E-Pluribus | April 4, 2024
"And to the ideology for which it stands"; the New York Times allows science to slip by; and the fragility of conservative legal victories.
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Randall L. Kennedy: Mandatory DEI Statements Are Ideological Pledges of Allegiance. Time to Abandon Them
The call is coming from inside the building! Inside the building at Harvard, that is. The university’s venerable student newspaper The Crimson has run an opinion by Randall L. Kennedy, a professor at Harvard Law School, calling for an end to mandatory DEI statements.
At Harvard and elsewhere, hiring for academic jobs increasingly requires these so-called diversity statements, which Harvard’s Derek Bok Center for Teaching and Learning describes as being “about your commitment to furthering EDIB within the context of institutions of higher education.”
[. . .]
The Bok Center’s how-to page mirrors the expectation that DEI statements will essentially constitute pledges of allegiance that enlist academics into the DEI movement by dint of soft-spoken but real coercion: If you want the job or the promotion, play ball — or else.
Playing ball entails affirming that the DEI bureaucracy is a good thing and asking no questions that challenge it, all the while making sure to use in one’s attestations the easy-to-parody DEI lingo. It does not take much discernment to see, moreover, that the diversity statement regime leans heavily and tendentiously towards varieties of academic leftism and implicitly discourages candidates who harbor ideologically conservative dispositions.
In addition to exerting pressure towards leftist conformity, the process of eliciting diversity statements abets cynicism. Detractors reasonably suspect that underneath the uncontroversial aspirations for diversity statements — facilitating a more open and welcoming environment for everyone — are controversial goals including the weeding out of candidates who manifest opposition to or show insufficient enthusiasm for the DEI regime.
Detractors also reasonably object to what they see as a troubling invitation to ritualized dissembling. A cottage industry of diversity statement “counseling” has already emerged to offer candidates prefabricated, boilerplate rhetoric.
[. . .]
Universities are under a legal, moral, and pedagogical duty to take action against wrongful discriminatory conduct. But demands for mandatory DEI statements venture far beyond that obligation into territory that is full of booby-traps inimical to an intellectually healthy university environment.
Read it all.
Alex Byrne and Carole K. Hooven: The Problem With Saying ‘Sex Assigned at Birth’
Based on “safety” concerns of some in the New York Times newsroom over Tom Cotton’s Send-in-the-Troops op-ed in 2020, one wonders if this week’s piece by Alex Byrne and Carole Hooven questioning gender orthodoxy might elicit a similar response. “Sex is a fundamental biological feature,” believe it or not, is fightin’ words in the present environment.
As you may have noticed, “sex” is out, and “sex assigned at birth” is in. Instead of asking for a person’s sex, some medical and camp forms these days ask for “sex assigned at birth” or “assigned sex” (often in addition to gender identity). The American Medical Association and the American Psychological Association endorse this terminology; its use has also exploded in academic articles.
[. . .]
The shift to “sex assigned at birth” may be well intentioned, but it is not progress. We are not against politeness or expressions of solidarity, but “sex assigned at birth” can confuse people and creates doubt about a biological fact when there shouldn’t be any. Nor is the phrase called for because our traditional understanding of sex needs correcting — it doesn’t.
This matters because sex matters. Sex is a fundamental biological feature with significant consequences for our species, so there are costs to encouraging misconceptions about it.
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When influential organizations and individuals promote “sex assigned at birth,” they are encouraging a culture in which citizens can be shamed for using words like “sex,” “male” and “female” that are familiar to everyone in society, as well as necessary to discuss the implications of sex. This is not the usual kind of censoriousness, which discourages the public endorsement of certain opinions. It is more subtle, repressing the very vocabulary needed to discuss the opinions in the first place.
A proponent of the new language may object, arguing that sex is not being avoided, but merely addressed and described with greater empathy. The introduction of euphemisms to ease uncomfortable associations with old words happens all the time — for instance “plus sized” as a replacement for “overweight.” Admittedly, the effects may be short-lived, because euphemisms themselves often become offensive, and indeed “larger-bodied” is now often preferred to “plus sized.” But what’s the harm? No one gets confused, and the euphemisms allow us to express extra sensitivity. Some see “sex assigned at birth” in the same positive light: It’s a way of talking about sex that is gender-affirming and inclusive.
The problem is that “sex assigned at birth”— unlike “larger-bodied”— is very misleading. Saying that someone was “assigned female at birth” suggests that the person’s sex is at best a matter of educated guesswork. “Assigned” can connote arbitrariness — as in “assigned classroom seating” — and so “sex assigned at birth” can also suggest that there is no objective reality behind “male” and “female,” no biological categories to which the words refer.
Read the whole thing.
Gregg T. Nunziata: The Conservative Legal Movement Got Everything It Wanted. It Could Lose It All.
While societal trends mainly seem to drift ever leftward, conservatives have nonetheless achieved marked success in the legal arena over the past few decades. Even Roe v. Wade, once thought indestructible, finally fell. Writing for The Dispatch, Gregg Nunziata warns conservatives not to take progress for granted. Nunziata says the foundation some of this success has been built on is shaky and without more work to shore it up, it could well come crashing down.
By 2016, the conservative legal movement could congratulate itself on remarkable success. Its ideas now influenced the law, the academy, and even popular discourse. Republican candidates increasingly self-identified as “constitutional conservatives.” Constitutionalism animated Tea Party rhetoric and the priorities of the Republican majority during the Obama administration.
Then Justice Antonin Scalia, the intellectual champion of the conservative legal movement for decades, died unexpectedly in February of that year. He left a divided Supreme Court with a historic vacancy in an election year and decades of advances for the legal conservatives in jeopardy of washing away.
Into this moment descended Donald Trump—neither a conservative nor a constitutionalist. A former Democrat and Bill Clinton supporter, with a curious history of praising authoritarians and an unsteady relationship with both truth and the law, seemed ill-fit to the moment. Pressed on his conservative bona fides, Trump replied acidly: “Don’t forget, this is called the Republican Party, it’s not called the Conservative Party.” His rallies featured increasingly illiberal rhetoric and signature chants calling for the imprisonment of Hillary Clinton.
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For many legal conservatives, a two-word incantation—“but judges”—defined the Trump era. It began as an exhortation or, perhaps, a justification. Later it became a coping device, edging into gallows humor. As the shadows lengthened in the last days of a desperate and increasingly lawless presidency, it became a rueful question. A mob, incited by the president who refused to accept a lawful election, sacked the Capitol, assaulted police officers, interrupted the electoral count, and hunted down officeholders—“But … judges?”
Conservatives who had wagered the Trump gambit worth the risk got the upside of their bargain. Trump nominated many excellent men and women to the judiciary. A confident conservative majority, grounded in originalism and textualism, now controls the Supreme Court. The white whale of Roe v. Wade—long emblematic of lawless usurpation of policymaking by the Court—fell.
Contrary to the fears of liberals and the misplaced hopes of Trump, conservative judicial appointees upheld the principle of judicial independence. They refused to serve as reliable partisans and handed Trump and his administration important legal defeats. Crucially, Trump’s nominees rejected his baseless claims of a stolen election.
But these advances in jurisprudence came at a deep civic cost. The president with whom legal conservatives allied themselves used his office to denigrate the rule of law, mock the integrity of the justice system, attack American institutions, and undermine public faith in democracy. Beyond the rhetoric, he abused emergency powers, manipulated appropriated funds for personal political ends, and played fast and loose with the appointments clause, all at the cost of core congressional powers.
[. . .]
Through the chaos and lawlessness, too many in the conservative legal movement remained silent—or worse. Now, as the former president faces long-delayed legal consequences for a variety of misdeeds, they stand by his self-serving slanders of our independent judiciary and obscene self-description as a “dissident.” Corners of the right even echo the former president’s strange affinity for foreign strongmen, favorably contrasting the illusion of order provided by the jackboot to the sometimes messy ordered liberty of our civic tradition.
Ominously, there are signs that the illiberalism of the Trump era has begun to infect how some legal conservatives think about their core commitments to the role of the courts. Partisans promise that Trump in a second term would nominate judges more loyal to the president while Trump-friendly, post-liberal thinkers develop theories like “common-good constitutionalism” in which conservative judges would abandon originalism in favor of promoting certain ends. Adrian Vermeule, the leading academic proponent of the latter view, has argued that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” It would be deeply ironic, and the ultimate failure of the movement, if the “but judges” bargain were to end with purportedly “conservative” judges legislating from the bench.
[. . .]
We in the conservative legal movement have labored for decades to straighten the majestic columns of the Supreme Court while the foundation of the republic crumbled beneath our feet. Understandably, a movement of lawyers began with a focus on the judiciary, the legal academy, and the legal profession. But we must embrace a deeper, broader mission.
The next generation of legal conservatives must put as much emphasis on the political branches performing their proper constitutional roles as the previous generations did on the judiciary. A new emphasis on a limited federal government, a properly constrained executive, and narrowed agency powers could lower the stakes of presidential elections. Promoting federalism and local control would allow for diverse policy choices properly suited to a diverse country. A renewed commitment to the First Amendment and a broader culture of free speech affirm the ongoing process of democracy and the indispensability of mutual toleration. These values can move us away from a quadrennial battle for lasting supremacy which justifies alliance with the worst actors on our political scene, in favor of the sustainable self-government vision of our Founders.
Read it all here.
Around Twitter (X)
Here’s the Free Beacon’s Aaron Sibarium with a tale out of UCLA medical school. The beginning of the thread is below; click for all of it.
Canada’s Jonathan Kay knows a good deal when he sees it:
And finally, the Babylon Bee’s Seth Dillon on how to defeat censorship: