Thursday, October 21, 2021

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall

There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available. 

The term "trap house," according to Eugene Volokh, "originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, 'since been abused by high-school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a 'traphouse.'" Although the reports are somewhat conflicting, it appears Yale administrators strongly encouraged the student to apologize and suggested not doing so might hurt his career.  

Virtually every other day on the Volokh Conspiracy website one can find stories of people being criticized, harassed, or even fired or punished for some form of speech some people find offensive. It is my view that the general remedy for such behavior is more speech, not official sanctions, depending, of course, on the specific behavior at issue.

But while all of this is going on, there has been awful conduct by the Chief Judge of the Eleventh Circuit Court of Appeals Bill Pryor who, because of life tenure, is not subject to official punitive sanctions, but reveals in an awful way how racist our society continues to be. Although the Washington Post, Above the Law, and a few other outlets have covered the story, the attention has not been serious enough, and I fear the passage of time will remove this debacle from the news cycle. That would be a terrible mistake.

As reported in the Post, in 2017, the well-respected reporter Jane Mayer reported in the New Yorker that Crystal Clanton, who worked for the far-right group Turning Point, USA, had sent the following text message to a friendI hate black people. Like f--- them all … I hate blacks. End of story,” 

Mayer said she had screen shots of the messages. The only statements Clanton made about this text were, “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” There was no denial of the statements, and there was no apology.

Clanton was fired from her job but shortly thereafter hired by Ginny Thomas, which could be the subject of an entire other blog post, but I will not go into that here. Clanton eventually enrolled in the Antonin Scalia Law School (formerly George Mason), and recently was hired by Judge Pryor as a law clerk upon graduation. Judge Pryor has sent thirteen clerks to Justice Clarence Thomas--more than he has sent to all the other Justices combined. As of this writing, despite efforts by reporters, neither Clanton nor Judge Pryor has commented on this story.

This hateful text message does not appear to be an isolated incident. The Post reported that one "year after the New Yorker story, the website Mediaite, reporting on Clanton’s hiring by Ginni Thomas, described a Snapchat message featuring 'a photo of a man who appears to be Arab and a caption written by Clanton that reads, ‘Just thinking about ways to do another 9/11.’”

This sorry episode is not about cancel culture or political correctness. All federal judges other than Supreme Court Justices are bound by an ethics code that requires them to avoid the appearance of impropriety. A Black lawyer or an attorney with a Black client would be justifiably worried about receiving a fair hearing from Judge Pryor, who has a mixed history when it comes to matters of race. On the one hand, when Pryor was nominated he was supported by some civil rights leaders from his own state of Alabama for his good works. On the other hand, in 1997, long before Shelby County v. Holder struck down a key section of the Voting Rights Act (VRA), Pryor encouraged Congress to repeal the Act, saying it was overbroad, an affront to states' rights, and was no longer needed. These statements coming from a politician from Alabama where Blacks were denied the right to vote for a century after the Reconstruction Amendments were enacted display a horrific insensitivity to the plight of Blacks in this country generally and Alabama specifically.

It is hard to imagine that Judge Pryor did not know of Clanton's statements before he hired her. given his close connections to the Thomases, but even if he didn't then, he surely does now. Reporters have called his office. He has had no comment. I am told by people more attuned than I am to news cycles that Pryor likely knows that eventually this story will go away. That would be a terrible shame. How in 2021 can the Chief Judge (or any judge) of a court tied for the second most powerful in the land hire a law clerk who said she "hates Black people...End of story."?  

If there had been a serious denial or a complete mea culpa by Clanton, this would be a very different situation. As the reporter for the Post said so well:

We all do stupid things when we are young, and some of us do terrible things. We should allow some space for repentance and forgiveness. But there is no evidence of repentance here, and her reported comments are astonishing in their savagery. This is not a case of a racial slur directed in anger at a single individual-not that such conduct would be acceptable. This is even worse: animus expressed towards an entire race.

Judge Pryor needs to account for his behavior. Anything less is a travesty, and until he does, national reporters should keep this sordid hiring in the news.

And one more thing. Every day the Volokh Conspiracy website publishes thoughtful blog posts by various excellent scholars on a wide variety of subjects. As I noted above, these include a good number of posts calling attention to and criticizing instances of what the authors deem over-reactions to speech. To my knowledge, no analysis of the Pryor/clerk situation has appeared on the VC website yet. Perhaps one is in the works. If not, it should be. In order to be able to say that one has overreacted to speech, it's important to be able to say when speech has gone too far--or at least far enough to warrant a public statement.


Unknown said...

Wait, is cancel culture “at the least controversial and at the most quite dangerous” or does it need to be extended to include not just those who commit heterodoxy against neoliberalism, but also those who associate with the heterodox?

Your essay was kind of confusing on this point.

Michael C. Dorf said...

Unknown: Prof Segall is troubled by cancel culture. Saying someone should apologize for racist statements or that her current boss owes the public an explanation for why that racism doesn't trouble him is not a threat to "cancel" anyone.

Gandydancer said...

Not seeing any egregious behvior by Pryor. Clanton said she didn't remember the tweet and that it didn't reflect her views. Presumably Pryor believes her, and that you don't doesn't make his hiring her egreious behavior.

There's indications in the NYorker quote (the "teenager" bit) that that reporter didn't even convey to her when it was supposed to have happened, still less showed it to her. Dunno where the NY could have gotten the text msg exceopt from the supposed recipient, so he must have it in for her, and you have to take that into account. We know that it's not a hoax how?

Eric Segall said...

Mike is right. This incident is not about canceling anyone. She has not apologized ever for this and doesn’t deny it. The Judge could say I’ve talked to her and those statements aren’t who she is. Saying nothing here is not the right thing to do.

Greg said...

While I admit the non-apology is mealy-mouthed, it is unfortunately difficult to consider how I would respond in such a situation. It might look very much like Clanton's response.

Deny memory of it? Yup, I would do that, if it were true.

Deny it? No, I don't think I would (as it's difficult to prove a negative) and would probably be accused of calling my accusers liars. Neither does she. I think we're so used to hearing politicians who will deny things that they have no memory of that we fail to recognize that there is moral value in NOT denying things that you have no memory of, because ultimately you don't know whether they're true or not.

State that it doesn't reflect my views? Yup, I would do that too.

Issue an apology? Yes, I probably would issue an apology (conditional on having said it, which I would neither confirm nor deny) and Clanton doesn't. However, other people feel that even a conditional apology represents an admission of guilt, and they're unwilling to even speculatively admit guilt for something they don't remember.

I'm not sure this whole debacle reflects as poorly on Pryor as it's being made out to. Yes, he hired someone who said something stupid in the past, and who made a perhaps less than adequate response when confronted about it years later. I'm not sure that permanently disqualifies that individual from public service or from a mid-level job in the law profession, and I'm not sure how poorly it reflects on Pryor for hiring her.

A public statement from Pryor might be nice, but is it really required in the way that this post implies it is?

Joe said...

"he hired someone who said something stupid in the past"

To be clear, it wasn't a one-off. This is specifically noted in the discussion.

Also, I'm not sure "stupid" is quite strong enough. The "trap house" thing sounds "stupid" to me. It sounds sort of trollish. (With enough plausible deniability to claim innocence.) Her comments as a whole sound more than stupid. They are offensive.

Prof. Segall also basically expresses his belief that Judge Pryor has a history that provides additional context. And, suggests an additional concern for what message this clerk choice sends to the public and individual litigants.

Also, I think taking everything in the career of the clerk chosen here also needs to be taken into consideration. I don't think her comments in the scheme of things hurt her much in her chosen path of advancement.

(This is wider than the comment I quoted, so it's not in response to it directly.)

Greg said...

I'm thoroughly willing to concede offensive, they definitely were.

While "one-off" may not be true, my parsing of the Post story is that while the story was a year after the New Yorker story, it isn't clear to me when the offensive Snapchat post actually occurred, and if it was potentially around the same time as the previously discovered offensive text. If the Snapchat post occurred after the New Yorker story, then that's pretty damning (and stupid at the same time.)

In some sense, I'm more offended that anyone would hire someone who worked for Turning Point USA as an adult than I am that they'd hire someone who said offensive things in their youth. Further, it seems like Judge Pryor's own actions expose him to reasonable criticism on their own, without considering his hiring of Clanton. I'm not sure how much of an escalation in offensiveness hiring Clanton represents.

Joe said...

I looked in a bit more. Again, this is more of a general comment.

I'm not sure how much of an escalation in offensiveness hiring Clanton represents.

The reference to Turning Point USA specifically is useful -- the New Yorker article states that "Turning Point USA is also alleged to have fostered an atmosphere that is hostile to minorities." She was "second-highest official for five years" there.

This provided an extended amount of time for her to say offensive things. So, Mediate "she would exchange racist remarks regularly with other TPUSA staffers."

The language quoted is a way to provide a strong visceral example of this and appointing the person is one of those things that specifically catches one's eye and ears. This is how it might to some degree escalate things.

Prof. Segall's comments tells me he was upset at the judge before now. This was, however, something that really "pushed his buttons," a normal response.

The Mediate article notes: "Ginni Thomas currently serves on TPUSA’s advisory board and spoke at the nonprofit’s Women’s Summit in 2017."

So, it makes sense Ms. Clanton went there; sort of a horizontal move. I guess she could have had some change of hear in the last few years, but I can understand the concern.

Greg said...

You're right, the Mediaite article makes clear that this was recent and pervasive, putting the Snapchats later on in the timeline, basically removing both of the potential mitigating factors.

That's what I get for responding to the post and not reading the background info, and agree that this one does escalate the negative perception of Pryor, all things considered.

I do stand by a few things I said about responding to a single isolated incident, but a closer look at the reporting reveals that this definitely isn't that.

Thanks Joe for clarifying.

asiatown77 said...

Speech and action conveys meaning. In a state that is 27% African American, hiring a law clerk who “hates blacks” conveys that you don’t think highly of them either and , given bill pryor’s age and experience, that he never has and wants you to know so.

Bill pryor hates black people and wants to rub it in. That’s an expression of his values, his essence, his moral core.

He is welcome to express this if he wishes. The house , which has impeachment powers, can respond to this value system if they wish.

Unknown said...

What does RBGs refusal to hire black law clerks say about her?

asiatown77 said...

Whataboutism doesn’t refute my central point, it merely affirms it.
That said she didn’t go out of her way to hire folks who “hate blacks”.

kotodama said...

asiatown, not only is it the usual pathetic whataboutism, but it's also glaringly inaccurate (no doubt on purpose). Obviously, RBG never "refused" to hire black clerks. I could go on at length about all the other shortcomings of what Unknown surely imagined was a masterstroke "gotcha" attack, but if he can't even put in minimal effort, then I won't either!

Unknown said...

Ah yes, I forgot, the dreaded “whataboutism” shield has thwarted my “masterstroke” once again.

If it wasn’t for you teenagers, I would’ve gotten away with it!

For real though, “whataboutism” isn’t a magical incantation that by saying it makes you not a hypocrite.

asiatown77 said...

If your comeback is “your side does it too” , that’s not a stirring defense of your behavior.

kotodama said...

asiatown, the thing is, it's not even "your side does it too". It's actually far more simple. All it comes down to is a desperate attempt to manufacture an equivalence that clearly doesn't exist (aside from in Unknown's disturbed imagination).

Unless RBG at some point also hired a unrepentant racist white clerk, and moreover, Democrats rushed to defend that hiring. I suppose it's possible I missed when that happened, although it seems like a major news item and you'd think Unknown would be in a big hurry to mention it. But otherwise, no, it doesn't come within light years of being an equivalence.

Unknown said...

“moreover, Democrats rushed to defend that hiring.”

Are “Republicans” “rushing” to defend Judge Pryor’s clerkship hiring practices? No. Of course not. And why? **Because no one cares**