Rate that Apology, Part 4: Something Smells at Harvard Edition

At an event hosting former Israeli Foreign Minister Tzipi Livni, a Harvard Law student stood up and asked her why she was so "smelly." Given the historical usage of the smelly, odorous Jew as a trope in anti-Semitic discourse (and the inappropriateness of asking such a question at an academic event), the student (who remains anonymous) has been roundly condemned by (among others) Dean Martha Minow, the Jewish Law Students Association, and the Middle East Law Students Association. Now the student has offered the following apology:

“I am writing to apologize, as sincerely as I can via this limited form of communication, to anyone who may have felt offended by the comments I made last week. To be very clear, as there seems to be some confusion, I would never, ever, ever call anyone, under any circumstances, a “smelly Jew”. Such a comment is utterly repugnant, and I am absolutely horrified that some readers have been led to believe that I would ever say such a thing. With regards to what I actually did say, I can see now, after speaking with the authors of this article and many other members of the Jewish community at HLS, how my words could have been interpreted as a reference to an anti-Semitic stereotype, one that I was entirely unaware of prior to the publication of this article. I want to be very clear that it was never my intention to invoke a hateful stereotype, but I recognize now that, regardless of my intention, words have power, and it troubles me deeply to know that I have caused some members of the Jewish community such pain with my words. To those people I say, please reach out. Give me an opportunity to make it right. I will assure you, as I have already assured many, that had I known it was even possible that some listeners might interpret my comments as anti-Semitic, there is absolutely no chance that I would have uttered them. I trust that those that know me and have engaged with me on a personal level will not find this at all difficult to believe. Many members of the Jewish community—some of whom hold strong differences of opinion with me—have reached out to me on their own to let me know that they did not interpret my words as anti-Semitic, because they know me well enough to know that that is not at all consistent with who I am as a person. I want to thank them and any others who have given me the benefit of the doubt, and I am writing this note in the hopes that more of you will do the same. I say this, however, fully cognizant of the fact that no amount of writing can serve as a substitute for genuine human interaction. So please, if there remains any doubt at all, do take me up on my offer above and reach out so that I can make this right to you on a more personal level.”

So we'll start with the positive -- the whole "words have power" thing, and the acknowledgment that subjective intent is not the be-all end-all of offensive speech. I suppose apologizing "to anyone who may have felt offended" is better than "I apologize if you were offended" but still not as good as "I apologize for my offensive remarks." I'm interested in the line at the end where he says that "no amount of writing can serve as a substitute for genuine human interaction." I think that's right, and I think there is something to be said for offering to interact with concerned students on a personal level. However, there were some reports that the student asked the "smelly" question as a means of protesting Livni's presence without dignifying it with an actual substantive question. Such genuine human interaction.

In any event, though, this apology to my ears is missing one very simple thing. Orlando Battista famously wrote that "an error doesn't become a mistake until you refuse to correct it." So what was the error here? If it was the use of the word "smelly", I actually believe the student when he says he was unaware of the anti-Semitic cadence of the term, would not have used it had he known about it, and will not do so in the future. In that sense, you could say he has corrected his error.

But the thing is, I don't think the error was in using the term "smelly". The fact that he wrongfully thought that calling Livni "smelly" would not be anti-Semitic shows that his instincts regarding what is and is not anti-Semitic are not as reliable as he had thought they were. That was his error -- he was speaking confidently about Jews and Jewish institutions without really knowing about them. The apology should have had two more lines:

I will assure you, as I have already assured many, that had I known it was even possible that some listeners might interpret my comments as anti-Semitic, there is absolutely no chance that I would have uttered them. However, I have now learned that my intuitions regarding what is and is not anti-Semitic are not as robust as I had thought. Clearly, this is an area I need to learn more about and one in which I need to reassess the reliability of my own intuitions and assessments, and I resolve to do so immediately.

This would correct the genuine error, which is not in my view a simple matter of verbiage. What was revealed in this event was that this student didn't know as much as he thought he did about Jews -- about our history, our experiences, and our oppression. That revelation should have more wide-reaching ramifications than simply dropping the word "smelly." Doing that is cheap grace, it costs the student nothing, and so I have no doubt he's glad to do it. Reassessing some of his more tightly-held attitudes about Jews and Jewish institutions? That's costly grace; something I've looked for in cases like these yet rarely found. But that would represent a genuine apology.

Grade: 5.5/10

The New Kids on the Block

My mom was very proud that she heard the name Sidney Thomas floated as a potential SCOTUS pick before I did. I told her that there's no way he's anything more than a name. Democrats aren't going to nominate a total darkhorse like that -- too risky.

But the other two names the article mentions -- though both equally implausible -- at least are theoretically interesting. I've heard at least one other person mention Harvard Law Professor Elizabeth Warren, a bankruptcy specialist who would make the nomination discussion all about economics (good for Obama). And, well, you know my opinions on Martha Minow -- so I'll just add that if you want to put a liberal's liberal on the court, she's possibly the only candidate that could make Pam Karlan look tame (Minow's liberalism, to be clear, manifests itself as 100% pure awesome).

Martha Minow New Harvard Dean

Obviously, my congratulations to the good great professor and scholar.

Quote of the Evening: Rights Talk

From the ever-brilliant Martha Minow:

"Rights" can give rise to "rights consciousness" so that individuals and groups may imagine and act in light of rights that have not been formally recognized or enforced. Rights, in this sense, are neither limited to nor-coextensive with precisely those rules formally announced and enforced by public authorities. Instead, rights represent articulations -- public or private, formal or informal -- of claims that people use to persuade others (and themselves) about how they should be treated and about what they should be granted. I mean, then, to include within the ambit of rights discourse all efforts to claim new rights, to resist and alter official state action that fails to acknowledge such rights, and to construct communities apart from the state to nurture new conceptions of rights. Rights here encompass even those claims that lose, or have lost in the past, if they continue to represent claims that muster people's hopes and articulate their continuing efforts to persuade.

Martha Minow, Interpreting Rights: An Essay for Robert Cover, Yale Law Journal 96 (1987): 1860-1915, 1867.

UPDATE: I should clarify that this is not the rights conception "from the left" -- it is part of the conception by Minow, and presumably some fellow travelers (which, in turn, includes me to some extent) -- most of whom, I admit, are "from the left" to greater or lesser degrees. We are, alas, not all that powerful people -- certainly, we are not the shadowy cabal that controls "the left" and dictates its opinions.

Oh Minow

Martha Minow is a paradigmatic case of too much of a good thing.

I first stumbled across her by reading her 1991 book, Making All The Difference: Inclusion, Exclusion, and American Law. I often tell people that the speed I read books is directly in relation to how much I'm enjoying it. Books I love speed along, books I loathe crawl. That's true up to a point, but if I really love a book, my pace comes crashing to a halt, because I need to stop and chew over particularly juicy bits, or copy down especially illuminating passages. And so, even though I consider MATD to be one of the best books I ever read, and even though I have four whole pages of quotations from the book copied onto my computer, and even with two library extensions, I never actually finished it. I just got it for a Chanukah present, so maybe I'll take another shot at it.

In addition to MATD, I also got another Minow book from 1997, this one called Not Only For Myself: Identity, Politics, and Law. Like MATD, this one is going slow because I'm loving it. It's making great arguments, and at the moment it's making great arguments switching from the 1st Century Jewish Rabbi Hillel to an episode of Star Trek within the space of a page. How cool is that?

But the Minow awesomeness extends beyond her work in identity politics. She literally seems to have a hand in everything cool. The collection of works by the late, great, Jewish legal theorist Robert Cover? She edited it. A primer to Feminist Legal Theory? Minow. Post-genocide reconciliation and reconstruction? She has three books on it. She even co-wrote an editorial criticizing US detention policy by comparing us to and advocating for the Israeli model. It's like if Samantha Power decided to expand beyond genocide and do everything awesome. It's almost too much to handle at once.

Anyway, if you ever have a chance ever to read anything by Minow, I can't recommend her highly enough. She truly is one of the most brilliant, and under-appreciated, legal minds out there in the United States today.

Minow on Difference and Categories

From the start of Martha Minow's fantastic book, Making All The Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell UP 1991):

When we analyze, we simplify. We break complicated perceptions into discrete items or traits. We identify the items and call them chair, table, cat, and bed. We sort them into categories that already exist: furniture and animal. It sounds familiar. It also sounds harmless. I do not think it is.

I believe we make a mistake when we assume that the categories we use for analysis just exist and simply sort our experiences, perceptions, and problems through them. When we identify one thing as like others, we are not merely classifying the world; we are investing particular classifications with consequences and positioning ourselves in relation to those meanings. When we identify one thing as unlike the others, we are dividing the world; we use our language to exclude, to distinguish—to discriminate. This last word may be the one that most recognizably raises the issues about which I worry. Sometimes, classifications express and implement prejudice, racism, sexism, and anti-Semitism, intolerance for difference. Of course, there are ‘real differences’ in the world; each person differs in countless ways from each other person. But when we simplify and sort, we focus on some traits rather than others, and we assign consequences to the presence and absence of traits we make significant. We ask, ‘What’s the new baby?”—and we expect as an answer, boy or girl. That answer, for most of history, has spelled consequences for the roles and opportunities available to that individual. And when we respond to person’s traits rather than their conduct, we may treat a given trait as a justification for excluding someone we think is ‘different.’ We feel no need for further justification: we attribute the consequences to the [*4] differences we see. We neglect the other traits that may be shared. And we neglect how each of us, too, may be 'different.'(3-4).

This doesn't mean we can avoid categorizing things. As Angela Harris notes at the start of her own article, Race and Essentialism in Feminist Legal Theory [42 Stan. L. Rev. 581 (1990)], the world would collapse into incoherence if we did. It merely means that categorizing things is problematic. It has moral implications that we need to be aware of, and potentially pernicious effects that we need to be prepared to counteract. That can only happen if we're cognizant of the problem.