Sunday, October 08, 2017

What Is Praying?

I have been too angry to write about the mass murder in Las Vegas, and too angry to write about the empty and reflexive offerings of "thoughts and prayers" that now follow every murder like it. But let me take this opportunity to talk about the question of what prayers are, and how they might be different from thoughts. America's general enthusiasm for religion masks deep, sometimes nearly bottomless religious differences, and so many, many people talk about praying, but use that word to mean very different things: sometimes contradictory things. What is praying, anyway?

Praying is different from simply thinking because it is directed outside yourself, to some larger spiritual power. (This also makes prayer different from meditation. I have prayed, and I have meditated, and they are not the same thing at all.) Prayers have an address outside yourself; they are addressed to a god or to some other spiritual being. Some people pray to departed ancestors, to deceased saints, or to angels. But it's always to a spiritual being of some kind, rather than to someone who is walking around with a cell phone right now. The big differences in the way people pray are their reasons for praying and what they think prayer can accomplish.

On one end of the spectrum, there are people who pray in an attempt to influence or control events in the real world. They pray to get a promotion at work, to avert a hurricane, to cure a loved one's apparently incurable cancer. If you're Huck Finn, you pray for God to give you some fish hooks. There is a lot of this, all over our culture, and it doesn't break along clear denominational lines.

I tend to be skeptical of this practice myself. It is, on a fundamental level, a straight-up magical practice, no different from the prayers dedicated to idols during a ritual sacrifice. ("O mighty Jupiter, are you hungry? We have a delicious spring heifer for you. And, by the way, is there any chance you could make it rain?") In some cases, it is a very obvious magical practice, as with santeria rituals or the self-described "prayer warriors" who imagine they are fighting various demonic influences over our world. I am not interested in sorcery as a religious practice, and moreover I find it disrespectful. This is the omnipotent Creator of the Universe we're talking about. It isn't Let's Make a Deal.

But at the same time, many people I love and respect do pray this way, some of the time, and I would not try to talk them out of it. When my mother's cancer came back, I wasn't telling anyone not to pray for remission. I never would. Someone close to me once prayed for a desperately-needed career break, got it, and followed through on a promise to return regularly and light more prayer candles at the place where he'd made the original prayer. I don't have a real problem with that.

But I think almost everyone recognizes that this kind of prayer is only appropriate for situations when you have already done everything else that's your power, or when the situation is completely outside your power to begin with. You pray for the hurricane to pass your town by because, really, what else are you going to do? You pray for God to cure a loved one's cancer because there is nothing else you can do about your loved one's cancer. Almost everyone gets that. Even if you consider such prayer to be a form of self-deception, human beings sometimes need a little self-deception to keep going.

Things become very different if you expect such prayer to substitute for action. Lighting a candle in a church after you've already done everything you can to prepare for a key job interview is one thing; lighting a candle instead of preparing for your job interview is another, much stupider, thing. Praying that the chemotherapy cures your family member is more than understandable. Telling your family member to pray instead of trying chemotherapy would be grotesque.

So if someone's offering "thoughts and prayers" in addition to concrete action, that's terrific. But if
the "thoughts and prayers" formulation means, as it too often does, "I intend to pray that no more mass murders like this happen again, and that is all I intend to do about the problem," then as far as I'm concerned you can stuff those thoughts and prayers. Your magic does not work. It is a pathetic self-deception, and nothing can be more arrogant that offering someone who is suffering your grandiose delusions in place of actual help.

And for what it's worth, I never prayed for God to cure my mother's cancer. God already knew what I wanted and how desperately I wanted it. Mom's cancer had not come back because God figured that I wouldn't mind. So I did not pray for God to do my bidding or work me a wonder, like some petty conjuror. I prayed for God to make me a better son while my mother was still alive.

Once you move past the vast number of prayers that aim to effect the visible world, you get to a gray area of what I will call funerary prayers: prayers dedicated to the spiritual welfare of the dead. From the skeptical atheist's point of view, these prayers are at least as pointless as prayers that attempt to control business, medical health, or the weather. In fact, they may be even more pointless, since they are aimed at an afterlife whose existence atheists do not concede. The only advantage of such prayers is that they are immune from immediate falsification. When you pray for a tornado to miss your house and the tornado destroys your house, everyone can see your prayer didn't work. When you pray for the welfare of your dead grandmother's soul, who knows? There's no way to tell if it's working or not.

This kind of prayer was once a flashpoint in the violent Catholic-Protestant disputes that roiled the West from the early 16th to the early 18th century. But the practice of this kind of prayer has now become popular even in denominations that technically forbid it. (Lots of people do it, but you might also meet fierce objections to the practice; it's slightly unpredictable.) I was raised in a tradition that focuses strongly on these prayers for the dead, and even if I doubted their effectiveness I would still participate in them for reasons of culture and tradition, for much the same reason I would still always make sure my loved ones got proper funeral rites. At this point, I can no longer specifically remember praying for my mother's soul during her funeral, but I almost certainly did.

On the other hand, I have seldom prayed for the welfare of Mom's soul since her funeral, largely because I don't believe she is in need of such prayers. I have some deceased relatives for whom I never pray, because I'm very confident of their spiritual state, and other relatives whom, for various reasons, I give a more strenuous effort. (I will confess that I once began a silent prayer for a departed family member with the phrase, "Okay, Lord. Let's not make this about me.")

If someone says that they plan to pray for the souls of the Las Vegas victims, I am okay with that. Flights of angels sing them to their rest, and so on. But I wouldn't accept that as the sole appropriate action.

The last major form of prayer, and the form most of my own prayer life centers on, is prayer asking for spiritual strength and guidance. I pray to ask for more patience, more generosity, better understanding. I don't pray for God to change the world around me for my convenience. I pray for God to change me, and make me better.

If you're a skeptical rationalist type, this might seem like simply a particular form of focused meditation, a way to focus my own mind on what, to an atheist, can only be an imaginary addressee. And if it were only that, I would still defend its value. But I will add, again, that the practice is very different from meditation. When I meditate I am trying to clear my mind, to leave it blank. Prayer very much engages the parts of the mind that meditation is trying to still. Prayer has a direct, positive focus.

When I pray for wisdom and guidance, I am asking for help deciding what to do. In effect, I am praying for instructions. Such prayer is never a substitute for action. It is a prelude to it.

If people say they will pray about what to do to stop another mass murder like the one in Las Vegas, I hear that and feel like it's the right thing to do. But appropriate prayer has to lead to proper action. "I've prayed on the Las Vegas murders, and I've decided we need to change some things," is what I'd prefer to hear.  But somehow that's never the party line.

cross-posted from Dagblog, where all comments are welcome (comments here are closed)


Saturday, September 23, 2017

Some People Are Not Duelable

I'm not a big proponent of bringing back customs and manners from hundreds of years back. The centuries I study were much worse to live in than this one. But there is one concept from Ye Olden Days that (suitably retooled), I have always found pretty useful. That is the concept of people being "not duelable." I use it in my academic writing. I use it in my daily life. I occasionally teach it to graduate students. And it turns out to be a concept that both the Age of Twitter and the Age of Trump badly need.

Now, dueling itself is a vicious custom and should not come back. But that custom contained one illuminating rule: dueling is something that happens between equals. (It's also restricted to the upper classes; humbler folk who fight with swords, like the playwright Ben Jonson, are just street brawling.) You only duel people who are, generally speaking, on your own level.

If you're a 17th-century gentleman, or a Russian aristocrat, or a young swell in Flaubert's Paris, you don't get in duels with servants or bartenders or some poor hapless working stiff. That's beneath you. (I'm not going to idealize this practice; this is mainly about not giving the hapless working stiffs a fair shot at the rich folk, or allowing the working stiffs to fight back.) Fighting those people isn't simply wrong. The wrongness isn't even the main problem. Fighting with those people is demeaning to you. It lowers you. It invites shame and ridicule.

Early in the 20th century (a little late for this sort of thing), the novelist Vladimir Nabokov's father got so angry about a yellow journalist's attack on him that he decided to challenge someone to a duel over it. (Neither Dr. Cleveland nor Dagblog endorses fighting duels or threatening journalists.) Did he challenge the person who wrote the article? No. That person was, from Nabokov Sr.'s point of view, just some greasy little scribbler, not worth the bother of tussling with. Papa Nabokov challenged the newspaper publisher. (The younger Nabokov has a wonderful chapter about this episode in his memoir, Speak, Memory.)  None of this is exactly Nabokov Sr.'s finest hour, but it taught me the basic "not duelable" concept, which has real value.

Let's broaden the definition of "duel" here to mean any public or semi-public conflict which, on some level, involves your reputation. That's what duels were: fights designed to protect one's reputation, and when someone was not duelable that meant that fighting them, or even challenging them, would only damage your reputation more. Some kinds of political slagging and point-scoring qualify, alas. So do some entertainers' public feuds: two rappers beefing with each other are both acknowledging each other as peers and trying to raise their profiles. And, like it or not, academic writing has its share of this, both because professional reputations are closely tied to that writing and because academic debate works, especially in the humanities, by disagreement. It is almost impossible to write a publishable article about Shakespeare where you don't at least politely suggest some other Shakespeareans are wrong about something. Often, people are much less polite. Sometimes scholars get into epic running beefs. The letter pages of the Times Literary Supplement are notorious for hosting ongoing tweedy vendettas. The question of who is duelable and who isn't in academic arguments is one I've given a lot of thought to, and it needs a post of its own.

One of my favorite examples of non-duelability in pop culture is Crash Davis in Bull Durham, flat-out declining to compete with boy idiot Nuke LaLoosh for Annie's favors: "I'm not interested in anyone who's interested in that boy." Translation: I'm not going to compete with that idiot, because he's not a suitable rival, and it would be demeaning to compete against him." Not duelable, bro.

Two major-party Presidential candidates going at each other is unpleasant and arguably unseemly. But you can't say that conflict is inappropriate. As nominees, they are peers. But if the President of the United States, with all the majesty of that office, decided to beef publicly with say, an ESPN personality like Jemele Hill, which is too crazy to ever happen, he would be attacking someone non-duelable. If he were to get petulant with an NBA player, that is fighting with someone non-duelable. Calling an unemployed NFL quarterback a "son of a bitch" in public is totally attacking someone non-duelable.

Trump does not make the duelable/ non-duelable distinction at all. He fights with people who have vastly different statuses. He goes after the grieving parents of an American serviceman killed in action. He beefs at Rosie O'Donnell, still, for God knows what reason. He gets in spats with the Emmys telecast and the Apprentice, with ESPN. The list goes on, unfortunately. It's depressing to see.

The first problem with this is it's wrong, because the people he goes after are weaker and have no defense. One of the basic reasons large categories of people were originally designated non-duelable is because those people did not have swords or guns. (The laws often restricted weapon ownership to the upper classes.) Picking on the poor grieving mother of a dead serviceman is a disgusting way to use your power. It's wrong because unjustly harms other people. It makes you a bully, and a thug, and an asshole.

The other two problems, which are interrelated, are problems because they harm you, rather than your target. The main problem is that it destroys your dignity. You get into the gutter to fight some rapscallions, what you win is a trip to the gutter. You get dirty and you make a depressing spectacle of yourself.

Trump does not preserve the dignity of his office. He screeches at people who are, since inauguration, vastly below him in station. Part of this is that Trump still insists on operating like a fairly low-level New York media figure, a guy who gets into arguments on a call-in radio show. He's like a less well-adjusted Howard Stern. Part of it is that, frankly, he's a psychologically damaged personality. The rest is that Trump has always behaved like someone from an entirely different social class, rather than like a normal, socially-adjusted rich New Yorker. For all his money, he has never been able to learn the rules of upper-class Manhattan, social norms that usually get expressed as "taste," "manners," and "class." That he's a rich guy with the manners, and open resentments, of someone from a much lower class has always been a big part of his appeal. But it's not an act; Trump isn't someone who can charm donors to the Met and then switch it up to bond with a cabbie. He genuinely doesn't understand the normal rules of upper-class behavior, including the rule that some fights are just beneath you.

What Trump gains by his refusal to observe decorum is the ability to attack people that Presidents usually don't attack. What he loses is the protective aura of his office's dignity. It feels wrong to insult a President of the United States in certain ways, but that's ultimately predicated on the fact that the President isn't going to shout crude insults at you, either. The aura is a two-way protection.

Normally, the dignity of the President's office keeps people from calling the President a bum, but Trump doesn't respect the dignity of office and so it doesn't protect him. If a pro athlete called a president, any president a bum, I'd usually think that was a classless move. But the President in question called another pro athlete a son of a bitch in public yesterday, so he's the one who changed the rules.

And related to the loss of dignity is the problem that when you get down in the gutter to fight with some guttersnipes, the guttersnipes might win. Trump publicly slagging on Colin Kaepernick and Steph Curry opened the door for LeBron James to just lay Trump out:




That's not the golden political rhetoric of yesterday, but Trump is playing the playground diss game, and as playground disses go this is a classic. Trump has no one to blame but himself.

(I do not mean to imply that Mr. James is a guttersnipe. He is a sublime athlete and a philanthropist. But he's also a guy who sweats for a living, not somebody who gets called in to give the Cabinet advice. Do you remember when FDR got into that public insult match with Joe DiMaggio? That's right. You don't.)

The bigger question is whether the dictator of North Korea is duelable for an American president. All of Trump's predecessors thought not, and didn't waste time trading insults with a small-time dictator. Trump, who has no sense of dignity, is getting into a slagging match and, on balance, losing. But actually, this is not at all how people used to talk before duels. Duels are about saving face, but also about finding a way out of conflict if you can: a lot of energy focused on finding a way to say everybody's honor was satisfied without anyone bleeding out. Sometimes that failed, but that was the focus. Papa Nabokov found a way not to fight that duel. Trump and Kim are not looking for an elegant way out of this. They are woofing at each other like playground antagonists, both scared of looking "weak" by backing down. It's a situation that usually leads to the two knuckleheads trading blows because they're afraid not to.

The danger, of course, is that if these two idiots come to blows, it's not just them.

 cross-posted from, and all comments welcome at, Dagblog

Tuesday, August 15, 2017

Trump Does Not Care If People Get Hurt

President Trump's impromptu press conference today was a shocking display of his moral depravity and his allegiance to bigotry. There are so many things wrong with it, in so many stunning ways, that everyone is trying to digest it and focusing on different parts. But one particularly scary thing has not yet gotten much attention: Trump shows a nearly complete lack of interest in preventing more bloodshed like this. That is unprecedented, and extremely dangerous.

Every previous president of the United States has been deeply averse to civil violence and has always worked to prevent it. That's only natural. Civil violence and disorder are the opposite of government; our leaders' power is vested in exactly the order that civil violence disrupts. Our long national struggle over civil rights, which has often led to street unrest by various parties, has highlighted this. Every president, whatever their party loyalty or racial politics, has made keeping order and avoiding violence a paramount goal. Presidents who were sympathetic with angry segregationists, or who needed them for electoral reasons, still wanted to prevent any violence or lawbreaking by segregationist mobs. Even politicians who were themselves personally racist did not want racist violence in the streets, because preventing violence in the streets was always seen as crucial. In the same way, politicians who were for progress on civil rights were nonetheless very much against any violence by, say, the Black Panthers, or any riots in African-American neighborhoods. Preventing riots is central to the President's job, and to the President's authority.

In a real sense, you can say that JFK became a pro-civil rights president because it was eventually his only way to get peace in the streets. When he entered the White House, civil rights was not on his agenda. Whatever personal liberalism he had on civil rights issues was strictly abstract; he was not going to act on that. But then he had to deal with furious, angry segregationist mobs and with Southern politicians from his own party who refused to control those mobs. Some of his phone calls with Southern governors (which JFK taped) are desperate and frustrating. And the transcripts make it clear that, more than anything else, Kennedy does not want to see anyone hurt or killed. Eventually JFK moves to back the civil rights agenda strongly because it's the right thing to do but also because he can't get any cooperation from the other side, so he just has to beat them.

But today President Trump did none of the things American presidents do to calm things down and prevent violence. He excused provocative behavior, claiming that white supremacists were "quietly protesting" when they were actually shouting about hating Jews. Worse still, he made it clear that he favored one side, and justified their violence to the greatest degree he could. He even said that some of the white supremacists were "fine people" and not white supremacists at all. NONE of that is what you do when you want people to stop doing something. All of it was aimed at excusing what they had done and signaling them NOT to stop. Ask yourself white the alt-right knuckleheads think when they hear Trump talking like that. What they hear is, "Keep going, fellas, I'm on your side."

That is just crazy. It shows Trump's complete, depraved indifference to public safety. And it exposes his indifference, or actual hostility, to the rule of law which his office embodies. The President is meant to enforce public order, and that legal order is the foundation of the President's power. And so every previous president has put questions of order-vs.-disorder before pettier questions of right-vs.-left or party-vs.-party. Trump has no seeming regard for public order, and sees things instead in ideological or partisan terms, as Us vs. Them. (None of his predecessors ever, even once, thought of any street thugs as part of "us.")  Or, even worse, Trump owes his allegiance to chaos itself. He is a representative of disorder, and thrives on it. That is a terrifying thought.

I would usually say that this is the kind of behavior that could get someone killed. But it's too late to say that now. Someone is already dead.

(cross-posted from Dagblog. All comments welcome there, not here.)

Sunday, August 06, 2017

The Three Myths of Reverse Racism in College Admissions

Twenty-five years ago, I was sitting in the tiny teacher's room of the little parochial school where I taught, talking to a few other people about the news. The principal's administrative assistant said something about affirmative action letting unqualified black students into Harvard, and I asked her if she thought that was a real worry. She actually gasped. "Don't you?" she asked, in shocked disbelief that I could not be concerned, nay scandalized, about such a well-known social problem.

But I had just graduated from Harvard the year before, and I had never seen these unqualified African-American students that everyone was always talking about. Was Harvard secretly running another secret campus, where they hid all these unqualified minority students people kept mentioning? Or, if the people I had met in college were the supposedly unqualified minority students, why had they kept kicking my ass in chess? It made no sense.

Where I'd gone to college didn't make any difference to my co-worker, who knew what she knew. After all, everybody knew it. The Unqualified Black Harvard Student was a truth universally acknowledged, something everyone accepted as a proven fact, at least among white people who had never been to Harvard.

Now it seems the Trump-and-Sessions Justice Department is planning to investigate American colleges and universities for their alleged racist crimes against white applicants. So the Myth of the Unqualified Minority College Student is going to get official government backing, reality be damned.

This changes the game from the past decades of anti-affirmative lawsuits, which have been brought by private individuals and have traditionally had a plaintiff problem, in that the applicants suing whatever school always turn out to be marginal candidates at best. We can call this the Myth of the Wronged White Genius, a necessary companion to the Myth of the Unqualified Minority. The implication is that there are a number of brilliant white students, who would obviously be accepted immediately into whatever school they apply to except that they have been done wrong by by those Unqualified Minorities. Everyone knows about these people, too: unmistakable stars who would be open-and-shut, slam-dunk admissions cases. But somehow when it's time to sue a college these applicants, the Wronged White Superstars, never show up.

Instead, the plaintiffs in affirmative action lawsuits are people who either would, at best, squeak in at the bottom of an admitted class (as in the case of Allen Bakke) or, as in the absurd case of Abigail Fisher, a student whose own lawyers had to admit she would not get into the university of her choice even if race were not an issue. Bakke v. California did eliminate quotas; UC Davis Medical School was setting aside 16 of its 100 med-school berths for minority applicants, in a system not terribly different from set-asides schools had reserved for veterans and other favored categories. So even in Bakke's best case for his argument he would be, at the very best, in the bottom 16% of the entering class.

Now, we have only Allen Bakke's own word that he would have gotten in if not for those 16 slots. He was convinced this was true. But even so, that makes Bakke at the very best 85th out of a hundred. And Bakke would only be 85th if  every single minority applicant were less qualified than Bakke on paper, an assertion with neither facts nor probability on its side. So the heart of Bakke's own claim is that, by his own lights, he should be in the bottom tier of admitted applicants, the 90-something best applicant out of 100.

Plaintiffs like Bakke (or Grutter, or Gratz) tend to be bubble applicants. Anti-affirmative-action lawsuits, by their basic logic, are about contesting the last slot admitted to a particular program. The argument is, and has to be, that the plaintiff has been done wrong by offering any affirmative action, because the affirmative action applicants booted the plaintiff out of that last available space. So the plaintiff is by definition someone whose best realistic hope was just barely to squeeze under the wire.

That means even the best anti-affirmative-action plaintiff is someone who might or might not get into a school or program any given year, depending on who else applied. The 96th-best applicant one year might be the 106th-best next year, because every year a different batch of people apply. And we should add that rankings like this don't work out transparently, so that one admissions officer might rank an applicant the 95th best and another admissions officer, equally qualified and equally well-intentioned, might rank the same person 105th.

The argument isn't just "If not for affirmative action, I would have gotten into medical school." It is, and has to be, "If not for affirmative action I would have just barely made it into medical school." That's not the world's most rousing chorus.

Lately, anti-affirmative action groups have tried to resort to finding Asian-American plaintiffs, as in this recent piece from the New York Times. Of course, the NYT piece leads off with an apparently very qualified student who is not actually suing Harvard, as the NYT only admits near the bottom of its story. The Times also mysteriously fails to mention that this is not the first time Harvard has been sued over accusations that it should admit more Asian-Americans; we actually know a good deal about Harvard's admissions processes because of discovery from that previous lawsuit. Oh, and Harvard won that earlier lawsuit about this issue, so that might have been something the Times story mentioned, too.

But in any case, the Asian-American-plaintiff gambit doesn't really advance the case that affirmative action is discrimination against whites. The heart of that argument is that colleges are allegedly depressing the number of Asian-American students, and that someplace like Harvard should be 40% Asian-American instead of a mere 20 to 25%. That would lead to fewer white students, not more. This argument is basically that so-called liberal schools are already discriminating in favor of white applicants.

Now, the new Department of Justice is going to go for the gusto and claim anti-white discrimination. This may get around the problem of white plaintiffs with mediocre test scores by making the federal government itself the plaintiff and rendering all of the issues more abstract. Instead of arguing in court for a real but not-overwhelmingly-qualified white person, they can make the case about the imaginary wrongs done to all white people and bring the strictly imaginary Wronged White Geniuses, who would be academic stars if not for those pesky minorities, back into the conversation.

The strongest anti-affirmative-action cases have been against public universities, which are arms of the government. The case that an outside party can dictate the policies of a private university, like Harvard or Yale or your local small liberal-arts college, is a lot murkier. Also, anti-affirmative-action suits have generally, although not always, done better in cases of law or medical school applications instead of undergraduate admissions. This is because professional schools look at a smaller and more quantifiable set of qualifications and leave out murky questions like "character" and "promise."

That brings us to the third big anti-affirmative action myth, the Myth of the Clear Ranked Order. This is the assumption that every stack of college or grad-school applications can clearly be sorted in order of quality, from #1 to #103 to #19,346. But it never works like that. No healthy college admissions pool is going to have an applicant who is clearly and unambiguously better than everyone else in the pool. (That would be a sign that your school is getting an application from a student it usually couldn't land, so you're probably having recruiting trouble already.) And there's never, ever a clear line demarcating the last applicant who gets in from the first applicant who doesn't. That's always a judgment call, and another committee another year might swap around who just made it and who just missed.

The more accurate way to think about applicants is in groupings. There's a group you'd be very happy to have, another group that will clearly get in. There's also a group, which you'd always like to be small, of people who have no hope at all of getting in, and a group of people who are okay but who you are clearly not going to find the space for considering who else is in the pool. But these groupings will never coincide perfectly with the number of spaces available. If you have 100 spaces, or 2000 spaces, or 4000 spaces, you are never going to get exactly 100 or 2000 or 4000 applications from people you obviously want to admit and then a sharp drop off to much less qualified people. There will always be a batch of people who might have made it in and might not have.

This is most obviously true when schools are looking like character, leadership, originality, and so forth, and when they are judging things like extracurricular activities, letters or recommendation, and personal essays. Those things have to be judged qualitatively. Are all those clubs the student is in just resume-padding, or is there something real and interesting going on? In the school orchestra because you think colleges would like that, or because you're really interested in music? That has to be a judgment call, but every admissions office also has to make it.

But this is also true of academic qualifications. If selective colleges reduced everything to a question of GPAs and scores, they would not be happy with who they got. They would believe that they'd let in some people who weren't actually as smart as many of the people they turned away. (There are colleges, of course, where it is just about grades and scores, but those are schools who aren't finding enough students they want at all; they are simply screening out people who are likely to flunk, and taking everyone else.) Take it from a white kid, with no legacy or athletic preference, who got into Harvard without straight As. Harvard took me over kids with better GPAs, including my own valedictorian and class president, for essentially academic reasons. Now, they may have been mistaken, and you don't have to agree with them. But other admissions offices made a similar mistake about me that year, and there's no sign of any nefarious motive. They just thought I would be a good college student.

This is all to say that suing a school like Harvard over alleged discrimination against white kids will get murky very fast.  It's not just grades and scores. It's also the classes the students took, the rigor of the school they go to, what their letters of recommendation say, the quality of their essays. You are not going to find that mythical Clear Ranked List running from 1 to 1600 or 1 to 2000. It just does not exist. Now, Harvard and schools like this certainly exploit the murkiness of this process to do what they want with admissions, including giving advantages to athletes and legacies, and even giving special preferences to academically undistinguished children of major donors. (Hint: rhymes with "Mar-ed Bushner.") But they also use that messy, murky process in pursuit of intellectual and academic excellence.

Now, my high school had a long drought during which we didn't get any applicants into Harvard at all, for something like 25 years, which really stings when you're a school in Massachusetts. It wasn't just my year's valedictorian that they turned down. They turned down years and years of our valedictorians. (I'm happy to say that my old high school now places some students at the Big H every year or two.) So, the year before I got in, some people decided that the only hope was ... affirmative action. A lot of hopes got pinned on one of the school's few (at that time) African-American students, someone whom I will call "Edward." Edward wasn't going to be valedictorian or salutatorian, but he was in the Honors Society, and ... you see where this was going. Some teachers and administrators, and some students, reasoned that although our white A students couldn't get in, a black A- student would. It was the Myth of the Underqualifed Minority, put into practice with the best intentions in the world. Everyone involved genuinely liked him, thought he was smart, and wished him the best.

Some people believed, as a totally self-evident fact, that Edward's race would make him a lock for admission. Once, when he was fretting about whether or not he'd get in, I heard his best friend tell him, in a get-real-already tone, "Edward. You're black." That simple. (The assumption baked into the Myth of the Unqualified Minority, of course, is that Harvard has to take A- students as the only way to reach its affirmative action goals. I mean, how many black A students could there be in America? No one at my school would have accepted that premise had it been presented to them explicitly. But that's what the Myth of the Unqualified Minority implies.)

Edward did not get in, of course. He went to another very good school, but he may never have been in serious competition for Harvard. But because so many people around him, including adults, had bought into the Myth of the Underqualified Minority and sold it to him, Edward was set up both for deep disappointment and, worse still, for guilt. After he got rejected, I literally heard him say, "I feel like I let everybody down."

You didn't let us down, Edward. It was the other way around.

cross-posted from Dagblog. All comments welcome there, not here.

Thursday, July 13, 2017

Presidential Pardons and Obstruction of Justice

One thing is finally clear about the Russia investigation, thanks to Donald Trump, Jr.'s decision to tweet his incriminating e-mails: someone is going to prison over this. All three principals who took that meeting looking for Russian oppo research, Manafort, Kushner, and Trump, Jr., are likely in serious criminal jeopardy. Other figures (like Flynn, Sessions, and peripheral creeps Eric Prince, Carter Page, and Roger Stone) may be in danger of prison as well. But the Trump Tower Three certainly are.

The best advice any lawyer could give Donald Trump, Jr. is to flip, to make a deal with the prosecutors (immediately, right now) and agree to testify against someone higher up. But that is never going to happen, because it would mean turning on his own father, Donald Senior. Trump Junior is clearly unequipped for that. It would be hard for anyone to turn evidence on your mother or father, and Donald Junior isn't able to stand up to his father about much more trivial things. Not going to happen.

On the other hand, Donald Senior is not about to see his own son, or his favorite son-in-law Kushner, go to federal prison. So at some point President Trump may find himself overwhelmingly tempted to use his presidential pardon power. Pardoning people for crimes that helped put Trump himself in office would, under any of the usual American standards, be political suicide, but that does not mean Trump won't do it. He can't resist the temptation to tweet nasty things at cable TV personalities; he has nothing like the willpower or integrity to stay out of a Trump Junior prosecution. Trump does not believe the rules apply to him, which is what makes him so dangerous to the republic as a leader, but he also genuinely does not understand how rules, laws, or the Constitution actually work.

So Trump may trigger a genuine Constitutional crisis, triggering an unresolved problem in the Constitution itself: the danger that the President will use his pardon authority to carry out crimes against the Constitutional order, giving his accomplices impunity. Yes, the President would still be subject to impeachment and removal, but there would be no remedy short of that.

My (admittedly quick) glance at The Federalist (#69 and #74), doesn't help much. In #69, Hamilton concerns himself with plots for a military seizure of power, which is no longer necessary in an executive that commands a powerful standing army and security establishment. In #74, Hamilton is more concerned with Shays's Rebellion, which had after all helped prompt the Constitutional Convention, and focuses on the President's authority to pardon rebels as a tool for restoring domestic peace. (Hamilton is responding to the argument that the President should need at least one house of Congress to confirm pardons, and points to the Shays's Rebellion pardons as evidence for the benefits of the power to assure a speedy pardon.) You can say that the Framers did not quite plan for this situation, or perhaps more accurately you can say that the Framers gave Congress impeachment power to deal with it. But only the impeachment power.

So what happens if Trump decides to pardon his own confederates who are facing criminal charges for their work on his campaign? What if he pardons Kushner? Or what if he pardons Flynn and Manafort (both of whom are more likely to turn cooperating witness, because they're not related to Trump and might be looking at serious prison time)? Does he have the legal power to do that? The most likely answer is that he has the power, because it's one of the powers of his office, but using it would be a crime.

How can this be? Because doing something that is otherwise perfectly legal can become a crime when it is done to obstruct justice. Trump has the legal right to fire the FBI Director; firing the FBI Director to stop an investigation into his own advisers is obstruction of justice. Trump has the right to pardon federal criminals; pardoning one of his own flunkies to keep the flunky from testifying against Trump is criminal obstruction.

Put it this way: it is legal for me to buy a house. It is legal for me to pay more than asking price for a house (in fact, in some housing markets you have to). And it is legal to buy the District Attorney's house if he's selling it; public servants have to be allowed to sell their homes, too.

BUT, if I am under investigation by the District Attorneys office and I then offer to buy his house for, say, $100,000 more than the asking price (this is Cleveland; in San Francisco say a million over asking price) then it's attempted bribery and obstruction. Everything I did was legal, but I did it in order to obtain an illegal result. That is how the pardon power works, too. Chris Christie has the legal power to pardon criminal offenses in New Jersey; if he pardoned all of his own aides involved in Bridgegate, that's a new crime, because he would obviously be obstructing justice.

So if Donald Trump tries to squelch the Russia investigation by firing more investigators, or by pardoning his personal aides who are under investigation, that is obstruction and pretty clearly illegal. But the only remedy would be for Congress to impeach him.

cross-posted from, and all comments welcome at, Dagblog