The Vetting: Obama's Supreme Court and Critical Race Theory

Yesterday, Breitbart.com Editor-in-Chief Joel Pollak appeared on CNN to discuss the story of Derrick Bell and Barack Obama with host Soledad O'Brien. When Joel tried to explain the meaning of Derrick Bell's Critical Race Theory (CRT), Soledad interjected that his entire description of was "a complete misreading." (You can view the full exchange here.) 

Joel responded by challenging Soledad to explain, in her own words, what CRT was. There was a delay, and then she offered an answer which was remarkably similar to the first line of the Wikipedia entry for CRT. 

O'Brien said: "Critical race theory looks into the intersection of race and politics and the law." 

Wikipedia reads: "Critical Race Theory (CRT) is an academic discipline focused upon the intersection of race, law and power." 

Either anodyne description of CRT is about as helpful as describing the sinking of the Titanic as the intersection of a ship, the ocean, and an iceberg. It's not that it's false exactly, but it does leave out nearly all of the important detail. 

Fortunately, we have another description of Critical Race Theory from an unimpeachable source: Supreme Court Justice Elena Kagan.

In 1993, Kagan was asked to present a lecture on CRT. Her notes for that class, dated October 25, 1993, became part of the record during her confirmation hearings in 2010--but the Senate failed to press her on her support for a theory that, by her own admission, was race-obsessed and radical.

Kagan's lecture notes are instructive. After saying that CRT had expanded to the point of being somewhat nebulous, Kagan offered two descriptions. This first one was in summary form (page 153 of this pdf):

Still some things can be said to define and describe the movement as a whole. Most generally, what critical race theorists ask about is how legal doctrine -- legal doctrine of all sorts, ranging from constitutional law to labor law, from criminal procedure to civil procedure -- reflects and perpetuates racial subordination in America. What most critical race theorists believe is that law, in a variety of ways, works to maintain the subordination of members of minority groups. And what most critical race theorists believe is that the achievement of racial justice in this country, if possible at all, will require not merely the more even-handed application of current laws -- that will do less than nothing - but a root and branch transformation of the legal system.

Kagan then offered four "features" that define work that falls under the rubric of CRT:

Pervasiveness of racism: First, CRT takes as a given -- as its first premise -- that racism infects every aspect of American law and American life. That racism is deep and pervasive -- some would go so far as to say inevitable and permanent. 
"Neutral" law as mechanism of racial subordination: Second, CRT attempts to show that the claims of the legal system to neutrality, to impartiality, and to objectivity are false claims. CRT attempts to show that the law -- even when it seems neutral and even-handed -- in fact works in the interest of dominant groups in American society and particularly in the interest of dominant racial groups. CRT attempts to show that the so-called "logic of the law," that so-called "neutral principles" are a sort of cover for a deeply ingrained system of racial domination. 
Critical of civil rights strategies: Third, CRT generally is extremely critical of the activity -- the strategy and even the goals -- of the traditional civil rights movement. The thinking here is that the traditional civil rights movement believed that all that needed to be done was to make the laws neutral-- to end legal segregation in the schools, for example -- in order to achieve racial equality in America. But such reforms, critical race theorists say, were ineffectual, and necessarily so -- because they ignored the way even neutral laws could effect racial subordination. In addition, it might be said that critical race theorists see the civil rights movement as too "reformist," too "gradualist," not sufficiently committed to the broad-scale social transformations necessary to achieve racial equality.
Insistence on incorporation of minority perspectives and use of stories: Fourth, and relatedly, critical race theory insists that the law --legal doctrines of all sorts -- be reformulated, fundamentally altered, to reflect and incorporate the perspectives and experiences of so-called "outsider groups," who have known racism and racial subordination at first hand. Critical race theorists often write not in traditional, lawyerly terms, but with parables, and stories, and dialogues. The thinking is that these techniques can better demonstrate the actual experiences of members of minority group -- experiences which should be accepted by and incorporated in the law. In addition, the decision to spurn traditional techniques of legal argument reflects the belief that these apparently neutral techniques are not neutral at all -- that they have been the means of promoting not some objective system of truth and justice, but instead a system based on racial power.

Finally, Kagan demonstrated that Derrick Bell is an "examplar" of critical race theory:

Derrick Bell as examplar: Now Derrick Bell's writing illustrates each of these four aspects of critical race theory. He believes that racism is a pervasive-- and a permanent --aspect of American society. Read 1. He believes that the legal system is a means of promoting a system of racial subordination--even, or perhaps especially, when it makes claims to objectivity and neutrality. Read 2. He is deeply critical of the strategies and goals of the traditional civil rights movement--of which he used to be a part. And he insists that law must take into account the experiences of minorities, which he attempts to explicate through dialogues and stories.

Incidentally, Kagan is not the only one of Obama's Supreme Court appointees who is thought to have more than a passing familiarity with Critical Race Theory. 

The issue came up in legal circles during debate over the nomination of Justice Sonya Sotomayor, particularly with regard to her comments that a "wise Latina" might reach a "better conclusion" than a white male, and her ruling (later overruled) against white firefighters alleging discrimination in the Ricci case.

Regardless, Critical Race Theory is emerging as an important theme among some of President Obama's most important influences--and most important appointments.


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