Director, ACLU Racial Justice Program
Prior to the election, progressives were really excited about the composition of the Supreme Court potentially going one way. Now we’re quickly on the other side going in a different direction. Was it your sense that there was too little made of how important this election might be for the future of the Supreme Court, the courts, our civil rights more generally?
I don’t think it got the emphasis that it should have. It’s not only the loss of what we might have achieved with a fairer Supreme Court, with a more progressive Supreme Court. It’s also the prospect of losing a lot of the progress that was being made in the last couple of years. At the beginning of the conversation you referred to Rodney King and how there was this hope at least, which wasn't realized, but there was this hope that seeing things might change the discussion. The last two years, even before the election have been horrible. We’ve been subjected to a continual series of watching videos of Black people being shot in the streets, unarmed Black people. It was a debilitating time period, because there didn't seem to be sufficient accountability.
At least one bright prospect was that there were indications that the Justice Department was beginning to do something, to take steps that might deal with that effectively. You had the Ferguson Report that made very clear connections between the criminal justice system in Ferguson, the way that it was being financed on the back of people of color, and the effect that it had on community and police relationships—basically the way that Black people were viewed as criminal and as potential sources of income for the city. You had the Justice Department that was beginning to do investigations in Chicago and some other cities and we were beginning to recognize that there had to be some method of exercising some kind of check on what was going on with police in the street.
Then you look at now, both Trump and the comments that he has made—where he depicts police as basically being the most discriminated-against group in the country—and the people with whom he has surrounded himself, what they've done in the past, the way that they view both what is proper police action and what is the proper connection between the federal government, state, and local governments. That prospect is a really frightening one, so you wonder whether or not some of the initiatives of the Obama administration are going to be rolled back. Again, it's not only how do we extend the protections, it's how do we maintain at some level what we've achieved so far?
On that note, one of the big losses that set the stage for this election was the effective loss of the Voting Rights Act. From what you’ve seen, or been lead to believe, Dennis, do you see how that lack of protection might have influenced the voting strength of people of color? Was voting suppression in your view a potential problem that actually was borne out?
Yes. All of the indications that I’ve seen from this field are that it was borne out and that it did have an impact on the ability of people of color to vote, but also other groups. The restrictions that were placed that made it harder for students to vote, for example—these were efforts that turned out to be successful, to suppress the vote of people who were more likely to support Hillary Clinton. I think the most discouraging thing is that—you had Trump saying, “You need to go to these neighborhoods and look at what’s happening,” in a way that everyone feared would inhibit the vote in those areas. Now the person who is going to be enforcing the Voting Rights Act is the person who himself was trying to suppress votes.
All of these things—the prospect of having to go to the Justice Department, or to expect support from the Justice Department on a whole range of issues—has become really bleak. What role is the Department of Education going to play, what role will OCR [Office of Civil Rights] play, the Environmental Protection Agency? Not that they've necessarily been the best in the past. These are agencies that have some power that private litigants don't have because they can take advantage of the disparate impact standard which the private sector litigants can't access. But how are you going to rely on that? Not to mention one of the huge impacts of the last ten years has been the economic impact of activities that were caused by the large financial institutions. We know that, at least from what Trump has said so far, is that he is not enthusiastic about government oversight of those institutions. Basically, the police are being called off in those areas where they need to be and I fear will be increasingly called into the areas that we worry about in terms of interactions with our communities of color and what goes on in the street.
Dennis, what’s happening on the left that makes it virtually impossible for them to recognize that the Republicans are engaging in identity politics among white people?
What has struck me is the extent to which even among progressive people, that there is almost...like they are apologists for what went on. The number of times that I have spoken to progressive people and had them say, “Well, these are my family members. I know them, they are good people, but...”
I always wonder, well what’s your definition of good?
Maybe we need to recalibrate that, because you would never hear someone say, “He's a good person, but he likes to molest five year old boys.” Somehow we’re comfortable with saying, “He’s a good person, but he thinks that it’s not a problem that unarmed Black people are dying at the hands of police.” There's this idea that racism is only sort of the explicit, classic, disparate treatment. Not the idea that it’s being basically fine with the fact that this man ran on a platform that was so incredibly demeaning on both race and ethnicity—that whatever your interests are, and as vague as they are—they’re not more important than the fact that he has come down in that way.
The other thing for me that I just wanted to say before is that I’m always a little bit put off by the discussions where we compare what happened with the Obama election and what happened now. As if they were equivalent, as if the fact that there was someone who was spouting the things that Trump was, can be considered in the same way. I am not a huge Romney supporter, but I think that it’s a whole different league. To talk about whether, if we had some more millennial votes, or things like that, then we might have gotten 2 or 3% percent more. We shouldn’t have had to have those votes, it shouldn’t have been a close contest. The fact that it was a close contest, shows that the problem is not just among one small group, but a really much broader problem.
Again, that’s part of my reluctance to focus too much on class. Also, part of what we have to deal with is there was support from very high income white people, people who maybe when they took the polls weren’t willing to admit that they were supporting it. I hear it in my fancy health club all the time, that people who have not lost anything financially were solidly behind Trump.
Dennis, do you also see a deepening crisis, specifically in the legal landscape, and if so where and what the potential might be? How do you see this in the context of the critical issues we’re likely going to have to grapple with?
I think that it's going to be a time of just extreme vigilance and organization. You had asked before about what time period this most resembles. I think in a lot ways it resembles what we saw in the late nineteenth century, at the time of the civil rights cases. It’s sort of a retrenchment. Certainly some of the arguments that you heard in the nineteenth century, about not wanting Black people in particular to be the special beneficiaries of government action, things that we hear from Bannon and other folks who deny the existence of any sort of structural racism.
What would you like to share about [either] the long term consequences of this project of creating color blindness as the point of departure for all things having to do with race and what that portends for us?
I agree with what has been said about the overwhelming need not to permit normalization and also with the need for progressive whites to be the voices that speak to the people who supported Trump. There's a part of me, maybe it’s a naive part of me that has a sense that the divisive strategy, given changes in demographics—perhaps given how severe things may get—is not a viable long-term strategy. Maybe I’m putting too much faith into my fellow countrypeople. I am hopeful that, as the demographics change, I’m hopeful that there is enough decency that people will say, “This has gone too far.” I think that we need to keep the baseline clear, so that we’re in a position to say that this has gone too far.