Friday, October 04, 2013

The Only Thing We Have To Fear....

Kevin Drum links to an interesting study (summarized here; full-text is here for people who, unlike me, have access to these sorts of things) about why people listen to talk radio. The answer is it provides an affirming space where they can express their political opinions in a welcoming environment without fear of social sanction. And the reason conservative talk radio is so much more popular than its liberal counterpart is that conservatives are far more fearful of a particular type of social sanction: being called a racist.
In conversation with conservatives, liberals risk being called na├»ve or willfully blind to potential threats—not very pleasant labels, but not especially damaging ones, either. In contrast, conservatives risk accusations of racism—and “being called a racist carries a particular cultural force,” the researchers write.

“The experience of being perceived as racist loomed large in the mind of conservative fans (we interviewed),” they report. Every single conservative respondent raised the issue of being called racist, and did so without even being asked.

“What makes accusations of racism so upsetting for respondents is that racism is socially stigmatized, but also that they feel powerless to defend themselves once the specter is raised,” the researchers add. “We suspect that this heightened social risk increases the appeal of the safe political environs provided by outrage-based programs, and may partially explain the overwhelming conservative dominance of outrage-based political talk media.”
I think any White person at least feels a ping of recognition here. I didn't always have the views of race and racism that I do now, and I remember when I viewed the charge of "racism" in much the same way -- a bolt of lightening, wanton and capricious, impossible to predict, and terribly destructive. I try to remember that outlook because I remember who I was then: I wasn't some monster or Klansman in training, and (obviously) I was still in a position where I could eventually be persuaded to think more critically about the role of racism in contemporary American life.

That being said, one thing that I think often gets lost in these discussions is who is benefitted by viewing racism this way. Let's use Drum's discussion as an example:
It's obvious that race infuses a tremendous amount of American discourse. It affects our politics, our culture, and our history. Racial resentment is at the core of many common attitudes toward social welfare programs; our levels of taxation; and the current occupant of the White House. There's no way to write honestly about politics in America without acknowledging all this on a regular basis.

At the same time, it's also obvious that, in many ways, a liberal focus on race and racism is just flatly counterproductive. When I write about, say, the racial obsessions displayed by Fox News (or Drudge or Rush Limbaugh), it's little more than a plain recitation of obvious facts, and liberals applaud. Ditto for posts about the self-described racial attitudes of tea partiers. But conservatives see it as an attack. And why wouldn't they? I'm basically saying that these outlets are engaged in various levels of race-mongering, and by implication, that anyone who listens to them is condoning racism. That's such a uniquely toxic accusation that it makes any real conversation hopeless. Cognitively, the only way to respond is to deny everything, and that in turn forces you to believe that liberals are obviously just lying for their own partisan ends. This feeds the vicious media-dittohead circle, and everyone withdraws one step more.
Drum identifies a paradox: We have to talk about racism, but talking about racism renders conversation impossible. Racism is a "such a uniquely toxic accusation that it makes any real conversation hopeless."

But here's the thing: there's no reason why that has to be true. When we talk about homelessness, for example, and I argue that a particular political position is unfair to the homeless, it doesn't have this effect. Racism is different: to talk about racial justice at all is automatically translated into a personal attack on the target's moral character. And once that's the terrain of the discussion, we've insulated the underlying policy differences from critical review. All conversations about racism are converted into inquisitions into whether or not someone is a conscious bigot. Since they know they're nothing of the sort, the "accusation" is dismissed and the "accuser" is labeled a race-baiter. One may have noticed that even if one takes great pains to frame an argument such that it does not call anybody a racist, the stock response nevertheless will be "are you calling me a racist?!!?" Why are they so eager to make the debate about something so "toxic"? It's because that's actually very easy terrain to deal with.

Framing racism as a "toxic" accusation benefits the status quo racial hierarchy. Most obviously, it does so by insulating policies which have racial impacts from meaningful scrutiny. More subtly, it allows proponents of maintaining racial hierarchy to maintain their self-perception as anti-racist. This whole gambit depends on asserting the exceptional moral seriousness of racism (else how could it be so "toxic"?). One often hears the claim that a given charge of racism is spurious coupled with the assertion that such frivolous accusations "make it harder to oppose real racism" -- a reassertion of racism as something that is serious and does need to be opposed. The net result is that racism is so serious that nothing ever actually can be racist -- a neat equilibrium, for those who want to identify as non-racist but don't want to actually change anything about themselves.

For this reason, in Sticky Slopes I warn that ratcheting up the moral condemnation associated with "racism" isn't necessarily a good thing -- as we increase the seriousness of the norm, we decrease the range of behaviors people are willing to accept may be in violation of it. Racial liberals probably had a great role to play in giving "racism" its toxic reputation; but racial conservatives have powerful cognitive incentives to continue perceiving it this way.

Thursday, October 03, 2013

Pieces of the Pie

The latest Republican gambit to extract themselves out of their own self-destructive shutdown technique (other than blaming federal employees for the GOP's own decision to refuse to pass a clean budget bill) is to pass piecemeal bills that fund certain high profile federal programs, like national parks and cancer research on sick kids. It is of course breathtakingly cynical, and Democrats are right not to take the bait.

But my question is this: why can't Democrats volley this back the same way they've done to the House "defund Obamacare" packages? Take the House bill which funds just parks and research and veterans programs, amend it to add back every other program, pass that, and then send it right back to the House? It seems like that would neutralize the gambit pretty effectively. Hell, add back in some money to food stamps and leave out farm subsidies. If we're going to fund the government "piecemeal", well, an entire pie is technically a "piece"; especially if you shave off a few crumbs of corporate welfare.

Be Bold!

When I first posted Sticky Slopes onto SSRN (way back in 2009), Larry Solum gave it his coveted blue stamp of approval. It was the pale blue version, and as every reader of the Legal Theory blog knows, his endorsement comes in levels. Today, Unsuspecting made its appearance on Solum's blog, and it got the bold blue seal of approval. Ladies and gentlemen, I am moving up in the world!

(And of course, my thanks to Larry for the recommendation and kind words! He really is one of a kind in the legal marketplace, and his Legal Theory blog is an indispensable resource for anyone working in ... well, any area of law, really. It's really quite amazing).

Wednesday, October 02, 2013

I'm a Bad Man

I believe it was PG who complained that characterizing the Republican gambits regarding the debt ceiling and government shutdown as "hostage taking" was unfair and hyperbolic -- akin to the famed "Bushitler" extremism we'd all do better without. In rebuttal, here's former Bush speechwriter Marc Theissen, embracing the label:
Obama has accused Republicans of hostage taking. Let’s be clear: I’m all for taking hostages. Both sides do it all the time. But one of the first things they teach you in Hostage Taking 101 is that you have to choose a hostage the other side cares about saving.
Hence, Theissen argues for swapping the government shutdown hostage for the debt ceiling hostage. The former doesn't hurt the country enough, and people are blaming Republicans for it anyway. Not raising the debt ceiling, by contrast, now that will do some damage!

There's this weird trend whereby the media seems intent on characterizing Republican tactics in language far milder than do the Republicans themselves. So while the media is intent on "can't we all just get along" whines, Republicans are gleefully characterizing themselves a curled-mustached villains demanding we reverse the 2012 election lest they put two in the head of that pretty little economy of ours.

Tuesday, October 01, 2013

In Praise of Miserable Judges

Senior United States District Judge (D. Neb.) Richard Kopf talks about what it means to be a judge in today's criminal law environment:
The best way to think about it [becoming a federal judge] is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?” Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.
Will Baude and I had the exact same instinct, which was that this sounds a lot like Robert Cover's famous declaration that "judges deal pain and death." I doubt Judge Kopf, a Reagan appointee, has typically been mistaken for Professor Cover, which makes this all the more striking.

Judge Kopf's sense is one I shared when I was clerking. For the most part during my clerkship, I did not feel like I was "doing justice" in any real sense, particularly in criminal law. This was not a knock on my judge or co-clerks, or anybody else on the Eighth Circuit. But doing law the way law is done, I felt like I was ruining far more lives than I was validating. At many times, it felt to me like I was making the world a worse place. It was not a good feeling.

On the other hand, I also cringe at Judge Kopf's suggestion that candidates for judgeships "think hard" about the truth of federal sentencing. Not because I oppose hard thought, but because however hard it is to be a judge who is miserable in her role as a "judicial executioner," I think it would be far worse if the only judges we had are those who ask themselves if they're willing to take on that role, and answer with a hearty "hell yeah, I am!"

Sunday, September 29, 2013

Could Be!

Anita Perry, wife of Texas Governor Rick Perry (R), doesn't appear to share his view on abortion:
Speaking to Evan Smith at the 2013 Texas Tribune Festival, Perry said that abortion, an issue that Governor Rick Perry has made the cornerstone of his entire reign as Texas’s most important ten-gallon hat wearer, “could be a women’s right.” ....

In front of a visibly surprised Smith, Perry tried to elaborate her opinion about why abortion in particular is a uniquely women’s rights issue, saying, “That's really difficult for me, Evan, because I see it as a women's right. If they want to do that, that is their decision; they have to live with that decision.”

Smith then asked the blunt (and exceedingly generous) follow-up everyone else was probably itching to ask: “Mrs. Perry, I want to be sure you didn't just inadvertently make news. Are you saying that you believe abortion is a women's right, to make that choice?"

... [Perry responded:] “Yeah, that could be a women's right. Just like it's a man's right if he wants to have some kind of procedure. But I don't agree with it, and that's not my view."
Republicans will no doubt be appalled at this gross breach of party orthodoxy -- specifically, a woman who has an opinion different from that of her husband.