Читать книгу Clarence Thomas and the Tough Love Crowd - Ronald Suresh Roberts - Страница 25

The existing criticism of Carter and Kennedy mostly takes parts of their work in isolation. This grants the Toughs an unfair advantage. It sets the debate in narrow terms and allows them to pose as courageous dissenting truth tellers on particular single issues (“You mean a black man can’t have doubts about affirmative action?”; “You mean a black man can’t chase scholarly merit?”). Yet the specific problems with Kennedy’s “Racial Critiques” and Carter’s Reflections reflect broader, dispositional flaws in Kennedy’s entire oeuvre, in all of Carter’s writing. Their progressive intentions fall flat in practice because they adhere to ideals of intellectual untetheredness.

A good example is Kennedy’s article on the death penalty case of McClesky v. Kemp.³ This article is frequently cited as a work that emphasizes the American criminal justice system’s systematic undervaluation of black victims of crime. That conventional reading is an important part of the message of Kennedy’s McClesky piece, but it is not the whole story. Kennedy’s article deserves closer attention because its ostensible progressivism is paper thin.

Kennedy’s racial-justice concerns in McCleskey disappear in a mist of unfetteredness. Kennedy refuses to be bound by the “orthodox”-progressive view that the death penalty ought to be abolished. He instead announces that his analysis “does not proceed from abolitionist premises.” Kennedy’s rejection of abolitionism is much more than the usual lawyer’s tactic, presenting arguments in the alternative. Kennedy presents his rejection of abolitionism as his considered opinion. He notes that “death penalty abolitionists have argued movingly that capital punishment is wrong in principle and vicious in practice inasmuch as its administration reflects the pervasive racial and economic injustices of American society.”

He continues, “Although I concede the powers [sic] of these arguments, I am not an abolitionist. In my view, considerations of deterrence and retribution sometimes justify condemning criminals to death.”

This is thus a “considered” opinion in the sense that Kennedy has adopted it as his own view, not simply for the sake of argument. Yet, in a more important sense, it is exactly unconsidered. Kennedy made not the slightest attempt to engage the arguments in favor of abolition. He entirely ignored the Jesuitical standards of academic method that he elsewhere took up in order ostensibly to test Negro Crits. Far from assessing and rejecting the racial justice arguments for abolitionism, Kennedy simply asserted a peculiar and somehow “intellectual” freedom to adopt, as an act of raw power, the opposite view.

Kennedy proceeded in a similarly untethered fashion when he faced a specific and central tenet of abolitionism, the death-is-different distinction. Death-is-different advocates urge, first, that no political entity ever has the authority to take a citizen’s life. In analogy with laws against suicide pacts, they argue that a citizen lacks the power ever to consent to a social contract in which her life is part of the bargain. Less abstractly, opponents of death argue that even if the state can, in theory, impose this ultimate sanction, death can nevertheless have no place in a world of racially skewed and fallible criminal justice systems, because death can never be undone. While one who is wrongly imprisoned can be superficially compensated by an award of money damages, a corpse cannot be revivified. We haven’t yet institutionalized the fable of Lazarus.

Rejecting this distinction between death and other criminal sanctions, Kennedy simply announced, without explanation, that he “sees the death penalty as part of a continuum of punishments rather than a unique phenomenon occupying a wholly different moral plane.” Yet this “seeing” does not easily resemble thinking. Kennedy’s unfetteredness operates more like a backhoe than a ballerina.

With this bulldozered rejection of the death-is-different distinction, Kennedy apparently intends to clear a path for race-conscious administration of the death penalty. Aware that race consciousness is used in lots of contexts outside that of the death penalty, Kennedy realizes that if death is not different from those contexts, those contexts are precedents for a progressive race consciousness in death-penalty administration. This sounds like it might redeem Kennedy’s argument, until one looks closer. Kennedy is not merely or at all concerned to avoid the fallible justice system’s imposition of death sentences on black convicts. Kennedy instead announces that “the plight of convicted murderers” is not his priority. He instead advances a remarkable proposal that, he acknowledges, “might move some black criminals closer to the gas chamber.” The remarkable proposal is meant to repair the undervaluation of black victims by the criminal justice system. “Undervaluation,” in this context, means that convicted killers of blacks are less frequently sentenced to death, regardless of the race of the perpetrator. Kennedy proposes that this problem might be solved by the execution of more of those convicted of killing black victims. Since some of those accused of killing blacks are themselves black, full acknowledgment of the value of black victims might mean killing more blacks convicts.

The widely acknowledged fallibility of the criminal justice system simply disappears in Kennedy’s analysis. Kennedy simply assumes that being a “convicted murderer” is the same as actually having murdered someone. In fact the Supreme Court has recently taken judicial notice that America has executed at least twenty-three demonstrably innocent persons during this century, the last as recently as I984.⁴ Kennedy’s analysis is not tethered by such concerns.

But perhaps there is yet a way to salvage Kennedy’s racial-justice credentials. Kennedy says he is disregarding the plight of accused Negroes the better to serve decent, law-abiding Negroes. Unfortunately, Kennedy’s championing of Negro community interests itself collapses upon examination.

Kennedy chose to portray his antiabolitionism in a “community oriented fashion.” Kennedy suggested that abolitionist influence within the NAACP Legal Defense Fund (LDF) may have diverted the LDF’s energies from pursuing the true interests of the black community. He postures, then, as our hero. The racial-justice concern that captures Kennedy’s attention is an “inequality in the provision of a public good.” But the public good in question is an astonishing one. Kennedy elucidates: “Whereas other [equal protection] cases have involved the racially unequal provision of street lights, sidewalks and sewers, McClesky involves racial inequality in the provision of a peculiar sort of public good—capital sentencing.”

Kennedy senses that in order to validate his peculiar public good he has finally to tether himself somewhere: “I recognize that in speaking in terms of group rights I am taking sides in a controversial debate over the legitimacy of group rights as distinct from the more familiar conception of individual rights.”⁵

Yet, despite his awareness of the trickiness of this issue, Kennedy’s discussion of why the death penalty is a public good to the black community consists of two baffling sentences suppressed in a footnote: “That a large sector of the population views capital punishment as a valuable public policy is beyond dispute. Thirty-seven states currently authorize capital punishment, and thirty-three have actually carried out death penalties since 1976.”⁶

This breezy conclusion that the thing is good for Negroes simply because “a large sector” of the general population evidently enjoys it ought to unsettle even the most indolent of progressive minds. Yet the flaws in this argument not only escape Kennedy’s energies but also survive Kennedy’s explicit acknowledgment, in this very article, that “opposition to the death penalty is more prevalent among blacks than whites”; that “the disparity in views between blacks and whites on the death penalty has been increasing”; and that “a relatively large percentage of blacks favor abolishing the death penalty.”⁷ In his subsequent “Racial Critiques” piece, where his central (and reformulated) intention was to debunk what he had by then come to see as the excessive currency of group claims, Kennedy nevertheless felt obliged to give ground on this issue, conceding that “Negroes are more likely than whites to oppose capital punishment.” Kennedy actually cited, in the McClesky article itself, a Harris poll showing that a majority of blacks (52 percent) want the thing abolished. The same poll, as cited by Kennedy, showed that a majority of whites (67 percent) want to keep the death penalty. Kennedy expressly referred, again in the McClesky piece itself, to the role that “majoritarian politics” and black political weakness play in death-penalty issues. Yet Kennedy uncritically adopted the majoritarian evaluation of the death penalty as a “public good.” This is scary heroism. Indeed, if this is not an intellectual betrayal of black interests, it is unclear what could ever qualify as such. Derrick Bell’s widely dismissed remark that “the cause of diversity is not served by someone who looks black and thinks white” here assumes renewed significance. The issue is not an inner ethnic tingling. Anthony Appiah’s In My Father’s House makes it very hard for opponents of Negro Criticism to paint its claims as crude forms of biological determinism. As Appiah argues, “The existence of racism does not require the existence of races.” Likewise, the legitimacy and usefulness of remedies intended to address racism need not wait upon “proof” that race, somehow defined, somehow exists. The author of the book in your hands writes, for now, as a “Negro Crit,” which hardly erases the Malayali heritage of his mother’s house, in southern India. The book in your hands right now endorses one Frenchman (Michel Foucault) while resisting another (Julien Benda) who in turn has the Tough Love Crowd in his grip. The book invokes an Irishman (James Joyce) to answer a suburban Californian English professor (Shelby Steele). Moreover, following the simplistic biological compass that Appiah has attempted to discredit, many continue to call this West Coast professor black, despite his own advocacy and lifestyle of “passionate racelessness” and of a “deracinated” America.

The issue, then, is not some ethnic innateness, but rather tetheredness to interests outside law’s walls. And this tetheredness, in turn, is not to some homogeneous and monocultural black constituency. Rather, tetheredness reflects itself in resistance to the quietly oppressive protocols within law’s walls. One need not wait upon an authoritative account of African American interests in order to question the innumerable practices, within law schools, that serve the powerful rather than the dispossessed. This crucial tetheredness is not advanced by Negroes, steeped in Benda’s school, who see law as a site of insular musing and intellectual diversion. And the latter is the choice Kennedy made. In McClesky, Kennedy’s makeover of Negro abolitionism as its opposite permitted a number of snazzy analytical moves. Undoubtedly, analogizing the death penalty to street lights and to drains contains exactly the right balance of provocation and irrelevance to satisfy prevailing scholarly norms.

Despite quick mention of the complexity of claims of group interest, Kennedy’s analysis of that intractable issue never gets at all sophisticated, despite the fact that his entire analysis depends on an asserted grounding in “community interests.” And this is no accident. Taking the problems of group interest seriously would have rendered Kennedy’s analysis impossible. He would have been forced to write a very different article, with time spent establishing his premise (that death is a public good from a Negro community perspective) rather than arguing from it. Kennedy refused to do that kind of hard work.

There are, then, real limits to the idea that Negro Crits and the Tough Love lawyers share common goals of racial justice. The two schools differ vigorously over what the work of lawyers ought to be. This central difference over the nature of legal work was clear in the public debate over Kennedy’s “Racial Critiques” piece. Kennedy proceeded as if in ignorance of Tray Ellis and the “New Black Aesthetic.” This project, as summarized by Professor Henry Louis Gates, Jr., “takes the blackness of the culture for granted” and writes with a new self-assurance “by assuming [blackness] as a legitimate grounds for the creation of art.” ⁸ While Negro Crit lawyers have set about rendering race in that new way, Kennedy would detain us with a pedantic dance of proofs and evidence. Ironically, in a supposed attack on stereotypes, Kennedy assumes that Negro Crits are attempting a “substantive definition of blackness” that would have to withstand some process of mock-scientific “testing.” Conversely, in Patricia Williams’s response to Kennedy, the centrality of the nonstereotypical new black aesthetic in Negro Crit law is unmissable:

[Kennedy’s] article is a representative response from the academy to new black voices. He is saying, “Prove that racism exists.” I’m not going to Jo that. I take American history as a given, and work with the results.⁹ (Emphasis added)

The definition of legal work is thus at the heart of the debate, yet Kennedy’s impersonal intellectual ideal is not presented as a debatable one. It is presented as a given, as is Carter’s pursuit of universalized standards. The call for common cause with the Toughs is a call to abandon our refusals, while the Tough Love lawyers keep their own. The Tough rhetoric of common ground is a synonym for surrender.