Enough Is Enough! Bipartisan Hypocrisy

Yesterday the Supreme Court heard two cases in which black plaintiffs claimed that Virginia (Bethune-Hill v. Virginia State Board of Elections) and North Carolina (McCrory v. Harris) discriminating against them in the way they created “majority-minority” legislative districts. “The claim made by black voters in both states,” the Associated Press reports, “is that Republicans created districts with more reliably Democratic black voters than necessary to elect their preferred candidates, making neighboring districts whiter and more Republican.”

Based on the now routinely disproven assumption that whites will not vote for blacks and blacks will not vote for whites if a black candidate is available, the Voting Rights Act as currently interpreted requires states to create districts containing enough blacks to allow them to elect “representatives of their choice.”

Since one of these cases is from Virginia, and since the arguments haven’t changed over the past decade or so, I feel not only entitled but virtually compelled to re-post verbatim what I had to say over a decade ago about the bipartisan hypocrisy of these arguments:

The arcana of racial redistricting, such as the nature of “retrogression” under Section 5 of the Voting Rights Act, make racial preferences in college admissions look pretty clear and uncomplicated. I hesitate to venture into this dismal swamp without a guide. But … blogs are full of guides, and I trust someone will correct any mistakes that follow. With that invitation on the table, my take is roughly as follows:

The DISCRIMINATIONS Hypocrisy Award goes to the Republicans. Under Bush I they realized that they could trumpet their fidelity to the Voting Rights Act, and by implication to black voters, by herding black voters into “majority-minority” districts that would be likely to elect black representatives for the first time. And by draining the surrounding districts of black, i.e., Democratic, votes, the policy would have the added benefit — purely incidental, I’m sure — of electing more Republicans. The Democrats, unable to oppose procedures that would lead to the election of more blacks, were effectively silenced and co-opted.

It was a brilliant tactical move, sacrificing only principle. Twenty-six such districts were created after the 1990 census, greatly contributing to subsequent Republican gains in the South.

The necessity for “majority-minority” districts was based on the assumption of “bloc voting,” that whites wouldn’t vote for blacks, but it did not take long for that assumption to be proven false. Once it became clear that super-majorities of blacks were not necessary to elect at least a significant number of blacks, the Democrats slowly emerged from the woodwork and began to argue (remember, they’ve never been addicted to consistency) that herding too many of blacks into “majority-minority” districts was racist, smacking of apartheid. At the same time, however, they argued that placing too few blacks in a district was also racist. To the Democrats, “too many” means more than enough to assure the election of a Democrat, and “too few” means not enough. By some cosmic co-incidence, the Democrats implicitly argue, that precise balance is what the law requires. This behavior thus has earned the Democrats the much-deserved DISCRIMINATIONS Award for Brazenness.

Both parties, in short, have proven themselves unprincipled. When the Republicans took over the state government in Virginia recently, for example, they moved quickly to round up as many blacks as possible and, freely admitting they were “taking race into account” as one factor among many (sound familiar?), herded them together in as few districts as possible. Not to be undone on the unprincipled front, the Democrats brought in heavy hitter Ronald Klain, Gore’s top advisor and head lawyer in the Florida recount, who, presumably with a straight face, argued to the Virginia Supreme Court: “We submit that what was going on here was race-conscious districting….” (Washington Post, Sept. 13, 2002, p. B5) The Virginia Supremes (including the new black chief justice) were not amused, and ruled for the Republicans.

With parties like these, I’m sometimes surprised that anyone at all bothers to vote.

So, the Supremes find themselves time and again wrestling with the question, “How many is ‘enough’?” (see yesterday’s oral argument here, turning often on the meaning of “predominant”).

My recommendation: The Court should say emphatically, “Enough is enough!” and get out of the redistricting oversight business altogether except where actual discrimination is alleged, thus returning to the original intent and understanding of the Voting Rights Act.




Criticizing Racial Preference Is Not “Begging The Question.” In Fact …

Regarding my letter to the editor in the November 27 Washington Post (discussed below, here), a good friend here in Charlottesville — I’ll call him Bob — responded:

I think you’re right…almost.  It begs the question though about what is the morally responsible thing to do about social and economic effects lingering from having had a slave population followed by Jim Crow discrimination for so long.

No, it doesn’t. Quite the opposite. In fact, saying it does turns out itself to be a classic example of … begging the question.

Normally I would ask your forgiveness for indulging in the following bit of pedantry, but as it happens a good while back I had occasion to look up the correct usage of “begging the question,” and what I learned is so relevant to the consideration of racial preferences that you might not even regard it as pedantic.

1. Criticizing racial preference begs no question. That’s because of what it means to beg a question:

Any form of argument where the conclusion is assumed in one of the premises. Many people use the phrase “begging the question” incorrectly when they use it to mean, “prompts one to ask the question.” That is NOT the correct usage. Begging the question is a form of circular reasoning.

More generally, from Fallacy Files: “an argument begs the question when it assumes any controversial point not conceded by the other side.” The New York Times agrees.

2. It is actually Bob who begs a question. He claims that my criticism of racial preferences — more specifically, my criticism of Democrats for pushing racial preference — is only “almost” right because that criticism “begs the question” of what to do about the lingering effects of slavery and Jim Crow. But by arguing in effect that one should not criticize racial preferences without proposing a better way to fight inequality, it is actually Bob, not I, who begs a question. That’s because his premise assumes a controversial proposition that I believe to be untrue: that preferential treatment based on race does in fact reduce discrimination and inequality.

If it does not, or even if it does but its benefits are swamped by its costs, then criticism of it begs no question. Conversely, however, the argument that critics should stand mute in the face of racial preferences until they come up with something better (or until “the playing field is level,” an argument I’ve considered many, many times) does beg a question — because it assumes its premise: that preferential treatment based on race in fact does more good than harm.

Editorial Interruption: My “Toward A Liberal Devil’s Dictionary” has the following entry:

“LEVEL PLAYING FIELD, n. The political, social, and economic terrain ensuring that two or more teams with different levels of ability, experience, equipment, interest, attitude, coaching, etc., always achieve equal scores and win the same number of games.”

The important issue here, however, is not a grammatical nicety, not who is begging what question. It is whether those of us who are critical of racial preferences, of distributing benefits and burdens based on race, should hold our tongues as long as inequality persists. The answer, you will not be surprised to hear, is a resounding No, we definitely should not, for several reasons.

First, the most practical but probably least powerful reason is legal. Liberals, working through the courts, have knocked a large hole in the principled fence protecting individuals from discrimination based on race, but that hole, even as large as it has become, is limited to “diversity”-justified discrimination. Courts, in short, do not allow compensatory discrimination to correct “societal” ills such as the lingering effects of slavery and Jim Crow.

Even leaving aside the compelling argument that any discrimination based on race is morally wrong, a powerful, practical reason not to keep silent is that racial preferences don’t work, if “work” means anything more than promoting proportional racial representation. In fact, not only do they not reduce racial strife, discrimination, and inequality, they actually exacerbate those evils. Put another way, their benefit is low (though not necessarily non-existent) and difficult to quantify, but their cost is quite high.

Roger Clegg, president and general counsel of the Center for Equal Opportunity, has listed a few of the costs of racial preference in college admissions (quoted here):

It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

One of these days Roger will get around to telling us what he really thinks.

So, finally, if you think criticizing racial preference begs the question of what to do about lingering inequality, I beg to differ.

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