Discriminations

If you’ve hung around these precincts long enough you will know that I’ve had, and taken, many opportunities to poke fun at SLATE’s legal style writer, fellow Charlottesvillian Dahlia Lithwick who, as I wrote here, is “known more for the sizzle than the steak of her columns.” And as I wrote of one of her pieces here,

I am a big fan of her verve and style but not of what she actually says most of the time. Her titles can be quite engaging (“Slippery Slop,” “Pick A Chick,” etc.), and her breezy style can be quite seductive. Indeed, in commenting on the bizarre views on religion and the law she expressed in “Rock of Ages and a Hard Space,” I succumbed to what can only be described as a Lithwickian style myself, calling my post “Gimme That Ole Time (Anti-) Religion...” and writing at one point:

Lithwick's summary of the argument was, not to coin a phrase, generally fair and balanced, but when she offered her own views in the last paragraph she suddenly morphed into a sputtering character right out of Looney Tunes.

Dahlia Dahling’s comments in the current C-Ville piece reveal yet again that her style and verve, impressive as they are, still can’t convert the sow’s ear of the content of what she writes into silk purse commentary....

(Other examples of my responses to her articles can be found here [in the 4th UPDATE], here, here, here, here, and here.)

Lithwick’s article today in SLATE, comparing Sarah Palin and Clarence Thomas as joint victims of affirmative action, is actually one of her less dramatic and zany ones, although it predictably still misses a number of marks.

After noting what even she recognizes as Thomas’s eloquent anger at the stigma affirmative action attaches to its “beneficiaries” (“a word,” she notes with evident disapproval, “Thomas puts in quotation marks”), she writes that one can believe his anger is not justified,

but nobody can argue that his most passionate legal writing vibrates with his anger about it. In a sharp dissent in a 2003 case allowing race to be used as an admissions factor at the University of Michigan’s law school, Thomas described affirmative action as “a cruel farce” under which “all blacks are tarred as undeserving.” In an earlier case he wrote that such programs “stamp minorities with a badge of inferiority.”

Critics have scoffed at Thomas’ tendency to view affirmative action exclusively through the narrow lens of his own life, but it’s clear the “badge of inferiority” has tainted a lifetime of enormous achievement. He will never forgive America for the chances he was given, or for how small it has made him feel....

Although it may be futile to remind Ms. Lithwick and most SLATE readers, there is good reason for Justice Thomas to put “beneficiaries” in quotes. That is because, according to the official “diversity” rationale that is said to justify racial discrimination in admissions, the actual beneficiaries of affirmative action are not the preferentially admitted minorities but the white, Asian, and other students admitted without preferences who are given the opportunity to be exposed to them.

Based on all her other writings, I think it fair to say that Ms. Lithwick agrees with those anonymous “[c]ritics” who “have scoffed at Thomas’ tendency to view affirmative action exclusively through the narrow lens of his own life,” and for some reason I doubt that she would agree with my criticisms (see here and here for examples) of the many defenders of affirmative action who justify the practice of racial preference because it produced ... them. Here, for example, I took issue with Theodore Shaw, former president of the NAACP Legal Defense Fund, who had written that without racial preferences he would not have been accepted a Wesleyan or Columbia Law School:

One can readily understand why Mr. Shaw regards his own success as compelling justification for the racial discrimination against someone else required to achieve it, but there may be some benefit in those of us without his interest examining the argument. Let us begin by assuming, with him, that he would not have been accepted at Wesleyan or Columbia without the racial preference he received, although in fact that may not be true. (In the absence of preferences, after all, some minorites are still admitted into even the most selective schools.) Still, there is no reason to assume that it was Wesleyan and Columbia or nowhere. Since Wesleyan found him “qualified,” he presumably would have been accepted elsewhere, and since it sounds as though he was poor he would have qualifed for financial aid. Indeed, he might have wound up exactly where he is, for even the NAACP LDF doesn’t require graduation from elite colleges and Ivy League law schools of its employees. Nor is there any reason to assume that the white’s, Asian’s, or other non-preferred minority’s place Mr.Shaw took would have led a life of sloth and indulgence, contributing nothing comparable to Mr. Shaw’s contribution to the national well-being. I mean no disrespect to Mr. Shaw when I say that, placing his success and contributions on one side of the scale and the principle of non-discrimination on the other, there seems to be no compelling national interest in sacrificing the latter for the former.

But I digress, for Ms. Lithwick’s point in this article is to portray both Thomas and Palin as fellow victims of affirmative action. “I can't help but wonder,” she writes, “what Thomas would say to vice-presidential nominee Sarah Palin, who is now suffering the same stigma of affirmative action, and who shows signs of the same blend of defensiveness and outrage that have so shaped Thomas' career.”

Like Thomas, Palin has been blasted for inexperience, and she has fought back with claims that she is not being judged on her merits, but on her gender, just as he felt he was inevitably judged on his race. While it's possible to assert that Sarah Palin is the most qualified person in America for the vice presidency, only approximately nine people have done so with a straight face. That's because Palin was not chosen because she was the second-best person to run America but to promote diversity on the ticket, even the political playing field, and to shatter (in her words) some glass ceilings....

My memory is not what it used to be (at least I don’t think it is ...), but I don’t recall Clarence Thomas being blasted for any lack of “experience.” Although a relatively young man, at the time of his appointment he had served as assistant secretary of education for civil rights, head of the Equal Employment Opportunity Commission, and as a judge on the U.S. Court of Appeals for the District of Columbia, the nation’s most powerful appeals court. Thomas was, certainly for the most part, criticized as, in effect, an affirmative action hire by people who do not object in principle to affirmative action hires, including Ms. Lithwick (and defended, of course, by people who do have principled objections to affirmative action hires in most situations).

Of course being appointed to the Supreme Court is not “most situations,” and neither is being nominated for vice president. At no time in the past, and certainly not in the present, has there ever been a national consensus holding that a vice presidential nominee should be “the most qualified person in the country for the vice presidency,” whatever that might mean. If McCain selected Palin because she’s a woman, because he wanted “diversity” on the ticket, that’s no more illegitimate than Obama picking Joe Biden to appeal to working class Catholics.

Among Ms. Lithwick’s many talents, one of them is presumably the ability to read John McCain’s mind. Otherwise, how could she be so certain that Palin was selected “to promote diversity on the ticket”? I can’t read McCain’s mind any better than Lithwick can (actually, that may not be true), but it seems to me that she was selected primarily as an outsider, reformer, taker on of corrupt establishments who could reinforce his image as “maverick,” and the fact that she’s a woman who could appeal to some women was an added plus. Although much was made of McCain's supposed intent of having her appeal to disaffected Hillary voters, insofar as that was true I suspect he thought, accurately, that she'd appeal more to Hillary's blue collar male voters. My own guess, for whatever it’s worth, is that if Tim Pawlenty had been the short-term governor of Alaska with Palin’s exact record of having defied the local corrupt Republican establishment, and Palin had been governor of Minnesota with Pawlenty’s record, Pawlenty would now be the VP nominee.

But this is not the first time that Ms. Lithwick has demonstrated her uncanny (if ultimately unpersuasive) mind-reading abilities. As I discussed here, in discussing the unfortunately failed nomination of Miguel Estrada to the U.S. Court of Appeals she also pretended to have the ability to read President Bush’s mind (actually, both President Bushes):

First, she takes the Bush administration to task for not coming right out and admitting that in nominating Estrada they were pandering to the Hispanic vote, “no different from George Bush Sr.’s determination to replace Thurgood Marshall with an African-American.” But how can she be so sure? Does she mean that, absent his ethnicity, no reasonable president could possibly have thought to nominate Estrada to a circuit court of appeals? That’s absurd.

Lithwick claims that the Estrada nomination “mirrors [Bush’s] profoundly illogical claim that he supports racial diversity in education but opposes affirmative action,” but she presents no argument as to why this claim is illogical, profoundly or otherwise. I think it’s quite reasonable to believe that diversity is a Good Thing but that “affirmative action” as done today requires discriminating on the basis of race, which is not only a Bad Thing but indeed is so bad that it is almost never justified. I, of course, have no more access to the president’s motives than does Lithwick, but it does not strike me as illogical, or even unlikely, that he thought appointing someone as eminently well-qualified as Miguel Estrada is precisely the way to promote diversity without relying on discrimination to achieve it. Perhaps I will be persuaded by Lithwick’s argument to the contrary if she ever makes one, but she did not make it here.

Every now and then Ms. Lithwick gives a passable imitation of a reasonable person. Thus she writes here:

Liberals inclined to blindly support affirmative action would do well to contemplate the lessons of Sarah Palin and Clarence Thomas. Although the former exudes unflagging self-confidence and the latter may always be crippled by self-doubt, both have become nearly frozen in a defensive crouch, casualties of an effort to create an America in which diversity is measured solely in terms of appearance....

.... There is much that is laudable about affirmative action, but its tendency to divide people in often crude ways is not. It can lead to a class of “beneficiaries” who also see the world in crude ways, and to even-cruder ways of talking about the very complicated and real gender and race disparities that continue to plague America.

I think the crude divisions and the crude ways of talking about gender and race disparities are both real and unfortunate, but much worse is the continued insistence of Ms. Lithwick and her fellow Lithwickians on the continuing necessity of dealing with the persistence of “very complicated and real gender and race disparities” by having the state distribute rewards and burdens based on race, gender, and ethnicity. Ms. Lithwick’s analyses are often cute, but her favored solutions embody the very crudities that she objects to in others.