Peremptory Racial Nonsense

The more I think about the current conventional liberal wisdom (pardon the oxymoron) regarding racial discrimination, especially as that wisdom defends racial preference policies, the more it strikes me as incoherent peremptory nonsense, as in:

per•emp•to•ry

adjective

(esp. of a person’s manner or actions) insisting on immediate attention or obedience, esp. in a brusquely imperious way : “Just do it!” came the peremptory reply. [From the built-in Macintosh dictionary]

This reaction was provoked again yesterday in spades (if you’ll pardon the expression) when I read this interesting article in the Wall Street Journal on the racial challenge to peremptory jury challenges. “In the interest of fair trials,” the article begins,

attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny.

What lawyers can’t do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.

To root out discrimination in the jury room, critics have called for a radical solution: Get rid of peremptory strikes, which typically allow lawyers to dismiss a limited number of jurors, no questions asked.

So, the current rule is that an attorney can have a prospective juror dismissed for any reason, or no reason, except for race, gender, or ethnicity. That, it is felt, would be discrimination. But these race-gender-ethnicity-based dismissals go on all the time, sometimes with humorous attempts at non-racial justifications. (Among those mentioned in the article: one juror dismissed for long dreadlocks; another “because she was obese, not because she was the only black in the jury pool. ‘Heavyset people tend to be very sympathetic toward any defendant,’ the prosecutor had explained.”) As a result there is a move afoot to eliminate or limit peremptory challenges.

The dishonesty apparent in these evasions, however, is no worse than the everyday dishonesty of using the idea of “diversity” to justify discrimination against Asians, whites, and others in favor of blacks and Hispanics. It’s simply another example of the hypocrisy required by the determination to make “race-conscious” decisions at every opportunity while pretending not to be engaging in discrimination.

But let’s return to juries, because the brouhaha over peremptory challenges reveals one of the glaring contradictions at the core of CCLW (Current Conventional Liberal Wisdom) on race. Consider the following points:

• Racial profiling is bad … except when admissions officers do it.
• Presumably the reason racial profiling is bad is that it uses race as a proxy for something else (in this case, likelihood/probability of being a criminal). Same with Arabs in airports.
• But the entire edifice of “diversity” is based on the belief that race is in fact a valid proxy for all sorts of things — experience, values, ideas, “culture,” etc. If blacks weren’t thought to be “different” in important ways, they would not be able to provide the “diversity” to others that is the justification for giving them preferential treatment.
• But if race is a legitimate proxy for “diversity”-providing characteristics, how can liberals object to attorneys being allowed to use it as proxy for one or more of those characteristics and thus peremptorily disqualify black jurors if people with those characteristics are thought to be less likely to be sympathetic with their client?
• Admissions officers say they are not discriminating when they “take race into account” because race is only “one of many factors” they consider.”
• But the police and airport guards almost never racially profile on the basis of race alone. They too take other factors into account (young, Arab, male, one-way ticket, bought with cash; young, black, male, fancy car of a certain type, long dreadlocks, Jamaican accent, driving in unlikely place, etc.)
• Defenders of race preferences implicitly, and often explicitly, argue that if it’s legitimate to give preferences for other reasons — athletic ability, legacy status, musical talent, etc. — it should be legitimate to give preferences based on race. Race, in short, shouldn’t be singled out, made a “protected category,” walled off and made off limits to either favorable or unfavorable treatment by the state.
• But if race (like religion and to a degree like gender) isn’t special, isn’t deserving of being a protected category, why not just abolish the anti-discrimination laws, since doing so would undermine the arguments of those who oppose race preferences?
• I could go on, and generally do.

For a detailed examination of the work of one thoughtful observer who perceptively points out many of these same contradictions and then obliviously proceeds to commit them himself, see my discussion of The Inscrutable Randall Kennedy.