Wednesday, September 20, 2017

Living in the Machinery of Death

Being a clerk on a United States Court of Appeals was one of the truly great honors of my life. It was a fantastic experience, which included the chance to have a direct hand in the development of American law, to occupy a front-row seat to observe how the legal sausage is mad, and to work side-by-side with some exceptional attorneys and for a federal judge who was a fantastic friend and mentor.

But I've also remarked that, during the tenure of my clerkship, I often felt as if I was "ruining far more lives than I was validating." One arena of law which provoked that feeling was criminal law, where truly obscene oversentencing was a daily occurrence. Another area was immigration.

By the time an immigration case reaches the United States Court of Appeals for the Eighth Circuit, the median adjective describing the appealing immigrant is probably "doomed". This is due to a confluence of factors -- the laws on the books are immigrant-unfriendly, the immigration judges are often immigrant-friendly, and the standard of review for immigration claims at this stage is exceptionally immigrant-unfriendly. What that meant in practice was that, over and over again, I found myself reading files of people who insisted that they'd be hacked to death if they were deported back to Central America, then assisting in perfunctory one paragraph orders denying their appeal.

The risk (of being hacked to death) wasn't made up. I was generally quite persuaded that they were at serious risk of violent attack if they were returned to their home countries. But, as I said, the law is quite unfriendly, and since the persecution was rarely the result of direct governmental animosity or membership in a cohesive social group, there was usually nothing to be done. On the rare occasions where there seemed to be a glimmer of hope, I tried my best -- and most of those cases I was unsuccessful. But even the cases where there was even a implausible shot were few and far between. For the most part, the legal rulings were straight-forward -- hence why they could be expressed perfunctory, single paragraph orders.

The law is straight-forward and it is clear. That does not change the reality of the situation. It is fair to say that the true villains here are the politicians who write and the people who demand laws which regularly enable such horrible outcomes. Fine. But the fact is I was a gear in a machinery of death, one that destroyed families and ruined lives. In terms of how much culpability you want to assign to me, personally, or other agents of the federal judiciary, legal formalism is a fine consideration to take account of. But appealing to it to deny the nature of the machine -- not to say "it's not my fault" but to say "that's not what was happening" -- is a psychological numbing agent. We run to it because it's terrible to have to face up to the reality of the situation.

The Austin American-Statesman reports on a recently deported immigrant -- snatched outside of a courthouse where he was facing a few minor misdemeanors -- who was just found murdered back in his native Mexico. Murdered, just as he told a federal court he would be in a futile effort to stave off his deportation.

Juan Coronilla-Guerrero had a criminal background. Not a serious one, but not a spotless one either. In this, he is little different from many Americans who have a spot or two in their past. Which itself raises the DACA question posited by, among others, my friend Joel Sati. DACA is for perfect immigrants -- those with not a single blemish on their record, those who perfectly fit a respectability narrative. Of course, it's understandable that, in unfavorable conditions, you latch onto the best stories you can. It's no mystery why DACA or the Dream Acts are framed the way they are.

But Juan Coronilla-Guerrero was not a murderer, or a rapist, or a child abuser. More to the point, he did not deserve to die. If or when DACA is passed, or a Dream Act, or some other comparable piece of immigration reform make it through Congress, it will undoubtedly exclude many, many Juan Coronilla-Guerreros. Not perfect people, but not bad people either. And despite the fact that they aren't hardened criminals, or "bad hombres", or incurable monsters, they'll continue to be deported, in circumstances where the results are entirely predictable -- ruined lives as best, death and maiming at worst.

We should still pass a DACA bill. We should do what we can, in the imperfect world we live in, bounded by the terrible political constraints that bind us.

It will remain a machinery of death. I'm not about casting blame; feel guilty or innocent at your own discretion. But don't deny the nature of the machine.

What If Black Liberty Mattered?

Jacob Levy writes on the history of "liberty" as a trope in American racist movements, and the corresponding flirtation that many libertarians have had with White supremacy. Levy's essays for the Niskanen Center have been consistently superb -- I already wrote on his fantastic defense of identity politics as against the Mark Lilla critique -- and this is no different. Give it a read.

Tuesday, September 19, 2017

Pondering Planets in Science Fiction

A couple of planet-related thoughts I've had over the years in the context of Science Fiction (movies, books, games, etc.)

1) Sometimes, in Science Fiction, something -- an artifact, a person, a dataprint -- will be lost (lost less in the sense of "I had it but dropped it" and more in the sense of "lost to the sands of time"). And where this is a plot point, the heroes usually will "find" the MacGuffin by figuring out what planet it's on (e.g., Luke Skywalker at the end of Episode VII).

I always found this rather striking. Imagine you're searching for a particular human being, and you're told "he's on Earth" ... and that being enough to go on. Even if there weren't a single other human being on the planet, Earth is still really big, at least from the perspective of finding a single guy. There's a ton more sleuthing you'd need to do! It's amazing to me how most "planets" are reducible to basically a square mile of (monolithic) terrain -- anything that's there, is there.

2) In any multiplanetary society, it is taken pretty much for granted that the smallest unit of practical governance is the planet. Sometimes it's larger than that (a galactic federation, or individual star systems), but there's virtually never subplanetary political divisions that are deemed salient on an interstellar level. "Earth" might have a representative on the Galactic Council, or the "Terran Federation" might, but "America" and "China" never do. That actually strikes me as more or less plausible, but it is interesting -- and it strikes me that if humanity ever does spread outside of our home planet we will rapidly coalesce into some form of global government -- at least for the purpose of managing space affairs.

3) Returning to the "planets are big" thing, you know what job must really be low-prestige in science fiction land? An "intraplanetary" transporter or military member. Imagine there exists Starfleet, and you're part of the Navy. Not the Space Navy, just the old-fashioned water Navy that protects ocean-going ships. Somebody has to do it -- again, planets are large and there will have to be substantial intraplanetary trade which will need protection from pirates or rescue from storms or whatnot. But goodness, imagine trying to pick someone up at a bar with that job -- working on a coast guard cutter when there are literal starships flying across the universe. That's rough.

Saturday, September 16, 2017

Today in Academic Freedom

Yesterday, I published a column in Ha'aretz on Berkeley's response to the Ben Shapiro speech. I noted that, since the Berkeley administration actually did exactly what it should have done in ensuring that Shapiro's juridical right to speak was protected, and since the Berkeley community largely followed through and responded to his speech through perfectly legitimate means (counterspeech, non-violent protest, flyers, questioning), perhaps we could now move on the substantive merits of what signal it sends when Ben Shapiro is invited at all.

It's been a banner couple of days for academic freedom, after all. For example:

* Harvard administrators overruled its own History Department's decision to admit Michelle Jones, a woman who rose to prominence for conducting top-level historical research while incarcerated in Indiana, to their graduate school. Reportedly, the decision was motivated in part by what conservative media outlets would say if Harvard admitted "a child murderer, who also happened to be a minority."

* Harvard also withdrew a fellowship offer previously extended to Chelsea Manning, this time in response to furious objections from conservatives in the intelligence community who deem Manning a "traitor." Manning was convicted of leaking classified information, and had her sentence commuted after serving seven years in prison. Corey Lewandowski, who assaulted a reporter, and Sean Spicer, who epitomized the "post-truth" ethos of the Trump administration, remain fellows in good standing.

* The University of Maryland is investigating the termination of a Jewish professor, Melissa Landa, from the College of Education. Landa contends that her relationship with her colleagues soured after she began organizing against antisemitic comments by (now-former) Oberlin Professor Joy Karega (Karega was eventually terminated after spreading several antisemitic conspiracy theories on social media; Landa is an Oberlin alum). Several of Landa's students have released an open letter criticizing her termination, describing her as an "ally" and "one of the few professors who is an expert in helping students examine their own biases."

* A lecturer at the John Jay College of Criminal Justice was suspended after tweeting that he enjoys teaching "future dead cops." The New York City Police Union wants him fired, but New York Times columnist Bari Weiss wrote a lengthy essay explaining that, while the lecturer's views were offensive and reprehensible, it is important both for CUNY students and police officers to be exposed to ideas that discomfort them and respond via counterspeech rather than demand censorship [error: column not found].

* The University of North Carolina's board of governors shut down a civil rights center at UNC Law School which ruffled conservative feathers by litigated desegregation and environmental impact suits. I had already written about this controversy here, noting the incredibly ad hoc justifications given for what was obviously a political power play ("we just think law schools should focus less on practical training and more on esoteric, Ivory Tower theorizing!").

So that's where we stand. One suspects that some of these cases will gain great notoriety within certain political factions while others will be wholly ignored; switch the factions and you no doubt switch the cases that matter. As we've long since learned, academic freedom has a lot of fair weather friends. But as these examples indicate, the assault on academic freedom does emanate from a single source. You either defend the norms which let a university function, or you don't. 

Wednesday, September 13, 2017

The Eternal Mystery of Why Jews Vote Democratic

People sometimes ask me why Jews vote Democratic. There's no real mystery behind it. The explanation is simple:
First, on every issue aside from Israel, Jews prefer Democrats to Republicans.
Second, on the issue of Israel, Jews prefer Democrats to Republicans.
As we look at Donald Trump's poll ratings amongst Jews -- far lower than even his catastrophic nationwide ratings -- we see this born out. On every issue save Israel, Jews think Trump sucks. And on Israel ... Trump still is significantly underwater, and well below where Barack Obama polled on that issue at his nadir. It's just not that mysterious why an overwhelmingly liberal electoral subgroup would keep voting for the more liberal of the two parties.

But, you know. 2014 2015 2016 2017 will be the year Jews finally come to our senses and realize who truly loved us all along!

Tuesday, September 12, 2017

I'm Sick of Smug-Takes on Berkeley Offering "Counseling"

Former Breitbart editor Ben Shapiro is coming to campus this week. Shapiro will be followed this month by Ann Coulter, Steve Bannon, and Milo Yiannopoulos, as part of a Berkeley "free speech week".

In a long email outlining the various campus policies that would be in place to facilitate all these speeches (and as I've consistently argued, having been invited by authorized community members they do have a right to speak free of censorship or material disruption, though of course not from non-intrusive protest or criticism), Executive Vice Chancellor Paul Alivisatos mentioned that, among other things, counseling services were available for any students who felt "threatened or harassed simply because of who they are or for what they believe."

And the internet went wild.

I don't need to collect links -- here's an example, but they're not hard to find. Across the entire political spectrum of the mainstream media -- you know, center-left to hard-right -- there was near-uniform glee in dumping on coddling Berkeley administrators and infantile Berkeley students who need counseling just because they're hearing "ideas they disagree with."

I cannot tell you how sick I am of hearing this. It's lazy, it's a cheap shot, it's intellectually incoherent, and above all it's mean-spirited. Berkeley isn't wrong here. And it's detractors are showing more about what's missing in their character than the most stereotypical Golden Bear hipster.

For starters, Berkeley is a big place. Its total enrollment is over 40,000 students. These young people come from a range of backgrounds, and at any given time across that 40,000 there will be persons who are struggling, or experiencing crises, or feeling threatened, or any other permutation of personal circumstance and emotional troubles you can imagine. I've already written recently about how all of us -- self-satisfied declarations notwithstanding -- intuitively understand how certain speech can truly wound deeply, in a manner which we can all empathize with. That doesn't mean we ban it (and offering counseling doesn't "ban" anything), but it does mean that there's a genuine phenomena that we can and should attempt to address

So let's be empathic. Let's imagine, amongst Berkeley's 40,000 students, that there is a student who is struggling. Maybe he's away from home for the first time and having difficulty adjusting. Maybe she feels in over her head in classes, finding that work that got her an A in high school is barely scraping a C at Berkeley. And then let's add more to it -- maybe he's just found out that he's now at imminent risk of deportation from the only country he's ever truly known. Maybe she's found out that, though she proudly served her country and is a veteran of the American armed forces, the President of the United States publicly declared her to be a burden on the US military who should never have been allowed to wear the uniform.

Now let's remember who Ben Shapiro is.

Ben Shapiro thinks that trans individuals suffer from a "mental illness" and gratuitously misgenders them for the primary purpose of causing offense. He refers to DACA as President Obama's "executive amnesty". Pretty much the only reason he isn't an avowed member of the alt-right is that they happen to hate him too. He's not an intellectual. He's not one the great thinkers of the right. His oeuvre, his raison d'etre, is to be a hurtful provocateur. That's what he brings to the table.

And let's be clear: this, the above, was why Ben Shapiro was invited to Berkeley. It wasn't because he offered "a different view." And it certainly wasn't because of the intellectual candlepower he has on offer. The people who invited Ben Shapiro to UC-Berkeley did so because of, not in spite of, the hurt he will dish out to already-vulnerable members of the community.

The students I outlined above -- already struggling, buffeted by political dynamics which very much are designed to dehumanize them -- now have to reckon with the reality that a non-negligible chunk of their colleagues are glad they're feeling that way. They actively want to accelerate the process. They'll go out of their way to invite speakers to reiterate and emphasize the point.

Honestly, I don't blame them if they could use a venue to talk out their feelings a bit. It strikes me as spectacularly uncharitable, a colossal failure of basic empathy, to think otherwise. Then again, what is our polity going through now but a colossal failure of basic empathy?

After the election, I made a similar comment (which I cannot find) when people again made fun of college kids who expressed deep hurt and fear upon the election of Donald Trump. This, too, was attributed to fragile millennial snowflakes who don't know how to tolerate hardship. And I remarked that the man now faced with being expelled from the country is not scared because he's frail, and the woman who was the victim of a sexual assault is not despondent because she's weak-willed. We've seemingly moved past "don't punch people who think you're subhuman" (okay) to "don't be sad that people think you're subhuman" (really?).

Some are arguing that the real problem with offering counseling is that it doesn't teach the kids "resilience". First of all, I wonder what they think goes on in counseling sessions -- my strong suspicion is that they are precisely about fostering resiliency so that students are better able to cope with such annoying trivialities like "I may be torn from the only home I've ever known at any moment and a sizeable portion of what I thought was my community will cheer as they drag me off." The objection here isn't so much to lack of resilience as to the university having the temerity to try and teach it -- like objecting to wilderness training because shouldn't real men already know how to survive outdoors?

Second, it is hard not to hear in this objection a deep resentment at the fact that today, even now, some people still do proactively care about the feelings of others. The argument seems to be that "fifty years ago if someone felt marginalized on a college campus nobody gave a shit. Today, some people -- including a few holding administrative positions -- do care, and for some reason that's a step backwards for society." One can hear more than a little of the typical mockery associated with using therapy of any sort -- though I admit I hadn't heard it manifest this overtly in some time -- which suggests that only persons of pathologically fragile mental composition could ever need something as lily-livered as counseling. Again, I find this argument hard to relate to, seeing as its genealogy is so thoroughly bound up in nothing more complicated than pure cruelty. Shorn of the feelings of superiority it generates, can anyone actually defend this?

Others complain that students shouldn't be going to therapy in response to such speech, they should be responding in other ways -- debate, protest, donations, activism, any thing else. Of all the objections, this is the one that is the most difficult to credit. Does anyone think that the only way Berkeley students will respond to Ben Shapiro's speech is by going to counseling sessions? That Friday morning, all 40,000 of us will march into whatever center houses our mental health professionals and demand to be soothed? Of course not. Of course there will be debate, and protest, and donations, and activism. And you can bet that however such actions manifest, people will still find a way to denounce the entire response tout court -- unjustified actions like violence, yes, but also silent protest, but also waving signs, but also pure condemnatory speech (especially if that speech dares use the dreaded -ism or -phobic suffixes).

Finally, let's dispense with the notion that this is all being triggered by students who can't tolerate "ideas they disagree with." For starters, it's notable that while Alivisatos' email does not in fact refer to any speakers in particular, everybody simultaneously assumed they were talking about Ben Shapiro while at the same time being aghast at how anyone could possibly need counseling after hearing Ben Shapiro. Me thinks they protest to much. But more to the point: Berkeley regularly hosts speakers who will present ideas many on campus will disagree with. This week, David Hirsh is giving a talk on "Contemporary Left Antisemitism" -- surely, many on campus would resist his conclusions. Later this term, National Review editor Reihan Salam will be speaking on immigration policy -- with no known objections or protests planned.

So the problem isn't ideas people disagree with. The problem is Ben Shapiro, and Ann Coulter, and Milo Yiannopoulos. One doesn't invite them to campus because they're presenting important ideas which need to be reckoned with. There are plenty of conservatives who fit the bill, and when those conservatives show up they are typically met with little fanfare. But if you're inviting this contingent, you're doing it because you like hurting people. That's their comparative advantage, that's the thing they can offer over and above all of their competitors.

It neither bothers me, nor surprises me, nor offends me, that this offends certain students. If some portion of those students are in an emotional place right now where they feel like they need counseling, I encourage them to get it. If others want to protest the speech, I support their right to do so within the parameters of the law. If still others want to attend the speech, or subject Shapiro to harsh questioning, or pen scathing op-eds in the Daily Cal, I applaud them all for it. And each of these options got pride of place in Alivistos' email.

All of these are valid responses. None of them are worthy of scorn, none of them signal any deficiency in our student body. What is far more worrisome is the reaction of the so-called "adults" in the media, who have grown so fond of bashing kids-these-days that they've seemingly forgotten the need to reason, much less to empathize.

Wednesday, September 06, 2017

The Roots of Hating DREAMs

In cancelling DACA, Attorney General Jeff Sessions positively cited our nations' immigration policy shift in 1924, when we enacted racial quotas to sharply limit immigration from "non-White" parts of the world. At that time, Jews were part of the "non-White" horde, and these new laws were integral in keeping out Jewish refugees attempting flee Nazi atrocities before and during World War II. It was a policy of death, enacted on a foundation of racism. No wonder Sessions loves it.

There probably aren't that many Jewish DREAMers today, but the Forward found at least one -- a young man from Venezuela who's lived in America since he was six. He came to this country legally along with his mother, who had a work visa. Unfortunately, when she died of cancer while he was still in elementary school, that visa was canceled without him being aware of it. This is just one example of many showing why the "rule of law" attack against DACA kids is utter nonsense. What exactly is the lesson supposed to be: "That will teach you to let your mom die of kidney cancer"? It's grotesque.

Attorney General Sessions said that, in ending DACA, we are not saying that DREAMer youth are "bad people." He's right. We're saying we are.

Americans have no birthright to a country we can be proud of. We write our own history. As Richard Rorty once observed: "There is nothing deep down inside us except what we have put there ourselves." We decide what sort of country we are, and that means it's on our shoulders when the decision we make turns out to be ... this.

Monday, September 04, 2017

Who We Thought They Were, Part II

The headline said: "Why a Republican Pollster is Losing Faith in Her Party." I immediately thought: "I bet it's Kristen Soltis Anderson."

I was right.

I've known Kristen since high school -- we were on the debate circuit at the same time, albeit she a few years older than I. It's been a bit weird watching someone you know become, you know, an official Big Deal (fun fact: Washington Post reporter Bob Costa was also part of this same era of debaters -- the conservative Student Congress set has done very well for itself!). Kristen was always on the more moderate side of her party, and as a pollster had long been pushing reforms to the Republican Party to make it more appealing to young voters -- tamping down on right-wing social issues and focusing on matters of economic opportunity.

But the reason I knew this article was talking about Kristen wasn't because she's a moderate, per se. It's because as a pollster, I suspected Kristen would not be able to shrink from a reality that many others in her ideological camp -- more intellectual, moderate, thoughtful Republicans -- are somehow still in denial about:

The brand of politics represented by Donald Trump is, as of now, the dominant form of Republicanism in the United States.

It isn't an aberration. It isn't a hijacking. It isn't a tiny minority that's somehow taken over.

Most Republicans fundamentally like the things Donald Trump does and the politics he represents. And that includes him at his most wretched -- for example, the aid and comfort to the neo-Nazis marching in Charlottesville. Quoth Anderson:
Anderson’s fear is that in a rapidly diversifying America, Trump is stamping the GOP as a party of white racial backlash—and that too much of the party’s base is comfortable with that. Trump’s morally stunted response to the violence in Charlottesville, Virginia, this month unsettled her. But she was even more unnerved by polls showing that most Republican voters defended his remarks.

“What has really shaken me in recent weeks is the consistency in polling where I see Republican voters excusing really bad things because their leader has excused them,” she told me. “[Massachusetts Governor] Charlie Baker, [UN Ambassador] Nikki Haley, [Illinois Representative] Adam Kinzinger—I want to be in the party with them. But in the last few weeks it has become increasingly clear to me that most Republican voters are not in that camp. They are in the Trump camp.”
The portion of the party coalition willing to tolerate, if not actively embrace, white nationalism “is larger than most mainstream Republicans have ever been willing to grapple with,” she added.
[...]
Polls showing Trump’s approval among young people falling to 25 percent or less justify her pessimism. And yet, as she noted, Trump’s approval among Republicans, while slightly eroding, remains at about 80 percent. Only one-fourth of GOP partisans criticized his handling of white-supremacist groups in a recent Quinnipiac University national survey.
That's the key point. Most Republicans of Anderson's political orientation simply won't admit that white nationalism is not some fringe phenomenon in their ranks. It is, as of now, the dominant position in Republican Party politics.

I can understand why Anderson thinks the Republican Party is worth saving. One could certainly say there are elements of conservative ideology that are not tied to White racist resentment and are worth preserving and defending. But those engaged in that project need to be honest about the status quo. And the status quo is that what drives the median Republican voter, right now, isn't economic opportunity or limited government or human liberty or any of the other markers that might justify an intellectually and morally defensible conservatism. It's a vicious form of identity politics that manifests in and celebrates things like DACA elimination, the Arpaio pardon, the transgender service ban, the Muslim immigration ban, and so on and so forth ad infinitum.

They are exactly who we thought they were. Some recognize that now. Most remain in denial.