Covering I: How (and Why) Kenji Yoshino and Samuel Alito May Be Similar

A while back, Prawfsblawg was just crazy about Covering, the recent book by Yale Law prof Kenji Yoshino.  (See, for instance, this post and especially this one with comments from Prof. Yoshino himself.)  Forgive me for entering the lists so late, but my downtime in the hospital allowed me to read his book, and I'm just now getting to post about it.  I should say at the outset that although Covering is a slim book, it's also quite thought-provoking and is often beautifully written.  I quite enjoyed it and am happy to recommend it, although ultimately I think lawyers may find it a little slim in its legal treatment and its legal prescriptions.  This last point is largely to the credit of the book, since the notion of "covering" is so broad that Yoshino properly recognizes that law must be "a relatively trivial part" of the civil rights paradigm he constructs around the concept of covering.  Even so, lawyers may find that to the extent he argues for a legal "reason-forcing" rule, he still (in the book, at least) leaves much to flesh out about this rule.  In all, though, I quite enjoyed the book, although in the next few posts I will register some disagreements or reservations.

I should add that while some of what I have to say about Covering is a fairly direct response to Yoshino's book, other observations might be better described as reflections inspired by Covering; that is, they are less directly meant as specific responses to or characterizations of the book.  So for those who are inclined to argue that I am misdescribing Yoshino's work, let me say that in at least some of these posts, this criticism may fall wide of the mark.  Nevertheless, in some still inchoate way, I think some of these comments "inspired" by Yoshino may get at the root of some of Yoshino's ideas, and what I find interesting, troubling, or potentially shapeless about them, as well as the more direct comments.

This first post is decidedly in the vein of "inspired by" rather than "responding to."  I want to talk about my reflections, prompted by the book and by Yoshino's New York Times Magazine article, about how Prof. Yoshino and Justice Alito may be similar.  Let me start with Yoshino's own opening language describing covering: it is, he says, the act of "ton[ing] down a disfavored identity to fit into the mainstream."  It is the act of demanding that outsiders "behave like insiders."  I think Yoshino's emphasis in large measure is precisely on "toning down," but the second sentence suggests that covering is not simply or necessarily a matter of muting some identity or character trait(s), but of adopting or foregrounding some other identity or character trait(s).

Although I feel relatively certain it is not what Yoshino had in mind, the very language he uses here and elsewhere -- the language of identity, of passing in different circles, of muting one's "authentic" self in deference to the demands of various communities -- makes me wonder if we could not describe some aspects of the Alito nomination as involving acts of covering -- or, if not covering as Yoshino means it, then something akin to it.  I wonder, too, if we couldn't describe Covering itself, in certain ways, as an act of covering.  And in thinking along these lines, I am led to question some of Yoshino's own descriptions of covering, and to suggest that, although doubtless he is aware of this, Yoshino's descriptions of covering, as rich as they are, fail to capture fully the multivarious ways in which identity is fluid, and in which the uses of identity are themselves fluid.  In some cases, I think, what he obscures will -- perhaps naturally, for a tenured Yale Law professor -- emphasize every aspect of identity and covering except those involving wealth, power, and privilege in their modern forms.

More after the jump.          

First, as to Alito.  Reading Covering kept calling to mind the discussion during the confirmation battle (if that's not too grandiose a word here) about Alito's 1985 application for a position in the Office of Legal Counsel -- the one in which Alito, famously, wrote, "I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration," and said his work in the SG's office had involved "help[ing] to advance legal positions in which I believe very strongly," including the view that "the Constitution does not protect a right to abortion."  The memo was interesting, but the defensive response to it by Alito and his supporters was, I thought, fascinating -- composed of a varying mixture of disavowal, dogding, pooh-poohing it as overstated, and suggesting that it said little about how Alito would rule as a judge (although if one believes the Constitution simply does not protect the right to abortion, surely stare decisis should not erect a permanent barrier to voting that view).  Above all, one frequently heard a note of argument that the memo should be treated lightly or disregarded because, after all, it was less a statement of principle than an act of careerism: that Alito was saying what he had to, or at least puffing up his own views somewhat, to get a job.

What draws this incident to mind when I read Yoshino is the idea that Alito, in a sense, may have been covering.  He is frequently described by his supporters as someone who is not, in a strong sense, an ideologue: one who is primarily a careful lawyer and jurist and not a revolutionary, one who was very comfortable in the role of line attorney in Main Justice and wanted in at OLC and the SG's office because he cared about the legal questions, not because he was there to advance a cause.  To that extent, I think the ways in which his advocates tried to dismiss the OLC application are really about suggesting that Alito covered -- conformed his views and presented himself differently in order to win acceptance. 

There is another possibility, of course, and that is that none of this was covering; Alito's 1985 memo was, in Yoshino's borrowed terms, a presentation of his True Self, of his authentic self.  The covering, then, came before the Senate Judiciary Committee, when Alito proved himself willing to soft-pedal his own strongly held views, to present a self different from his most authentic self, in order to win the approval of the Committee.

So we have two possibilities here, each involving an act of covering.  If these descriptions are right (and I gladly concede it's a contestable point), which was the "real" Alito, and which was the "covering" Alito?  Or were both true -- either because Alito himself changed his views over time, or because his identity shifted to accommodate the different roles he played, or simply because we all contain multiple identities -- because, to quote the title of a Posner piece, we are "multiple selves?" 

At the same time, reading Covering, I wondered if Yoshino himself were not covering, in certain respects -- and for similar reasons.  Toward the end of his preface, he writes, "As a law professor, I have become accustomed to the tones of legal impersonality.  But I came to see that I could not compose an argument about the importance of human authenticity without risking such authenticity myself.  So I have written this book in a more intimate voice, blending memoir with argument."  And so he does, quite richly and beautifully.  But I wondered whether I should take this statement at face value.  It seems problematic on two levels.  First, why is a blend of memoir and argument more "authentic" than a "tone[ ] of legal impersonality?"  Being a law professor, after all, is one central aspect of Yoshino's identity, his personhood; and his legal scholarship has not hesitated to adopt the voice of a law professor.  Were these articles "inauthentic?"  Who is to say which is the more "authentic" version of Yoshino? 

Second, given my knowledge of the publishing industry and its realities, I wondered whether, even if Yoshino's choice to write in a more personal style was indeed a personal choice, he was also encouraged to do so -- by his agent or his publisher, for instance.  There is a reason, after all, that Covering is published by Random House and not by some academic press, and it is not simply because it is a "better" book than those published by academic presses; rather, it is that Covering, with its memoir content, is the kind of book that sells -- that reaches non-academic readers, that is shared by reading groups, that is capable of being excerpted in the New York Times Magazine.  The James Frey controversy reminds us again that publishers like memoirs, and will gladly dress up a book -- whether it is fiction, or non-memoir non-fiction -- in the guise of a memoir to aid the sales of the book.  So: is Covering itself an act of covering?  Was Yoshino encouraged to present his "authentic" self in "authentic" form, or did he do so in response to unvoiced pressures, rather than present a purely academic work?  Did Kenji Yoshino "tone down" Professor Yoshino to "fit into the mainstream?"  And if so, was it not an act of covering in the same way that Justice Alito would have been covering if he first presented himself in the '85 memo as a conservative ideologue, and then distanced himself from the memo later on; and would it not be for similar reasons -- namely, to achieve some form of success?

In asking these questions, I don't mean to read Yoshino's mind, let alone sound accusatory.  I do mean to say that this talk of identity, authenticity, and covering is a tricky business, and that, as I'm sure Yoshino would agree, it is not always easy to say when one is covering, flaunting, or simply acting "authentically," if such a thing exists. 

I think some of his own examples in the book suggest this.  For instance, he describes Ramon Esteves as covering his ethnicity when he became "Martin Sheen," and I think this is a fair observation.  But he also describes Sheen urging his sons to use the "family name," and says "[o]one of them has not done so, signaling the enduring force of the covering demand."  He means Charlie Sheen, I assume -- and if so, it seems far more plausible to say either that Charlie Sheen recognized the professional advantage of using "Sheen" as a last name in Hollywood, or that he was claiming the Sheen name as his new and equally authentic identiy; in either case, it seems less plausible to describe this as an act of covering. 

Similarly, late in the book he describes an excellent student of his who was going blind, and who refused to mention this to potential judicial employers.  Yoshino gently encourages the student to allow him to mention the student's impending blindness in his letters of recommendation, "and a federal judge immediately hire[s] him."  Yoshino writes that the student's "failure to reveal his impairment to judges was a form of passing, his failure to emphasize it to me a form of covering."  He describes this incident as one that evokes his ambivalence toward assimilation," and concludes, "While he [the student] downplayed his condition, he was likely to be misunderstood."  Perhaps; Yoshino does suggest that the student's near-blindness made him seem unfriendly in social interactions.  But we could also tell a story about this incident in which the student's refusal to foreground his near-blindness was the act of an authentic (and brave) self, and in which Yoshino's desire to play it up is a deliberate attempt, the stuff of virtually every college application, to valorize an illness in the hope of scoring a prestigious job out of it for his student.  Was this not, then, an act of covering, or of flaunting, or at least of using "identity" in inauthentic ways and for particular, career-serving, purposes?

Again, I emphasize that these are reflections inspired by Covering, and not an attempt to characterize Covering itself.  And yet, I think there are two threads running through this post, and that both in some sense do speak to "Covering" -- the phenomenon itself, the book called Covering, and perhaps the act of writing the book "Covering."  The first is that, however useful Yoshino's taxonomy may be, it is only imperfectly descriptive, and it necessarily obscures the many ways in which identity may be fluid, and in which the deliberate or subconscious uses of identity may themselves be fluid, so that in the end we are hard pressed to say what is, even according to one's own lights, an "authentic" identity or an "inauthentic" one.  I think Yoshino does recognize this -- and he recognizes, too, that because the concept of covering is so capacious, it risks becoming descriptively accurate but banal.  His strategy in responding to this is twofold: first, to limit his discussion of covering to certain paradigmatic instances, while recognizing (not just conceding; this is an important aspect of his argument) that it may be far broader in application; and second, to acknowledge that precisely because the phenomenon of covering is so broad and difficult to pin down, any response to covering as a civil rights concern cannot depend on law alone.  These are reasonable response strategies, but we should still remember that they are responding to a real problem -- the difficulty of addressing, in any concrete and fixed way, the concepts of authenticity, of identity, and of covering itself.

The second point that I think runs through this post is that, by emphasizing only certain concepts of identity in his discussion of covering -- namely, those involving classic civil rights categories such as race, gender, sexuality, disability, and religion -- Yoshino perhaps obscures the degree to which wealth, power, and privilege run through the book as largely unexplored subjects.  (I said before the jump that this might be a natural omission for a Yale Law professor; let me be clear that I meant that as an essentially sociological observation, and not by way of ascribing any motive to him.)  One of the commenters on Amazon writes that the story of Covering "is set almost entirely in the arcadian settings of Phillips Exeter, Harvard, Oxford, and Yale."  While this may be an uncharitable remark, I don't think it is an irrelevant one.   

The Alito story, the story of Charlie Sheen, the story of the blind law student and the federal clerkship, and perhaps even the story of why Covering is written in memoir story and published by a prestigious publishing house: perhaps each of these speak less to questions of social identity such as sexuality and race, and more to the conclusion that, in the relatively elite circles in which we run -- and here I include, along with Yoshino and the others named above, myself, my co-bloggers, and probably most of our readers -- careerism is often one of the most prominent and least discussed features of our lives.  And where careerism is concerned, we all cover, flaunt, and adapt our identities in complicated and fluid ways, without much discussion, and perhaps without much hesitation or remorse.