Tuesday, October 02, 2007

Can't Let This One Go.

LEGAL WISDOM. Ilya Somin of The Volokh Conspiracy is a lawyer. He likes to be objective. He thinks it's significant that conservatives tend to believe Clarence Thomas and liberals tend to believe Anita Hill. He dares to draw inferences from his observations. He's full of it. And the way he's full of it is instructive about why we can't trust lawyers to guide our responses to events. He says, in full:

The Clarence Thomas-Anita Hill Controversy and Irrational Hatred of Ideological Adversaries:

The publication of Clarence Thomas' memoir will focus new attention on the controversy over who was telling the truth about Anita Hill's charge that he sexually harrassed her. To my mind, the most interesting aspect of this debate is the way in which nearly all conservatives seem to believe Thomas, while nearly all liberals believe Hill. The few exceptions are striking precisely because they are so unusual.

Since only Thomas and Hill themselves really know what happened with any certainty, this degree of polarization is striking. Nothing in conservative ideology precludes the possibility that individual conservatives might engage in boorish and morally reprehensible private behavior of the sort Thomas is accused of; similarly, liberal ideology does not deny the possibility that a person in Hill's position might lie for political gain. Given the murkiness of the underlying facts, unbiased observers would not split so sharply along ideological lines on this issue. You would expect to see at least some significant number of liberals who believe Thomas, some conservatives who believe Hill, and many in both camps who aren't sure who to believe.

Some of the polarization was probably just a matter of political posturing. Conservatives did not want to lose a valuable Supreme Court seat (as they might have, if Thomas' nomination had been defeated and President George H.W. Bush were forced to nominate a centrist or liberal replacement comparable to Souter or Anthony Kennedy). Liberals, of course, sought Thomas' defeat for similar reasons.

However, most of the polarization over Thomas-Hill probably wasn't feigned. It was instead a consequence of the all-too-common assumption that our ideological adversaries are not only wrong but also evil - or at least far more likely to be so than those who agree with us. If you believe that liberals are, on average, likely to be morally corrupt, then it would be rational for you to assume that a liberal is more likely to be lying than a conservative and thus to automatically believe Thomas over Hill even in the absence of clear proof. And vice versa if you hold the reverse view.

I have previously criticized the unthinking equation of political ideology with moral virtue here, in the context of explaining why many people are excessively hostile to the idea of dating someone with a different political ideology. The two situations are very different, but the same phenomenon may be at work in each case. Both blanket condemnation of cross-ideological dating and the Thomas-Hill polarization are in large part the result of our unhealthy tendency to equate ideological disagreement with moral depravity.

UPDATE: Various commenters point out that the Thomas-Hill polarization can be explained by the possibility that conservatives are, for ideological reasons, generally less inclined to believe accusations of sexual harrassment than liberals are. There is some truth to this. But it fails to account for the fact that, just a few years later, most conservatives tended to believe and most liberals denied Paula Jones' sexual harrassment accusations against Bill Clinton. In such politically charged cases, the ideology of the accuser and accused seems to determine ideologues' reactions far more than their general perceptions of sexual harrassment.

His whole argument is lawyerly bullshit, and so are those of the commenters he chooses to acknowledge in his update. He omits what lawyers always omit, the human capacity to read character from mien. He also omits the demonstrated liberal propensity to define character as political posturing rather than personal behavior. To put it simply, his (rational) default position is that liberals and conservatives interpret each other's behaviors based on the same criteria -- i.e., ideological agreement. This might be a reasonable assumption if the ideologies in question did not reflect fundamentally discrepant moral perspectives. But they do.

We have seen time and again (and again) that so-called liberals can forgive any personal failing in people who express support for the rights of those who cannot be expected to meet any ethical or legal standard, especially if they are black, brown, female, criminal, or incapable. Name a Democrat who has publicly condemned the behavior of Kennedy at Chappaquiddick, Clinton with Lewinski, Jackson with his mistress-on-payroll, or Barney Frank with his prostitute lover as somehow disqualifying in terms of the right to hold public office. But the very same people who defend these behaviors are appalled at the unproven possibility that Bork rented X-rated videotapes or that Clarence Thomas joked about a pubic hair on a Coke can? Their position cannot be described as seeing moral depravity in a political foe. It is about seeing political depravity in someone who disagrees with their politics.

Since the response of Democrats and liberals is a political calculation based on ideology, we are also expected to believe that the response of Republicans -- who express far more interest in personal responsibility and good personal conduct -- is similarly corrupt. But this expectation facilely substitutes the liberal abstract judgment system for the personal judgment system one might reasonably look for in people who profess to value personal judgment over political posturing. Why would conservatives believe Clarence Thomas? Because it is almost impossible to find a man more intent on maintaining a faultless dignity in the field he has chosen to pursue. In every interview, every public statement, every facial expression, every uttered word, we confront a man who is determined to be the opposite of the stereotypes his race has been demeaned for. Even at the emotional extremity of the hearings in which he was accused of humiliatingly vile trivialities, he did not abandon that dignity for a moment. We can feel that it is an armor which he never takes off, even at considerable cost to his his opportunities for intimacy. We can draw  an entirely personal, entirely non-ideological conclusion that Clarence Thomas would not make a joke about a pubic hair on a Coke can. It doesn't fit.

Could Bill Clinton? (wink, wink, nudge, nudge.) Could Jesse Jackson? Could Al Sharpton? Could Newt Gingrich? Could we? Yes. But not Clarence Thomas. He has more invested in his dignity than anyone else we have seen.

And note the necessary next step from this reasonable personal inference to the lawyerly position that equates liberal and conservative. Sure he could. Why? Because we are all corrupt. Everyone has that bad streak which can't be controlled. But if that's where your argument goes, I contend that says more about you than Clarence Thomas. It's liberals who want this damning indictment of human nature to be true, an original sin that can only be mediated by beneficent government designed to save us from ourselves. Never mind that the saviors have no expectations that anyone, including themselves, can rise above the deadly sins.  Prosecutors have orgasms about the implications of such a social contract.

But there's a problem with the legalistic hypothesis.

It's not true that absolute self-discipline is impossible. It may be impossible for you, and you, and me, but I'm also old enough to remember people for whom it was second-nature. My grandfathers mostly. Odd that Clarence Thomas chose as the title of his new book, My Grandfather's Son.

Curiously, what's easier for me to imagine than Clarence Thomas harrassing Anita Hill is imagining how contemporary liberals would have responded to my two intransigently moral grandfathers. It's not hard to conceive of an angry young woman with an inferiority complex concocting stories to topple them from their high dignity and natural authority. Easy to envision the vengeful envy that might have driven such an act. I'm sure they'd find a lawyer like Somin to argue the egalitarian imperative represented by their charges. But everybody who really knew my grandfathers would have laughed the plaintiff and her dirty-minded lawyer out of court.

I believe Clarence Thomas because he reminds me of my own grandfathers. Not because he's a conservative. Truth is, he's a conservative because he's so like my grandfathers.

Write a brief about that, Mr. Somin.

TBB Home Page
Home Page
TBB and 9-11
TBB & 9-11
TBB Stuff for YOU
TBB Shop

Amazon Honor System Contribute to Learn More