The Legacy of Anita Hill, Then and Now

Published on The Nation (http://www.thenation.com)

 

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Patricia J. Williams | October 5, 2011

Sad fact: there are few women of my generation who don’t have what is known as our “Anita story.” Mine occurred in 1980. I was five years out of law school and had decided to shift my career from practice to teaching. I was walking down a long hallway at the Association of American Law Schools meat market for new hires. There were two men behind me who were joking about the excellent shape of my legs and the unusually well-defined musculature of my lower quadrants. (Did I mention that it was a very, very long hallway?) At the end of that eternal passage was my appointed interview room. I escaped into it, only to be followed by the two. They, as it turned out, were doing the hiring.

Life was like that sometimes, I thought. And so I went through all the proper motions of expressing how much my fine ideas could contribute to their faculty, pretending that nothing had happened.

I didn’t stop pretending nothing had happened until 1991, when Anita Hill testified to the Senate Judiciary Committee about the unwanted office approaches of her boss, then-chair of the Equal Employment Opportunity Commission Clarence Thomas. I remember how still and dignified she was at the center of that howling hurricane of mockery, meanness and machismo. It was like some psychedelic cross between The Crucible and The Wizard of Oz, with its swirling fantasies of witchcraft, conspiracy theories and mad satyric orgies. I remember everyone from Orrin Hatch to Rush Limbaugh dismissing anything that “might have happened” as “bedroom politics,” even though Hill’s allegations centered on misbehavior in the boardroom, not the bedroom, and even though those allegations implicated precisely Thomas’s public ethics as the chief enforcement officer of sexual harassment laws. “He said, she said” entered the national vocabulary. So did “They just don’t get it.”

Anita Hill graduated from Yale Law School in 1980. The percentage of women in law schools was 38 percent—in contrast to the approximately
50 percent it is today. Back in those times there were so few women among the legal professoriate that many law schools didn’t even have women’s bathrooms. And as for women of color—there were only five or six of us teaching in the entire United States.

If the percentages of women in all professions improved over the next decade or so, the ability to speak up and speak out was often constrained by fear of losing status, ruining one’s career. It was the shockingly abysmal treatment of Anita Hill by the United States Senate that changed all that. Women were mobilized in a way unseen since the time of the suffragettes. EMILY’s List took off, as well as hundreds of networks for women’s political empowerment. Twenty years later, if some men’s behavior has not changed as much as one might have hoped, the collective women’s response has undergone seismic change. It’s not “nothing” anymore.

Anita Hill remains an icon to whom subsequent generations are rightfully indebted. At the same time, she has not remained trapped by her own symbolism or frozen in time. It is sometimes forgotten that she is a respected scholar of contract jurisprudence, commercial law and education policy. She is a prolific author, publishing numerous law review articles, essays, editorials and books. Today, Hill is a professor of social policy, law and women’s studies at Brandeis University. Much of her most recent research has been on the housing market, and her most recent book, published this month, is Reimagining Equality: Stories of Gender, Race, and Finding Home.

It is ironic that the full substance of Hill’s remarkable intellectual presence remains so overshadowed by those fleeting, if powerful, moments of her Senate testimony. If the larger accomplishments of her life aren’t quite as iconic as that confrontation with Clarence Thomas, they nonetheless merit attention by feminists and scholars alike. To begin with, Hill is a remarkably elegant and accessible writer. For those who wish to apprehend the gravitas of her intelligence and dignity, Reimagining Equality would be a good place to start.

Some will remember that Hill was introduced at the 1991 hearings in the company of a large family—she is the youngest of thirteen children—but very little attention was paid to the significance of that protective wall of humanity. It helps, through this book, to have met Mollie Elliot, Hill’s determined maternal great-grandmother, born into slavery in 1847. It is instructive to read about how her grandfather fled Arkansas in 1914, narrowly escaping an old-fashioned, low-tech lynching. It is inspiring to know that her mother, Erma Hill, would have been 100 years old on October 16, and that “each day I honor her by working to live up to her dream that I will find a more just America than the one she lived in and that, as she did, I will leave it better than I found it.”

Despite this, Reimagining Equality is not principally a memoir. The arc of “home” ranges from her ancestors’ efforts at making their Arkansas farm a secure geographic space to her own settling in Massachusetts as the homesteading of an identity even more than of literal place alone. This trajectory is accompanied by a brilliantly lucid detailing of the apportionment of American real estate—and along with it, the American dream—along the lines of race, gender and class. While the most memorable heroines of this book are women who struggle to make a safe and nurturing domestic space of their own, the underlying narrative antagonism is rooted in a universal story that affects us all—of corrupt, downwardly spiraling land and banking practices that have disproportionately targeted women, minorities and the poor. From the 1800s to today, Hill meticulously tracks notions of communities split by the government’s investment in racialized redlining of neighborhoods; of encompassing traditions of maternity riven by neonatalist notions about which mothers should be having more or fewer babies; and of “ghetto lending practices” that have poisonously metastasized into today’s bundled subprime mortgage crisis.

Reimagining Equality is an important achievement. Hill manages to humanize and reinvigorate the American promise of security in one’s pride of home—even against the backdrop of harder-edged, more militaristically inflected calls to “homeland security.” The kinder, gentler complications that Hill brings to bear in teasing out this contrast are an eloquent continuation of her giving voice to the invisible, the voiceless, the undocumented, the hopeless and, yes, the all too literally homeless.

In 1991, Anita Hill made history by the simple yet terrifically courageous act of standing up to an arrogantly gender-biased political culture, as well as that part of “the public [who] rejected the testimony of my life experience.” Twenty years later, let us make sure that her written legacy is no less remembered than Thomas’s radically right-leaning Supreme Court opinions. Let us honor her by fully recognizing the liveliness of her ongoing cultural engagement: the excavation of a resonant equality that shimmers at the heart of the American dream, a light that demands its place as a beacon to all Americans, and beyond.

 

Reality Wars

Slouching Towards Faux

Patricia J. Williams | July 13, 2011

Shortly after Dominique Strauss-Kahn was indicted on charges of attempted rape, his friend Bernard-Henri Lévy wrote a defense of him that, among other wrongheaded assertions, denounced the American justice system as one where “anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.” What Lévy actually described is a presumption of guilt, not the American presumption of innocence. In the United States, the prosecutor—whose responsibility extends not merely to the accuser but to the general interests of justice—has the burden of proof. The accused doesn’t have to prove or disprove anything; indeed, the accused doesn’t have to say a word, as per our Fifth Amendment.

Lévy’s offhand remark came closer to describing the global media than our courts. Journalistic values like accuracy, accountability and respect for human dignity have fallen by the wayside as entertainment and titillation have prevailed. The inescapable rush to judgment that pours forth in hi-def in seemingly every public space—from elevators to taxicabs to airports to bank lobbies—is a kind of civic poison.

It’s because of the media that we find our democratic processes foundering in increasingly debased public discussion: Strauss-Kahn’s accuser is driven to suing the New York Post for its unsubstantiated claims that she is a prostitute. Pundits mock the very principled prosecutor, Cyrus Vance Jr., as a sucker for having dutifully and appropriately revealed potentially exculpatory information. Radio jocks spend hours dumping on those who believe the accuser’s history of lying has anything to do with Strauss-Kahn’s “obvious” guilt. When HLN opinionator Nancy Grace’s howling impersonation of blind Fury wins her more respect than the deliberation of an actual jury, as in the Casey Anthony murder trial, we worry for the safety of judges, defendants, accusers and jurors. We forget that the case against Anthony was circumstantial; as much as she lied to law enforcement—a crime for which she has been convicted—her child’s body was so decomposed there was no way to prove either how she died or who did it.

We are swimming in a gloop of scuttlebutt and tittle-tattle, driven by “unnamed sources” who always represent themselves as “close to the investigation” yet who speak only “on condition of anonymity.” Those deceptively anodyne descriptors have moved us down an ethical spectrum from transparent reporting to stories that are “underwritten,” bribed, extorted or outright lies.

Consider, for example, the insidious model of Rupert Murdoch’s media empire. Fox News Channel is a subsidiary of the Fox Entertainment Group, which in turn is a subsidiary of Murdoch’s conglomerate News Corporation. It’s a perfect circle, a consciously structured looping between news and entertainment, a business model premised on positing the amorality of “anything goes” as the civic equivalent of “freedom of the press.”

In Britain, Murdoch’s devouring influence is finally being challenged with revelations that his employees compromised a murder investigation by hacking into the voicemail of the victim and erasing her last messages; tapped the phones of politicians with whom Murdoch took issue; and paid police officers and government officials “in the six figures” for information about ongoing investigations. It is perhaps only in America that any enterprise of Murdoch’s labeled “fair and balanced” is still received as anything but laughable. We know, too, that paying for information has become broad practice among American tabloids like the Post; but we seem inured to the concern that tabloid sensibility is not just unreliable but corrupting.

The Anglo-American justice system constructs criminal cases as singular—as particular to named individuals and specifically delineated indictments. Social narratives, norms and values can never be entirely absent, but the system attempts to regulate their influence through mechanisms like the rules of evidence (barring rumor and unsubstantiated opinion) and standards of proof (like “reasonable person” and “reasonable doubt”). To keep from destroying reputations unnecessarily, we adhere to a presumption of innocence. Police are supposed to keep certain aspects of investigations closed until there is at least “probable cause.” Similarly, both sides screen and filter evidence for probity. In some cases, judges have the discretion to sequester juries from outside or inflammatory input. And we trust lawyers, prosecutors and judges to keep confidences as a matter of professional ethics.

But none of these structural buffers can operate as they should if a Murdoch-like empire runs the world, carelessly spitting out the home addresses of those it wishes to skewer, hacking into the phones of unlucky witnesses, pursuing stories into sealed records, private homes and bathroom stalls. Our democracy depends on a free press to discuss the issues of the day without interference from government. What that noble ideal does not account for is the existence of media monopolies able to exercise national and international control over civic spaces—even to the degree that their power vies with that of governments. Their careless, nonempirical, even fictionalized narratives invade privacy, ruin careers, mythologize racial stereotypes, exploit class divisions, exacerbate ideological discord, unleash mobs, wreak vengeance, assemble armies and annihilate the common good.

Today’s media chatter is beholden not to truth but rather to profit, fear and fantasy. What becomes of the duty to listen that is at the heart of free expression? What becomes of the shared mulling of ideas that allows us to think of one another as equals who exist in society with one another? What becomes of the measured thought exchange that is the essence of due process?

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Source URL: http://www.thenation.com/article/162003/slouching-towards-faux

the transition….

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Drowning Our Sorrows, Lifting a Glass

Diary of a Mad Law Professor

By Patricia J. Williams

This article appeared in the February 2, 2009 edition of The Nation.

January 15, 2009

 

A friend recently asked me if I thought all these constituencies were celebrating the same things. Did I think this coronation-scaled civic bliss was mostly about Obama’s being our first African-American president? Or was it because his win convinces us that some “post-race” American Dream has been ultimately affirmed? That he’s going to improve the economy? Repair global relations? 

The question made me reflect for a moment. Yes, the symbolism of his race is significant, although it certainly cannot be equated with the end of racism. And surely we’re uplifted by Obama’s being so genuinely likable and smart. No doubt the euphoria is also unusually great because his campaign drew constituents into political engagement–the phone banks, the door-to-door canvassing, the social networks, mass e-mails and text messages. As a result, people feel personal, even possessive, satisfaction about his victory.

But at least as important as all that, I think, is a kind of Wizard of Oz-ish fizzy relief about George W. Bush’s exit–as in Ding Dong, the Wicked Warlock is melting into a nice little past-tense puddle. There’s a giddily celebratory sweeping out of the indubitably, absolutely, completely, very worst president in our history. So many bad things have happened in the past eight years that it’s hard to keep them all in one’s head at one time. Another friend says he hung a list in the hallway of his apartment building, tabulating all the really awful things he blames Bush for. Other neighbors added to it. At first, he said, he was going to use it to host an inauguration party at which people would knock back a shot for each phenomenally inept executive flub. But then, he says, “I realized we’d all be drunk for a year.”

In any event, it’s a great list; the sheer length of it reminds one how dizzyingly mismanaged the executive office has been. Here are a few of the highlights, to get you in the mood of groveling gratitude for the new course we are about to embark upon:

Pax Americana and the aspiration to consolidate a global American empire. The Bush Doctrine of pre-emptive warfare. Hurricane Katrina and “heckuva job, Brownie.” The explicit rejection of the Geneva Conventions. John Yoo’s and Alberto Gonzales’s redefinition of torture. Paul Wolfowitz as head of the World Bank subsidizing his girlfriend. Ahmad Chalabi. The FCC allowing greater consolidation of media. The outing of Valerie Plame. The manipulations asserting that there were weapons of mass destruction in Iraq. The addled handling of Harriet Miers’s nomination to the Supreme Court. Opposition to stem cell research. The looting of the National Museum of Iraq, and the burning of Baghdad’s National Library. Donald Rumsfeld’s remarks that rioting in Iraq was the sign of a liberated people and that Iraq was no more violent than some American cities. Stacking the Civil Rights Commission with conservatives, like Abigail Thernstrom, who want to overturn sections of the Voting Rights Act. The shooting death of Italian intelligence officer Nicola Calipari and injury of journalist Giuliana Sgrena at the hands of American soldiers. The appointment of ultraconservatives John Roberts and Samuel Alito to the Supreme Court. Cheney filling his friend with birdshot. The USA Patriot Act. Doing away with habeas corpus. The National Security Agency’s warrantless wiretapping of citizens’ phone calls and e-mails. The notion of an unchecked, unaccountable “unitary executive.” The failure to keep official numbers of dead Iraqi civilians. The forbidding of photographs, or even visibility, of American military dead. The multilayered, high-level lying about how football hero Pat Tillman was killed in Afghanistan. Halliburton taking kickbacks from Kuwaiti oil suppliers. Paul Bremer dispensing billions of dollars for contracts in Iraq, which disappeared, never to be accounted for or recovered. Blackwater mercenaries accused of murdering Iraqi civilians. “Military tribunals” established outside the military justice system, with no due process or right to an attorney or to cross-examination or even to know the charges. The silly disparagement of the national anthem sung in Spanish. Bush talking directly to God. Abu Ghraib. Profiling Arab, Muslim and Latino immigrants. Guantánamo. Extraordinary rendition. Lousy veterans’ benefits. Lousy veterans’ hospitals. The failure to provide soldiers with reinforced armored vehicles (“You go to war with the army you have,” explained Rumsfeld). The refusal to recognize post-traumatic stress disorder as a legitimate condition. Monica Goodling’s political litmus tests in hiring for nonpolitical posts in the Justice Department. Expelling Helen Thomas from the White House press room and putting in fake reporter “Jeff Gannon” to throw adoring softball questions. John Ashcroft’s draping of bare-breasted sculptures in the Justice Department. His subpoenas of more than 2,500 records of abortions performed at public hospitals. Gonzales firing US Attorneys around the country for political reasons. Oh, and did I forget the economy?

This is only a short list–it doesn’t even touch on the things we were spared but that might have happened: Bush’s (failed) nomination of Bernard Kerik to head Homeland Security; the privatization of Social Security; the elevation of Alberto Gonzales and Robert Bork to the Supreme Court; a constitutional amendment banning gay marriage.

“Honestly,” says my friend, “who needs booze? Just reading the list, you could get drunk and have a killer hangover.” I do suppose we’ll all sober up after inauguration day. But I’m going to sneak a look at the list every now and then, just to make sure I don’t take anything for granted. However challenging the future we face, an Obama administration represents real change.

Uncooperative Housing

by Patricia J. Williams

Released: 14 Nov 2008

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This year is the fortieth anniversary of the Fair Housing Act. As we celebrate Barack Obama’s election and the extraordinary social transformations that the civil rights movement brought us, we should also review with fresh eyes some of the divisions that remain. One of the thorniest of these is housing segregation. There is no doubt that many suburbs are less monolithically white than they used to be, and that many neighborhoods in the Deep South have integrated at faster rates than in the urban North. Overall, however, national disparities in public schools, medical care and policing all flow from the fact that residential segregation by race remains a pervasive feature of American life — and that it exists in the United States at a higher rate than in just about any other industrialized country. This, in turn, allows for — and even rationalizes — separate and very unequal public policies exacerbating the social barriers between white citizens and those in communities of color.

Geographic isolation enables a vicious circle of human devaluation: Public transportation is less reliable and sometimes nonexistent in many neighborhoods marked as black; this makes it harder to be punctual in the workplace. More schools are built next to or on top of industrial waste sites in communities of color, contributing to more public health crises like asthma and lead poisoning. And banking practices are often wildly different: It is much harder to obtain a prime (rather than a subprime) mortgage in a black neighborhood than in a white one with similar income levels.

Take New York City — at once the most cosmopolitan and mixed up of metropolises. When I voted on November 4, I saw an exhilarating civic festival, with lines of good people wrapped around the block. But I spotted only one other black person in the entire crowd. Despite its generally left-leaning politics, Manhattan is one of the most residentially segregated places in the country — not just neighborhood by neighborhood but block by block and building by building. Take co-ops: Unlike condominiums, rentals or straight sales (which have only a right of first refusal), co-ops can turn applicants down without ever disclosing a reason and are by their structure immune to fair-housing testers. For years, organizations like the Anti-Discrimination Center in New York have been trying to get the City Council to hold hearings on a bill that would require such disclosure. Although almost two-thirds of cooperative apartment owners support it, the bill languished until just months ago, when the City Council advanced a new version requiring zero disclosure and shifting rule-making authority from the City Council alone to a process of “consultation with…the cooperative apartment industry.”

It’s a tad contradictory: on the one hand, New York City has one of the more comprehensive antidiscrimination laws around, in addition to federal and state laws prohibiting discrimination based on race, color, national origin, religion, sex, marital status or disability. There is also a city law covering source of income, occupation, sexual orientation, marital status, alienage, citizenship status or “persons with whom children are, may be or would be residing.” On the other hand, the institutionalized obstacles presented by the real estate industry keep us as far apart as ever. One of the reasons “occupation” is included in the above list is to prevent not just the obvious but also the kind of scenario whereby a landlord uses an applicant’s job as a cover, as in: It’s not that she’s black or a woman. It’s that she’s a lawyer.

From 2006 to 2007, the number of mortgages to black borrowers in New York fell by 44 percent and to Hispanics by 34 percent. The numbers remained more or less the same for white and Asian borrowers. One should not assume that this decline was because black and Hispanic borrowers didn’t deserve loans. Here’s the deeper story: Black and Hispanic populations tend to be concentrated in neighborhoods where they are more likely to be served only by subprime lenders — many of which have gone out of business in the past few years. In addition, when housing prices fall, they tend to fall first in minority neighborhoods; hence, more people in those neighborhoods have been hurt by the value of their homes dropping below the amount they owe.

Then there is the matter of straightforward discriminatory lending practices, like redlining, by prime and subprime lenders alike. And as I mentioned in my previous column, one of the least reported aspects of the Bush administration’s horror show was a federal lawsuit that blocked New York State from investigating discriminatory mortgage lending. Even in its final days, the administration seems determined to crush the possibility of regulation in any arena whatsoever. The original emergency bailout provisions, for example, gave the treasury secretary broad powers to suspend public laws — including the Fair Housing Act.

In view of the entrenched global crises facing the new president, reversing the fallout from some of this must, like the election, begin with us. We often fight the good fight as though it exists on a battlefield far, far away rather than in our own backyards. On the dawn of our spanking-new era of optimism, a good starting point might be to ask ourselves, How financially integrated are our neighborhoods? Do we have any black or Latino neighbors? Does our building have wheelchair access? Have we thought about the “steering” tendencies of realtors that might allow one’s building to be labeled “singles-friendly” — does that mean no children or no elderly? Does it include veterans? Does “family-friendly” include openly gay families? Is our notion of religious diversity limited to Judeo-Christian? Does one’s “international” neighborhood include Muslims or Hindi speakers or Mexican immigrants?

As an old civil rights maxim puts it: “In the South you can come as close as you like, but know your place. In the North, you can rise as high as you like, but just don’t come near.” It’s time we Americans challenged the limits of our assigned “place” in society as well as the biases that keep us from drawing near enough to know how much of a collective vision we truly share.

Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column “Diary of a Mad Law Professor.” Her books includeThe Rooster’s Egg (1995) and Seeing a Color-Blind Future: The Paradox of Race (1997).

Copyright © 2008 The Nation – distributed by Agence Global

Dialogue with Matt Bai

DAILY INTEL

Matt Bai and Patricia J. Williams Argue Over Religion in Government and Homeowners’ Role in the Financial Crisis

published on New York Magazine’s website

10/30/08 at 2:00 PM

 

4Comments

Photo: Getty Images

Every day (or close to it) until November 4, a series of writers and thinkers will discuss the election over instant messenger for nymag.com. Today, The New York Times Magazine‘s Matt Bai and The Nation columnist Patricia J. Williams argue over what an Obama presidency might mean for the judiciary and abortion, the current role of religion in government, and whether homeowners aren’t partly to blame for the financial crisis.

M.B.: I read that very good piece in our paper about the judiciary under Bush. Something you’ve watched closely, no?

P.J.W.: Yes, the composition of the judiciary is one of the things that will be most important and transformational. And the article started with one of the most interesting ways in which the judiciary’s thoughts will be important: It’s not just about abortion, but about how personhood is created. If a full, righted human being exists at the moment of conception, this has all kinds of implications that pit a woman’s body against that of her “unborn child” even if that designation refers to blastocytes…

M.B.: So do you expect a President Obama, should he be elected, to apply a pro-choice litmus test? What kind of judges are we going to see?

P.J.W.: No, I don’t expect Obama to do a litmus test. He’s much too complicated a legal thinker for that. But I do think that he’ll reject flatly theological designations in this debate. He’ll appoint people who have a more traditional regard and respect for the range, the plurality of ways Americans think about the limits of bodily integrity.

M.B.: I suspect most Americans would appreciate that. Even quite religious Americans I talk to seem to have grown weary of a theological brand of government. Liberals assume that the more religious you are, the less you want to see a separation of church and state, but my sense is that’s too broad a generalization.

P.J.W.: People have long referred to this as a woman’s “choice,” but I think in recent years there’s been some recognition that it’s deeper and more complicated than that. And aside from abortion, the specter of parents choosing “designer babies,” now that that technology is proceeding apace — this has brought a new level to the complexity.

M.B.: Right — technology is changing all of these debates, or should. It’s one of the ways in which boomer leaders seem to be somewhat retro. To hear them talk, nothing around these issues has changed for 30 years, but of course everything about them has, and in a very short time.

P.J.W.: Bioethicists and disability-rights activists have also entered this debate: The potential ability to predict risk for certain conditions from DNA — long before pregnancy — this has given new dimension to the prospect of a Gattaca-like future. And this removes the obsessive focus from abortion — it’s a revisiting of a very old problem — a kind of eugenic impulse on the one hand, in tension with a free-market ideology that would make self-improvement a matter of the market. Who can afford designer genetic intervention, etc. Traditional religion gives way to a reconsideration of foundational moral and ethical precepts.

M.B.: I guess that’s the battlefield for the next 100 years. Personally, I don’t feel like I could have improved on my kids. But they’re very small. I may feel differently when my son starts playing baseball.

This issue of judicial appointments is interesting to me, because Obama has staked his vision on this more bipartisan — or post-partisan — approach. The main question is how he lives up to this at, say, the cabinet level and in his congressional relations, but the judiciary is another area where the cultural divide has really grown extreme and contentious.

P.J.W.: One of the things that troubles me most about Bush’s appointments is not just that they’ve been arch-libertarians, but that they have been inconsistent ideologues. They are libertarian free-marketeers for some things, but simultaneously allow monopolistic and oligarchic accumulations of power that subvert optimal market operation. So they seem more partisan than judicious. Activists for particular wealth interests rather than the anti-activists they tell us they are. This is particularly true when it comes to consumer rights, women’s rights, and labor rights; but also with regard to disability rights, protection of health through regulation of pharmaceutical companies. And lord knows, in permitting the ungodly consolidation of our media outlets.

M.B.: Well, but that can be said of the entire hyper-conservative ideology, right? There’s very little consistency in any extreme ideology, right or left. The more extreme you get, the harder it becomes not to undermine your own principles.

P.J.W.: I guess you could say that inconsistency is there. But I have evangelical and fundamentalist friends who adhere to a consistent set of principles even when it leads them to conclusions that are personally uncomfortable. They’re rigidly consistent, and thoughtfully so — I may not agree, and they may not even like what their moral frame guides them to do, but they don’t do what’s convenient or self-interested. And that’s the difference.

M.B.: Yeah, I get that, but evangelism isn’t necessarily a political extreme. It can be just a religious framework (though we sometimes forget that now). I mean, the inconsistency of the arch-libertarians is, to me, no more surprising than the liberals I know who live by a code of complete tolerance but who easily employ the word “redneck” and would happily tell rural Americans how they should live. Ideologies in the extreme all end up in the same basic place. This is why fascism and communism are essentially indistinguishable at the margins.

P.J.W.: But most evangelism and fundamentalist Protestant movements in the U.S. purportedly adhere to a concept of the Inerrancy of the Word. That’s all I’m referring to. And many of the judges appointed in the last eight years say they adhere to a parallel kind of strict construction of the constitution.

M.B.: Agreed. I guess I’m just saying, as one who didn’t live through the sixties, that from my vantage point and I think to many in my generation, there’s “the Word” on one side and the antiwar, anti-establishment dogma on the other. I think this is what Obama has been gingerly trying to get at for the last two years — that rigid ideologies left over from the last century aren’t up to the complexities of this one. Which is more or less where you started out.

P.J.W.: I hope you’re right about the generational divide. Though Sarah Palin is younger than Obama, isn’t she? A lot of the power of evangelical megachurches is recent; its expansion is based on a throwback but not directly tied to the Vietnam era either.

M.B.: I think the megachurches are largely about community and are largely constructive, but that’s a debate for another time, I guess … as is Sarah Palin, because I can’t even get started on my annoyance with her anti-elitism shtick…

If Obama wins, what will be the role for legal scholars on the left like you?

P.J.W.: If Obama wins … hmmm. I don’t know that our role will change. I’m basically doing the same interrogations that I did when Clinton or Carter was president. And what will not change with an Obama presidency — despite the huge global sigh of relief — is the on-the-ground mess that’s been growing for decades. Just in the area of race: It’s very significant at the symbolic level to have an African-American president, but that doesn’t erase the nightmare of our incarceration rate — and about 90 percent, is it? (or more?) are AA or Latino.

M.B.: Yes, this is the fear of a lot of African-American leaders I’ve talked to — that Obama makes it harder, in some ways, to raise these issues. Al Sharpton is very thoughtful about this. He told me the success of politicians like Obama makes the role of civil-rights leaders even more important, not less so.

P.J.W.: Or that despite the dizzying ponzi schemes that are at the root of our economic collapse, it’s being figured in some sectors as a problem of lending to too many African-Americans — were that there were enough to make that kind of difference!

M.B.: Yeah, I don’t think African-Americans are a very fair scapegoat there. Though I do think there is something to the larger idea that the housing collapse was only partly about greed and partly, too, about people willing to take unreasonable risks to attain something close to the American dream that was handed down to them.

P.J.W.: I did a column recently detailing this, but just before Eliot Spitzer went down in flames, he did a very eye-opening piece about how the Bush administration blocked the state of New York’s attempt to prosecute discriminatory lenders and credit practices. In fact, the Bush administration prohibited states from enforcing their consumer-protection laws against any bank that was not strictly within state. So I don’t think this is mostly about excesses of the American dream. This was a complete blocking of ordinary and long-standing consumer-protection laws. The administration’s stance was so extreme that it was protested by all 50 states’ attorneys general and all 50 states’ banking directors.

And that was a very bipartisan group, as you can imagine.

M.B.: Yes, I saw that piece, and it was important. But I do think there is some distinction to be made between consumers who were swindled in fine print and those who simply took the best deal a bank would give them in order to buy a house they couldn’t afford. It’s a fairness issue, because an awful lot of Americans made wise choices that sacrificed their own ambitions to the reality of their circumstances, and they ought not to be screwed for it. I know that’s not a popular sentiment, but it’s important to understand.

P.J.W.: There are certainly greedy purchasers and people who overextend stupidly, but statistically that’s not what this collapse is about — take a look at some of these contracts. They’re filled with very old scams, scams that used to be illegal. Hidden clauses that allow enormous balloon payments; subsequent modifications that change from fixed to variable rate; rate increases that exceed all definition of usury; forms of insurance that protect one’s creditors but don’t give you a dime — but that don’t reveal that with anything like clarity.

In the wake of Katrina, a lot of people discovered that that’s the kind of insurance they bought — the insurance companies pay the banks the mortgage but don’t give the homeowner a dime. It’s one reason why so many homes remain unrepaired. And it’s a form of insurance that used to be illegal or much more heavily regulated.

Sarah Palin: The Wife of Bath’s Tale

Frontier Justice

By Patricia J. Williams

Published in The Nation online, September 3, 2008

Long before any of us knew about Sarah Palin’s daughter’s baby-daddy, the stage was being set.  And the narrative that preceded her apotheosis was one of life and death.  ”The Palin family chose not to murder that beautiful soul,” said an evangelical friend, as she closed her eyes and lifted her palms heavenward.

“Choosing not” to “murder” is an interesting and controversial cooptation within the abortion debate, but this particular locution had an additional resonance for me.  Only weeks before, this very friend had been going on and on about the marital infidelities of John Edwards and Eliot Spitzer and Bill Clinton.  “I’d kill my husband if he ever did something like that.  In a New York minute.”  I’d heard this sentiment before, of course—I believe Rep. Larry Craig’s wife had said something similar in public, some years before her husband was arrested in Minneapolis, in the same airport bathroom through which so many Republican delegates are no doubt traipsing all this week.  That Mrs. Craig did not in fact murder her husband was a source of some barely-suppressed disappointment to my friend.  She herself is loaded for bear.

In a nation where one third of teenage girls will get pregnant (though few bear them to term) and one half of all marriages will end in divorce, we nevertheless do love the litany of how shocked! and outraged! we  are at the loose morals of others. Hidden within these repetitive passion plays about cheating and betrayal, however, is a narrative that is quite confining when it comes to complex notions of women as autonomous or liberated.  Here’s a paraphrased but no doubt familiar progression of the discussion about cheating politicians:  Men are dogs.  How can they be so stupid?  They have no brains.  Their nether organs do their thinking for them.  Why does he do this to his good, honorable, long-suffering wife?  Why does she stand beside him, so stoically, so stiff with humiliation?  Why doesn’t she leave him, let him stand on that podium and apologize to the world by himself?  Why doesn’t she kill him? 

Universally it boils down to that hyperbolic but emphatic refrain:  “I swear, I’d kill him.” 

There’s a certain kind of Lorena Bobbitt-ish bottom line in this well-practiced narrative; Lorena, you will recall, just picked up the proverbial kitchen carving knife and chopped off her husband’s offending organ. In other western countries, there is surely scandal, scandal everywhere, just like in the United States.  What’s different here, I think, is that our political imbroglios are drenched in subliminal desire that the wife murder the husband.  Symbolically speaking, of course.  In Europe, it seems to me, it’s more casual, less deadly; maybe she’ll let loose and poison his pasta, but more likely she’ll get out there and have a few affairs of her own, like Cecilia Sarkozy or Segolene Royal. 

Here in the US, there’s not merely the element of rage and loss that accompanies any heartbreak, there’s also the medievally misogynistic media/cultural assumption that if a husband doesn’t love his middle-aged wife, no one else ever will.  A woman over forty is dead, love-wise.  Her lying, cheating husband didn’t just humiliate her, he took away her honor and her life, his fidelity being her only tribute to desirability.   If she doesn’t have the comforting catharsis of killing him, metaphorically at least, she’ll die alone, shriveled and prune-like, and covered in bristles. 

I think this is the deeply coded reason so many women identified with Hillary Clinton at a certain point in time–not just in the wake of her husband’s legendary adventures, but also when the likes of Rush Limbaugh were cackling about how wrinkled and hag-like they thought she was.  If only she had been the nominee, she would have had a chance for vengeance, for comeback, for sweet irony, for the strength of resurrection.  When she didn’t win, she lost more than the election.  She broke the hearts of many emotionally invested women of a certain age who want to kill their duplicitous husbands, ex-husbands, or anyone like them.

Karl Rove clearly understands this.  I’m pretty sure that’s the real reason Sarah Palin is the Republican vice presidential nominee.  This is a woman whose nickname in high school was “Barracuda,” who shoots her own moose meat; and, as governor of Alaska, proposed a $150 bounty for those citizens who bring in the foreleg of a wolf as a way of eliminating them.   She is a lifelong member of the NRA and favors shooting grizzlies and polar bears from helicopters, to hell with whether the EPA thinks they’re endangered.  She is being investigated for a possible breach of ethics when she apparently used her public position to pressure the police department after she felt that they didn’t sufficiently punish her brother-in-law for allegedly battering her sister and tasering her 11-year-old nephew.   Her office is decorated wall-to-wall with dead animal skins, heads, carcasses. 

I suspect this is at least partly why so many otherwise “feminist” women are willing to overlook the ironic contradiction inherent in Bristol’s situation given her mother’s public posturing regarding “abstinence only” and “just say no.”  It’s as though they’ve got pixie dust in their eyes, blinding them to the reality that, even regardless of sexual politics, there’s a lot else to worry about in what Palin endorses.  She wants creationism taught in public schools.  She doesn’t believe in global warming.  But all that potentially vital controversy is treated as secondary to the fact that she is a peppily suggestive version of Thelma or Louise. She is no long-suffering good-wifely sort. You get the distinct impression that she’d pick up a gun and shoot Bill or Larry or Eliot or John in a heartbeat.

Surely there’s something deeply visceral going on in Palin’s apparent appeal to women who’ve “been done wrong.”   But there’s more than mere sentiment:  for too many people, this translates into a deep, anti-democratic, ultra-libertarian failure of ethical engagement.  What’s putatively most wrong about our accumulated scandals, in other words, is not the sex per se, but any breach of fiduciary relationship in the political realm, rather than in the domestic or religious realm. 

With regard to the matter of her allegedly battering brother-in-law, for example, Sarah Palin could have done what Senators Obama, Clinton and Biden did: worked to write, pass and enforce laws like the Violence Against Women Act.  Instead she did the vigilante thing—she apparently took the law into her own hands, using her role as governor to pressure the head of her local public works department to resign.  A bipartisan commission later reinstated him.  However sympathetic one may be to her sister’s plight, what Palin is alleged to have done is corrupt.  Yet in an age when movies extol the lonely righteous outlaw, the line she crossed is so often trampled that we don’t see it or appreciate it anymore. 

  But the ethics of executive responsibility mean that you can’t use or abuse the enhanced power of your public or fiduciary authority for personal ends.  There is a rationale, a logic, behind the due process that is at the heart of our justice system.  Our institutions of governance require that there be distance between the meting out of either reward or punishment and the passions of overly-emotionally-involved decision-makers–whether amorously smitten (as in instances of nepotism) or furiously wounded and “bitter” (as in Palin’s sister’s divorce). 

The term “frontier justice” is always put in quotes for a reason.  It is not the mark of a great civilization.  It is messy and often results in mistakes of terrible magnitude.  Ultimately this is what worries me about men or women in public life, whether married or single, who engage in the conceit of indulging personal ends by taking advantage of the power of their positions.  Clarence Thomas evaded answering questions about his behavior toward Anita Hill by declaring that it was none of anyone’s business what he did in the bedroom as opposed to the boardroom.  But, however the media ran with that, the ethical concern in that hearing was precisely founded upon the fact that the encounters did not occur in the bedroom; furthermore, at the time of the alleged misbehavior, Thomas was the head of the EEOC—the very agency charged with prosecution of harassment in the workplace. 

My evangelical friend believes that “sinning” is a public matter, and that the government has a responsibility to discourage all premarital sex.  She wants to recognize fertilized ova as persons with full legal rights.  She also believes that a husband’s straying is adequate defense in a court of law when his wife hops in her SUV and drives over him a few times.  I do not. 

Here’s my bottom line.  John Edwards, Larry Craig and Bristol Palin may have committed excruciatingly painful breaches of “family values,” but that’s a private matter.  It’s really none of my business.

What is impermissible, however, is the use of public power either as a personal weapon or a personal reward system—for example, using public funds to pay for one’s prostitute, as Governor Eliot Spitzer is alleged to have done. Or promoting one’s mistress to a cushy job, as Mayor Kwame Kilpatrick is said to have done.  Or demoting someone for failure to do your private bidding, which is exactly what Sarah Palin seems to have done.  For that is the ideology of banditry.  No matter how well-intentioned, such deployment is irresponsible, because responsibility to others is the first rule of representative government.  And this, rather than the prurient details of who boinked whom, is what we need be most concerned about. The kind of narcissistic entitlement that hides in, wallows in or takes actual pride in unaccountability is the antithesis of the role demanded of a public servant.