Читать книгу Clarence Thomas and the Tough Love Crowd - Ronald Suresh Roberts - Страница 22

Thomas Sowell, economist, has a straightforward faith in the ability of his methods to deliver untainted truth. His entire book on civil rights is a protest against what he sees as the displacement of fact by belief. That book, Civil Rights: Rhetoric or Reality? (1984), proceeds under headings that are sufficient to convey the truth-telling authority Sowell claims for himself: “Realities versus Perceptions”; “Civil Rights versus ‘Civil Rights’”; “Beliefs versus Facts”; “Assumptions versus History”; “Effects versus Hopes.” Sowell throughout laments that a “sense of economics” and of “underlying realities” is missing from the civil rights debate. He claims access to “unvarnished facts” that fearful others refuse to face. Sowell is not entirely blind to the influence of values on fact; he is not entirely unaware of the deficiencies of his economic methods. But his skepticism is unswervingly reserved for his opponents’ investigations. Sowell’s faith in his own ability to uncover the truth about the universe remains robust, not chastened: “The domination of civil rights discussions and decisions by lawyers and politicians—people who deal in plausibilities made by persuasive words—may help to explain the ignoring of systemic processes like the economic marketplace and the ignoring of underlying realities immune to words.”

Sowell’s entire oeuvre is built on a faith in the possibility of “systematic verification” of competing hypotheses: “The question, then, is whether assumptions are to be accepted for their plausibility and their conformity to a larger social vision, or whether even the most plausible and satisfying assumptions must nevertheless be forced to confront actual facts.”

Sowell’s confidence in his “observable factual evidence” leads him to some quite unsparing rebukes of civil rights activism. In his view, such activism trades on “the subordination of evidence to belief.” Ever the economist, Sowell suggests that the civil rights activists depend, for their very employment and visibility, on manufacturing “an adequate flow of injustices.” This is a familiar Tough Love theme. Clarence Thomas has denounced self-interested “government and civil rights groups who are adept at the art of generating self-perpetuating social ills.”¹ The Toughs say their opponents mouth fake grievance.

Yet the Tough Crowd spends little time bolstering the claims of truth underneath their arguments. When Sowell attempts to criticize the legal doctrine that permits a plaintiff to use statistics to raise a prima facie case of discrimination, he inadvertently confesses that his own claims of truth are overblown. Sowell says that the relevant case law (which he discusses in zero detail) establishes an “automatic inference” of discrimination and turns statistical disparity into a “federal offense.” That is an invented statement of law. Even under the most expansive reading of the landmark Griggs case, to which Sowell is presumably referring, there is no automatic federal offense. The employer is merely required to prove that the employment practices causing the disparate impact are supported by authentic “business necessity.” This requirement is, if anything, a form of deference to economists, not flight from them. Sowell’s objection is, if anything, a confession of the uselessness of economic analysis in solving legal issues. The Griggs test gives economic efficiency full sway while ensuring that managers do not discriminate under cover of business discretion. If management and its experts (Sowell, et al.) can show that their practices are rooted in the realities of economic efficiency, they will be left alone. Griggs prohibits only irrelevant “qualifications” that, additionally, have disparate impact (a Ph.D. for a car-wash job, a college degree for a cannery job, perhaps Rehnquist’s as yet unlitigated requirement that his Supreme Court clerks play tennis). The problem is that Sowell, et al., cannot meet the test of justifying job requirements in terms of a science of economics. The businessmen cannot deliver the goods. Sowell concedes as much when he says that, in making civil rights determinations, “there is no ‘objective’ or ‘scientific’ way to decide at what level of aggregation to stop breaking the [employment] data down into finer categories.” Once he has spotted this problem, Sowell’s complaint changes subtly, crucially, and momentarily. For the moment the problem is no longer the displacement of authoritative method by civil rights mysticism. Rather, the “fundamental” problem suddenly becomes that “the burden of proof is on the accused to prove [her] innocence, once suspicious numbers have been found” (emphasis original). Sowell’s objection is no longer the supposed displacement of economics by ideology, but rather the (for him) inappropriate placement of the burden of proof on the employer.

There are several problems with Sowell’s urgent, italicized complaint about the burden of proof. How is it that competent executives are unable to justify their chosen business practices in terms of economic reality? More importantly, if they are unable to validate exclusionary practices by reference to economic reality, why are they so intent on keeping them? How do they know that changed practices would chill productivity? Moreover, if employers can’t show that exclusionary practices are necessary because of efficiency, why should courts let them stay with old ways? The answer to such questions is not reason, but faith: a secular doctrine of managerial infallibility. That, not science or economics, is where Sowell sits despite all his rhetoric of “observable factual evidence.”

Moreover, while Sowell chides civil rights activists for resorting to fake “morally charged scenarios” and not facing “mundane, commonsense facts,” he is himself guilty of his own charge. Sowell’s rhetoric of innocent-until-proven-guilty itself elevates demagoguery above legal analysis. The presumption of innocence is a hallowed part of a criminal proceeding. The allocation of burdens of production and of proof in civil proceedings is always a question for debate. Sowell seeks to evade this debate by talking like television. He invokes the civil procedure rules of LA. Law. Without referring to a single court decision, Sowell announces that the “perversions of the [civil rights] law by federal judges appointed for life have been especially brazen.” Elsewhere, Sowell offers about four pages of something that might be mistaken for a lawyerly review of the legislative history of the civil rights legislation of the 1960s. But whereas lawyers search for the meaning of legislative history, Sowell tells us up front what equal opportunity “is” and then “shows” how it was degraded into a quota system. Every assertion in Sowell’s excursus in the civil rights law is tendentious. To take only the most obvious example, Sowell laments that the Supreme Court “simply rejected a literal interpretation of the words of the Civil Rights Act.” Sowell thereby assumes that literal interpretations of legislation are possible, and that if they are they should unquestionably prevail over contrary indications of legislative intent, contrary norms of established legal usage, or contrary indications of statutory purpose—each highly debated among lawyers.

Thomas Sowell’s amateur lawyering provokes a comparison with Shelby Steele. Steele assures us that the effect of unnamed Supreme Court decisions that Steele describes as moving away from racial preferences is “to protect the constitutional rights of everyone rather than take rights away from blacks.” Steele’s willingness to offer “legal” commentary of this sort is worthy of comment. Tough Stephen Carter has himself noted that civil rights law takes “years of careful study to master, no matter the contrary impression given by the sometimes simpleminded reporting of civil rights in the mass media.” Shelby Steele’s commentary is a model of the reporting that Carter disparages. Harvard law professor Randall Kennedy (who has studied, taught, and written about the relevant law) suggests that “the general public does not understand how far right the Supreme Court has swung on civil rights.” It is the most wonderful of ironies that, in a book purportedly protesting the displacement of substance by racial stereotyping, Steele has no difficulty trading on the authority of pigmentation as a substitute for the hard work of legal analysis.

Ultimately, however, the feigned authority with which Steele and Sowell write on legal issues is of broader significance. Sowell’s authority as an economist in debates about civil rights is itself not on firm ground. Sowell’s conspicuous talk about underlying realities flounders upon his concession that statistics solve nothing. He urges us to face facts, then fails to generate the facts we ought to face. Tough Love economics is, in the end, a call for African America to wriggle more firmly within the grasp of the already formidable empire of unreviewable managerial expertise protected by what the courts call the “business judgment rule.” In 1986 Clarence Thomas, nearing the end of his first term at the EEOC and hoping for reappointment, objected that the Griggs rule and related guidelines “force government to enter into the minutiae of business decisions.” Yet Thomas himself, three years earlier—before questions of reappointment loomed large—actually defended Griggs, pointing out that it required merely that job tests fairly measure job performance.² Thomas’s opportunism and Sowell’s blind deference to managerial expertise are both, perhaps, not the same as pursuing racial justice. Indeed, it would be a misstatement to say that Sowell has chosen between the conflicting goals of racial justice and managerialism. There is, for him, no conflict. The goal of racial justice is, in Sowell’s world, simply not a real goal: “The battle for civil rights was fought and won—at great cost—many years ago.. . . The right to vote is a civil right. The right to win is not. . . . Everything desirable is not a civil right.”

When his books are stripped of their economist’s paraphernalia, it is clear that Sowell simply thinks civil rights are the wave of the past. Yet no quadratic equation will ever establish that proposition. Sowell holds this view today; he held it in 1983, when he published the language last cited; and he held it in 1972, when he published Black Education: Myths and Tragedies. In fact, Thomas Sowell has never not held the view that civil rights (defined as anything more than removing the Whites Only and Juden Verboten signs) are unnecessary and ineffectual.

Sowell further argues that the supposed gains of the civil rights revolution were merely the predictable playing out of trends that predate the legislation of the 1960s. This further claim goes beyond the usual, already interminable, war of statistics about whether present-day disparities reflect racism, merit, or other things. Sowell here multiplies the uncertainties exponentially by casting a cumbersome backward glance (would the gains that happened have happened without the laws we passed?). Yet his expert’s certainty is, he would have us believe, intact.

Thomas Sowell is certainly free to believe what he will, but he ought to spare us the rhetorics of reality and of expertise. And those who strongly disagree with his impressionistic hunch, that the civil rights battle was won yesterday, can legitimately describe him as treacherous. He is, in his own words, outside that civil rights battle.