Thursday, May 03, 2012
What is "The Issue" With Respect to Elizabeth Warren?
I have followed with great interest or, really, more of a bizarre fascination, the series of posts on Elizabeth Warren at the Volokh Conspiracy blog. Although the whole thing strikes me as mostly silly, I don't think it's illegitimate to write about silly things in general, or to ask questions about a political candidate's prior actions. (Which actions one chooses to prioritize and how much weight to give them is, I suppose, one's own business.) And I respect the fact that some original fact-gathering, as opposed to loose speculation only, was involved. I have had some difficulty pinning down exactly what the question presented is, so to speak. So I'm grateful to David Bernstein for specifying what he thinks the question is. He writes:
The issue is whether Warren claimed dubious minority status because she thought that on the margins it might benefit her. [The issue, in short, is Warren's integrity, not whether she "deserves" to be at Harvard based on her academic achievements. . . .]
That helps. I suppose we could parse or expand this question even more. We could also ask what constitutes "minority status," and what constitutes a "dubious" claim of minority status. We might separately wonder, in evaluating political candidates, whether there are more important issues or better tests of integrity or fitness for office; perhaps that just goes without saying. In any event, there is no rule that blog posts have to be on important issues, as much of the last week or two of the VC's posts (or Prawfsblawg's!) remind us in any case.
I should add a couple of notes. The first is that I'm glad "the issue" no longer includes the bizarre (to my mind) suggestion that Charles Fried's statement to a reporter that (to use David's paraphrase) "Warren’s Native American ancestry never came up in the hiring process, and that he only became aware of it later" involved "disingenous[ ] . . . lawyerly ways" of speaking. It seemed kind of straightforward to me, although I generally lack a suspicious mind. The second is that it's heartening to see that David's perception of "the issue" differs from that of many of his commenters.
Third, I tend to agree with David's later observation in a comment that "I suspect that many of the commentors who are saying this is a non-issue or worse would be doing the internet equivalent of foaming at the mouth if it were discovered that a Republican senatorial candidate who had at most a Native American great-great-grandparent or two . . . had claimed Native American ancestry for a time, then dropped it later with no obvious explanation." It would be nice, though, to have a non-comparative standard of judgment!
Fourth, and I think relatedly, the whole thing suggests to me the value of talking straightforwardly and directly about matters under debate rather than circling around them. It is much more useful to debate particular policies on, say, abortion or contraception than to talk about a "Republican war on women," or to discuss the particulars of affirmative action or the listing of minority status in the AALS directory rather than to use a "controversy" over Elizabeth Warren as a stalking-horse for that debate. (This point is directed at some of David's commenters and others elsewhere, not at David himself.) Indeed, I would go further and say that it is generally counter-productive to discuss "controversies" rather than issues, not least because deciding that some issue is worth discussing because it is a "controversy" rather than because it is, well, worth discussing leaves us at the mercy of a lousy metric. If a controversy is anything that involves more than one newspaper story or blog post, then everything (and nothing) is a "controversy."
Finally, I guess I should pay more attention to my AALS directory entry! Perhaps I'm unusual in this, but except for updating my entry occasionally to reflect a new book publication, I generally could care less about my AALS entry and pay no attention to it (or anyone else's) whatsoever. If I spend more than 30 seconds on it in any given two- or three-year period, I count that as time wasted on trivia. Of course, your mileage may vary.
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How is this not important? It's completely relevant to hiring. If anything, the modern AALS cares even more about these labels. Minority hiring is a big deal, and it matters if those labels are meaningless or unverified.
Posted by: Junior | May 3, 2012 2:01:57 PM
I think you are being far too generous to Bernstein. I, for one, am very troubled by his willingness to describe someone with a documented Native American ancestor (even if it's only 1/32) as "dubiously" Native American. What gives him the right to determine the parameters of Native American identity? I might have missed something, but I have been following the debate closely and have yet to see a single Native American group or tribe claim that being 1/32 Native American does not make Warren a "real" Native American. And that, frankly, is all that I care about.
Finally, for the record, I would have absolutely no problem with a Republican senatorial candidate having identified, even for a short time, as Native American who had a Native American ancestor. And I am firmly in the "this is a ridiculous non-issue" camp.
Posted by: Kevin Jon Heller | May 3, 2012 7:53:07 PM
"have yet to see a single Native American group or tribe claim that being 1/32 Native American does not make Warren a 'real' Native American."
I hate having to engage with Kevin because he's always so impolite and accusatory, but I want to clarify I've never said it's impossible for someone with 1/32 Native American heritage to accurately claim Native American identity.
But we can look to Native American organizations to see what they consider to be evidence of such identify, and it's pretty clear that to them it's not something that one just tries on for a few years regardless of actual ties to Native American communities and culture and then discards.
Perhaps most relevantly, the Native American Bar Association limits regular membership to "Persons who are enrolled members of any Indian tribe or band, or persons who are recognized in their Indian community of residence or origin as being Indian, Alaska Native, or Native Hawaiian."
And the Coalition of Bar Associations of Color has called on law schools to better police those who are claiming Native American identity. They ask that law schools require "sufficient documentation of Native American citizenship."
Posted by: David Bernstein | May 3, 2012 9:07:17 PM
I'm not being accusatory or impolite, I'm simply pointing out that Bernstein is wrong -- and that his references to Warren's "dubious minority status" are thus troubling. Some specific Cherokee tribes require a certain "blood quantum" for citizenship in the tribe, but the Cherokee Nation does not, as the following article (http://www.allthingscherokee.com/articles_gene_040101.html) notes:
"In addition, many Indian tribes include their own quantum restrictions for citizenship. The Eastern Band of Cherokee Indians requires that you be 1/16 or higher to join, and the United Keetowah Band requires a blood quantum of 1/4 or higher. The Cherokee Nation, on the other hand, has no quantum restrictions. The majority of the Cherokee Nation has 1/4 or less Indian blood."
By Cherokee Nation standards, therefore, Warren is entitled to Cherokee Nation citizenship by virtue of being 1/32 Cherokee. So there is nothing even remotely "dubious" about her status as a Native American. Moreover, the fact that she is considered Cherokee by Cherokee Nation standards means -- although this is the first time Bernstein has focused on bar membership; his previous references were simply to Warren's status as a minority -- she is eligible for membership in the Native American Bar Association according to Bernstein's own quote.
Posted by: Kevin Jon Heller | May 3, 2012 10:12:58 PM
Interested readers can find Bernstein's use of the expression "dubious minority status" here: http://volokh.com/2012/04/30/elizabeth-warren-update/
(And there’s an additional amusing aspect to this whole kerfuffle, which is individuals who would normally trumpet law school diversity efforts that consider “minority” status a plus for faculty hiring expressing dismay that anyone would wonder whether dubious minority status was claimed because it might be be a plus for hiring.)
And similarly here: http://volokh.com/2012/05/02/respondng-to-orin-on-warren/
("This is not to say that Warren’s hiring at Harvard had anything to do with her dubious claim of minority status.")
Posted by: Kevin Jon Heller | May 3, 2012 10:27:09 PM
No she WOULD be eligible for Native American Bar Association membership if (a) she could find a branch of the Cherokee nation willing to accept her based on her ancestry; and (b) she actually applied for membership and was accepted, which she has not.
But even if someone has claimed tribal membership based on distant ancestry based on a sincere desire to identify with one's "roots," that doesn't resolve the question of whether one should use that identity to claim affirmative action benefits, if one has no real cultural or other ties to the group beyond vague family stories.
I accept the possibility that one could argue that one's minority status should be purely a matter of self-identification, and no one should then question it, even on a "peer pressure" basis. But if that's going to be the rule, the original intended beneficiaries of AA programs are going to be swamped by the much greater number of ethnically "white" people with distant Native American, African American, or other minority ancestry.
In short, the question isn't whether Warren has some arguable legitimate basis to consider herself a "Cherokee." The question is whether she has a legitimate basis to claim "minority" status to benefit from affirmative action (IF that's indeed what she was doing; as my posts point out, I don't know if it is). To put it in Australian terms, would it be considered kosher for someone whose only tie to the aborigines is one great-great-great-grandmother and some vague family stories to claim access to a government program intended to help aborigines?
Posted by: David Bernstein | May 3, 2012 10:44:56 PM
I'll give it a try. Cutting through the fog, there seem to be two things at issue:
1. the character of a candidate for office. this seems, as best I can tell, to derive from Warren's doubtful claim of a factor that helps in employment. I regard this as silly even if entirely true. Success in fulfilling the duties of public office (as opposed to getting re-elected) demonstrably has nothing to do with most hallmarks of character, and such puffery and far greater deliberate misrepresentation are literally universal among candidates for office
2, the affirmative action issue. the gist of this seems to be that the schools' having counted Warren as a minority is a sort of fraud, as Warren apparently offers noting in terms of the benefoits fo affirmative action: benefitting victims of discrimination and offering a diversity of experience and perspective. (I take it Warren's connection to the Cherokee Nation is at best extremely remote, as she was unsure of the nature of that connection and as the claim of 1/32d Cherokee blood relies on the dubious assumption that her relative was 100% Cherokee.) This issue is not silly. In my view affirmative action serves legitimate ends; and it is under assualt. For the schools to count Warren as meeting those ends, as they did, discredits affirmative action and makes it more vulnerable.
Posted by: jt | May 3, 2012 11:08:48 PM
Bernstein misreads the the NABA provision in question. A person is not required to enroll in the Cherokee Nation to be "recognized" as a Cherokee, as the second clause makes clear:
"Persons who are enrolled members of any Indian tribe or band, OR persons who are recognized in their Indian community of residence or origin as being Indian, Alaska Native, or Native Hawaiian."
If recognition required enrollment, the second clause would be superfluous. But it doesn't: the Cherokee Nation recognizes as Cherokee anyone who has an ancestor who was Cherokee.
It is also worth noting, as the quotes I linked to indicate, that Bernstein did not describe as dubious her use of minority status to benefit from "affirmative action"; he described her claim to minority status itself as dubious. Which it isn't, because she qualifies as Cherokee -- a group that I assume Bernstein acknowledges is a minority -- by Cherokee Nation standards.
Finally, Bernstein is also wrong about aboriginals here in Australia. To qualify for benefits provided by the Commonwealth to aboriginals, a person has to only (1) self-identify as aboriginal; (2) have any aboriginal ancestry -- no blood quantum is required; and (3) be recognized as aboriginal by an aboriginal group, which does NOT require enrollment in that group. A person can even apply for benefits only on the basis of (1) and (2), although if the Commonwealth challenges eligibility (which it occasionally does) he or she must get a certificate from the aboriginal group attesting to his or her aboriginal descent. Of course, the mere fact of self-identification and descent means that a person can call himself or herself aboriginal -- a fact consistently reaffirmed by Australian courts.
Posted by: Kevin Jon Heller | May 3, 2012 11:26:44 PM
I appreciate the comments and wanted to offer a couple of responses to my good friend JT, taking them one "issue" at a time. 1) I agree with your general point here; how such matters relate to character and fitness for office is complex, and there are almost certainly better indicia for such judgments. But I won't rule out such considerations as altogether silly; they can constitute one factor, however disproportionate the attention that is often given to them as opposed to more qualitative evaluations of the person's whole career. In fairness to David, he didn't say otherwise. 2) On the second point, certainly we can have serious conversations about AA. But, first and foremost, I'm think they are best addressed directly and not through proxies, especially when those proxies involve current campaigns for public office, in which no one's best instincts or humility are at their best. And second, I would note that only some people discussing the current "controversy" are addressing broader issues of AA. David is not, and my post was focused on him; certainly some of his commenters are, but I must say that some of their comments are so poor, and so hostile, as to support my view that it's better to address these issues directly rather than through the lens of current politically heated, personality-driven, fact- and context-dependent "controversies."
I can't resist adding a last point, which I suppose is driven by my ongoing work on a book project on social class and the American legal academy. That point is that, to the extent that some of the conversation (not necessarily David's own posts, however) is driven by a desire to discuss the costs and benefits of AA, diversity on law faculties, and so on, there is something sterile and blindered about the whole discussion. I remain convinced that it's counter-productive, and indicative of the revealed preferences of the legal academy and indeed elite sectors of society as a whole, to hold those debates by focusing on diversity in hiring (or admissions) at elite law schools. Even if we assume diversity in hiring is a good thing on the whole (and I do, although on a number of axes, including religion, ideology, and SES background), surely we can agree that even if we counted every arguably "dubious" minority, the overall record of diversity in hiring would still be tremendously low. I'm not saying there are no reasons for that or general arguments to be made in this area; but we're still talking about small numbers. One Elizabeth Warren does not make a diverse faculty by any measure (and if it does, it probably has more to do with SES, law school background, and so on, than with any native ancestry). If we really cared about major structural change in this area, surely we would focus on K-12, and indeed pre-K, education. We would do vastly more to change inequalities and lack of diversity in our society by, say, requiring every elite law professor to send his or her kid to a local public school and forcing them to subsidize some low-SES child as a student at a local elite private school than by, say, making the entire top 10 elite law school faculty body diverse along the usual (non-class-based) dimensions. Perish the thought, of course. But, perhaps because my wife is on a local school board, I am always struck by the disproportionate amount of resources, time, energy, and emotion that we in elite circles spend pouring into the wrong end of the process, preserving our own children's access to elite resources and outcomes while merely tinkering around the edges of the problem. Please excuse the rant.
Posted by: Paul Horwitz | May 4, 2012 8:42:30 AM
"Isn't the 'misdeed,' if there is one, akin to claiming in one's biography that: "In addition to his books, Professor  is the author of dozens of scholarly articles, book chapters, and think tank studies, including articles and review essays in the Yale Law Journal, [etc.]' when the only thing published in the YLJ was a student note 22 years ago? Some might even call a note about 1/32 of an article."
I take this was a dig at me, but before you go libeling people, you might read their c.v.s a bit more closely.
Posted by: David Bernstein | May 4, 2012 4:11:30 PM
Just to clarify a point made in the discussion- the Cherokee Nation of Oklahoma does not recognize just anybody who can trace any amount of alleged Cherokee ancestry. A person must be lineally descended from somebody enrolled by the federal government on the Cherokee blood roll created by the Dawes Commission. There are many people who claim Cherokee ancestey, and their claims are hotly contested within the Cherokee Nation. A book by anthropologist Circe Sturm, discusses this issue in detail. Note as well that the identification as native American for academia is an extremely controversial issue within Indian Country, as discussed by Professor Malliard in the New York Times piece linked to in one of the prior comments. In that sense, it is an important issue. Whether the facts of this specific case suggest improper identification is open to debate. However, the general issue of self-identification as native with no demonstrable ties to a native community and no enrollment in a tribal nation is a serious and ongoing one.
Posted by: Reader04 | May 4, 2012 11:57:35 PM
This pretty much says it all:
"For the Cherokee Nation, Warren is “Indian enough”; she has the same blood quantum as Cherokee Nation Chief Bill John Baker."
Lawprof Kevin Maillard here:
Posted by: Kevin Jon Heller | May 5, 2012 10:05:37 PM
Kevin -- it's nice to know, I guess, that the one drop rule is still in effect.
Posted by: Stuart Buck | May 5, 2012 10:33:43 PM
"If recognition required enrollment, the second clause would be superfluous. But it doesn't: the Cherokee Nation recognizes as Cherokee anyone who has an ancestor who was Cherokee." No, it does not. I'm Cherokee. There is categorically, absolutely, positively NO "recognition" extended by the tribe to people who, by family legend, seem to think their great-great-grandma was Cherokee. The "or are recognized by" clause is intended to cover people who grew up on or around the reservation but who for whatever reason (e.g. mom is a member of a tribe that only recognized patrilineal descent) aren't eligible to enroll but are nevertheless culturally "Indian" and recognized as such within the community. It is NOT intended to cover people who, just because they think they have 1/5012th Cherokee blood and because that's technically enough to enroll (if you meet all the other criteria) feel like they're just as Indian as the enrollee.
Posted by: Christine | May 7, 2012 10:23:40 PM
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