Why Is The 4th Circuit Evil?

Yesterday, I penned a post which argued that Court's should extend anti-harassment protection to White employees alleging racial harassment by Black co-workers. In doing so, I supported part of a New Jersey Superior Court decision, in spite of the fact that the other part was clearly wrong, the part that was under dispute was in my words "a close call," and that the plaintiff in this case was an incredibly unsympathetic figure. But I believed that it was important for Whites to know that racial discrimination remedies were available to them as well, so as to counteract the feeling that anti-racism law and practice is "Blacks versus Whites." I even submitted it to the "erase racism" carnival, being hosted at Ally Work.

Now the 4th Circuit Court of Appeals (the most conservative in the nation) comes down with a 2-1 ruling in Jordan v. Alternative Resources Corp. (H/T: Alliance for Justice). The 4th Circuit has jurisdiction over Maryland, Delaware, Virginia, West Virginia, and the Carolinas, and I regret to say this particular case came out of my home turf of Montgomery County, Maryland.

The facts in this case are twisted. Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment. To be clear, the protection against retaliation does not only kick in if the conduct would have breached Title VII; all Jordan had to prove was that it was reasonable for him to believed it would have.

The majority placed a lot of emphasis on the supposed "isolated" nature of the remarks, almost seeming to forget that Jordan was told his coworker had made similar remarks on many other occasions. The majority dismisses this by saying that Jordan did not verify times and dates of these "vague" other remarks (which is not pertinent, as the 4th circuit has held that the complaining party has only the duty to report, not launch an independent investigation), and also by saying that these remarks were never reported to management (good thing too, apparently doing that gets you fired!). It said that for Jordan to prevail, he'd have to show that a plan to create a racially discriminatory environment was planned or in motion. The citation was to a case called EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005). In that case, there was literally an elaborate scheme to create a paper trail of negative performance reviews for a Black employee who had been making complaints regarding discrimination, so she could fired. The Court basically said because Jordan's situation had no comparable plan or plan-in-motion, his claim must be rejected. But Navy Federal is obviously an extreme situation, as the dissent noted, bigots can hardly be expected in most cases to announce their plans for discrimination in advance.

The truly perverse thing about this case is, again, that IBM requires its employees to report potentially discriminatory conduct. It does this because, by Supreme Court precedent, having these mechanisms in place means the company has an affirmative defense against any discrimination claims that do come up that went unreported through that system. Basically, if the procedures are in place and an employee does not use those procedures to complain about the alleged conduct, he can't later go to court and sue for the same breaches. But now the 4th circuit has created a catch-22--if an employee complains of discrimination, he can be fired. If he doesn't complain, then he can do nothing.

There are two points to be made off of this case. First, it appears to be wrong as a matter of law. I found the majority wholly unconvincing, and the (rather blistering) dissent to be quite compelling. But assuming for the moment that the ruling was right, that just means the law is wrong. If our anti-discrimination laws can permit this sort of egregious injustice, then our laws are wrong. Wrong in a very visceral, horrifying sense: they're providing the shield and cover by which discrimination occurs. Conservatives love to say how they're only interpreting the law, and they can't write it. Well fine. But all that means is that the legislators who wrote the law are either malicious or incompetent. I expect every conservative who apologizes for this ruling as "what the law required" to be vociferous in demanding that the law change.

Dan Filler predicts that the 4th Circuit rehears en banc and reverses, primarily because he does not believe the two White judges who made this ruling, and the other judges on the circuit, will be able to look their two Black colleagues in the eye and say that Jordan was not just wrong, but unreasonable in thinking that his coworker's comments could have constituted a Title VII violation. I hope he's right, but I do wonder. In his "Space Traders" story, Derrick Bell has a Black character who is fiercely protective of his position of power so that, when its really necessary, he can save his people from egregious acts of racism. But when the day of reckoning comes, he finds that his position is worthless, his White colleagues simply brush him aside (all the while telling him that the event in consideration has nothing to do with race at all!). This will be an excellent opportunity to test Bell's hypothesis. As is so often with the case, I hope Bell is wrong. But I wouldn't count on it.

Further commentary: Feminist Law Profs, Belle Lettre, Workplace Prof Blog.

Legislation and Nullification

One of the favorite epithets conservatives love to hurl at the American court system is that they "legislate from the bench." It's a term related to that amorphous blob of a protest, "Judicial Activism." While at least "judicial activism" is so void as to be substantively meaningless (and thus might theoretically encompass whatever it is conservatives are complaining about), "legislating from the bench" seems to be misapplied almost on its own terms. Jonathan Rowe elucidates, responding to Thomas Sowell. Sowell argues that one of the primary harms of "legislating from the bench" is that one does not know in advance if one has broken a law--presumably because the Court is announcing the law in the context of deciding whether you violated it.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time....

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.
[...]
Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

The principle of reliance is important, but for citizens obeying the laws, not governments enforcing them (or at least, not as much).

Nullifying legislation that improperly criminalizes protected activity is not a problem. Where there would be a problem is if the Courts made something into a crime that had not been legislated one (i.e., Lawrence v. Texas in reverse: holding that Sodomy must be illegal even in states where it is currently permissible because it violates God's law or whatever). That never happens though. The closest thing is a Court broadly interpreting an ambiguous criminal statute to encompass an act that seems to border between legal and illegal (for example, a law which punishes ex-felons for possessing ammunition being applied when the police found a single bullet in a man's house, which he claimed to not know was there). That's obviously troublesome, but a) that type of judgment call is unavoidable in statutory interpretation (which everyone agrees is the court's job--"interpret the law, don't make it") and b) the same people who attack courts for being too "activist" also blast them for being "too soft on crime" and letting criminals off on technicalities. So in the one case where judges might arguably be "legislating from the bench," it tends to be conservatives who would support them.

Unfortunately, Rowe starts to make some very odd claims as he progresses. Like this one:

Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

And this one:

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

To the first, Rowe is a libertarian, so I understand that he dislikes the New Deal. But I fail to see how the court exercised "command and control power" in its new deal decisions. It did not "order" any other branch of government to do anything. It certainly permitted the legislative and executive branches to take certain actions--improperly, in Rowe's view. But permitting a government agency to act according to the laws it freely chose to pass is the precise opposite of "commanding" them to do something. In fact, the cases that had to be overturned to validate the New Deal, such as Lochner and Adkins, that traditionally have been seen as the first instances of "judicial activism" ("Judicial restraint," now a conservative buzzword, came into the vogue due to the efforts of liberals like Felix Frankfurter who wanted to sanction FDR's new deal). There have been "command and control" decisions by the federal court system (the school busing decisions would be the obvious ones), but the New Deal was promulgated by the legislative and executive branches, with which the Supreme Court only went reluctantly along.

As for the second statement, that has to be the most bizarre syllogism I've seen in a long time. Going after egalitarianism has (at times) caused tyranny, so liberty must be prioritized over egalitarianism. First of all, if "liberty" is presumed to be the antonym of "tyranny," then the statement borders on being tautological. Second, it's an abysmal argument--virtually every principle (including liberty) has been used to justify bad things. I could just as easily argue "liberty has (at times) caused grinding economic inequality and despair, therefore egalitarianism must be privileged over liberty." Or "liberty has justified economic discrimination against racial minorities, so we must privilege egalitarianism over liberty." And that would be stupid too. The proper lesson to draw from communism (extreme privileging of egalitarianism) and the gilded age or Southern private segregation (extreme privileging of liberty) is not that another ultimate value is better. It's that every value taken to an extreme and not subject to countervailing pressures will result in bad things happening. What's needed isn't a better ultimate principle, what's needed is a thick web of values that can all support and counterbalance each other. So at times a liberty interest will outweigh an equality interest, and at times an equality interest will outweigh a liberty interest.

Heads up: Randy Barnett

History Repeats Itself

For a nation whose leader believes the Holocaust is a "myth," Iran sure seems eager to learn from its lessons. The National Post of Canada (via Volokh) reports:

Human rights groups are raising alarms over a new law passed by the Iranian parliament that would require the country's Jews and Christians to wear coloured badges to identify them and other religious minorities as non-Muslims.

"This is reminiscent of the Holocaust," said Rabbi Marvin Hier, the dean of the Simon Wiesenthal Center in Los Angeles. "Iran is moving closer and closer to the ideology of the Nazis."

Iranian expatriates living in Canada yesterday confirmed reports that the Iranian parliament, called the Islamic Majlis, passed a law this week setting a dress code for all Iranians, requiring them to wear almost identical "standard Islamic garments."

The law, which must still be approved by Iran's "Supreme Guide" Ali Khamenehi before being put into effect, also establishes special insignia to be worn by non-Muslims.

Iran's roughly 25,000 Jews would have to sew a yellow strip of cloth on the front of their clothes, while Christians would wear red badges and Zoroastrians would be forced to wear blue cloth.
[...]
The new law was drafted two years ago, but was stuck in the Iranian parliament until recently when it was revived at the behest of President Mahmoud Ahmadinejad.

Jews being forced to wear yellow identifying badges? Where do I remember that from?

The Iranian embassy in Canada refused comment:

A spokesman for the Iranian Embassy in Ottawa refused to comment on the measures. "This is nothing to do with anything here," said a press secretary who identified himself as Mr. Gharmani.

Oh I beg to differ. This has a whole lot to do with people here, in Canada, and around the world. And I pray that you'll be hearing from them in the near future, if this abomination becomes law.

UPDATE: There is dispute over whether or not this account is true. I don't like being suckered by bad sources, but I much rather prefer that this was the Post making a mistake, and Iran is not actually contemplating this proposal.

UPDATE 2x: Via Volokh, I feel comfortable saying that this story likely is not true. Also, who knew that there was a Jewish legislator in Tehran? Talk about life peculiarities.

Inversion and Reversion

Eugene Volokh points to a rather odd harassment claim currently working its way through the New Jersey Courts. At first glance, it doesn't seem out of sort. A woman quits her job and sues, claiming that coworker A with the tacit consent of Supervisor B made racially disparaging remarks, expressed personal hostility towards her, and generally created a hostile environment for someone of her race. The catch? The plaintiff, Candy Bredt, is White, and "Coworker A" is Black. Ms. Bredt made three claims:

1) "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

2) Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

3) This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

"In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The New Jersey Court reversed a summary judgment in favor of the employer, holding that the aforementioned acts could be construed by the jury as being legally liable.

I disagree with those who would categorically deny Whites the right to sue under anti-discrimination laws. As Frank H. Wu has written, "an approach that categorically denies the possibility that in some instances a white male plaintiff may have a valid claim is rightly repudiated as unfair," and "It is unclear that anything would be gained, or that the result would be especially principled, if white ethnic minority individuals were denied the ability to sue for straightforward discrimination by an institutional actor (i.e., the case was not a collateral challenge to affirmative action.)." The question is, do the acts depicted in numbers one and three meet that criteria (two is a whole separate animal, I'll get to that later)?

I think the answer is a close-call yes, at least with regards to having it heard before a jury (at trial, both sides will get a chance to share their perspectives, which could change the way the case looks dramatically. But an evaluation of a summary judgment ruling is made by interpreting contested facts in the manner most favorable to the responding party, which is how I'm analyzing here). It doesn't happen very often, but if a coworker or group of employees creates a pervasively hostile environment for a White employee as a result of her race, it seems unfair to the extreme to place that beyond legal remedies.

The obvious wrinkle is the labeling of a White person by a Black person as having a "Black butt". Obviously, this flips both the normal speaker (White to Black) and recipient (Black to White). How should the court interpret that? On the one hand, it's important not to revert back into old patterns of thinking, in which calling a White person Black (or something associated with Blackness) was a legal wrong in of itself. On the other hand, it seems though the context surrounding this remark was designed to disparage Ms. Bredt, due to hostility toward her race. That should be legally actionable.

But the second part of the complaint is where things get ridiculous. Professor Volokh makes a strong argument that such speech (which, effectively, is criticizing racial inequalities in America) is constitutionally protected and thus cannot be considered in a harassment case. But this speech is not just protected, it's essential. Bredt is essentially complaining here because she did want to here the uncomfortable truths of a Black colleagues life. If a Black person is being pervasively harassed by the police, then the person we should be protesting against is the perpetrator, not the victim. Similarly, the pervasive underrepresentation of Black men and women in the ranks of new doctors is appalling. Mentioning that fact should be seen as a valuable social service. Ms. Bredt is an utterly unsympathetic plaintiff to me, because she seems to believe that being made aware of continued racial hierarchy is akin to racial harassment. If there ever was a stereotype of how Whites want to bury race dialogue and silence protests of racism, this is it.

Ms. Bredt is a bad plaintiff, and the second part of the complaint should be thrown out. But in principle, Whites with legitimate claims of race harassment should be able to count on the full support from the anti-racist community. Aside from the fact that it's the right thing to do, there are at least two reasons why this is tactically wise:

1) Supporting remedy in the few rare cases where Whites are being discriminated against shows that ending racism is not a "White versus Black" issue, but rather an issue of justice for all races. Having these cases is a powerful rejoinder to those who'd argue that anti-racist discourse is all about hating whitey.

2) If courts are more prone to be sympathetic to the claims of White plaintiffs, then they will likely construct broader rules and less-stringent standards to accommodate their claims. These precedents can then be countermanded by other aggrieved parties (most of whom will be Black), and used for their struggle as well.

In all, one of the most valuable things the anti-racism movement can do is recast its image in the public eye away from a "war against Whites" and towards a "struggle for justice." While for the vast majority of anti-racism activists this already is the primary motivator, they should look carefully for opportunities to present this face forward to the public.

UPDATE: Of course, with the 4th Circuit making awful decisions like this, it's important to qualify that anti-discrimination law is barely working for Blacks either.

Up or Down Votes

Scott Moss penned a letter to a NY Times movie reviewer, which included the following observation:

OK, I get it: you don't like any movies other than indie and foreign flicks like the one about The Girl Who Was Sad Because Her Village Burned Down In A Brush Fire, which won second prize at the Snooty-Toot-Toot Film Festival hosted by Robert DeNiro and Sean Penn. Of course, at times it's hard to tell if you like a movie, given that you don't use the bourgeois "four-star" or "two-thumb" system -- or any other system, come to think of it -- to say if the movie actually was good or not. I can't tell you how many reviews of yours I've read that focus on the star's "rangy" performance (whatever that means), or pontificate about the cinematography (whatever that means), but leave me, at the end, thinking, "wait a minute -- is he saying this is a good movie or not?" And I did pretty well on the "reading comp" section of the LSAT.

At some point, A.O. Snottypants, when you have such disdain for 99% of the movies that your readers actually go see, shouldn't you just stop being a movie reviewer?

One of his commenters responded:

So when are law professors going to start rating cases on a five point or two thumbs scale? I am tired of reading casebook after casebook, and attending class after class, in which the professor refuses simply to say whether a case is good or not. And to listen to these professors snort at the perfectly sound questions offered by the Senate Judiciary Committee ("Roe v. Wade: thumbs up or thumbs down?"), one cannot help but wonder why professors persist in commenting on the law when they obviously have such disdain for how 99% of Americans who use the law actually view the law.

Touche.

Individualism as Racism?

Eugene Volokh links to the Seattle Public School's definition of racism, which includes the following:

Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as "other", different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.

I understand why Volokh would be upset: being a libertarian, he probably would identify as an individualist, and does not like that being equated to "racist." As for Critical-Race-Theory-Hack me, I think this definition oversteps itself.

The last stop on my intellectual voyage prior to landing on Critical Race Theory was non-interventionist liberalism that was slowly spiraling into libertarianism. I didn't actually like libertarianism that much, and was glad to be rescued from what had seemed logically infallible but morally intolerable. However, this doesn't mean I condemn individualism. On the contrary, enough John Stuart Mill runs in my veins that I'd be very hard pressed to express hostility toward individualism on the whole. What Critical Race Theory taught me was that an individualist paradigm cannot "see" all forms of racism. So remaining excessively committed to individualism means consenting to the preservation of racial hierarchy.

But one can concede that and still "emphasize" (Seattle's words) individualism over collective ideologies. Collectivist mentalities, after all, can miss racism too--an "all for the corporation" mentality might explain the firing of a Black worker on the grounds that his productivity was sub-par, not noticing that he had a racist manager who was constantly harassing him (even while putting in great work of his own). Or a viewpoint that examines racism solely through groups can overlook individual acts of prejudice that fall outside "normal" structures, institutions, or cultural memes, but still exert significant negative impacts on their targets.

Within this paradigm, people will disagree about where the line should be drawn between collective and individualist ideologies. But merely deciding to "emphasize" individualism is not so clearly beyond the bounds as to be unquestionably deserving of the tag "racism."

Volokh also registers at least a theoretical opposition to Seattle's claim that listing only Whites as the greatest composers or writers is racist. This seems a bit tougher to defend. There is no objective way of determining who the "best" writer is. And I have a lot of trouble conceptualizing a criteria choice that a) excludes all minorities, b) has no racial component at least implicit, and c) falls within a sensible definition of the term "greatest." For example, saying "the greatest writers are those with the greatest impact on the world," and including only Whites, seems difficult to justify without denying the historical, political, and cultural importance of the non-Western world. I suppose stretching to the limits of abstractness, I can imagine a list that includes only Whites that has no racial element to it whatsoever. But pragmatically, I'd ascribe only a minimal probability to that being the case for any given list that excluded all minorities, and my default assumption would be that any such list is tainted by some manifestation of racial hierarchy..

Missing In Action

With the Iraq war still slogging along, and President Bush calling for National Guard troops to patrol the US/Mexico border (remember: his administration was against it before they were for it), I think it's worth mentioning how many troops could be helping secure our borders and stabilize Iraq, were it not for the abomination known as "Don't Ask, Don't Tell."

Via Scott Moss, the number of troops discharged is nearly 10,000, at a cost of over $350 million.

Money well spent.

We Did It Once

Via Misty at Shakespeare's Sister, one of the creepiest articles I've seen yet on immigration:

[Bush] will be lying, again, just as he lied when he said: "Massive deportation of the people here is unrealistic -- it's just not going to work."

Not only will it work, but one can easily estimate how long it would take. If it took the Germans less than four years to rid themselves of 6 million Jews, many of whom spoke German and were fully integrated into German society, it couldn't possibly take more than eight years to deport 12 million illegal aliens, many of whom don't speak English and are not integrated into American society.

Umm...Germans? "Rid themselves"?

Normally, when one makes a rhetorical maneuver like this, it is immediately followed by some sort of qualifier (a qualifier which, in my view, rarely excuses the tactic) in which the author disclaims that he's advocating genocide or violence. But that's the real scary part--no such qualifier is present. He just happily drops in a reference to how well the Holocaust worked at solving its problem, and moves on to blast the notion that absolute zero-tolerance immigration policy would be impractical. Which, to be sure, is a fair critique...if one is willing to endorse such measures like branding illegals (hey, wasn't there some sort of tattoo thing in the concentration camps too?). It is ridiculous, however, if we are to preserve some notion of an American soul, part of which means not drawing on the Gestapo for policy inspiration.

Incidentally, Vox later tries to give the qualifier at his own site, but Errant Knight dispatches of it relatively easily. Yes, the Holocaust "proves" mass deportations are possible--if one doesn't care about the body count.

Digby, Martini Republic, and BoML have more.

Truly appalling.

Writing History in Advance

The New York Times is reporting that the Christian Right might withhold its support for Republicans in the 2006 election unless the GOP leadership starts getting its major priorities through congress.

Noam Schieber thinks its a bluff. But I think its shrewd politics, and not because I think it will work. There is simply no way that the Federal Marriage Amendment, a bar on stem cell research, further restrictions on contraceptive use, or any other such policies are going to pass by the time we get to midterms. But that is not what I think the Religious Right's leadership is going for here. I think they've already decided that the GOP is going to take a considerable hit in the 2006 elections, and is acting to make that outcome seem resultant of insufficient social conservatism.

Here's how the game works. The operating assumption is that the GOP is going to lose seats in 2006. If Dobson and his pals do their normal dirty work for the party, the best case scenario is that their role will be ignore in the stories documenting the Republican collapse. The worst case scenario is that reporters will write that the 2006 elections prove that the evangelical bloc is weaker than it used to be and unable to wield the same sort of clout we saw in the mid-90s and early part of this millennium. At the bottom of the article Grover Norquist argues that this will be the likely upshot: "If the Republicans do poorly in 2006, the establishment will explain that it was because Bush was too conservative, specifically on social and cultural issues." Either outcome is bad for them, because it removes them from their pedestal as perhaps the central interest group operating in Washington today. And thus the GOP won't pay them proper heed when trying to rebuild their fortunes.

However, if the Christian right publicly withholds their support for the GOP, then the story changes entirely. The outcome is still roughly the same--Republicans lose seats (probably more than they otherwise would have, but even still). But now reporters will, when writing about the GOP failure, incorporate a narrative about how their religious base abandoned them due to seeming disinterest. The organizations themselves will try and spin this narrative into the primary reason for the GOP disaster--had they properly courted Christian groups, they wouldn't be in the fix they're in. The upshot of this whole dynamic is that the "conventional wisdom" will pretty much mandate that the GOP repair its ties with Falwell and his buddies if they are to regain dominance. In other words, Norquist has it exactly backwards: the Religious Right will be blamed for 2006 only if it does participate at full strength.

The only way this could possibly backfire is if the GOP loses control of congress due to Christian "disenchantment" by a narrow enough margin such that they'd have probably kept control had the Christian GOTV organization been in full swing. But I'd wager that this is a price Christian leaders are willing to pay. A few years in the political wilderness is well worth being at the steering wheel of the GOP when it makes its comeback.

Good Thing He Stayed at a Holiday Inn Express Last Night!

The BBC accidently plucks a random cab driver out of its waiting room and interviews him, thinking he was a expert on internet music business. He gamely tried to play the part, but the horrified expression on his face when they announced who "he" was is priceless.

Video here.

H/T: Volokh

University of Peking, Northfield Campus

I was just watching some program on CNN (I didn't recognize the show while watching, but I surmise it was Glenn Beck). Anyway, he was harping on the college liberalism talking point with a guest from the Hudson Institute. It's incredible how divorced from reality these folks are. I listen, half incredulous, half appalled, in a vain effort to find something in these tirades that speaks to my actual experience. After all, I go to the famously liberal Carleton College. And while I'm certainly not a conservative, I do hold certain beliefs that challenge the mythical academic orthodoxy, like supporting the Iraq war and advocating increased conservative presence on campus. Yet aside from a few scattered incidents, what's amazing is how geniune the commitment to free engagement and open dialogue has been here.

Alas, reality has long since abandoned those who are waging a war on the American educational system. Beck's interlocutor actually compared the "indoctrination" one finds in a typical American college to what one would find at the University of Peking in communist China. Are they for real? Mr. Beck said that liberal professors want a free flow of ideas, so long as the topic is pornography or abortion. I don't think I ever have had an assignment pertaining to abortion, and the only time I've read on pornography was in Feminist Theory, where we examined Catherine MacKinnon's claim that it was a civil rights violation against women. Damn those liberals, corrupting American culture with their strident opposition to pornography! I'm sorry, but if a Zionist hawk who wrote his final paper urging feminist theorists to support more American military interventions abroad can get an "A" from a professor with a UCLA Ph.D specializing in women's roles in Arab liberation movements (and if this same professor offered to give me advice in trying to get one of my other papers published), then I'm not too worried about bias effecting my learning experience.

Beck offered (I assume half-satirically) a "pledge" that college age students could make to their parents. It consists of three parts (I'm paraphrasing from memory):

1) I will be a barrier between liberal ideals and truth.

2) If I am tempted to "the dark side" I will discuss things for at least an hour with my parents.

3) If after an hour I still disagree with my parents, then I will proudly assert my independence with the understanding that they will no longer pay for my tuition.

Gosh, what a contrast! I mean, I'm sure seeing a commitment to free inquiry and open minds present in that pledge that's missing from contemporary academia. Disagree with your parents, get your tuition cut off! That's the way to foster that independent spirit!

I've urged that Carleton attempt to provide more balance in its political alignment, if only to make debates more interesting. And there will always be horror stories that make the news. But folks like Beck are simply talking non-sense in how they portray the general contemporary college climate. Things aren't nearly as bad as they make them out to be. And I honestly think that nearly anyone who actually is present in a mainstream college or university will attest to that.

Spin Dry

Apropos USA Today's bombshell that President Bush has been collecting information on phone calls made by millions of innocent Americans, Spencer Ackerman has the progression of the Bush administration's ever-changing description of its illicit activities.

1) We're not doing it all

2) We only do it with warrant

3) We only do it targeting specific terrorists, calling to or from abroad, in narrow circumstances

4) ???

I know it can be hard to keep track, but this particular story is, in fact different from the others. And according to field expert Orin Kerr, the program almost definitely breaches 18 U.S.C. 3121 (and it does so even if the prior incarnations of the NSA wiretapping programs are legal, which is far from clear).

Oh, and why does Bill Frist have to be a prostitute for the Bush administration?

Religious Men

I'm pretty much in agreement with Kevin Drum that Iranian President Mahmoud Ahmadinejad's Letter to President Bush does not exactly look like a promising breakthrough. But I am mildly creeped out by all the religion talk in the letter. Isn't it indicative that when one of the world's most evil, psychotic dictators thought

"hmm...what do I have in common with George W. Bush? What would be the theme I could strike most likely to resonate with the man?"

he immediately jumped to Bush's evangelical Christianity?

Ahmadinejad's letter also offers up the idea that liberal democracy has failed and that theocracy should replace it. This occurs at a time when the Christian right also has expressed its distaste for liberal enlightenment norms. Is this why Ahmadinejad thought Bush would find his message compelling? What does that tell us?

Not Dead Yet

Okay, so when I said I'd be blogging at full strength this week, clearly I was lying. This week has been work-drenched. I'll let you know when things settle down.

Hey, That's My Idea!

Via Concurring Opinions, I see that the Yale Law Journal (which already did something surprisingly sharp and cutting edge with its Pocket Part) is putting out a call for debate-style papers. Two professors with opposing views submit somewhat incomplete papers, then "develop" their ideas in response to objections from their partner.

At the risk of being self-aggrandizing, let me point out that I had this idea over a year ago:

Perhaps an alternative would be recasting the norm about what "acceptable" (esp. for tenure review) scholarship is. If academia was changed to be more debate oriented, with the expectation that professors would not just construct arguments but also actively engage in debate with their philosophical opponents, that could help ... giv[e] an alternative path to academic success beyond just making new claims and blissfully ignoring the scathing criticism coming from the other side of the political divide.

Always on top of the latest trends here at The Debate Link.

PrawfsBlawg is offering itself as a gathering point for scholars to partner up with each other on the project. But one of their commenters made a sobering point: It's possibly (and very likely) that the YLJ will go after the highest-profile names possible, setting up battle-royale matches between titans in particular fields. This would undoubtedly be fun to read, but makes life difficult for young guns who saw this as an opportunity to get their foot in the YLJ.

Sigh--my own brainchild, leaving me outside its gates.

Cultural Roadblocks on the Route to Equality

Belle Lettre has an excellent post the contra-contraception movement, both personally and politically (which, as the cliche goes and this post powerfully proves, are not very far apart at all). As Belle makes clear, there is a strong and growing political constituency growing out of the Christian Right that wishes to enact legal barriers to contraceptive use. They obviously pose a threat, but I feel like the battle lines are sufficiently well-fortified on that particular debate. What I find most interesting is Belle's description of how her upbringing in a conservative, Asian-American home impacted her autonomy and accessibility on these counts.

I was a campus feminist. But I was (am) also an Asian-American woman, raised in a very strict Asian household with a domineering father. I was forbidden to socialize with men, much less date--even after I turned 18, even after I entered college. I lived at home during college, and it was easy for them to control my social life--and I had enough disinclination to hurt my parents that I for the most part obeyed their draconian rules. But I was not always so inclined to follow the rules, and despite their best efforts, I managed to date secretly, seriously my college sweetheart for three years. Despite my own "abstinence only" education and strict moral upbringing, I, like so many other young men and women, disobeyed and disregarded the rules. It happens. It has always been, and it will always be that young people will, despite your best efforts to guide them, make "mistakes," ignore your teachings, and find their own path in life--right or wrong. I'm glad that though I did stray from the path of my fathers, I was able to guide myself, and protect myself--because the teachings I abandoned were no long applicable, and could no longer protect me on this new autonomous path. I am glad that because I was able to protect myself, I could keep my private life private, and my body my own business. I am glad that I never had to face the consequences of my father finding out about my "betrayal" -- because I would have surely suffered at his hands, and I would have surely feared for my life. The pressures of growing up are enough without being denied the information, tools, and means with which to guide and protect ourselves as we make our own life choices. Never forget that it is your life, and your body. And though I am not an extreme moral relativist, I do believe that with regard to your body and heart, you should be your own moral guide. And never forget how much all of this "debate" is pure sexual politics, designed to rob you of that autonomy.

These attitudes are not as uncommon as many suspect. Even in my liberal Washington suburb, I had a friend (half-Dutch, half-Japanese) who was forbidden by her parents to socialize with boys at all--even platonically. This led to some amusing/tense moments when she did do stuff with male friends (she went on a "beach week" trip with our whole high school crew--girls and guys--that she said was girls only. This was slightly more difficult to pull off since I was helping plan the transportation part of the trip). But while it was something I and her primarily joked about in school, it really was no laughing matter when they'd confine her to her room because she dared talk to me over AIM, or withdrew her from her college because she refused to consent to an arranged marriage (!).

All of this reminds me of a piece that I read from Kimberle Crenshaw in for my Feminist Theory class in the fall (it was excerpted in a book I don't have with me anymore, but it might have been from Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. L.F., 139-67). It's not that no White women have domineering fathers. It's that particular cultural expectations can make certain strategies (on the sexual health issue and others) that work fine for one ethnic group fail utterly for another. A battered woman's shelter, for example, does little to help a woman who is primarily confined to the home and who has no clue how to navigate the outside world without escort. Abuse hotlines assume that the abused women can use the phone unsupervised. Many crucial issues relating to sexual health assume that the participant is sufficiently autonomous to disobey strict orders from her parents; this can be unrealistic given certain socialization techniques. It's really easy to say that any girl who can't show the requisite autonomy to learn about sexual health isn't mature enough to be engaging in sexual activity in the first place. That may be true to an extent, but that cut both ways--if we're going to demand social autonomy as a precondition for engaging in these activities, then we can't act all shocked and horrified when young women do strike out on their own and try and break free of the traditional constraints their parents place upon them. I'd go further: If social autonomy is our standard, then I (ala Bruce Ackerman) think society has a positive obligation to help provide the tools and information necessary for women to develop independent judgments on issues of sexual health and morality, regardless of what their parents think (it goes without saying that sexual abstinence and chastity are perfectly valid choices, so long as they are made independently and not by social fiat). And since the barriers which prevent the full assertion of autonomous judgment vary from person to person and cultural background to cultural background, this quest will unquestionably require a plurality of techniques to respond to particular situations.

I should note that Belle's piece was cross-posted onto Feminist Law Professors, where she is visiting. I always figured that visiting blogging stints are kind of like visiting professorships--a chance to get some heightened exposure at a more prestigious institution, and perhaps (if you're lucky) a bit of a look-see for a permanent hiring. But even if that's not the case, it's a good sign that a bigger fish in the pond is reading and enjoying your work. So congratulations, Belle!

Back From The Bnai Mitzvot

My twins Bnai Mitzvot was a blast, but I'm glad to back. Hotel internet was infuriatingly spotty, so I couldn't post while I was away. Next week will be fully functional (I promise).

Clear as Day

It's rare to see racist ideology presented as clearly in today's day and age as it is in this Mark Noonan post. Wowzers.

Before I begin, I want to stake out my position on the use of the terms "racist" and "racism." There are people (though far fewer than the Right would suggest) who throw at the label "racist" at any hint of anti-progressive ideology dealing with racial matters. There is also a section of academia which wants to expand the definition of racism so that it encompassing all acts which preserve racial hierarchy, while concurrently recognizing that not everybody who participates in such an act should be subjected to the type of social ostracism that typically accompanies being tagged "racist."

I subscribe to neither camp. I believe that the term "racist" should only be used in the most serious cases, either in terms of specific acts of hate, violence, or prejudice, or ideologies which overtly proclaim one race to be manifestly superior to others. I think that more "moderate" cases should still be addressed, and addressed seriously, but I think that they are best met with terminology other than "racist." Using racism to address the non-extreme cases, in my view, devalues the term and reduces the credibility of the anti-racial hierarchy movement. If you want more on this, check out Lawrence Blum's spectacular book: "I'm Not a Racist, But...".

So basically, I'm not a raving leftist who tags people as "racist" at a drop of the hat. When I use it, I take it seriously. And this definitely qualifies.

I'm just going to excerpt from the parts that are the most, well, insane. Which, to be perfectly frank, is just about all of it:

There was, though, a certainty in the world in ages past - a century ago, it was taken as a natural that Europeans (and their American and Australian offspring) had developed not just a high civilization, but the highest civilization - a civilization so manifestly superior to all others in existence that it must be the result of some special ability on the part of those who built it[....]

It had its good and bad points, as all human constructs do - the most glaring bad point, of course, was the disgraceful way it treated non-white people, and even those white people who didn't measure up to an alleged Anglo-Saxon ideal. The largest good point, however, has been lost entirely - what has been lost is a conviction that the civilization is fundamentally good. Confronted with the crimes of racism and imperialism and deformed by the monstrosities of communism and Nazism, that European - or white, if you will - civilization has entirely lost the ability to look at itself and see something good. This sort of attitude is more prevalent on the political left, but I think that nearly all white people feel it to some degree...some sense that we got from point A to point C only by walking all over people at point B. Our success, as it were, is ill-gotten and thus not something we should ask anyone to emulate...better, especially in the mind of the leftwing elite, if we just leave well enough alone and, indeed, pretend that we've something fundamental to learn from other civilizations whom we once oppressed.

As Mr. Steele points out, this has led to a bit of half-heartedness on the war - We are, in a sense, afraid to apply our full might because that would seem to be a bullying approach...and unfair way to deal with people from other civilizations which never managed to advance themselves until they were forced into modernity over the past century.

As it is, I believe in the civilization I belong to - I believe, indeed, that it is a dispensation granted to mankind by a benevolent Providence. Our civilization is designed, especially in its American form, to liberate and advance all of our brothers and isisters [sic] who continue to labor under oppression, ignorance and poverty. It is this belief of mine which sustains me through the difficult day to day of the War on Terrorism - just because my civilization is excellent, it doesn't mean that the barbarians don't have a trick or two up their slieeve [sic], but knowing that my civilizations produced civilized soldiers while their produces nothing by murderous villians, I am encouraged.

In reading Mr. Steele's piece I began, I think, to better understand my leftwing readers - at bottom, they simply must be of the opinion that we are not the best, that American civilization, far too tainted with guilty white people, simply cannot be correct, and thus anyone we fight must have right on their side. Its a default mental mode, and I don't think we'll be able to shake them out of it - but at least Mr. Steele has given us a way to understand them, and thus work around them if we can't work with them.

The emphasis is my own--the ellipsis not in brackets are Mr. Noonan's in the original.

There are really two types of idiocy present above--the blatantly racist stuff, and the shoddy argumentative maneuvering that supports it. They're interconnected, but distinct in that the first is a moral failing on Noonan's part, and the second is a logical failing.

I object to three specific claims by Noonan in the "moral" category. First:

Our civilization is designed, especially in its American form, to liberate and advance all of our brothers and sisters who continue to labor under oppression, ignorance and poverty

The problem with this statement is that it is empirically denied, rather harshly, by the facts of the last two centuries. I don't even need to make the radical claim that the War on Terrorism is just Western imperialism run amok (because I believe the exact opposite in fact). Let me just run through the list that nobody denies: Slavery, colonialism, lynching, Jim Crow, the Holocaust, the slave trade (which, given its likely 8-figure death toll, deserves independent recognition from slavery), communism, the My Lai massacre, fascism, anti-semitism, misogyny, spousal rape exemptions, segregation, the Native American genocide, reservations, the Dreyfuss affair, the eugenics movement, Japanese internment, and child labor. I could go on. All had relatively prominent roles in Western civilization at points in the last 200 years. This isn't to say that any given one of those wasn't present elsewhere. But it's just not intellectually plausible for Noonan to dismiss all of this as a historical footnote or aberration from Western civilization. We're talking about procedures of death and destruction that led to a body count well into the 9-figures. One can recognize positive contributions made by the West to the global community while still realizing that these horrors cast doubt on the West's claims to being designed for liberation (more on this later).

Second:

pretend that we've something fundamental to learn from other civilizations whom we once oppressed.

and

people from other civilizations which never managed to advance themselves until they were forced into modernity over the past century.

The former claim is almost too idiotic to address. I'll just give out a reading list: W.E.B. Du Bois, Alain Locke, Fredrick Douglass, Kenji Yoshino, Derrick Bell, Richard Delgado, Mahatma Gandhi, and Martin Luther King, Jr. should get you started.

As to the latter, I'm tempted to just refer Noonan to W.E.B. Du Bois, but I'll chime in with a few points of my own (still--read Du Bois. You might learn something from a person we had oppressed). For starters, I don't know what "modernity" means in this context. I'm assuming that Noonan is referring to the Enlightenment philosophical model developed from the 17th through the 19th century, focusing on individualism, the autonomous self, and the rights of persons. If that is indeed what he's talking about, then he is probably right that South America didn't have was not "modern." But then I have two questions.

First, with the Enlightenment model under attack from both the right and the left as being philosophically insufficient, why are we so happy to claim it as a perk? Again, there are loads of good things about the Enlightenment, but as commentators from throughout the political spectrum have noted, there are problems too--the emasculation of religion, the devaluing of communities and traditions, the destruction of solidarity, the myth of an atomic self, the inability of negative rights to secure positive liberty, and the persistence of subordinating ideologies even amongst the most "enlightened" civilizations. Why are we proclaiming our owe for a philosophy we (Republicans and Democrats) are in the process of rejecting--or at least heavily modifying? That moves me to the second problem: sure, Zanzibar probably didn't have a full panoply of rights prior to European colonialism, but it didn't have them during it, nor after it. And more importantly, neither did we. America was not and cannot be described as a "liberal" (in the philosophical sense) state while in the throes of Jim Crow and segregation. The response is always "well, we were liberal except for that," as if the official political suppression of millions of American citizens was just some afterthought we can cast aside. I'm sorry, but there is no way that can be considered a compelling argument. At best, the enlightenment model is an ongoing project that nobody has come close to achieving. And listening to the voices of oppressed peoples, their stories and analysis, might teach you that.

Third:

knowing that my civilizations produced civilized soldiers while their produces nothing by [sic] murderous villians, I am encouraged

How on earth does Noonan justify this without admitting naked racism, I have no idea. "Nothing [but] murderous villians"? If racism is defined (and I think this is a pretty restrictive definition) as the belief that a given civilization as a whole is completely and totally inferior to one's own, then saying that other civilizations produce only murderous villians leaps the bar without trouble. It's not even clear if Noonan is restricting this sweeping generalization to only Arabs (if not, see the above list), but even if so it's hardly warranted. Ibn Khaldun springs immediately to mind, and Saladin was without question both less murderous and less villainous than his Crusader counterparts. I'm not an expert in Arab history, but I'm sure I could go on here as well with only a cursory review. But there is no justifying this statement. At all.

The logical failing is simply an inability to grasp a middle ground between "always being the best" and "always being wrong". It's present in several places throughout the piece, but this excerpt works particularly well because the slide occurs within a single sentence:

at bottom, [liberals] simply must be of the opinion that we are not the best, that American civilization, far too tainted with guilty white people, simply cannot be correct, and thus anyone we fight must have right on their side.

Let me spell it out. We aren't always "the best", which doesn't mean we "cannot be correct." I think we've been correct on plenty of issues--one of which, incidentally, is overthrowing oppressive regimes like Hussein's and the Taliban. We've also been wrong (incorrect) on plenty of cases--like enslaving millions of people. So I can applaud the introduction by the West of a canon of Universal Human Rights, while decrying their introduction of the ideology of scientific racism and the blueprints for gas chambers. Recognizing that we've been both right and wrong, liberals believe that American policies should be evaluated a) case-by-case, rather than just assuming that because America does it, it's correct and b) with humility, because (inter alia) six million Jews, over a hundred million of Blacks, and countless other peoples know what happens when we get it wrong.

Burke might call this sort of prudence and caution a virtue. But what would he know about conservatism?

This is the rare post of its type that left me, not angry, but horrified. Here's where a more partisan blogger would go into the "this represents the modern Republican party" rant. I won't indulge, because I don't believe that most Republicans fit this mold. I'm willing to believe that most Republicans, presented with this throwback to our most evil ideologies, would be quite willing to codemn it as immoral. I take a lot of flack from my liberal pals for being more willing than they to ascribe good motives to most conservatives, and their deep opposition to racism and racist ideology (even if I think their tactics on opposing it are misguided). I know conservatives read my blog, so I'd appreciate a chance for some confirmation. Prove me right, and my critics wrong.

Breaching the Dike

I thought my post on Shelby Steele's explanation of our Iraq failure (short version: we were too soft on them) was pretty good. But Hilzoy and Glenn Greenwald put me to shame.

What's amazing, as they point out, isn't the piece itself so much as the incredibly positive reaction Steele's argument has elicited in the conservative blogosphere. It's like a dam has finally broken, and the right can finally extract itself from the humanitarian rhetoric they've wrapped this war in ever since the WMD case fell apart. We failed in Iraq because we were too concerned with being humane (you really have to read the excerpts Hilzoy and Greenwald collect to get the full brunt of their argument here). If we had just blown apart a few cities, then we'd have won by now--but liberal political correctness doesn't allow it. Greenwald elaborates:

Looking at the bright side of this deranged rhetoric, it is, in a sense, refreshing to see that many of these war supporters, in their great frustration, are finally relinquishing their solemn concern for the Iraqi people and the tearful inspiration caused by the Purple Fingers. Instead, they are now just calling for some good old-fashioned carpet bombings and mass killings. As Jeff [Goldstein] tells us: "there are times when we really should turn off the 'smart' bombs."...
[...]
To sit and listen to people who have spent the last three years piously lecturing us on the need to stand with "the Iraqi people," who justified our invasion of that country on the ground that we want to give them a better system of government because we must make Muslims like us more, now insist that what we need to do is bomb them with greater force and less precision is really rather vile -- but highly instructive. The masks are coming off. No more poetic tributes to democracy or all that sentimental whining about "hearts and minds." It's time to shed our unwarranted white guilt, really stretch our legs and let our hair down, and just keep bombing and bombing until we kill enough of them and win. Shelby Steele deserves some sort of award for triggering that refreshingly honest outburst.

Of course, this "outburst" is nonsense. It's not just that such a tactical effort wouldn't have worked, it's that it couldn't have. "Victory" over a smoldering crater is not a "win" under any moral standard America can rightly hold itself to. Hilzoy furthers:

[T]here is a difference between being hamstrung by guilt and being restrained by principle. The former is a sign of weakness; the latter is a sign of strength. Our principles are our own. We do not follow them because we are afraid of what someone else will say, but because we believe that they are right. The day we come to confuse our adherence to morality with timidity and fear will be the day we lose whatever virtue and strength we have, and forfeit our claim to anyone's respect.

Before we claim to be "winning", we need to take stock of what we've won. If we've crushed the Iraqi people into submission, but done it at the expense of our own soul, I think that's properly cast as defeat--defeat of a particularly tragic sort.

Ultimately, Greenwald gets the last word:

Escalating the use of military force in Iraq by indiscriminately killing civilians and eradicating whole cities would contradict every single statement we have made about why we are there, what we want to achieve, and what our plan is in that region. We're not refraining from those acts because of white guilt or a fear of what European diplomats will say about us. We're refraining from them because the wholesale indiscriminate slaughter of thousands or tens of thousands of innocent Iraqis -- all because we have grown impatient and annoyed with our pet little democracy-building project and just want to bomb the whole place into submission -- would be both morally reprehensible and, from the perspective of our own interests, an indescribably stupid thing to do.

Amen to that. Something ugly has been released in the hearts of the American right with this article. They better snap out of it, because what they're beginning to advocate now runs perilously close to utter depravity. Unlike what Jeff Goldstein says, we do not have to believe that the right actually "luxuriates" in the deaths of innocents to be appalled by their position. It's the indifference to the carnage, not the celebration of it, that is stunning. Wrapped under the guise of "professionalism" and "strength", this basic moral apathy represents a far greater degradation of one's ethical character than even active celebration of the deaths of terrorists. As Mirage said in The Incredibles: "Valuing life is not weakness, and disregarding it is not strength."

Stinking Water

I really don't know what to make of this.

Ike Brown is a legend in Mississippi politics, a fast-talking operative both loved and hated for his ability to turn out black voters and get his candidates into office.

That success has also landed him at the heart of a federal lawsuit that's about to turn the Voting Rights Act on its end.

For the first time, the U.S. Justice Department is using the 1965 law to allege racial discrimination against whites.

Brown, head of the Democratic Party in Mississippi's rural Noxubee County, is accused of waging a campaign to defeat white voters and candidates with tactics including intimidation and coercion. Also named in the lawsuit is Circuit Clerk Carl Mickens, who has agreed to refrain from rejecting white voters' absentee ballots considered defective while accepting similar ballots from black voters.
[...]
The Justice Department complaint says Brown and those working with him "participated in numerous racial appeals during primary and general campaigns and have criticized black citizens for supporting white candidates and for forming biracial political coalitions with white candidates."

Noxubee County - a rural area along the Alabama line named for a Choctaw word meaning "stinking water" - has a population of 12,500, 69 percent black and 30 percent white.

Whites once dominated county politics here, but now only one white person holds countywide office, and he says Brown tried to recruit an out-of-county black candidate to run against him three years ago.

I really detest racial appeals in voting, but as David Bernstein points out, I have no idea if they're illegal (or even if they are, whether such a legal interpretation would be consistent with the First Amendment). Also, of course, in cases like this there is always the question of whether or not the target is being selected for his political skill, rather than any violation of the law. And of course, there is serious concern that similar acts by white political operatives get the ol' wink and nod from the DOJ:

"The main concern we have in the civil rights community isn't necessarily that that DOJ brought this case," [Jack] Greenbaum says. "It's that the department is not bringing meritorious cases on behalf of African-American and Native American voters."

Justice Department records show the department's last voting-rights case alleging discrimination against black voters was filed in 2001. Since then, six cases have been brought on behalf of voters of Hispanic or Asian descent in five states -- plus the case involving white voters in Mississippi.
[...]
But [Brown's Defense Attorney, Black Republican Wilbur] Colom criticizes the Justice Department for filing a complaint against a black political consultant while ignoring similar behavior by white political operatives in Mississippi.

"It has overtones of politics and that's the wrong road for Civil Rights Division of the Justice Department," the attorney says. "It's going to destroy their credibility the next time they ask black people to listen to them."

Hmm...the last case alleging discrimination against Black voters was brought forth in 2001. What could have possibly engendered a major shift in DOJ policy in 2001? Coincidence, I'm sure.

In any event, assuming that these allegations are correct, I think such tactics are quite sleazy and deserve condemnation. Would that you'd ever see such condemnation when White political leaders engage in the activity, though.