Ilya Shapiro, a Russian émigré, a serious scholar of the American Constitution, and formerly of the libertarian Cato Institute until he was scheduled on February 1 to begin running Georgetown’s Center for the Constitution, has found himself in a thicket of racial controversy. In an injudicious and inartful tweet, Shapiro opined that Sri Srinivasan was the most gifted extant progressive jurist, and that Biden intentionally bypassing the highly-competent Srinivasan for a promised black woman would undermine the progressive cause in that their best and brightest would be on the sidelines. Given that Shapiro is no sympathizer to that cause, he suggested that Biden’s limiting approach might be regarded as a “small favor” that constitutional conservatives might “thank heaven for.”
At least that is a reasonable as well as charitable interpretation of his now deleted tweets. Our current political moment, however, offers precious few incentives for such charity and that, I would suggest, is the true crisis of our democracy. To summarize an argument Hamilton makes in Federalist No. 1: Democracy requires charity toward one’s opponents and skepticism toward oneself. Whether democracy can survive a world where we are charitable toward ourselves and skeptical (at the very least) of our opponents seems to me doubtful. Still, the lack of charity showed Shapiro should not excuse us from extending it to his critics.
But … there are critics and there are critics. Setting aside any tweet storms, none of which I have any interest in investigating, the first serious reaction to Shapiro’s tweets occurred on the Slate website in an article written by Dahlia Lithwick and Mark Joseph Stern. Operating off two assumptions concerning conservatives (a “toxic ideology”) and race—first, that conservatives are racists at heart, and second, to treat them monolithically—Lithwick and Stern argue that Shapiro represents the conservative view that black women are always inferior and underqualified and any policy that is “injurious to white men” must be opposed. The reaction to Biden’s announcement that he will appoint a black woman is, in their estimation, just part of the conservative racist crusade.
I believe I have characterized their argument fairly, but I find it unconvincing. There may be compelling reasons why we might want, as they say, to have a “diverse judiciary that looks like America,” and I have some sympathy for the argument, but I’d have even more sympathy for Lithwick’s argument were it not for her long history of attacking Clarence Thomas. Then, too, I’d have more sympathy if both Slate writers argued for a Court that wasn’t exclusively occupied by Ivy leaguers. Instead, the authors trot out Sotomayor’s Ivy League pedigree as the sole piece of evidence for the legitimacy of her appointment. I don’t doubt the sincerity of the authors’ outrage, but I do hold them accountable for using Shapiro’s tweet to issue a blanket condemnation of half their fellow citizens. Likewise, I’d think most people would see how Biden specifically focusing on the candidate’s race and gender might make people question any other qualities that candidate might have. Biden hasn’t exactly invited us to consider those qualifications, any more than Obama invited us to contemplate Justice Sotomayor’s legal reasoning when he made her empathy the criterion for selection.
The response came on January 28 from Georgetown’s Black Law Students Association (BLSA). Whatever the law of charitable interpretation requires, it would have to involve making the imaginative effort to take seriously expressed claims. I think there is something to the BLSA’s assertions that high-level functioning is inhibited by being in an uncomfortable environment and by having no obvious role models available. I know, for example, when I’ve had to sit in on meetings where I’m the only white male at the table that I experience an automatic absence of solidarity and am less likely to express what I really think. I’m not saying it’s right, but I’ll acknowledge the effect. Likewise, I grew up in a world where I was afforded plenty of examples of people from Dutch immigrant backgrounds who succeeded in academic life. I may have had personal doubts about myself, but I never saw any serious barriers to my advancement, and thus shouldn’t be quick to judge people who so perceive such. I may think they are mistaken in their assessment of those barriers but can’t dismiss the experience itself as bad faith.
This, in turn, makes the accusations that conservatives operate only in bad faith hard to bear. The BLSA extrapolate from what is probably a very real experience—the sense that they are blockaded in a way whites aren’t—into a general condemnation of white America. In the process they offer up a willful misreading of Shapiro’s original tweet by interpreting him as saying that any black woman would be inadequately qualified. Shapiro’s tweet doesn’t really suggest that, however; rather, any reasonable interpretation of his tweet has him saying that there is currently no black female candidate as qualified as Srinivasan, and that’s an argument the BLSA bypasses completely. Offering a specific name would have been helpful.
More damningly still, the BLSA accuses Shapiro of trying to start a race war between South Asians and African Americans. And why would Shapiro want this? As a way of advancing “white supremacy” they claim. As is often the case with this charge (and with the charge of racism generally), the claim is stipulative at best and tautological at worst. What evidence might the BLSA produce to justify such divination of Shapiro’s intentions? Will anyone actually ask them to produce evidence, or will we just assume that if the BLSA makes the claim it must be true? Will any quarter be granted to push back on it? Why not?
This at least explains the behavior of Dean Treanor, who on January 31 issued a statement condemning and suspending Shapiro. Having heard “the pain” (how does one hear pain?) of the black students, Treanor confessed to the “pernicious force” of “racial stereotypes” at the law school while conveniently not holding himself accountable for the persistence of such. He further doubled-down on his pledge to advance “inclusion, belonging, and respect.” Unhappy with Treanor’s response and the mere suspension of Shapiro, the BLSA organized a sit-in inside Georgetown’s law library demanding of administrators that they provide black students with a “designated place on campus to cry.” Empowered by Dean Treanor’s confession, the students then moved to have the administration censure anyone critical of the BLSA’s criticisms of Shapiro. One BLSA student demanded that the Dean “remind our classmates that are attacking us that they are only here because our ancestors were sold for them to be here.” No one, apparently, thought it necessary to assess that remarkable claim on its merits.
Empowered by the lack of resistance or pushback, the BLSA issued its demands, a list so predictable by now that I could have drawn it up: more money to staffing DEI offices and initiatives, having a BLSA representative on all hiring committees, funding an endowment exclusively for black students, insisting on “cultural competency” and diversity training, and terminating Shapiro’s employment. Tears, as children learn early on, can be an effective means for leveraging interest. But why would this strategy work with adults?
The answer can be found in Shelby Steele’s White Guilt. At the beginning of the book, he tells the story of how, as an undergraduate at Coe College and a student leader, he and a few others confronted the president in his office. Like any good storyteller, Steele focuses on a specific detail: the cigarette he held in his hand. As the ash of the cigarette continued its extension Steele and the president became both aware of what was happening: Would the young man allow the ash to drop to the floor and destroy the decorum, and thus the authority, of the president’s office? Steele describes the moment when the ash dropped as a transfer of authority, for the moral calculus changed. The look on the president’s face was one of concession, and from that point forward the president was helpless as well as feckless.
Steele takes no pride in telling that story; indeed, he expresses embarrassment over the breach of manners. The story is emblematic of the main point he wants to make, however: that in race matters, blacks possess all moral authority and can leverage that authority into power. Moreover, he argues, black power will always expand to the space created for it by white guilt. The result is that blacks have an interest in intensifying and exploiting white guilt so as to extend their power and create conditions for the satisfaction of demands that might otherwise have no purchase.
On our college campuses, white guilt outweighs white privilege by a factor of about 100. This is not to say there are no longer problems with white racism—my conversations with black colleagues and students have convinced me otherwise. It’s simply to say that anyone who attempts to legitimate white racism has no serious moral claim to make. It is in this sense that America is a postracial society: There is no longer any moral argument to be made for white supremacy that will have any currency where it matters. The issue of the equality of the races has been settled.
Not that in our heated racial environment some won’t try to make the claim that white supremacy is alive and well. When references to simple “racism” won’t suffice to invoke white guilt, “white supremacy” will do in a pinch. I’ll bracket the claim that there is such a thing as “white privilege” that still tips the scales in favor of whites. What’s significant is that the argument that white privilege and supremacy exist and operate everywhere allows certain actors to claim that aggressive and intentional advancement of black persons into our institutions is the highest moral imperative. On its own I have no serious objection to the assertion except that it becomes one that negates all other social goods; and that, I want to say, harms blacks more than helps them. No one benefits from sloppy arguments being entertained. The claim becomes, like Steele’s cigarette ash, moral detritus that is meant to end discussion rather than invite it. Once conceded, the only thing the white person can do is grovel and yield.
