City of Cambridge to Gates: "The Whole Thing Was Your -- Uh -- A Big Misunderstanding"

Chauncey DeVega, over at We Are Respectable Negroes, has a few comments on the report issued by the City of Cambridge about the July 16 2009 arrest of Henry Louis Gates, Jr. Give it a look and think about what it must be like to be Skip Gates and suck this one up. Or, hypothetically, what it would be like to be you and suck this one up.

Gates, as you may recall, was arrested in his own house after having presented his Harvard identification and, subsequently, losing his temper with Sergeant James Crowley. The conclusion reached by the panel of investigators? Both men were responsible for the incident. They feared each other, the report reasons, and acted accordingly. Gates shouted, Crowley locked him up. Because of their mutual fear, the commissioners reason, the two men shared responsibility for the incident because each might have taken a step back at a crucial moment. (Note to historians: this could be a real methodological breakthrough, as we sift through the evidence of a variety of people whose oppression and genocide might have been avoided if only they had kept their mouths shut and not frightened their colonizers so badly.)

My esteemed colleague DeVega rightly points to the report's implication that Gates' main error was to be in unlawful possession of negritude of the uppity variety. Charles Ogletree, a Harvard colleague and Gates' attorney, noted that while "the report is important and timely" and will help move the community forward, the notion that "both Gates and Crowley had an equal opportunity to deescalate the situation is just breathtaking and unbelievable." See? This is the difference between lawyers and English professors. English professors start yelling; lawyers say something nice to get your attention, and when you are listening, say that the other side is full of $hit.

As Ogletree points out, only Crowley had the power to make an arrest: Gates did not, nor was it within his power to compel the officer to leave his house or to require an explanation for why Crowley invaded it in the first place. At the time of Gates' arrest, opinions abounded about his role in this confrontation: that he had lived so long in the university bubble that he had lost touch with the deference to police authority required of all African-American people; that all people, black or white, who express anger at our friends the police deserve what they get; and that Gates ought to have been grateful that Crowley was there to protect his property, even though he was arrested as a result. Even President Obama, by calling the "beer summit," where all three of them sat down in the spirit of shared masculinity (underlining graphically that "racism is over" because the least socially privileged ma at the table was Crowley, the White Guy) tried to divert us from the real issue here.

And what was that issue? Why the valorization of state power, of course, and the pervasive propaganda that nothing in post-civil rights Amerika is racist anymore. What looks like racism is just collateral damage accidentally inflicted on people of color as the police state keeps the rest of "us" safe from -- whatever.

That's right. If, for example, of the 8,000 people on the "no fly list" there are some who are there by mistake and cannot return to the United States, that's too bad, but wouldn't you rather have one or two or 1000 people falsely imprisoned, tortured and exiled to prevent another 9/11? Sure you would. Particularly when it isn't you.

It's why we all stand there passively while TSA people treat us rudely, shout at us when we move too close to a bag that they are searching, and grab their coworkers to point and giggle at the private items we have in our luggage. Similarly, our current desire to yield all moral authority to the state has many Americans' fully persuaded that Arizona's new anti-immigrant law is aimed only at people without legal residence documents, not Latino/as -- even though Canadians, Irish and Russians don't seem to be rushing to the the Sunshine State to take below minimum wage jobs. If you are arrested and deported because you look Latino/a and have no documents handy, well then stupid you, because you had the power to choose to carry documents. If you die while being deported, it isn't racism; just a misunderstanding you could have avoided by not coming to the United States in the first place or by carrying documents that prove your family lived in Arizona in 1848.

The point that is occluded by our national zeal to be endlessly cooperative with law enforcement is that the law, even when written as a neutral instrument, inflicts itself unevenly because police spend their time actively looking for criminals, not doing good deeds. White people tend not to appreciate this fully because they (and their family members) are usually not the ones dressed in the Sing-Sing bracelets, being tasered to death at the Mexican border or trying to find a place to stay in Cairo for the indefinite future. More importantly, however, policemen are the instrument of the law, not citizens, and it was Officer Crowley alone who was responsible for acting correctly during the course of a "misunderstanding" about whether that elderly black man needed to be taught a good lesson about respecting authority.

But there is a second point about racism and the law that the Cambridge report misses. While racism in the application of the law is an important way to discuss state power, in a few decades Americans seem to have forgotten a lot of history: racism became so powerful in the United States because of the law and because the military and the police have historically enforced racism even when no laws are broken. In other words, had racism simply been a matter of personal ignorance and social attitudes -- as people choose to believe nowadays -- it would have had less impact on history than it had. The law was frequently enforced informally by whites who exercised various forms of violence on people of color, but when said whites were challenged as to their right to control or exclude people of color, they could always point to the laws that ratified the racial order.

Theoretically, of course, the law is race neutral. But you can see, by the following analogy, how discrimination written into the law produces aggrieved attitudes among those who the laws privileges. According to the New York Times, when repeatedly questioned about her initial attempt to bar military recruiters from Harvard's career counseling center (Harvard's nondiscrimination policy includes GLBTQ people, and is therefore in conflict with the military's Don't Ask, Don't Tell policy),

Ms. Kagan repeated that she found the ban “unwise and unjust,” and told the committee that she had been trying to reconcile Harvard’s own antidiscrimination policy with a provision known as the Solomon Amendment, which requires universities that receive federal financing to give full access to the military. Senator Jeff Sessions, Republican of Alabama, helped write the amendment, and made clear his displeasure with Ms. Kagan.

“You were punishing the military,” Mr. Sessions said at one point. Later, outside the hearing room, he came close to accusing Ms. Kagan of lying, calling her “not rigorously accurate” in her explanation.

Two things seem immediately obvious to me here. In a truly interesting hearing, someone might have asked Kagan the legal question: are there not two federal laws in conflict here (e.g., that institutions that accept federal funds must allow military recruiters on campus and that institutions, legally, must enforce their own rules as they are written, including those barring discrimination) and how would she rule if such a case came before her?

The second -- to come back to Mr. Gates -- is this: under what conditions does the Dean of the Harvard Law School have the power to punish the military, even if s/he wanted to? Is withholding space on the Harvard campus tantamount to banning military employment for Harvard graduates, or even an actual humiliation to the federal government? Even if it were, would such a "punishment" be in any way similar to the power the government has to damage research at Harvard by withdrawing grant and scholarship money? Or humiliate GLBTQ soldiers by drumming them out of the armed services?

And is not the government's insistence that institutions defer to them and abandon their own principles an act of far greater, and utterly needless, vanity?

The Radical Did Not Go Out With Elena Kagan, But Other Ivy League Grads Did: This Week On The Elitist Supreme Court

Last night when Jim Lehrer asked David Brooks and Mark Shields, "How do you see the Elena Kagan nomination now? It's over a week," this Radical moved to the edge of her seat. Which commenter was going to say the L word first?

No, no, not liberal.

Instead, after the normal reassurances that Kagan will be confirmed, just try to find something wrong with her, she was a good dean, she has no opinions about anything, blah, blah, blah, suddenly Shields and Brooks went on a tirade about SCOTUS being an elitist institution. (What, you thought it was a good thing that the highest court in the land was peopled with the best legal minds in the land? Think again, mister. Or sister.)

From the transcript:

MARK SHIELDS: I have to tell you, I mean, I am so tired of Ivy Leaguers. I really am. I want somebody who went to a state university, who didn't grow up in the Eastern time zone, who worked nights, maybe, to pay for their own books, who either was in the enlisted ranks in the United States military or knows somebody who was, somebody who just really didn't -- is west of the Hudson, and east of Malibu.

MARK SHIELDS: There's a great country out there with an awful lot of people in it, and maybe somebody who went to night school once. I mean, why do we -- why do we restrict it to this pool that -- you know, I really just think it is terribly elitist. I mean, it sounds like the British ruling class.

DAVID BROOKS: Yes. Well, Mark and I should be happy that it's all Catholics and Jews on the court now.

JIM LEHRER: You guys are covered. That's easy for you to say.

DAVID BROOKS: Yes.

DAVID BROOKS: Personally, I'm the only New York Jew not on the court, so I'm a little pissed off about that.

But I actually agree with Mark. I think the politics of it are bad, by the way, for exactly that reason. People look at it, oh, another Harvard Law. And, you know, they're very smart people and they're very fine people. But it is true that it would be nice to have somebody from the heartland of the Midwest, you know, Chicago, for example.

No, I'm just kidding.

(Editor's note: David Brooks went to the University of Chicago, something his audience is rarely allowed to forget for more than a day at a time.)

DAVID BROOKS: No, I agree -- I agree with Mark, somebody, you know -- it is -- and this is true, by the way, of the Obama administration in general. There's a lot of Harvard and Yale there up and down the ranks. And it is a narrow slice of America.

MARK SHIELDS: When Lyndon Johnson was just absolutely rhapsodizing about how brilliant Jack Kennedy's Cabinet, President Jack Kennedy's Cabinet was, Sam Rayburn -- you know, there were all these Ivy League pedigrees and everything else -- Sam Rayburn said, "I just wish one of them had ever run for sheriff, Lyndon."

Well, I just wish somebody had run for sheriff who was nominated to the Supreme Court, who had been out in the political process and put their name on the ballot.

I've got a good idea: what about Harriet Miers? Didn't she run for sheriff or something?

I mean, please David and Mark. Elena Kagan did not grow up in a bubble, she grew up on the Upper West Side when it actually wasn't such a tidy place as it is now. Remember the 1970s in New York guys? Furthermore, unlike her male peers, if Kagan hadn't been so out of control smart and hard-working she wouldn't have gotten a chance at anything, especially not that Princeton B.A. In case you think being in the right eating club separated her from reality, it is also relevant that except for Elena and her father, everyone in the Kagan family is a public school teacher, and Kagan herself went to public school prior to college.

But let's look at the rest of this elitist court. Granted, John Roberts and Anthony Kennedy have very suspicious credentials. But Sonia Sotomayor's single, working mother got her through school at the top of her class so that she could be plucked out of the crowd to go to Princeton. And if you are thinking affirmative action, just stuff it, will you? Any of us who actually work in elitist institutions know perfectly well that people of color and women, in order to be even eligible for affirmative action, have had to be better, smarter and more hard working than anyone else.

Let's look at that consummate elitist Clarence Thomas, who was abandoned by his father, had a mother was too poor to keep him, and was raised by his working class grandparents. His grandfather hauled ice and coal for a living: there's a soft life. Or let's take a gander at Ruth Bader Ginsburg, who was turned down for a Supreme Court clerkship in 1960 because she was a woman (and was also, as a woman, treated abominably by Harvard Law School, as all women were until well into the 1970s.) I suppose it couldn't matter less that Antonin Scalia's father immigrated from Sicily, and worked his way through college and graduate school. Scalia only went to a parochial high school because he was on scholarship and, as an Italian-American of a certain generation, was also probably the object of horrible discrimination (despite being valedictorian of his class, he was not admitted to Princeton.)

In other words, when working- and middle-class people work hard, and are recognized for their success by being welcomed into the nation's top schools, we should probably pass them over for positions of public trust and leadership. I cannot help but think that this sudden concern about SCOTUS being packed with pampered, out-of-touch elitists has something to do with the fact that Obama has now nominated two women in a row. As always, when too many women show up, deep concerns about declining quality suddenly emerge: this is perhaps the most twisted version of that conversation I have yet heard, and from two men who should know better. And readers -- can you really imagine a woman or a person of color being nominated for the Court who did not have a top-drawer Ivy League resume?

That's Right, The Woman Is (Huh!) Smart-er: On The Elena Kagan Nomination

At a certain point you hit an age where you look around you and there are Other People who are reaching the pinnacle of their careers while you -- well, you have a book, some articles, a good job at a snazzy little school and a well-read blog. Of course, the best may be yet to come. But right now I look at Elena Kagan and myself and see the similarities: educated at a single sex school (check!), and among the first generation in at the all-male Ivies (I was class of 1980 at Yale, she was 1981 at Princeton.) From then on our paths seem to have diverged. I labor in semi-obscurity at Zenith, she is shucking a top job in the Obama administration for a series of nasty encounters with the chipmunky Jeff Sessions and the opportunity to change history on the Supreme Court.

I, in contrast, who could have gone to law school with the other smart, ambitious women (which is what the female Dean of my residential college told me to do) will keep my day job writing history while I wait to see if I can monetize my blog or win the Pulitzer Prize. All right, there isn't room at the top for all of us; while some are called to make history we also serve who write the nation's past. Nonetheless I do have a few regrets about roads not taken. Although we women of the 1970s were all hot out of the starting gate, some of us made it to the rail and some of us didn't. I got to tell you, my only conclusion is that Elena Kagan worked harder than I did, earlier than I did. She was a risk-taker, I stuck to what I knew I could do well. And to be brutally frank, Elena probably spent way less time drinking beer and chatting up chicks in lesbian bars, gay discos and ACT-UP demos than I did in the 1970s and 1980s.

Or did she? Did I mention that there was something else Elena and I might have in common? Or so sayeth those who can't stand the sight of an intelligent, successful woman who seems to have done almost nothing wrong beating out a lot of less-deserving men. Despite the fact that she kept her nose to the grindstone and kicked a lot of male butt along the way, what seems to be emerging as the Kagan story is whether she is a lesbian or not.

Is it still the 1970s or what? Smart woman, ambitious, not married, no guy in sight -- she must be a dyke!

Now, I want everyone to be a lesbian -- really I do. I want Phyllis Schlafly to be a lesbian. There are even selected men who I like so much that I think of them as lesbians. For these reasons and more, I would think it was cool if Elena Kagan were a lesbian. If I were not already happily partnered, I would consider sending a message through third-party channels that being the accommodating husband of an Associate Justice on SCOTUS would be exactly my cup of tea. She could make history, I could make cookies for those long, esoteric discussions about the Second Amendment. I would learn to iron, so that every morning from October through July I could press the funny little neck object the female justices wear before I skipped off to the National Archives.

But do we queers need to follow the Christian right's valorization of heterosexuality as a litmus test of good citizenship and insist that all of "us" are inherently progressive and trustworthy? Michael Wolff at Newser says that the question everyone was afraid to ask Sonia Sotomayor will be asked of Kagan because, other than her scholarship and her suspiciously collegial relations with conservative faculty as Dean of Harvard Law School, she has no judicial paper trail. "You can feel it," Wolff writes, "We are just on the verge of articulating our right to know somebody’s sexual point of view." Wolff's only slightly tongue in cheek rationale is this: in the absence of any proof that Kagan will go mano-a -mano with the Court's radical right, having it come out that she is a lesbian would cheer up everyone who is left of center. "For the left, her being gay would be good news, confirming her progressive sensibility," he explains. "While for the right, being gay signifies all the rad-lib expansive-interpretation issues that would surely be spelled out by her judicial opinions, if she had any."

Do we really think that queer people have a "sexual point of view?" Try that one out on J. Edgar Hoover, why don't you? Or Roy Cohn? Or a certain New York City based conservative female expert on education who keeps coming into conflict with other conservatives about gay stuff?

Seriously, only straight people would believe that a candidate for the Supreme Court or any other high office is more trustworthy on progressive issues because s/he is queer: it is such a perfectly reductive example of what counts as politics nowadays. "I'll take one of these, and one of those -- and the court won't be balanced if I don't have one of those....." What strikes me as a little more interesting is what slipped out on The News Hour last night about the sexism internal to the Court. Marcia Greenberger spoke to a situation that many of us are familiar with: that it is sometimes hard for men to tell women apart. "One of the historic things that people used to joke about," she said, "was that, with two women on the court, for a long time, Sandra Day O'Connor and Justice Ruth Ginsburg, lawyers used to call them by each other's names and confuse them. They were still tokens. It was still: It's one of the two women. Having more women turns those women justices into justices, and makes them part of the normal routine, that we have male and female justices."

Speaking as someone who has a senior male colleague who repeatedly calls me by the name of another female colleague, even though we have worked together for eighteen years, I say Amen to that, sistuh. But the part I liked best was when regular legal commenter Marcia Coyle pointed out that not only would three women make for a more diverse and representative court, it might make for a smarter court. As Coyle noted, "when you look at his list, what was considered his short list, it was dominated by women. And they are some of the best legal minds in the country. So, I think he was looking for diversity in experience. And, also, I think he was looking for someone who can really do the job."

That's right -- the woman is (huh!) smart-er!
That's right?
That's right!



Harry Belafonte and Julie Andrews, "Man Smart, Woman Smarter" -- although oddly, Julie seems to disagree.