation between race and various social good properly discomforts us, but then you suggest that “race is not a category which provides a legitimate basis for altering results.” You, in effect, are saying that poor (mistaken? false? evil?) readings of the 14th Amendment are responsible for our current situation, but now because we realize the error of our ways that same 14th Amendment prevents us from remedying our situation. (What if instead of the zero-sum world of college admissions, Congress and the state legislatures chose some sort remedy-by-reparation: a cash sum for every black American citizen, or maybe, less ostentatiously, a series of programs explicitly devoted to eliminating the disparities that exist? Clearly they would be subject to heightened scrutiny under the 14th Amendment, but do they raise your hackles as much?)

John Rosenberg of Discriminations makes a similar point in a post on Saturday:

But whether they are divinely inspired or not, we should be very clear that the principles underlying the new order or preferentialism that is being urged upon us are fundamentally incompatible with our traditional principles of official neutrality and individual as opposed to group rights, especially the individual right to be treated “without regard” to race, religion, or national origin.

It seems like some sort of sick joke to suggest that the 14th Amendment’s equal protection clause, which for a hundred years was ignored or perverted in service of discrimination, now prevents us from taking the most direct route possible of remedying that discrimination.

Wrapping up a few points:

* “Self-identification” means what it says. Schools shouldn’t be expelling anyone based on their failure to accurately self-identify, but if they do, and you won’t let me rely on Adarand-type programs, then I say just submit it to the jury: is this person ____________ ? We can rely on juror common sense, and I suppose we might as well here.

* I still don’t think that difficulty defining ‘race’ means that it doesn’t exist. To borrow a list of examples from a former professor: When is someone bald (how many hairs does it take)? How many is a “few”? What is a “heap”? These are all commonly-used (and commonly-understood) concepts that lack precise definition.

* How to decide what races receive preferences? By who suffered the most, the longest and who is still suffering the worst effects.

* “Critical mass” is the number that students of color need to have on campus for them to be comfortable attending. (It’s kind of a reverse-tipping point, if I understand it correctly). And your comment about American Samoans is just doesn't follow: are you suggesting that because “critical mass” can’t exist for them that it can’t exist for others?

* Saying that I want to set as a goal a class that reflects the society it draws students from is not saying that I want to create a quota. Do you know what either of those words mean?

* I cannot see the inconsistency in arguing that remedies of this sort are necessary because of past and present discrimination and also to achieve the benefits of diversity. Different rationales, yes, but inconsistent? While we’re on distinctions without differences, could you elaborate on why you think that governmental recognition of the existence of races (as a social creation, if nothing else) is proper in the Title VII context but becomes racism if employed elsewhere?

* I don’t doubt that ascribing “the black experience” to all black Americans, regardless of their situation, is wildly over broad. At the same time, though, if I were an undergraduate college admissions officer wondering about the sorts of experiences my applicants had, I would be willing to bet dollars to donuts that Condi Rice’s experiences have more in common with Clarence Thomas’s than they do with George W. Bush’s, even though (as I understand it) her family’s economic and social status was much closer (relatively speaking) to Bush’s than it was to Thomas’s. The policeman who beats them on the head, or the storekeeper who won’t let them out of his sight, doesn’t distinguish between doctor’s kids from New Jersey and gang members from Detroit. (And the bomber who killed Condi Rice’s playmates sure as hell didn’t care).

* I don’t know anything about Angela Davis or the UC system in general, but I think the point of tenure is to protect politically unpopular professors from those who employ them.

* Do you have a problem with the UC administrators working to increase the levels of minority enrollment in ways consistent with Prop 209?

* There are two immediate problems that I see with 10% plans. First, they rely on a system that (independent of this discussion) we should be working to eliminate: the ongoing de facto segregation of our elementary and secondary schools. Second, they are useless to graduate programs. (How do they survive your own equal protection analysis? Surely governmental programs intended to benefit a particular race are no less pernicious than outright categorizations based on race).

* I can think of many uncomplimentary things to say about the people who run my law school, but calling them morons isn’t something that leaps quickly to mind.

I’ve got some (pleasant) family business to attend to this week and next, so my apologies for sporadic responses and postings.


Simon

FISKING A FISKING. A partial “Fisk” of Andrew Sullivan’s fisking of a piece in the New York Times. (I ran out of time to fisk all of it; some of what Andrew says I agree with, so those parts are astericked out). The Times' original writing is in italics; Andrew's response is in Roman; my responses is in brackets.

***
The countdown to war has begun.

Nope. It began eleven years ago with the violated truce. Strictly speaking, the war never ended since the conditions of the truce have been violated. What short memories these editorialists have.

[We don’t have 11 year countdowns. And there could be no countdown, in any event, absence a certainty or near-certainty of going to war. I think it’s fair to say this is the first time in the last eleven years that we’ve reached that point.]

The United Nations will hear the report of its weapons inspectors this week and begin debating the wisdom of endorsing a war against Iraq. But the Bush administration seems to be operating on a different plane, gearing up for an invasion it appears determined to conduct whether or not its allies approve. At best, it may give the Security Council a few more weeks to consider whether to approve an attack on Iraq. We urge the administration to brake the momentum toward war.

But doesn't the Times recognize that the only reason we have even a fraudulent Saddamite attempt to appear to cooperate with the U.N. is a direct function of the credible "momentum toward war"? Before Bush ever threatened real consequences, Saddam got away with mass murder, and with the largely unfettered development of weapons of mass destruction. The only thing that made Saddam even listen to the U.N. was Bush's military resolve. Yet now the Times wants to remove the one means we have to achieve a goal they say they support.

[There are a lot of people who get away with mass murder with hardly a boo from Bush (wasn’t he the guy running against ‘nation-building?’)]

Saddam Hussein is obviously a brutal dictator who deserves toppling.

This is a huge concession. At least the Times acknowledges the terrible evil lurking in Baghdad.

[I don’t think anyone at the Times, or pretty much anywhere else credible, has ever suggested that Hussein didn’t deserve being toppled. They just disagreed about the means and the timing. But by phrasing it as “concession,” Andrew insinuates that somehow the Times once thought Hussein’s regime legitimate.]

***

That isn't true of this engagement, and the fault lies mainly with the president himself. Mr. Bush has never been open with the American people about the possible cost of this war. He has not even been clear about exactly why we are preparing to fight. Sometimes his aim appears to be disarming the Iraqis or punishing Baghdad for defying the United Nations; sometimes the goal is nothing short of deposing Mr. Hussein. The first lesson of the Vietnam era was that Americans should not be sent to die for aims the country only vaguely understands and accepts.

How many speeches does the president have to give? His position after 9/11 was absolutely clear. We were at war with international terrorism and its state sponsors and enablers. Iraq is one such country, the most dangerous and lethal of the bunch. We therefore have two options: pretend the world hasn't changed, leave Saddam in place, and react defensively to every new terrorist outrage. Or actually have a strategy to fight and win. Sometimes I wonder if the Times would only endorse a war against Saddam after hundreds of thousands of Americans were killed by a Saddam-manufactured chemical or nuclear device. The question is: should we or should we not wait for that calamity before we act to prevent it? The Times implicitly argues that there is no danger of such a calamity. How can they be sure? What assurances of Saddam's good intentions do they have that the rest of us don't?

[The real question (which Andrew neatly avoids) is how we can determine, now and in the future, when preventive wars are necessary. But his response doesn’t touch on that, nor does it address the point the Times’ was trying to make, which is the White House, the President, and his advisors have constantly either ignored, downplayed, or obfuscated about the potential costs of the war. (Remember what happened to Larry Lindsey and his $200 billion prediction?) But then, President Bush has never been one on reasons: he prefers to make foreign policy through his speech-writing staff (“Axis of Evil”) and by looking deep in the souls of other leaders.]

The second lesson of Vietnam was that the country should never enter into a conflict without a clear exit strategy. We have nothing close to a plan for how, once in Iraq, we get back out again. Even if Mr. Hussein is easily eliminated, the United States will be left to govern and police Iraq for an extended period. Without clearly acknowledging the possibility to the American public, Washington could easily find itself involved in an open-ended occupation.

Yep, this is an extended commitment. Just as our commitment to a newly liberated Afghanistan is open-ended. As is our continued commitment to Germany - over fifty years after liberation. But that doesn't mean there is never an end. And it doesn't mean it's not a venture worth under-taking.

[“Our commitment to a newly liberated Afghanistan is open-ended?” Was Andrew joking? By all reports we’ve already cut and run, let alone what happens when the war with Iraq does begin. Plus, I think the President who campaigned with specific opposition to nation-building (it was about the only foreign policy goal he could specifically state) bears a special burden in outlining his plans in this area.]

These risks would be tolerable if the rest of the world were working alongside the United States, prepared to share the danger of the invasion and ‹ much more critically ‹ the responsibility for creating a more humane and progressive Iraqi government in its wake. There are some threats and some causes that require fighting even if America has to fight alone, but this isn't one of them.

Why not? Is the threat of a chemical attack on New York not worth fighting to prevent? Is a nuclear-armed Saddam, able to control a huge amount of the oil resources for the entire West, not worth fighting to prevent? The insouciance of the Times toward these nightmare scenarios - as nightmarish as the U.S. has ever encountered - beggars belief. And in a liberated Iraq, why does the Times assume that the French, Germans and Russians won't be clamoring for access, if only to make money? Post-Saddam, the problem won't be enough foreign help. It will be too much.

[So we really don’t want foreign allies involved because they might take part of the “spoils” of this war? There are a whole list of trouble spots in the world where American intervention would be nice (south-central Africa comes to mind) but where this Administration would never consider it period, let alone if we had allied support. The more imminent the threat from Saddam the more likely I am to support unilateral action. But, as noted earlier, the Administration really won’t give us an idea of how to measure that.]

***

Winning control of Iraq's oil fields is not, particularly when the attacking nation is a country whose wasteful use of energy is an international scandal.

So because the U.S. should do a better job at energy conservation, it has no right to secure oil fields crucial to the world economy?

[No, but Andrew should at least have the grace to acknowledge that a more sane energy policy would remove some of Saddam’s leverage.]

***

But they can slow Mr. Hussein's weapons programs ...

How? What evidence do we have for this at all? If we cannot find the weapons or the plants developing them, how can we begin to know if they're being impeded or not? This isn't an argument. It's wishful thinking. Actually, it's worse than wishful thinking. It's self-conscious attempt to avoid the hardest issue here of all. But even if you concede this implausible point, what will disarm Saddam? Drum-roll, please:

[What evidence do we have of anything? If the inspectors find chemical weapons, Hussein violates 1441 and we go to war. If the inspectors don’t find chemical weapons, Hussein must be hiding them in violation of 1441 and we go to war. Somehow, I don’t think Andrew should be relying on ‘evidence’ of anything.]

.... leaving more time for diplomatic efforts to remove him from power...

At this point, the editorial simply collapses into complete incoherence. Does anyone at the Times seriously believe that diplomacy will remove Saddam? Do the editorialists believe that by the U.S. standing down, acceding to the French and Germans' desire to keep Saddam in power, that pressure on Saddam will increase? Of course, the only result of what the Times is proposing is a huge victory for Saddam, and his enablers in Europe. It will encourage him not to cooperate at all. Far from it, it will show him that his old tactics of hide-and-seek, and playing one Western power off against another, has worked yet again. Any delay till the fall is essentially an end to the threat altogether. If Saddam can get the West to stand down after blatantly flouting U.N. resolutions, he won't moderate int he future. He will ramp up his ambitions; and his terorist allies, from al Qaeda to Hezbollah will see how weak the U.S. is and ratchet up their violence as well. Saddam said that he knew his best hope lay with the opposition in Western countries, and the Times is dancing to his tune perfectly.

[I thought Iran was the major backer of Hezbollah. And what, again, are the connections between al Qaeda and Iraq? Wait a minute . . . why aren’t we invading Iran?]