Obama’s Beliefs … Or Not

In an interview yesterday with the Associated Press, President Obama attempted to explain (or disguise) his views on affirmative action.

“I don’t think that hiring on the basis of race … alone is constitutionally possible.” Obama, a former teacher of constitutional law, said, “I’ve always believe[d] that affirmative action was less of an issue or should be less of an issue than it has been made out to be in news reports.”

Hmm. I wonder if this means that Obama supports the Pacific Legal Foundation’s suit against Caltrans (the Calif. Dept. of Transportation) for setting aside 6.75% of its contracts for minorities.

And since it was their race alone that led New Haven to refuse the promote the firemen who had scored highest on its professionally designed promotion exam, does President Obama believe the Supreme Court, and not his nominee to it, got it right in that case?

Does he believe that the state distributing benefits and burdens on the basis of race should be “less of an issue” because he doesn’t think there’s much of it (but if so, barring it wouldn’t have much of an effect) or because he thinks racial discrimination isn’t such a bad thing?

It seems to me that any reasonable person would have to conclude that it’s pointless to try to determine what Obama thinks by listening to what he says. With him, more than with most politicians, what he says he believes, or has always believed, is absolutely irrelevant. The only thing that matters is what he does. And what he has done, as Stuart Taylor has recently pointed out, is nominate to the Supreme Court a candidate who believes that New Haven’s decision not to promote the highest-scoring test takers

must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit — regardless of whether the exam was valid or the lawsuit could succeed.

That was too much for even Justice Ginsburg and her liberal colleagues to swallow. As Taylor notes,

In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

I suppose it is good news, of a sort, that Obama is unwilling to admit to full-throated support for the sort of racial preferences favored by his Supreme Court nominee and others. No such reticence afflicts his most ardent supporters, however. Thus the New York Times has no hesitation in arguing, as it did a few days ago, that because “[t]here is a long history of discrimination in the firefighting ranks” in other places and other times New Haven was right to toss out the results of an exam because those who scored highest were of the wrong race. In fact, according to the Times, Ginsburg et al., and those of similar views, in barring promotions based on race New Haven “did not discriminate.” Why? Because it did not intend to! As the Times put it:

The motivation of the civil service board that made the decision was to avoid discriminating against minority applicants and being sued by them under Title VII

Left unanswered is a question I’ve asked here several times: why is lack of discriminatory intent a defense against charges of disparate treatment only when the victims are white, Asian, or some other non-preferred minority? As I argued most recently here:

There is something approaching a Catch-22 aspect of New Haven’s argument here. It argues that promoting Ricci et al. based on a test on which no blacks scored high enough to be promoted would expose it to a disparate impact lawsuit from black firefighters. And in such a lawsuit, it is important to note, because of the rules of the disparate impact game the city’s non-racial, non-discriminatory intent would be useless as a defense. The only thing that would matter is the racial effect of using the test, assuming the test was sufficiently job-related. But when the white (and one Hispanic) firefighters complain of discrimination because the city refused to honor the results of its test, they must prove a nefarious intent! How is that fair?


There is also something ironic, or worse (dare one call it hypocritical?), about the fixation on intent in Ricci by those who believe in pervasive but cleverly disguised “structural racism,” who are thus the most ardent defenders of disparate impact, and who regard civil rights enforcement without disparate impact as being akin to riding a bicycle without wheels.

Over the years I have pointed out that this inconsistency pervades contemporary liberalism’s approach to various kinds of discrimination. Back in 2002, for example, I took issue with my friends on the left (I seem to remember that back then I still had a couple)

for their inconsistency in opposing any state action that benefits religion — no matter how secular the intent and how general the benefit, such as vouchers — even though they emphatically endorse state action that benefits one race as opposed to another. In other words, liberals argue that the obligation to enforce “equal protection of the laws” allows the state to provide racial preferences but that the prohibition against any laws “respecting an establishment of religion” does not allow the inclusion of churches in general benefits provided for secular purposes to non-religious organizations.

And again, here:

If the unintended effect of aiding religious schools is not deemed to violate the principle of religious neutrality, how can policies that, without intent, disadvantage blacks more than whites (or Hispanics more than Asians, etc.) violate a standard of racial neutrality?

And here,

one of my favorites, the under-noticed but real phenomenon of what could be called reverse disparate impact (though I would never use such a term, for the same reason I don’t believe there is such a thing as reverse discrimination). Take, for instance, the newly popular policy of giving admission preferences based on overcoming adversity, etc…. What if such a policy were challenged by white plaintiffs claiming that this policy benefited minorities so disproportionately that it amounted to disparate impact discrimination….

As I’ve said, I’ve made the inconsistency accusation repeatedly and don’t want to quote every instance. But I will quote one more:

One of the recurring defenses of racial preferences is that they are not really discriminatory. To qualify as discrimination, the argument goes, an action has to involve stigmatizing, degrading, or excluding individuals because of their membership in a particular racial or ethnic group.

I have mentioned too many times to link here that this argument is pure sophistry. Its own advocates don’t really believe it; otherwise they could not argue, as they do, that policies that are not racially motivated but that have a “disparate impact” on minorities can be discriminatory. Similarly, few would argue that a quota on Jewish applicants would not be discriminatory if it were motivated only by a desire for greater religious diversity and not by anti-semitism.

Alas, I can’t resist. One more:

One striking feature of the preferentialists’ use of “disparate impact” theory to attack many forms of what they see as discrimination is that it so blatantly conflicts with their defense of other policies they want to defend: requiring a high school diploma for a job is discriminatory, they say, because it has a disparate impact on blacks, but preferring blacks in admission is not discriminatory because there is no intent to denigrate or demean Asians.

I could go on accusing liberals of unprincipled inconsistency, but what’s the point of accusing them of something they’re proud of? Liberalism, after all, has long prided itself on its pragmatism, its anti-formalism, its disdain for rigid rules and standards, and in its modern (or post-modern) phase it has taken that disdain to new heights (or depths). See, for example, Stanley Fish and “his familiar principles-are-impossible-and-besides-they’re-bad argument” discussed here — “‘Free Speech’ is just the name we give to verbal behavior that serves the substantive agendas we wish to advance…. Free speech, in short, is not an independent value but a political prize… ; here — where he is quoted arguing that “academic freedom is bunk” and displaying modern liberalism’s “inconsistency, this elevation of no principles into a principle”; and in his book, The Trouble With Principle.

Thus to say that Obama purposefully obfuscates or that liberals are inconsistent in their definitions of discrimination is rather like criticizing roosters for crowing at the dawn or skunks for their odor. You may not like the sound or the smell, but it’s what they are.

UPDATE [5 July]

No less an authority than Senate Majority Leader may have displaced Stanley Fish as my prime example of the disdain liberals have for principle. As he recently told the Las Vegas Sun (HatTip to Jonah Goldberg), “before anyone gets too high and mighty about principles, they should understand that principles are in the eye of the beholder.”

Say What? (1)

  1. Mike Bertolone July 4, 2009 at 5:19 pm | | Reply

    These people (Obama, Sotomayor, et.al) are deathly afraid of an intelligent argument against affirmative action and racial/gender preferences.

    They know AA is a violation of the 14th Amendment, but they don’t care. It’s all about the end result, and they’ll get there by any means necessary.

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