E-mail a friendKenji Yoshino
airdate January 11, 2006
Professor of law and deputy dean for intellectual life at his alma mater, Yale Law School, Kenji Yoshino is a specialist in constitutional law, antidiscrimination law, and law and literature. His work has been published in many academic journals, and his pioneering identity-based approach to discrimination law was featured in a New York Times profile. He also has degrees from Harvard and Oxford. Yoshino's new book, Covering, explores the legal pressures in American society to hide our authentic selves.
Kenji Yoshino
Tavis: A look at the Alito hearings on Capitol Hill tonight with Kenji Yoshino, professor at the Yale law school, and deputy dean for intellectual life. His new book is called 'Covering: The Hidden Assault on Our Civil Rights,' which will be in stores next week. Professor Yoshino joins us tonight from New Haven, Connecticut. Professor, nice to have you on the program, sir.
Kenji Yoshino: Thank you for having me.
Tavis: Let me start with the Alito hearings, of course, first. I guess the first question is whether or not we know anything more about Samuel Alito now than we did a week or so ago.
Yoshino: (laugh) Well, we do know a little bit more, but not as much as we could hope. But this man is no fool, and so he's playing it quite cagey, and I think that anyone in his position would do the same thing.
Tavis: Yeah, that's why I asked that, because I get the sense, watching him, that he's very adept at knowing how to answer these questions. So, is the American public benefited by one, being cagey, and by the Senate not being able to get to the heart of certain matters, so that we know where he stands?
Yoshino: Well, I do think that there has been some benefit, in that he has corroborated certain expectations or intuitions people have had about him. For example, in his answers to questions about Roe vs. Wade.
Tavis: This past Monday, the 'New York Times' ran an article featuring questions that certain people would ask Samuel Alito. You were featured in that particular piece. Have your questions been answered at this point?
Yoshino: Well, what's been interesting, Tavis, is that they've been posed, but the answers have been less than entirely forthcoming. But I think we do get an indication of where he stands. So, one of my questions was whether or not he believed that there were rights in the Constitution that weren't anywhere in the text of the Constitution, and if so, how he would go about discerning them.
And he at least answered the first part of the question, saying that he does believe that there is a right to privacy. So the right to privacy, which has been understood by some to be expansive enough to cover the right to have an abortion, was something that he got behind, even though he didn't get behind the right to have an abortion itself.
Tavis: What were you trying to get at, specifically, by the asking of that particular question about these hidden rights, as it were?
Yoshino: Well, I think that there is a broad way of thinking about it, and also a narrower way of thinking about it. The broad way was just trying to think about how this guy's jurisprudence is gonna evolve, and whether or not he believes that the Constitution is open ended enough that every successive generation of Americans can bring to it its own understanding of what fundamental liberties are.
So for example, if we're talking about the right to have an abortion, or gay rights, for example, these are rights that obviously the founders didn't contemplate. So the question is, whether or not when they said that there would be certain kinds of rights guaranteed to Americans, whether or not those rights can be broadly enough construed to cover such rights.
More specifically, I was trying to get at what his response to Roe Vs Wade would be, which I think is a key issue that's going to be confronting his court. And his answers there were, again, quite mysterious or elliptical, insofar as he said he believed that there was a right to privacy, but he didn't necessarily think that that right to privacy extended to Roe.
Now, there's an additional wrinkle here, which was another one of my questions, which is that we actually have a precedent on the books in Roe Vs Wade, which was reaffirmed in 1992, in the case of Casey Vs Planned Parenthood. And so another question would be how he would treat precedence, and whether or not he would overrule Roe.
Because we can imagine a justice who would disagree with Roe Vs Wade, had they been on the court in 1973, but after the Supreme Court had decided Roe vs. Wade would nonetheless vote to uphold it.
Tavis: Your answer, Professor, notwithstanding, if Samuel Alito is confirmed to the Supreme Court, from your perspective, from your prism, what do we have most to fear from him sitting on the court?
Yoshino: Well, I think that there are a variety of places where Judge Alito could move the court significantly to the right. I should start out by saying that I actually think that this is a man of great integrity and great legal acumen, so I think that he is very, very smart. I also think that when law is settled, that he follows it.
And so in that sense, he is a judge's judge. My concern is that a lot of Constitutional law right now is incremental. And so, if he sees a gap, I, looking back over his past 15 years as an appellate judge, he's consistently moved the court in a conservative direction whenever he's discerned such a gap.
And I'm worried that given that so much of Constitutional law is in the small, incremental steps, for example, I don't think abortion is just an up or down issue, even if he doesn't overrule Roe Vs Wade. There are many cases that are gonna come before him about restrictions that states can place in having an abortion.
Such as bans on partial birth abortion, or notification or consent requirements, vis-à-vis husbands or children or parents or what have you. And so, there are many ways in which he could limit the abortion right without overruling Roe Vs Wade altogether. So my concern is that there are any number of areas, including abortion, Civil Rights, executive power, Congressional power, where he could move the court significantly to the right, and out of the mainstream of America.
Tavis: Let me ask you if, and I don't know that this is even the proper formulation. But if Clarence Thomas is on one end of the court, and who, Ruth Bader Ginsberg on the other end of the court, where does Samuel Alito fit in there with regard to his politics?
Yoshino: I think that he would be Scalia at best, and Thomas at worst, from a liberal perspective. So that there are certain decisions where Scalia has already come out to the left of Alito on issues of criminal procedure. For example, issues of Congressional power; and also, although we don't know what Alito would do in the recent terrorism cases about detainees, Scalia has shown a liberal streak, actually, in those cases.
In the recent Hamdi case, he said that an individual could not be detained indefinitely without some access to an article three judge, namely a federal judge. And we don't know what Alito is going to rule on that. But (unintelligible) Congressional power and criminal procedure, he is, I believe, squarely to the right of Scalia.
Tavis: Your concerns about him notwithstanding, have you seen anything that would prohibit, that would stop this particular US Senate from confirming him?
Yoshino: No, I actually think he is going to be confirmed. I do notice that there have been some questions. Specter is focusing a lot on executive power, and whether or not Alito will just hand over a kind of carte blanche, or give a blank check to the executive on issues such as the recent spying scandal that we've been confronting.
Similarly, there've been some issues about whether or not Alito has issues that reflect poorly on his character, like the recent CAP scandal, or the, or the allegations about his membership in CAP, and other matters. But I don't actually see, Tavis, any of these obstacles as being real ones in his confirmation.
Tavis: Let me shift to your book before my time runs out, 'cause I'm fascinated by it. It's called, again, 'Covering: The Hidden Assault on Our Civil Rights.' Two questions. One, is there an assault on our civil rights, number one? And number two, why would you argue that it's a hidden assault on our civil rights?
Yoshino: Right. Both great questions. The book does argue that there is an assault on our civil rights, and it argues that it's hidden, because I think that the assault is subtle, and that many Americans don't perceive it to be an assault at all. And what I'm talking about with the covering idea is a generational shift that's occurring in American discrimination, patterns of discrimination in America.
So, in the first generation, discrimination was very simple and easy to see, because it took the form of no racial minorities, no women, no gays, no religious minorities, no individuals with disabilities allowed. And in this new generation, what we're seeing is that those bands have all been swept away. But instead, we have a more insidious and subtler form of discrimination that's taken its place.
And I don't wanna argue that this isn't progress, but I wanna say that it's something short of equality. And that new, subtler form of discrimination is when individuals of particular minority groups are included, but only if they assimilate to mainstream norms. So here, I'm talking about pressure on racial minorities to quote, unquote, act White.
Pressure on women to play like men at work, and to make their childcare responsibilities invisible. Pressure on gays not to engage in public displays of affection, or to take any kind of pride in their identity. Pressure on individuals with disabilities to downplay the very paraphernalia that allowed them to function in the first place.
So all of these ways in which we assimilate or downplay our difference in order to fit into the mainstream are what's encompassed within the term covering. And the idea is that this form of conformity, which is often viewed to be a simple escape from discrimination, is actually often precisely an effective discrimination.
Tavis: Let me close by asking whether or not, in this most multicultural, multiracial, multiethnic America ever it is your sense that while we say we appreciate and embrace and celebrate that, we in fact really do not?
Yoshino: Yes, I think that we are very ambivalent about diversity. On the one hand, I feel like we are very multicultural. On the other hand, as we grow more and more diverse, I feel that there is almost a backlash such that even liberal lions like Arthur Schlesinger have said that we need to return to the ideal of assimilation.
And of course, this country has had a longstanding love affair with assimilations. Ever since the revolutionary period, we've celebrated the melting pot as a way in which Americans of all different stripes would be melted into one ideal. But what I'm trying to argue in the book is that the promise of diversity means that we have to understand that the melting pot has a dark underbelly.
Tavis: Professor Kenji Yoshino at the Yale law school, and author of the new book, 'Covering: The Hidden Assault on Our Civil Rights.' Professor, nice to have you on. Thanks for your insight, I appreciate it.
Yoshino: Thank you very much.
Tavis: It's my pleasure. Up next on this program, Golden Globe nominated actress, Rachel Weisz. Stay with us.
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