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Friday, May 04, 2012

Assume a Can Opener...and the Worst Possible Motives

My post the other day on David Bernstein's writing on Elizabeth Warren was met with a comment suggesting I'd been too generous to David. I don't think that's so. Useful discussions and disagreements proceed by way of identifying specific areas of potential agreement or disagreement, spelling them out as specifically as possible, engaging in reasonable charity of interpretation, and setting aside speculations about motive and so on, which may conceivably be relevant over the long run but are mostly counter-productive within particular discussions on particular issues. Whatever possible undertones one might have thought were lurking in David's posts (or in the comments of those who criticized him!), a useful reminder for those who actually want to have discussions and not just trade accusations of bad faith is: "sufficient unto the day is the evil thereof." David specified his concerns, and I thought it was reasonable to focus just on those.

I think I am being equally charitable and generous when I suggest that Todd Zywicki's contribution to the discussion today is risible. Consider how he begins:

Aside from Brian Leiter, whose contention that being Native American provides no affirmative action edge in law school hiring fails the straight-face test, it is obvious to everyone else why Elizabeth Warren self-identified as Native American all those years–which was to get an edge in hiring.  Even less plausible, of course, is her own explanation–that she was looking for people to have lunch with (once she got to Harvard was it that she no longer was interested in having lunch with other Native Americans or that the strategy was so successful that she had just had too many lunches through the years?). . . . So assume the only reasonable explanation–that contrary to Leiter’s statement she did this to get a leg up in hiring and contrary to her own statement she didn’t do it to find lunch partners.

Now I must say that the quote from Warren that fuels Zywicki's good-natured ribbing is rather silly--perhaps at best, perhaps at worst. Here it is: "I listed myself in the directory in the hopes that it might mean that I would be invited to a luncheon, a group something that might happen with people who are like I am. Nothing like that ever happened, that was clearly not the use for it and so I stopped checking it off." As awkward public defenses by politicians go, this one is not atypical--plausible in fact, defensive in tone, weak in detail, and clearly unlikely to win her any awards for political acumen. So be it.

That is, of course, a far cry from the conclusion Zywicki draws, and as far as I can tell that he draws not based on this quote alone, unless he suddenly reached his conclusion yesterday. It is not "obvious to everyone else"--although it appears obvious to Glenn Beck, "Weaselzippers," "Ann Althouse," and other members of the Army of Davids--that "the only reasonable explanation" for Warren's listing of Native American status was "to get a leg up in hiring."

Why else would someone do such a nutty thing a check off a box on a form marked "Native American" on the belief that one has Native American ancenstry? Let me start with an assumption of my own: that human beings act for a variety of reasons and motivations, sometimes unclear even to themselves, and often imperfectly at that. With that assumption, I imagine some of the following explanations are plausible: 1) pride in or identification with one's (perceived) racial, ethnic, religious, or tribal heritage; 2) a desire to identify as a minority in an academic subculture that sometimes valorizes minority status, for purposes of conformity or self-image, regardless of any desire to receive personal benefits; 3) relatedly, a desire to identify as a minority because one believes minorities in a particular group, like that of law teachers, should be fully counted; 4) a sheeplike willingness to answer questions asked on forms, for no particular reason other than that one has been socialized to do so--I generally (but not always!) check "Jewish" on hospital forms asking for my preferences for purposes of religious counseling, although I have no interest in receiving religious counseling, for the simple reason that someone handed me a form and told me to fill it out; 5) a desire to find and form affinity groups (ie., to "go to lunch").

None of these reasons are exclusive of a desire to get a job; I don't doubt that many people who do things for a variety of reasons are also not unaware of any potential professional or economic advantages those actions might also provide. But neither do any of these reasons necessarily suggest a desire to get a job, let alone that the actor's sole motivation is to "get a leg up in the hiring process." None of these are what I would call good or bad reasons. They're just reasons, and all of them seem totally in line with common human behavior. Are they "reasonable explanations?" Hell, yes, and surely not the only ones. Is Zywicki justified in his conclusion that it is "obvious" that there is only one reasonable explanation for Warren's actions, and that he knows what it is? Hell, no. Once he proceeds from that assumption, is anything in the rest of his discussion--that she acted dishonestly or recklessly, or that she engaged in a "disqualifying" act of "credentials fraud"--worth taking terribly seriously? Again, no.

Zywicki's post seems to me a nice parody of pseudo-economistic thinking, and a fine illustration of what uncharitable writing looks like. Self-interest is a useful tool for analysis on the margins. It's a poorer tool for specific analysis of individual actions in individual cases, and worse still if one has a narrow definition of self-interest. Wanting to identify as a minority, or a conservative, or a Jew, or what have you, and for that matter doing so inconsistently, can all serve broader personal interests--solidarity, ethnic pride, belief in one's own uniqueness or moral superiority, making a political statement, and so on--without being geared specifically and only toward immediate hiring or financial gain. For that matter, reflexively filling in forms rather than worrying about their long-term implications can be an unconsciously self-interested action. I would rather check "Jewish" on the hospital form rather than think a second more about it, even if I might accidentally have my hospital door darkened by some well-meaning rabbi while I'm in the middle of watching television, and even if sometimes I make the same split-second decision not to bother filling in the same question.

I'm not terribly interested in defending Warren here. I don't think she's the Second Coming, I don't know what she was thinking, and I have better things to think about than who wins the Senate. I live in the US but I am--at the moment, I would add, "thank the good Lord"--a Canadian. I am interested in making the point that human actions are sufficiently complex and variable that saying that the least charitable explanation for some particular action is the only reasonable one, the one that is obvious to "everyone," or at least to Glenn Beck, Todd Zywicki, and "Weaselzipper," is ignorant. And proceeding from such an assumption, in true "assume a can opener" fashion, is an example of how not to have a useful discussion.

On the other hand, it provides a useful tip: ignore psychology, assume your conclusions, and use phrases like "obvious to everyone," and you just might have a productive career as a political blogger.      

Posted by Paul Horwitz on May 4, 2012 at 11:23 AM in Paul Horwitz | Permalink

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Comments

Outside of this Blog, Clarice Feldman and Ann Althouse have treated Elizabeth Warren with catty conservative comments; I don't know of others. Here and at VC (except for Orin Kerr) the male critics dominate. The subject did not seem to be addressed on This Week with George S (Jake Tapper sitting in); the panel included Greta VanSusteren and Bay Buchanan. I did not watch Meet the Press as I watched Bill Moyers' interview (rerum) of Luis Alberto Urrea, a great interview.

Posted by: Shag from Brookline | May 6, 2012 4:37:37 PM

Duly noted that you listed three things.

Have conservative women bloggers treated her differently?

Posted by: Joe | May 6, 2012 1:32:23 PM

Joe points to my inadequately grammatically stated: " ... it is clearly ideological and political and male oriented." Let me restate this: " ... it is clearly ideologically, politically AND male oriented."

Posted by: Shag from Brookline | May 6, 2012 12:04:06 PM

"Male oriented"? I think it is ideologically oriented.

Posted by: Joe | May 6, 2012 11:28:34 AM

While Stuart Buck finds that " ... this is all a tempest in a teapot, if even that much, ... " he has "a hard time understanding what motivates anyone with such a tenuous 'one-drop' connection to make something of it." I don't know is Stuart is accurate with "tenuous" but his comment is a reminder that the "one-drop" rule was basically built into the the Constitutions without referencing specifically slavery but specifically referencing the "Indian Tribes." Even the Civil Rights Amendments failed to change the "one-drop" rule which of course was not favorable to those with the "one-drop" of "tainted" blood, as was demonstrated by the 1896 Supreme Court decision in Plessy v. Ferguson. Even the 1954 Brown v. Board of Education unanimous decision did not quickly erase the remnants of the "one-drop" rule unfavorable to certain minorities. The 1960s Civil Rights Acts did provide some follow up but the Southern Strategy came into play, delaying implementation of Brown and the Civil Rights Acts. Attempts were made to assist such minorities such that perhaps the "one-drop" rule turned into a benefit for some, perhaps to partially make up for the damage to humanity - and America - caused by the former "one-drop" rule that certainly imposed limitations on certain minorities.

How many of the male posters/commenters from legal academia criticizing Elizabeth Warren have resumes, credentials to favorably compare with her? Keep in mind that she is a woman and recall the history of the lack of rights of women under the Constitution that continued until the 19th Amendment in 1919. And these males surely know the history of the treatment of women seeking roles in legal academia. Consider her role with consumer issues especially following the 2008 Bush/Cheney Great Recession, the worst recession since the Great Depression. Yes, the bankers, whom Warren has challenged with her consumer proposals, have targeted her. Now we get quite a few males in legal academia pouncing on Warren, not for her consumerism efforts, but purportedly because of a Cherokee ancestry claim years ago. Why don't these brave males challenge her consumerism efforts?

Mark Tushnet has a short post at Balkinization on 5/4/12 providing a reference to page 1268 of the AALS Directory for 1995-96 as "particularly interesting these days." I downloaded that page from the section on legal academics claiming minority status and did find it interesting. Perhaps other pages from that and other years may be interesting as well. Perhaps legal academics who cannot or wish not to declare minority status might feel career-threatened by potential benefits to those with minority status.

The rant against Warren is a tempest in a teapot, much ado about nothing; it is clearly ideological and political and male oriented. Can we expect responses from these ranters that "Some of my best friends are women"?

Posted by: Shag from Brookline | May 6, 2012 7:00:12 AM

Why would someone claim such status? That's a good question. I myself have a great-uncle who claimed to have found one or two Cherokees way back in our family history, which wouldn't be surprising given that I grew up in Arkansas basically on the Trail of Tears, and most of my mother's side of the family had moved there about the same time. Even so, it never even occurred to me to check any boxes on any form, because that part of my heritage was so far removed from the experience of anyone I knew (even my grandparents), as far removed as was the Irish and Hungarian and English and everything else that one finds in my family tree 150-200 years ago.

And even if it had occurred to me, I look so quintessentially northern European (like Warren) that it would have seemed utterly ludicrous -- no one who has ever met me would have discriminated against me because of the ethnicity of one or two ancestors 150 years ago, and whatever Indian ancestry I have was so long ago that I could not even with the remotest of plausibility claim that I am stricken with any sort of affinity. It's just too too completely disconnected from anything I've ever experienced.

Anyway, this is all a tempest in a teapot, if even that much, but I do have a hard time understanding what motivates anyone with such a tenuous "one-drop" connection to make something of it.

Posted by: Stuart Buck | May 4, 2012 9:16:25 PM

Paul,

As the commenter in question, I'm genuinely curious: how does "reasonable charity of interpretation" justify Bernstein's claim that Warren has "dubious minority status," when the minority group in question's own standards means that Warren is entitled to consider herself a member of the group?

Posted by: Kevin Jon Heller | May 4, 2012 8:25:38 PM

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