Читать книгу Clarence Thomas and the Tough Love Crowd - Ronald Suresh Roberts - Страница 12

Are we free to believe whatever we choose or whatever is consistent with our prejudices, whether about Western civilization, the economy, or the credibility of Anita Hill? Is there no independent reality that we need to check these beliefs against?

—Thomas Sowell, Is Reality Optional?

Tough Love has political costs. These costs happen every time the Toughs present as a closed issue of fact what is and ought to be an issue open for debate. Take, for example, racist backlash. The Toughs uniformly claim that such sentiment is caused by the various excesses of the civil rights movement. If, for instance, you thought the Guinier debacle reflected presidential abdication and ill-informed journalists who became, in Guinier’s phrase, “stenographers to the powerful,” think again. Where Guinier protested that “my opponents were successful in defining me in a way that even my own mother does not recognize,” Randall Kennedy assures us, in an article entitled “Lani Guinier’s Constitution,” that Guinier’s opponents “accurately perceived her racial politics.” In Kennedy’s neutral description, Guinier’s thought just really was ahead of the curve. Clint Bolick, who supported the Clarence Thomas nomination, opposed the 1991 Civil Rights Act, wrote an article under the headline “Clinton’s Quota Queens” criticizing Lani Guinier, and characterized subsequent Clinton nominee Deval Patrick as a “Stealth Guinier,” clearly agrees with Kennedy. Bolick said, in a MacNeil/Lehrer panel discussion the day the Patrick nomination was announced, that Kennedy and Carter would make acceptable civil rights nominees because they were both “very thoughtful,” whereas Guinier and Patrick were not “mainstream.” And while Kennedy criticized the low intellectual standards of the press coverage of the Guinier affair, his own treatment of Guinier’s work—asking whether she was mainstream and answering that she was not—exactly duplicates the flaws that, according to Laurel Leff in the Columbia Journalism Review, were the central defect of press coverage of the affair. Media fixation with Kennedy’s question (is she “mainstream”?) was itself the problem, according to Leff, since the idea of “a” noncontroversial mainstream in the abstruse and politically charged area of voting rights law is itself entirely illusory. Kennedy offered entirely unspecified “intellectual” criticism of the Guinier press coverage, even while his own writing duplicated the skewed agenda (is she mainstream?) and the questionable conclusions of the press stenographers themselves. Kennedy, like the press corps, claims the ability to provide a factual description of Guinier, and of the mainstream that she is outside. What gets entirely lost, in Kennedy’s deceptively temperate critique of Guinier’s scholarship, is Guinier’s own claim that she is and was mainstream (if that term has any meaning) and that the proper moral and prescriptive goal is to make that fact clear. This claim was erased in both the Wall Street Journal’s criticism of the “pervasiveness of the racial prism through which [Guinier] views every issue” and Kennedy’s own remark that Guinier’s writings “recklessly . . . overplay[ed] the racism card.” Again, we may have thought Clint Bolick’s view that Guinier belonged to “a profoundly left-wing school of thought that has redefined the outer boundaries of radicalism in legal academia” was his zealotry speaking. Think again. Kennedy now tells us that “intellectuals on the left supplied a real basis to fuel the anxieties wrongly loosed upon Guinier.”²¹ Suddenly the Journal itself seems sane. Kennedy’s truth works wonders. Kennedy has not yet openly endorsed the Democratic Leadership Conference (DLC) agenda: the removal of race from U.S. politics for the benefit of the Democratic party organization. Yet it is hard not to read his discussion of the Guinier affair as implicit cheerleading on the DLC’s behalf.²² Indeed, for Kennedy, no less than for the Washington Times (Clint Bolick, David Brock, William F. Buckley, Jr., the pre-judicial Clarence Thomas, et al.), Guinier inhabited an “idiosyncratic ideological universe.”²³

Both Kennedy’s taste for investigation into whether Guinier was mainstream and his conclusion that she was not reflect his more general preference for a process of empirical testing in legal and other scholarship, and elsewhere. Kennedy’s implicit vindication of Guiner’s opponents, when he pronounced that she was indeed not mainstream, reflected this more general Tough trait: the Toughs are confident that they have a finely tuned grip on political reality. Kennedy, for instance, appears to think he possesses the becalmed political “skill of a tightrope walker.”²⁴ While this circus metaphor is unintentionally astute, Kennedy’s political savvy may nevertheless be doubted.

Stephen Carter, too, claims to have a firm grip. Carter frequently announces that a particular argument “carries a good thing too far”—or that beyond a line discerned by himself, the interplay of politics and religion becomes “not cross-pollination but pollution.” In a phrase that wonderfully captures the sleight of hand generally involved in Tough Love truth claims, Carter unveils an “empirical hunch” (!) crucial to his constitutional law analysis, that most Americans believe their society is “essentially just.” Such impressionistic certainty is the central problem with Carter’s crowd. Carter instinctively claims that his well-tutored sensibility reflexively grasps the true line between numerous sanities and various excesses. He endorses ideals of professionalism and expertise to the precise extent that they enlarge his personal authority. Carter resists “concepts of government-by-the-most-qualified” as “anathema” to America whenever his own legal or religious ox stands to be gored by other experts, such as those in the physical sciences. On the question of a domain of legal-professional expertise, however, Carter’s views are diametrically the opposite. He has faith in legal expertise. He insists that members of the Senate and the general public lack the competence to assess a Supreme Court nominee’s judicial philosophy. He says that that job of assessment should be left to lawyers. Yet Carter’s faith in lawyers is itself interestingly flexible. Elsewhere, when bar associations and law professors inconveniently endorse Roe v. Wade as a correct reading of the Constitution, Carter suddenly warns that the mere politically motivated prochoice views of lawyers should not be given too much credence, or else “there is scarcely any need for judges”²⁵ (emphasis added). Tough truth is a wonderful trick.