How did Alan Dershowitz get to the point of being called a racist? The famed law professor wondered about that himself last night on Fox News. At issue was his analysis of Robert Mueller’s decision to use a Washington DC grand jury, which included the demographics in relation to sympathy for Donald Trump, or rather a presumed lack thereof. Whether or not that’s relevant to Mueller’s probe is certainly debatable, but Maxine Waters called Dershowitz “racist” for even bringing it up:
What he [Dershowitz] is saying is “all of those black people are there and they don’t like Trump and so he’s not going to get a fair trial and so they should take it out of that jurisdiction. It shouldn’t be there to begin with.” I don’t like that, and I’m surprised that Alan Dershowitz is talking like that. We will not stand for it. We will push back against that because that is absolutely racist.
In response, Dershowitz warns Waters about crying wolf:
“She tosses around that term so promiscuously that it dilutes the term. She hurts her own cause because she’s crying wolf,” the prominent attorney and constitutional law scholar told Laura Ingraham, who was filling in for Tucker Carlson on Fox News. “If everybody’s a racist, then no one is a racist. If I am a racist, then what is she going to call real, real racism?
“I marched in the south, I was involved in the Civil Rights movement all of my life,” he continued. “Being black does not give you a license to call someone a racist just like being Jewish doesn’t give you a license to call people anti-Semites unless they actually are racists or anti-Semites.
Waters had said it was “absolutely racist for Dershowitz to assert that special counsel Robert Mueller impaneled a grand jury in Washington, D.C. because it has a “solidly Democratic” and “ethnic and racial composition” not favorable to President Trump.
The District of Columbia jury pool will be overwhelmingly Democratic, by a ratio of close to 10 to 1. The Virginia pool is likely to be more diverse in its political affiliations, though probably still more Democratic than Republican. There is no guarantee, of course, that a Democratic juror would vote to convict an indicated member of the Trump administration, or that a Republican juror would vote to acquit. But in selecting jurors from among the pool, most prosecutors would favor Democrats and most defense attorneys would favor Republicans, all other things being equal. For that reason, most prosecutors would prefer to have such a trial in D.C. than in Virginia.
Then there is the third rail issue of race, which prosecutors and defense attorneys do not like to talk about but which plays a significant role in jury selection, as the Supreme Court has recognized. A predominantly white jury can be a different institution than a predominantly black jury. Again, there is no one-to-one association; predominantly black juries convict black defendants and acquit white defendants all the time, and predominantly white juries acquit black defendants and convict white defendants as well. But to say that race doesn’t matter at all blinks reality — or at least that’s what most experienced prosecutors and defense attorneys will tell you, when speaking off the record.
Dershowitz notes both in his essay at The Hill and in his conversation with Laura Ingraham (filling in for Tucker Carlson) that he learned about jury selection from Johnnie Cochrane. That’s not a claim that’s easily testable; however, Dershowitz has mainly focused on appellate cases rather than trials, so it’s certainly possible. It hardly matters, though, since juror selection has grown into a social science of its own, where both sides try to manipulate the process to get the most sympathetic jury for their own side. If merely discussing that is racist, then the entire litigation industry that practices demographic manipulation must be guilty of it, as well as those who argue about racial composition of juries on appeal. I’m not sure Waters really wants to go there.
Dershowitz’ cri de cœur will resonate with conservatives, who routinely get accused of racism (and sexism, and all varieties of double-plus-ungood thinking) for any opposition to the progressive agenda. For the most part, it’s all about crying wolf — and all about silencing the opposition rather than dealing with their arguments. In this case, however, it’s almost a reflex knee-jerk reaction to nothing at all other than largely basic legal strategy analysis. Dershowitz is a strange target for Waters’ attack in more ways than one.
As for Mueller’s decision, perhaps he chose the Washington DC grand jury because it was the closest, and had the time to review the evidence. That could be just as true, especially since a Virginia grand jury would likely have come from northern Virginia, which isn’t all that much friendlier to Trump than DC is.