“I think it is plain to me that there is discrimination and widespread disparate treatment of communities of color and other ethnic minorities in this country,” Merrick Garland said during his confirmation hearing at the Senate, after being asked by Sen. John Kennedy, a Louisiana Republican, to define systemic racism. “They have a disproportionately lower employment, disproportionately lower home ownership rates, disproportionately lower ability to accumulate wealth,” he explained.
Garland is making an ideological argument, not an empirical one. Disparate racial outcomes is not systemic racism. This is a fallacious conclusion and it is very troubling to see a man who will be attorney general of the United States answer the question this way. Systemic racism is a feature of a system with laws and policies in place that systematically oppress members of one group while systemically privileging members of another group on the basis of racial designation. This system was dismantled when I was only two years ago, a very long time ago.
Kennedy later asked, “If you say an institution is systemically racist, how do you know what you know? Do you measure it by disparate impact, controlling for other factors? Or do you just look at the numbers and say the system must be racist?”
This is the right question to ask (Kennedy is a smart fellow) and it exposed the core flaw in the systemic racism argument. Those claiming that systemic racism is an enduring problem of United States society are falsely conflating racism with demographic differences between races. Demographic differences described in racial terms is not racism.
Racism is a discredited theory or practice and relations based on and justified by that theory positing that the human population can be meaningfully divided into groups that can in turn be hierarchically arranged and differentiated by degrees and quality of cognitive ability, behavioral proclivity, and moral integrity. Systemic racism would be the character of a system where racism was manifest in formal system, indicating law and policy, in which members of one or more groups suffer systematic oppression while members of one or more other groups enjoy systematic privileges on the basis on racial categories. This is different from but often informs race prejudice and discrimination, only the latter an actionable offense.
After acknowledging that he answered what he thought was a different question, Garland answered Kennedy’s follow up this way: “The authority the Justice Department has to investigate institutions is to look for patterns or practices of unconstitutional conduct and if we find a pattern or practice of unconstitutional conduct, I would describe that as institutional racism within that institution.”
This is heartening. This is a different understanding of racism than that held by the antiracists. Antiracists (critical race theory types) define racism on the face of it as demographic differences between racial groups. In doing so, by making the statistical fact of group differences a matter of racism by definition, they skirt the necessary work of demonstrating causal explanation for these differences, differences explicable by reference to other causes—which is why they don’t want to put themselves in the position of having to show that the evidence does not support their claims.
However, Garland should clarify that what he is talking about is institutional or organizational discrimination on the basis of race. He is right that it is is one of the obligations of the Justice Department to investigate institutions or organizations to look for patterns or practices of unconstitutional conduct. Crucially, patterns are not enough, as these may have many causes. Instead, patterns alert officials to look for and identify practices that may run afoul of the 1964 Civil Rights Act. One cannot assume racism is the cause of the patterns detected. Racism has to be positively demonstrated empirically. If racism can be demonstrated in practices, then the Justice Department has a case.
Kennedy also asked Garland to explain from his standpoint the difference between people who are racist, on the one hand, and institutional racism, on the other, as well as the “concept of implicit bias.”
“Implicit bias just means that every human being has biases. That’s part of what it means to be a human being,” Garland said. “And the point of examining our implicit biases is to bring our conscious mind up to our unconscious mind and to know when we’re behaving in a stereotyped way. Everybody has stereotypes. It’s not possible to go through life without working through stereotypes. And implicit biases are the ones that we don’t recognize our behavior.” Garland then said, “That doesn’t make you racist, no.” He’s right. It doesn’t.
The media is keen on contrasting Garland from William Barr, who correctly resisted the demand that government acknowledge the existence of systemic racism in law enforcement in the United States. He admitted, as anybody should, that there is racism in the United States, but repeatedly refused to agree with others that the police as an institution practice systemically racism. The paradigm of systemic racism in law enforcement is racial disparities in lethal civilian-officer encounters. Extensive empirical research over several decades fails to demonstrate that racism explains those disparities. If facts matter, the systematic racism argument is over.
Derrick Johnson, the president of the NAACP, criticized Kennedy for asking the question, describing it as a “waste of time.” He suggested that Kennedy’s questions were racially motivated. “I found it unfortunate that he would focus on something not relevant to whether or not that Judge Garland is competent, and qualified to serve as attorney general, honor the Constitution and represent the people of the United States. And for him to take the time to use their line of questioning was a waste of time. We need to move forward as a nation.” He added, “Senator Kennedy knows all too well the paralyzing effects of systemic racism has had on the south, in Louisiana and on this country.”
The question was not only relevant but, in the context of what has been occurring over the last several years, with Black Lives Matter and the specter of reparations, also obligatory for any politician who takes his charge seriously. How Garland answered this question bears directly on whether he is competent and qualified to serve as the attorney general of the United States. The name of the body he will lead contains the word “justice” in it. He and that body are obliged to honor the Constitution and represent the people of the United States.