One doesn't quite know where to begin, so I will just begin peeling away at the onion and hope it leads me to a better understanding. Most are aware of the basic "facts." If you're not, you're living under a rock. The presumptive republican nominee for the highest office in the land, during an unscripted speech, went on a rant about the judge currently hearing the class action suit against Trump University. There are numerous clips available on the web, numerous defenses and condemnations, and a thousand reactions within the established press and the blogosphere, so it feels a bit redundant to recapitulate it here. Nevertheless, he essentially said that the judge in the case, Gonzalo Curiel, held a bias against him because he had made a number of anti-immigrant statements, particularly about Mexican immigrants and the wall, and the judge was of Mexican descent. Neither he nor his lawyers have offered up evidence of any actual bias. It was sufficient that he was of Mexican heritage.
One striking aspect of this, and something that most only mention in passing, is that his rant was entirely self-interested. The judge is hearing a law suit against Trump himself. Attacks on the judge, if successful, will benefit Trump personally. There are few other ways of construing it, and those that exist require some extensive tap-dancing around his actual speech, but there is common-sensical assumption that self-interest in a matter impairs an ability to make rational, dispassionate judgements. If Judge Curiel did have a self-interest in the case -- i.e. a financial stake in Trump University or had been a student of Trump University -- he would be required to recuse himself. Judge Curiel does NOT, however, have a self-interest in the case. The presumptive nominee DOES have a self-interest in the case, and so it would not be surprising if he felt the judge might be biased, particularly if the judge rules against him. Ultimately, however, his feelings of bias are irrelevant because his self-interest impairs his ability to make rational, dispassionate judgements in the matter. Although the presumptive nominee has a very large bully pulpit to display his feelings of bias, it is both a matter of law and a matter of moral common sense that we are not our own best judges.
Another striking aspect of his rant was its "racism." I put "racism" in quotes because I have no special insight into Donald Trump, or his racial feelings, and so cannot determine whether he IS a racist or not. I suspect he is, and others suspect he is, but the remark has been variously construed as "racist" because it suggests that the judge cannot do his job as a judge -- that is to say, make rational, dispassionate rulings on the law -- only because he is of "Mexican descent." His statement fits, as Paul Ryan himself suggests, a textbook definition of racism. There's a sort of double whammy involved in this charge of racism. The left hook finds the remark reprehensible because Trump is using the charge of "bias," not to suggest that he might bring some special insight into what it means to be of Mexican descent as a class or as a corrective to injustices suffered by those of Mexican descent as a class, but as the source of "injustice" itself. It flips the usual paradigm of "identity politics," suggesting that the racial or ethnic minority is now the victimizer, not the victim. It suggests the Mexican is victimizing the rich white guy, and it seems, well, self-serving and perverse for someone like Trump to be playing the "poor me" card, particularly when he also plays the "rich, white, powerful, successful" card at the same time. The right jab finds the remark reprehensible because it is "illiberal," not in the sense of current politics, but in its most traditional sense -- the universal statement that "all men are created equal" and, as a consequence, all are equally protected by and subject to the law. The logical extension of Trump's rant suggests that a black judge cannot hear cases involving white men, that women cannot hear cases against men, that muslims cannot hear cases on christians ... the list is nearly infinite and it serves, ultimately, to throw out any semblance of the "rule of law." If we are to have anything resembling a "rule of law," we must assume that the judge, as judge, will make rational, dispassionate judgements -- that he will treat all cases which come before him "equally" before the law.
OK, before I go on, we all know the assumption of an "unbiased" or "non-racial" legal system is an ideal, not a reality. Trump's remarks, as he doubled down on them are doubly reprehensible insofar as there is a plethora of evidence to suggest that poor blacks and hispanics, as a class, are afforded more severe treatment within the criminal justice system than poor whites. It is not solely an economic distinct, but a racial and ethnic distinction, though the poor generally, to include whites, are afforded more severe treatment than the rich. As Kim Farbota put in the HuffPost, "racial disparities in the application of criminal justice are not the only source of differential incarceration rates. Poverty, geography, and lacking educational and career opportunities all likely play a role." She goes on to say, "regardless of the exact factors behind the incarceration gap, it is not some neutral, statistical fact that black people commit more crime. The gap is the result of numerous interacting factors, not the least of which is racism." There is a legitimate political discussion of the "exact factors behind the incarceration gap," and how we might narrow the differences between reality and the ideal of "equality before the law," but the sorts of self-interested race baiting that Trump has engaged seems, again, self-serving and perverse. Achieving "unbiased justice" for rich white guys does not seem to be a particular problem for the legal system, unless of course we are talking about removing systemic bias in their favor. Nevertheless, it is an ideal that we must assume, and in the assumption strive toward. What is the alternative?
OK again, before I go on, yes, judges demonstrate bias. Let's not be coy. The republicans want to forestall an Obama appointment to the supreme court because they want to select a judge with a conservative bias. Some republicans have suggested that, although there are many reasons NOT to support Trump, one very good reason is that he will be charged as POTUS to select at the very least one member of SCOTUS and that one member, if conservative, preserves the conservative bias, if liberal, creates a new liberal bias. Trump has done a great deal to disrupt republican party unity, and he has done so with smug self-assurance and aggrandizement, but the one thing that he has done to unite the party behind him is to provide a list of potential Supreme Court appointments, reminding them, if nothing else, that HE will be the one doing the appointment.
Additionally, along the same line, in conservative circles, much has been made of Sotomayor's "wise hispanic woman" remark, and it has been used to explain, if not defend, Trump's position relative to Curiel. Sotomayor said, "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." At some level, this is an ill-advised remark, and there has been much discussion of "what the judge really meant," both from the left and from the right. On the face of it she admits a bias based on the experience of being a member of a particular ethnicity and gender, being an Hispanic woman. Indeed, but there is a significant moral and ethical difference between the sort of bias demonstrated by Sotomayor and the sort of bias Trump has accused Curiel of demonstrating. On the one side, Sotomayor is defending her "resume," as one might expect during confirmation hearings. She is claiming that, based on her background, to include her ethnic and gender "background," she can reach well informed conclusions. There is some sense of self-puffery and disparagement in the "better" than a "white male," but those who had lived the lives of white males were already well represented on the court, and she claims to bring a perspective that is different and, yes, better, at least in some respects. There is also some real suggestion that her decisions would advance certain "class interests," and serve a liberal bias in doing so, but there isn't a hint that she would or has taken personal retribution against specific litigants because they were NOT Hispanic females. On the other side, there are few, if any, class interests at stake in Curiel's decisions regarding Trump University, except of course the narrow class of those who were ostensibly bilked by its claims. Trump's accusation assumes that Curiel will take personal retribution against Donald Trump personally because Donald Trump personally has made disparaging remarks about his Curiel's personal heritage. It's all "personal" top to bottom, and one suspects Trump makes that assumption because, well, that's exactly what he has done in response to disparaging remarks in the past and would do again in the future.
Nevertheless, Trump's remarks have brought back the specter of "identify politics." Identity politics has become something of a bug-a-boo along both party lines, and like "socialism" has taken on a penumbra from bad ideas advanced by bad actors. Nevertheless, it provides a useful touch point to describe certain aspects of today's political life. The Stanford Encyclopedia of Philosophy gives a sufficiently thorough academic discussion, and suggests that "identity politics" (with my own slight modification) "rather than organizing solely around belief systems, programmatic manifestos, or party affiliation, identity political formations typically aim to secure the political freedom of a specific constituency marginalized with a larger context." Gay and lesbian rights can be understood as "identity politics." A specific constituency, the LGBT community, has been marginalized within the larger context and seeks to secure, if not political freedom, per se, at least the same economic and legal rights afforded to others within the larger context. The civil rights activism of the 60s and the Black Lives Matter activism today likewise could be understood as "identity politics." A specific constituency, the black community, had been marginalized within the larger context and sought to secure at least the same economic and legal rights afforded to others within the larger context. Sotomayor's "wise Latina" remark can be understood as "identity politics." A specific constituency, women and Hispanic women, have been marginalized within the larger context and her role on SCOTUS was to insure they had at least the same economic and legal rights afforded to others within the larger context. The list goes on, but I'm sure you get the point.
I have been cautious in my phrasing. I say "at least the same economic and legal rights" because clearly enough "identity politics" lends itself to other agendas. If one has been unjustly treated in the "larger context," one might, for example, justifiably seek "justice" and take retribution against the prevailing social structure -- one might, for example, go so far as to over-turn the prevailing social structure and reverse the prevailing power structures. MLK, for example, sought "the same economic and legal rights" afforded to others within the larger context, but Malcolm X and Huey P Newton sought to overturn the existing power structures. MLK sought an extension of the universalizing "liberal agenda" to include the black community, where "all men are created equal" and are afforded the same political privileges and rights as others. To a certain extent, MLK sought "assimilation" within the larger context, where the differences of race that defined the community made no difference and effectively disappeared, where a person would not be judged on the basis of their race, but solely on the "content of their character." Huey P Newton and the Black Panther Party wanted no part of assimilation and were willing to use violence to assert the "identity" of the black community as something separate and distinct from the larger community. As a part of their 10 point program, they wanted "all Black people when brought to trial to be tried in court by a jury of their peer group or people from the Black Communities, as defined by the Constitution of the United States."
If you don't hear in Trump's accusation of Curiel a specific echo of Huey Newton's 10 point program, let me make it explicit. Newton is asserting that black people cannot be judged by white people, in part because there has been a long history of reciprocal animosity between the two communities, in part because one must have the shared experience of being part of a community to make judgements on member of that community. Trump is asserting that white people cannot be judged by brown people, in part because there has been a long history reciprocal animosity between the two communities, an animosity that he has exploited and exacerbated by his own remarks during the election cycle. "I'm building a wall." Moreover, he is asserting that having the shared experience of a community, being of Mexican heritage, is in some way "reductively totalizing" and inescapable. One need ONLY know that Curiel is of Mexican heritage, and that his Mexican heritage CANNOT HELP BUT inform his decisions, so clearly the white man Trump cannot receive fair and impartial judgement by the brown man Curiel. Trump is, in short, engaging in "identity politics," but the end game, clearly, is not assimilation, but the converse of Huey Newton's "identity politics," a specifically white neo-nationalist "identity politics" of isolation and exclusion. "I'm building a wall."
There is a national holiday and a statue honoring MLK on the national mall, but nothing of the sort for Huey P Newton. To fully understand why, let me take a step back and "redefine" identity politics along the lines proposed by Stanley Fish in his editorial in the NY Times, "When Identity Politics is rational." He writes, "you're practicing identity politics when you vote for or against someone because of his or her skin color, ethnicity, religion, gender, sexual orientation, or any other marker that leads you to say yes or no independently of a candidate's ideas or policies." He goes on to write, "in essence identity politics is an affirmation of the tribe against the claims of ideology, and by ideology I do not mean something bad (a mistake frequently made) but any agenda informed by a vision of what the world should be like." Identity politics becomes "rational" when it is used in furtherance of an "ideology," a vision of a better world. MLK practiced a rational form of identity politics, insofar as it asserted identity in order to advance an "agenda informed by a vision of what the world should be like" and for MLK it was the vision of a fully assimilated post-racial America, where differences of race and ethnicity make no difference. The election of Obama did not signal tha we had arrived at that ideal, and perhaps even set it back a bit insofar as a prima facia case can be made that the black communities, in their overwhelming support of Obama, were practicing a tribal form of "identity politics" -- that they voted for him solely because he was black. Nevertheless, if we are to understand and correct the differences that DO make a negative difference in the lives of black people, understand and correct the lapses from that universal ideal where "all people are created equal," understand and correct those disparities where some are clearly "more equal than others," a rational form of identity politics will still have a place, and the "liberal" agenda, including Obama's, has been formed and informed by rational identity politics over the last half century.
It is precisely here, however, with the notion of full assimilation, that conservatives tend to disparage and resist "identity politics," and where Trump found his entry into "identity politics." A couple of truisms. It is important to note that, within ANY status quo, there are those who are advantaged and those who are disadvantaged, though at times the "disadvantage" takes the form of outright oppression. It is also important to note that a "rational identity politics" is always "progressive," insofar as it examines the systemic advantages and disadvantages, if not outright oppression, and seeks to ameliorate them as a means of progressing toward the clear American ideal of "liberty and justice for all." Those who are advantaged within the status quo will tend to resist changes and conserve the status quo, those who are disadvantaged will tend to support progressive changes to the status quo. Much of the republican resistance to "rational identity politics" can be understood simply as "conservatism," a resistance to change within a status quo that have traditionally advantaged a predominantly white republican base and their progeny.
There is, however, an inherent hypocrisy involved in the resistance to a "rational identity politics." One cannot resist progressive change toward the ideal of "liberty and justice for all" as the preservation of inherent systemic advantage, at least not openly, and so one of the more common forms of resistance is denial -- that is to say, the denial that there is any inherent systemic advantages or disadvantages. In the case of the legal system, if one wants to preserve the current status quo, at least, one must assert that it ALREADY provides "justice for all," regardless of one's "identity," else one opens the door to the sorts of progressive change that would erase advantage. Trump's assertion that a judge cannot be fair to him SOLELY because he is Mexican up-ends conservative denial. It opens the door to the worst forms of "irrational identity politics," the sort practiced by Huey Newton and conversely the KKK. If what Trump asserts is true, if the "identity" of the judge matters and trumps other considerations, then one must assert that the legal system ultimately provides "justice for none," except in those rare cases where judge and jury are truly "peers," who share the same "identity" as the one being judged. Much of the republican hemming and hawing around the issue can be understood in this light, an attempt to maintain the status quo by asserting that it ALREADY provides "justice for all."
The inherent hypocrisy, however, leads directly and perhaps inevitably to one like Trump. If the legal system ALREADY provides "justice for all," then denial must take an additional step. They must deny evidence to the contrary or provide other theories to explain the differences. It would be difficult to deny the data that blacks and hispanics run afoul of the criminal justice system at greater rates than whites, that their conviction rates are greater than whites, that their sentencing is harsher, et cetera. Differences must reside, not in the criminal justice system, but in the inherent weaknesses within the black and hispanic communities, and within blacks and hispanics themselves. There is always a modicum of "truthiness" to such claims, perverse socialization in perverse environments leads to perverse results, but it is not a far step from the sorts of assertions that one finds Trump making about Mexican immigrants -- "it’s people from countries other than Mexico also. We have drug dealers coming across, we have rapists, we have killers, we have murderers." Trump is asking us to draw lines between friend and foe on any number of "identity" markers -- ethnicity in the case of the judge, country of origin in the remark above, religion in his many comments about Muslims, so on and so forth. If one knows the ethnicity of the individual, you need know nothing else. They are the enemy. If one knows the immigration status of an individual, legal or illegal, one need know nothing else. They are the enemy. If one knows another or suspects another is Muslim, one need know nothing else. They are the enemy. Trump is playing "identity politics" in its most malignant sense, asking his followers to target, in an almost literal sense, those who do not have the right identity markers. Such thinking appeals to the lowest common denominator. It is a tribal or a gang mentality, and it is probably not surprising that there is retaliation in kind with more or less open gang warfare after his rallies.
BREAKING NEWS
One of the more tragic aspects of American life today is just how banal gun violence, particularly mass shoots, have become. The "worst" incidence of gun violence occurred two days ago at a gay night club in Orlando, and I was struck by how similar the reporting of the incident was in some ways to the reporting of a tornado. It's tragic. It's horrific. It's as unpredictable as a tornado, but inevitable. The difference, of course, lies in the perpetrator. A tornado is an "act of god," but a mass shooting is the act of human beings, but here too the response has become predictably banal. The Washington Post published an article, "The New Norm: When Tragedy Hits, Americans Stand Divided." It pretty much lays out the divide. Obama called the incident an "act of terror" and "an act of hate," but he did NOT single out and vilify the shooter AS a Muslim, despite repeated calls by conservatives that he do exactly that. RedState, for example, had this headline: "Obama Won't Say "Islam," But Goes Right to Gun Control in Pathetic Address to Nation." The article itself is rather incoherent, with some of Trump's command of syntax, but it does say "despite the voluminous evidence of Islamic terror, and despite the fact that the shooter literally called 9-11 and swore allegiance to ISIS before the attack, the President at no point mentions Islam, radical Islam, Islamic terrorism, jihad, or even ISIS."
One might ask why he would fail to do so? I tend to agree with Sam Harris on the issue of Islam. Those unfamiliar with his thinking can google him and find his podcasts. He would agree with RedState that there is "voluminous evidence" of the islamic violence, that it is inherent to mono-theistic religions, including Christianity, but Christianity has at least better constrained its historic tendency toward violence against apostates and unbelievers. Islam has not, or has not yet, constrained its tendency toward violence. I can say that, Sam Harris can say that, but having said that, I also tend to agree with Obama's reluctance to call out Islam, and Muslims, in the way conservatives and Trump would have him call them out. Assume, for the moment, that he did so, what then? Internationally, of course, he could bomb ISIS and combat terrorism, but he is already doing so. Domestically, virtually every conceivable response, specific to Muslims, would be a violation of the US constitution and established law. The constitution states explicitly that "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That would include, one supposes, Islam. One could go down the list of amendments, and how contentious virtually every conceivable response specific to Muslims would be, but I will restrain my already unrestrained pedantry. Suffice it to say, Obama could call it an act of hate directed at the Gay community, and an act of terrorism perpetrated by a Muslim, but that is no different in kind than calling the recent shooting at an abortion clinic an act of hate directed at abortion providers, and an act of terrorism perpetrated by a Christian. The latter, one suspects, would generate a different kind of response.
Here again, assume that he did so, that he called it out as "Islamic terror," how exactly could that be interpreted? Here, I have to answer that it would be "identity politics," but of what sort? Perhaps it is a failure of imagination, but I cannot find a way to legitimately call it a "rational identity politics" in service to that secular American ideology that demands an equality of "justice for all" regardless of race, ethnicity, or religion. Certainly the victims of the Orlando shooting deserve justice, but is it justice served by the punishment of an individual for a criminal act, or is justice served by the punishment of an entire religion for its inherent criminality? There is little to be gained by way of retributive satisfaction by punishment of the individual -- he has, in effect, already been punished -- but what is to be gained by the punishment of an entire religion? The conservative call to mark the shooter, in way suggested by Red State, is to engage in the most malignant form of "irrational identity politics." If one knows an individual is a Muslim, one need know nothing else. They are, ipso facto, the enemy. Obama's response, on the one hand recognizing the hate directed at the Gay community and on the other refusing to apply ethnic or religious markers to the perpetrator, is fully in line with a "rational identity politics" that sets as its goal the secular American ideology that demands an equality of "justice for all" regardless of race, ethnicity or religion. As an individual I may call out the shooter as an Islamic terrorist, but for the President to do so, as the representative of the American people as a WHOLE -- white, black, gay, straight, christian, muslim -- would mark the first step toward the "irrational identity politics" practiced by the fascists, the delineation of friend from foe along inherent tribal lines. If one knows or suspects another of being a Jew, one need know nothing else. They are the enemy.
History, I have no doubt, will vindicate Obama. If his "successor" fails and Trump is elected, history, I have no doubt, will mark it as the beginning of the end of the experiment in government so beautifully described by a republican -- a nation "conceived in liberty and dedicated to the proposition that all men are created equal." We will become something else, but it most assuredly will not be a government "of the people, by the people, and for the people" -- that is to say, "of the people as a whole, by the people as a whole, and for the people as a whole." We will become a nation as fractured as the nation that occasioned the Gettysburg Address, and what emerges from that dissolution will be anyone's guess.
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