Wednesday, August 03, 2022

Assessing AIPAC's Victories

Last night, Rep. Haley Stevens soundly defeated fellow incumbent Rep. Andy Levin in a D-on-D Michigan primary matchup. The race drew significant attention in the Jewish community because of the gobs of money AIPAC spent seeking to oust Levin and support Stevens. Levin earned AIPAC's ire because he is a vigorous proponent of America taking more robust steps to protect a two-state solution for Israel and Palestine -- including steps which entail places checks on Israeli government policies which place that solution in jeopardy. While I endorsed Levin, I want to be clear that I harbor no ill-will towards Haley Stevens, whom I also like and have zero qualms supporting in the 2022 general.

In any event, as the primary season nears its conclusion, it is fair to say that AIPAC's initial foray into direct candidate advocacy has been relatively successful. So far, it has notched ten victories against two defeats in the Democratic primaries it has substantially invested in. To be fair, that figure is a bit misleading, as in many of the races AIPAC either was backing a candidate who already came in as a favorite, or were in relatively low-salience open-seat races where AIPAC's firehose of cash swamped the field. For example, Stevens entered the race against Levin as the substantial favorite -- more of her old turf than Levin's was placed in the new district they both ran in, and she is generally regarded as a better and more natural campaigner than Levin. Indeed, my hot take was that Stevens probably would've bested Levin even without AIPAC's giant cash infusion. But certainly, AIPAC probably is relatively happy with its performance thus far.

What AIPAC bought with its investment into the Stevens campaign was the ability to write a narrative. It's hoping the political message taken from Stevens' victory includes lessons like "pro-Israel is good politics" or "supporting conditioning aid on Israel is a sucker's bet in Democratic politics." Needless to say, AIPAC's critics are hard at work resisting these narratives and trying to spin out others of their own ("AIPAC is a vector for letting GOP billionaires take over Democratic politics"). Meanwhile, as in nearly all races of this sort, the national attention on the race (centered on Israel/Palestine) almost certainly had relatively little impact on the local considerations that drive votes one way or another. At the end of the day, Stevens won her old turf, Levin won his old turf, but the new portions of the districts, formerly represented by Rep. Brenda Lawrence, went to Stevens -- who had Lawrence's endorsement. The actual lessons may not be much more complicated than that.

I want to do my best to separate wheat from chaff here. There are lessons to be drawn from AIPAC's victories this primary season. Though not every ecstatic claim of AIPAC supporters can be borne out, they have proven some lessons true.

At the most basic level, AIPAC's argument is that its primary victories show that Democratic voters support its version of "pro-Israel" politics. Yet this, I will suggest, remains unproven. As much as it has spent on these races, AIPAC has been notorious for virtually never speaking about Israel or Israel-policy in its advertisements or promotions of its preferred candidates. This suggests that it doesn't think that issue is necessarily a winner for them.

However, it does seem true that running against AIPAC's policies is not a winning strategy in most Democratic primaries. This is, perhaps, another "Twitter is not real-life" lesson -- the excitement and enthusiasm one sees online for a candidate who "stands up to the Israel Lobby" is not reflected in on-the-ground political performance. While it's unclear that voters affirmatively value AIPAC-style "pro-Israel" politics, it's quite evident that they don't find even Levin-style two-stateism to be a major political motivator. Similarly, it seems pretty clear that -- as of right now at least -- AIPAC has not faced any substantial backlash from Democratic voters for backing insurrectionist Republicans. A Democratic candidate who is viewed as "the pro-life candidate" is toxic in a 2022 Democratic primary. A Democratic candidate who is viewed as "the AIPAC candidate" isn't. This might change over time -- I suspect there is quite a bit of festering ill-will towards AIPAC amongst many Democratic Party actors that is waiting for an opportunity to burst forth -- but right now, AIPAC's position is secure.

It's also worth noting, in the context of right-wing Jews crowing about Levin's defeat to Stevens, that AIPAC's success does seem to decisively falsify the alarmist and opportunist narrative that the Democratic Party is being "taken over" by anti-Israel forces, that such positions are the new normal or mainstream in Democratic political life, and so on. To be clear, I find it repulsive to argue that Andy Levin in any way represents an "anti-Israel" position. But the point is one cannot simultaneously promote all of AIPAC's successes in Democratic primaries while also saying that the true soul of the Democratic Party is irreducibly hostile to Israel.

I also do think it's fair to say that AIPAC has reestablished some of its perhaps decayed deterrent effect. Democrats know that if they get on AIPAC's bad side, it can and will dump vast sums of money into ousting them from office. And by the same token, if they play ball with AIPAC they can access those same sums for themselves. That's a powerful inducement.

That said, the question of how AIPAC's interventions will affect political decision-making by prospective Democratic politicians on Israel is more complicated than might appear at first blush. I do think that, on average, a lesson that will be learned by many mainstream Democrats is "don't get on AIPAC's bad side", and to that end will result in more Democrats taking up AIPAC-friendly positions. Those positions include nominal support for a two-state solution -- AIPAC does that too -- so long as that support doesn't take the form of ever asking for any pressure on Israel or demands that America use its leverage to pushback against Israeli decisions that are destructive to the possibility of eventually establishing a Palestinian state. However, I also think that AIPAC has also paradoxically opened space for at least some Democrats to be more radical on the issue -- for example, in endorsing one-statism* -- because they'll internalize the lesson that more "moderate" approaches like Levin's robust two-stateism don't offer any political advantage.

Let's simplify potential Democratic Israel positions into three categories: (1) AIPAC-style status quo (represented by someone like Stevens), (2) The Andy Levin or J Street style two-stateism , or (3) Rashida Tlaib style one-stateism. Of course, some politicians have very strong feelings on this question and will choose based on those deeply-felt sentiments. However, my core model assumes that most politicians don't have hard-and-fast policy preferences on most issues. Rather, on most issues beyond the rarefied few they care deeply about, they will choose the political path-of-least-resistance amongst the set of choices which meet their basic criteria of moral tolerability, even if a different choice might be closer to their ideal ideological preference. So if we imagine a politician who really doesn't care one way or another about Israel/Palestine -- they are at least not repelled by any of the three forms of Israel positions above -- they won't adopt the position they "believe in" the most, they'll pick the position that is politically easiest and least likely to generate controversy or backlash. AIPAC's victories have strongly suggested that, in many contexts, that would be position #1 -- even in Democratic primaries. And to that extent, AIPAC probably will succeed in moving the Democratic needle towards its preferences.

However, we can also imagine a different sort of potential progressive candidate, one who does not find AIPAC-style status quo advocacy to be morally tolerable. For this candidate, the two viable choices for their Israel/Palestine positions are categories #2 and #3. Historically, many would have picked door #2, again, because it's the path of political least resistance. Indeed, if such a candidate a few years ago had asked me for advice -- had said that they had serious concerns about Israel's behavior and they simply couldn't endorse a position of total and unconditional support -- I'd have told them that, so long as they supported two states and opposed BDS, they'd probably be okay. They wouldn't necessarily be endeared to AIPAC or other like actors, but they wouldn't be seen as beyond the pale either. But endorse BDS, or oppose Israel's existence outright, and the full sound and fury would fall onto them.

But now AIPAC may have changed the calculus. By going scorched earth on Levin, it sends the message that it views categories #2 and #3 as equally destructive. Suddenly, door #2 is not a political "path of least resistance" compared to door #3. And if they're both going to bring AIPAC's full fury down upon the candidate, well, at that point you might as well choose based on your ideological preference. Some of these candidates, will sincerely prefer robust two-stateism over one-stateism (that characterizes me, for instance), so their behavior shouldn't change. But some will no doubt prefer one-stateism, and lacking any political rationale for tacking towards the center, they won't do it anymore.

I worry that this might be the lesson people draw from the Donna Edwards/Glenn Ivey race -- another where AIPAC dumped massive sums of money into the contest. Again, all politics is local and Ivey's victory likely reflects factors that overwhelmingly have nothing to do with AIPAC or Israel. But if one looks at Edwards' trajectory entering this race, and in particular how she tried to heal old suspicions held by Maryland's Jewish voters, it seems hard to argue that she is now (if she ever was) some sort of anti-Israel firebreather. She was never going to be AIPAC's poster girl, but she made a concerted effort to pinch towards the center and assuage Jewish concerns about her record. The result was less than nothing -- AIPAC spends eight figures on sinking her career. To be clear: I have no reason to think that Edwards' moves were anything other than sincere, or that she secretly harbors one-state sympathies. Nonetheless, there absolutely will be other politicians in Edwards' position who may decide "why bother?" There's no sense going through all this effort to listen and grow and build bridges and try and find common ground if they're going to go scorched earth regardless.

In short: there is likely a set of candidates who (a) find both one-stateism and robust two-stateism tolerable, (b) marginally prefer one-stateism over robust two-stateism, (c) would nonetheless back robust two-stateism if that was the path of political least resistance. If robust two-stateism no longer offers any political advantage, they're likely to begin promoting one-stateism. To be clear, these candidates are still likely to lose. AIPAC's hammer puts them at a decided disadvantage. But their logic will be "I'm likely to lose either way, so I might as well swing for the fences." Indeed, there's not just a moral but an instrumental logic here. Consider two strategies: One will have you lose by 10 points in 10/10 races. The second will have you lose by 30 points in 9/10 races, and win by 2 points in the tenth. The rational political actor should choose the second strategy, even if it is objectively less popular (a point I've made regarding the future of BDS in Democratic Party politics)!

Paradoxically, AIPAC may encourage some number of Democratic candidates in the more liberal tranche of the party to start supporting a one-state solution who otherwise would not have done so. And the odds are some of them will end up prevailing in their races (if only because of idiosyncratic local factors). There's a real chance that an upshot of AIPAC's intervention will be to strengthen the political power of the one-state caucus -- not because of some political backlash, but based on how it has altered the political calculus amongst more progressive-minded actors. In many ways, it is J Street that is more of a loser than AIPAC is a winner, and I expect J Street's influence to bleed out not just towards AIPAC, but also towards more radical and uncompromising anti-Israel actors and the far-left. For someone with my politics, that is perhaps the most depressing lesson of all.

So to sum up, here are the lessons I think can be validly drawn from AIPAC's performance this election cycle:

(1) While it isn't demonstrated that Democratic voters support AIPAC's brand of "pro-Israel" policies, it does seem clear that they aren't especially moved or motivated by major alternatives. The political energy behind any alternative to what AIPAC pushes -- whether it's Levin's robust two-state Zionism or explicit non- or anti-Zionist positions -- is vastly exaggerated and isn't translating to on-the-ground political power.

(2) AIPAC, and its affiliates, are not toxic brands in Democratic primaries.

(3) The Democratic Party, including its base, are not "anti-Israel" or sympathetic to "anti-Israel" positions in any meaningful respect.

(4) AIPAC has restored some "deterrent effect" against Democrats who might consider crossing them, at least in circumstances where the Democrat has other political vulnerabilities that can be leveraged (such as after redistricting). Likewise, AIPAC has credibly indicated it can and will substantially invest to support Democrats whom it feels favorable towards.

(5) The average Democratic politician who is not substantially invested in Israel/Palestine as an issue will likely move their position marginally closer to AIPAC's as "political path of least resistance".

(6) Left-wing Democrats who are sympathetic to one-stateism or other more radical anti-Israel positions, but who had been hewing to more J Street style stances because they thought they'd be more politically palatable, may reassess the utility of relative moderation and become more open in their anti-Israel declarations.

* Not the apartheid one-statism where Israel controls the entire territory and Palestinians are perpetual second-class citizens -- AIPAC is clearly fine with that.

Sunday, July 31, 2022

The Epistemic Dimension of Antisemitism: The Case of Navi Pillay

The Journal of Jewish Identities just published my most recent article, "The Epistemic Dimension of Antisemitism." Basically, the article looks at antisemitism through the prism of "epistemic injustice" -- wronging Jews in our capacity as knowers. This is distinct from more "traditional" forms of antisemitism like overt hatred or disdain (though obviously they can be related and support one another). 

To give an example: One can (and many antisemites do) view Jews as a world-dominating cabal that controls critical social enterprises like the media, Hollywood, and the financial industry. Unsurprisingly, those who hold that view often also are affectively antagonistic towards Jews (few think Jews run the world and are thankful for what a bang-up job they think we're doing). But it's also likely that someone who holds this view will take certain stances about Jewish credibility. They're liable to think that Jews cannot be trusted, that we're always working the angles, that our testimonial offerings are likely in service of a deeper game. Even if, for whatever reason, they do not have an explicitly hateful attitude towards Jews, they might be distinctively mistrustful or dismissive towards Jews when we venture opinions in the public square -- even, or perhaps especially, if those opinions are on matters that are central to Jews' own experience.

The essay, of course, goes into more detail. But as it happens, an incident that occurred almost simultaneously with the publication of the essay provides a solid real-world illustration. In an interview with the pro-Palestinian website Mondoweiss, Miloon Kothari, a member of the United Nations Human Rights Council's special commission into Israel and the Palestinian territories, made several remarks which generated a swift backlash from American and Jewish diplomatic officials

In particular, Kothari alleged that the "Jewish lobby" controls social media to the detriment of his work:

“We are very disheartened by the social media that is controlled largely by – whether it is the Jewish lobby or specific NGOs, a lot of money is being thrown into trying to discredit us.”

(Elsewhere, he appeared to question the validity of Israel's membership in the UN -- we'll leave that part aside).

Unsurprisingly, these comments were, to say the least, not well received in the Jewish community. But Kothari's colleague Navi Pillay, former United Nations High Commissioner for Human Rights, rose to Kothari's defense and claimed that he was the victim of a "deliberate" campaign to misquote and falsify what Kothari actually said. Kothari's comments, Pillay argued, were "deliberately been taken out of context" and Kothari was "deliberately misquoted to imply that 'social media' was controlled by the Jewish lobby."

Kothari's comment about "the Jewish lobby", expressing frustration by and antagonism towards what he takes to be the "Jewish lobby's" ability to "control" social media, seems an easy case of antisemitism under traditional articulations. Pillay's defense of Kothari, by contrast, sounds in a epistemic dimension. She dismisses the testimonial offerings of Kothari's critics who claim antisemitism by claiming they are engaging in a "deliberate" campaign of falsification. The purpose is to sabotage the basic testimonial validity of those claiming antisemitism by declaring the allegations to violate basic norms that undergird legitimate discourse (e.g., honesty and sincerity).

For starters, Pillay does not actually identify, or even attempt to identify, any misquote or missing context that has undergirded those criticizing Kothari. To the contrary,  most of the media sources I've seen reporting on the story have quoted Kothari verbatim. They haven't, for instance, just said something like "Kothari attacked the 'Jewish lobby'" and left readers to wonder what the relevant sentence actually said. They have by and large included most if not all of the above block quote. Meanwhile, the quotations themselves were taken from Mondoweiss, an outlet which is supremely unlikely to have misquoted Kothari or taken him out of context in a manner that would assist pro-Israel commentators. Pillay's claim of false testimony is not just unsupported, it does not even gesture at anything that might support it. So how could she possibly think her contentions will carry any credence? The most likely answer is that she thinks -- and she's probably correct -- she can draw on a reservoir of epistemic antisemitism where people are predisposed to believe that Jews and those advocating on our behalf are liars, manipulators, cheats, and bad-faith actors. Only in a world where such epistemic beliefs about Jews are taken for granted could such naked and obviously unsupported complaints about misquotes be thought to stand a chance of success.

All of that would be bad enough. But there's also on top of this Pillay's choice to say that these alleged-but-not-demonstrated falsifications were "deliberate". This is a charge Pillay repeats, so it is no stray bit of rhetoric. Supposing, for sake of very strained argument, we did think there was something to the notion that Kothari was being taken out of context. That still hardly would establish that Kothari's critics were acting deliberately. Even if, for some reason, one thought there was a perfectly innocent explanation for what Kothari said, surely it is not unreasonable to think that Jews could in good faith perceive that passage about "the Jewish lobby" as being problematic. The most likely explanation for the divergence between how Jews interpreted what Kothari said and how Pillay does so would be such good faith disagreement. 

But Pillay refuses to allow for anything other than conscious malice. It is not just that Kothari's critics are wrong, they are intentionally wrong, they are lying, they are smearing. In my article, I make the following observation:

[A]ntisemitism allegations are divided into a sharp binary: those which are incontestable and those which are in bad faith. In this binary, there can be no such thing as an antisemitism claim which one, personally, doesn’t agree with but which is accepted to lie within the legitimate boundaries of argument. Every instance of supposed antisemitism that is disputable must be invalid altogether. The “zone of contestation,” where we agree to investigate claims under a posture of open receptivity, because we concede we’re not immediately sure of the right answer, implodes because there’s never actually any controversy: either a claim is so obviously true that it smacks us in the face or it is so obviously false that it can dismissed out of hand.

Pillay defaults to making unsupported, and unsupportable, claims of deliberate lies because the architecture of epistemic antisemitism assumes that the only reason Jews would ever level a claim of antisemitism that one might disagree with is because they're lying about it. Pillay thinks Kothari is not antisemitic, therefore, anyone arguing otherwise simply must be lying. The false allegations of misquotation or missing context flow naturally from this.

Certainly, I don't mean to set up a sharp dichotomy between "traditional" and "epistemic" varieties of antisemitism. One sees elements of each in the conduct of both Pillay and Kothari -- one could easily view Pillay as expressing not just mistrust but antagonism towards the (Jewish or Jewish-coded critics) whom she cavalierly smears as liars, and Kothari's claims about the "Jewish lobby's" outsized influence on social media obviously has epistemic implications about the validity of their discursive contributions to debates over Israel and Palestine. Nonetheless, this incident I think does a decent job of highlighting the distinctive nature of the epistemic strain. It is unfortunate, but not surprising, to see UN officials at the center of such a story. But nobody should be under any illusions that Turtle Bay or Geneva is the only location where it occurs.

Tuesday, July 26, 2022

Gallows Humor vs. Pure Fear in Political Ad Strategy

Last night, I saw the following ad start circulating by a pro-choice organization targeting Texas Gov. Greg Abbott (and, by extension, the draconian anti-abortion regime that has recently been ushered in).


I'm curious what people think on this (as I've mentioned, cutting political ads is something I'm absolutely irrationally confident I'd be good at).

I fully agree that Democrats should be running and running hard on the demise of Roe. If there is one thing Americans hate, it is changes to settled expectations, and this one was a doozy. Democrats can and should do everything they can to elevate and place at the forefront the anxieties, fears, and trauma that is associated with this settled right being unceremoniously torn away.

I am curious how people view this ad, in particular, as fitting into the strategy. The most striking feature of the ad is the abrupt switch in tone -- from a pure emotional appeal to absurdist gallows humor. The ad has gotten generally positive reception on my Twitter feed, though I can imagine people thinking it's a little too jokey and slapstick for the moment. The alternative, of course, would be to run ads that aren't cut with humor but rather play purely on fear -- fear of women dying, being maimed, being arrested. I want to be clear: those fears are justified. I don't think this is fear-mongering, because these terrible prospects are absolutely on the horizon where they are not already the reality. But the point is there is a different style of ad one can imagine that doesn't flinch away from the raw terror of the moment by interspersing it with a bit.

Consider something like the following: 
A woman is sitting in an examination room in a hospital gown. She's terrified, and has clearly been crying, but she's trying to stifle any sound and keep a brave face. There's blood spotting the gown near her groin. The camera slowly pans over, zooming out so she stays in frame but capturing more of the exam room until it reaches the doorway. Out in the hall, one sees three police officers talking to a doctor or nurse. Eventually, one of the officers walks into the exam room with handcuffs out.
No humor, no levity, no absurdism. Not even any dialogue. Just a terrified woman, in the most vulnerable moment of her life, facing the abusive power of the state. A terrible image. But we are living in terrible times.

Would that be better? Worse? Or should both types of ads be run? I'm not sure. Again, curious what people think about what's the right and most effective strategy.

Sunday, July 24, 2022

"Dems" Who Endorse Third Party Candidates Are Monsters. Zero Exceptions.

Back in 2018, when I was still living in Berkeley, I was really having a difficult time deciding who to vote for in a D-on-D assembly race between Buffy Wicks and Jovanka Beckles. Both seemed like solid people I'd be happy to have representing me in Sacramento, and I struggled to find much distinguishing the two.

Until I learned that Beckles had voted for Jill Stein in 2016. Suddenly, a hard choice became very easy. Wicks gets my vote (and she went on to win the election).

Fast forward a few years, to 2022. I now live in Oregon, a pretty reliably blue state. Except this year, our gubernatorial race includes not just the standard D-R matchup between Democrat Tina Kotek and Republican Christine Drazan. It also includes a well-financed "independent" candidate -- former Democratic State Senator Betsy Johnson,* well-known as among the most conservative Democrats in the caucus. Johnson, who has called Portland a "city of roaches", ran expressly because she couldn't tolerate a more liberal Democrat being the party's standard-bearer. Polling suggests an extremely tight race, and Johnson 's presence on the ballot could let the Republican slip into the governor's mansion with barely 30% of the vote.

The very thought makes me livid. The idea that in Oregon, in 2022, we might have a Republican Governor because some egomaniacal blue dog Dem just couldn't back her party's nominee is outrageous.

Among Johnson's endorsers is outgoing Democratic Rep. Kurt Schrader, in an obvious sore-loser move after he lost his primary to challenger Jamie McLeod-Skinner. I couldn't vote in that election -- I now live in Schrader's district, but I moved here a few weeks after the election -- and I certainly understood the pragmatic argument in favor of Schrader in a swing-y district. But Schrader himself? Absolutely dead to me. I shed zero tears for his demise.

There is nothing I have more contempt for than a nominal Democrat supporting a third party in a contested general election. It is terrible if it is a "from the left" protest vote for a middle-of-three-evils like Jill Stein. It is terrible if it is a "from the center" chin-stroker vote because the Democrat is "just too radical"

The current iteration of the Republican Party is a hairsbreadth away from being actual fascists. Stopping them from attaining political power is a moral obligation of the highest order. Very, very few things can trump that obligation. I can think of essentially no significant Democratic figure whose views or practices are so noxious as to trump that obligation. Yes, that includes every single member of the Squad. Yes, that includes Joe Manchin and Kyrsten Sinema and Henry Cuellar. I don't care how annoying you find them. I don't care how valid your grievances are against them. None of them are worse than your typical 21st century Republican. If they are the general election nominee, and they're running against a Republican, you vote for them, and you do it with a smile.

* In researching this post, I learned the ultimate terrible fact: Johnson is a Carleton College alum. She also got her J.D. at Lewis & Clark. I am devastated.

Tuesday, July 19, 2022

It's Not About Liberals Refusing to Compromise: Respect for Marriage Act Edition

Today, the Respect for Marriage Act passed the House by a 267-157 vote. Forty seven Republicans voted in favor of the bill, dwarfed by the 157 who voted against (all nay votes came from Republicans).

Contrary to popular press coverage, this law does not "codify same-sex marriage". It appears to be far narrower, only ensuring that same-sex marriages performed in one state must be acknowledged in other states. As far as I can tell, it does not forbid states from barring same-sex marriages performed in their borders. In effect, what it "codifies" is not Obergefell but Windsor.

Which makes the overwhelming Republican opposition all the more striking.

This bill could not have been more modest in ambition. It does not simply secure the status quo. It secures a significant retreat from the status quo, at the expense of gay and lesbian Americans' basic civil rights. And even still, Republicans voted against it by more than a 3:1 margin, and its prospects for passing a Republican-led Senate filibuster look dim.

It has been suggested that if Democrats were just a little more moderate, a little less all-in, that Republicans would be willing to work with them. It is the liberals' insistence on going all-or-nothing that compels conservative opposition. Alas, conservatives just can't help themselves. Murc's law strikes again.

No. The Respect for Marriage Act was written to be about as timid and "moderate" as one could possibly imagine without simply running all the way back to Bowers v. Hardwick. And still, it probably won't pass, because Republicans remain overwhelmingly opposed to any degree of equality for gay and lesbian Americans.

That's their position. They're not hiding it. They're not reluctantly compelled to vote against these laws because of some mythic liberal overreach. That's their position. Stop pretending that Republicans don't believe what they clearly believe.

The Goose and the Gander of the Bruen Prohibition on "Balancing"

Eugene Volokh flags a case out of California involving a man allegedly prohibited from carrying a firearm due to a mental health hospitalization that occurred twenty years ago, when the man was in middle school. Federal law generally prohibits an individual "who has been committed to a mental institution" from owning, possessing, using, or purchasing a firearm or ammunition. The man, who later enlisted in the Marines and worked in law enforcement, has not had any other mental health issues since that single incident.

The court in this case ended up ducking the major constitutional issue for technical reasons we don't need to go into, but suggested that the relevant section of federal law was probably still constitutional after Bruen because several justices in that case specifically identified bans on mentally ill persons carrying firearms as among the sort of historical restrictions that had been permitted at the time of the framing. Prof. Volokh, by contrast, thinks the law should be unconstitutional insofar as it does not require any showing that the prohibited individual is presently mentally ill. The facts of this case, in particular, suggest a person for whom the law as written sweeps too broadly.

I make no judgment on whether federal law should, as a matter of policy, create such a carve-out for persons who seem to no longer be mentally ill. However, it does seem to me that this sort of analysis represents exactly the sort of "balancing" of interests that Bruen quite categorically forbade courts from engaging in. From Bruen's perspective, the sole question a court should consider is whether or not this sort of firearms restriction -- in this case, restrictions blocking the mentally ill from possessing firearms -- was historically present at the time of the framing. If the answer is no, then the restrictions are unconstitutional no matter how good a reason we might think exists for imposing such a restriction. But the flipside has to be true too: if the answer is yes, then the restrictions are constitutional no matter how unfair or untailored we might think they might be as applied to a given individual. And since the Court has already seemingly conceded that restricting the mentally ill from possession of firearms is one of the restrictions historically permitted, that should end the discussion.

The counterargument, alluded to be Volokh, is that the relevant basis for historical comparison is not the existence of "laws prohibiting the mentally ill from possessing firearms", but rather "laws prohibiting persons who once had a mental health crisis but have not had any symptoms for decades from possessing firearms." At one level, this is a familiar problem of abstractness versus specificity, one which offers courts yet more discretion to approve or disapprove of firearms regulations that they like or dislike. As I said in my last Bruen post, the application of Bruen by the judiciary will not ultimately be controlled by lawyerly parsing of the constitutional or precedential text; it will be a matter of personal judicial preference -- and the specificity problem identified here is just another opportunity for judges to disguise their policy preferences under the cloak of a legal rule. 

But if we make-believe that the putative legal rule will matter--well, Bruen promised that the relevant requirement for a historical analogue was not a "twin". And there are good reasons for that, which go beyond allowing for some amount of adjustment for societal developments as centuries pass. Requiring that state or congressional gun restrictions map on precisely to policy initiatives passed in the 19th century significantly limits the legislature's policymaking authority even in a domain where the Court agrees the legislature has the right to impose restrictions. It is facile to say that restrictions on firearms possession by the mentally ill is permitted, but Congress must only implement those restrictions via the precise programmatic means used in the 1800s. The constitution doesn't typically encode specific policy demands, it encodes general rules and standards that broadly define the parameters through which the democratic branches are allowed to fill in the details.

Given that, it seems to me that as far as Bruen is concerned, the germane constitutional question is whether the restriction in question is of the class of restrictions that had been historically been permitted. Once we answer that question in the affirmative, then Congress or the states should be given considerable leeway in figuring out how it wants to instantiate that restriction -- that inquiry being primarily a policy question which courts should be reluctant to intrude upon. Certainly, Congress cannot simply declare anything to be a "mental illness" restriction, anymore than New York in Bruen was allowed to declare the entire city of New York a "sensitive place". But it's equally clear that restricting persons who had a serious mental health episode from owning firearms is much more clearly under the umbrella of "restrictions on the mentally ill". The opposition to that rule is not really that it falls outside the category, it's that as applied here something like a "one strike rule" feels overbroad and unfair.

And maybe it is -- that rule may be too harsh. But again Bruen says it is not the judiciary's business to weigh competing interests. Mental health restrictions are historically permitted, this is Congress implementing such a restriction -- end of discussion. What is good for the goose is good for gander. That is, unless Bruen actually means what many of us suspect it to mean -- not an actual rule that constrains judicial partisanship, but a thin cloak for imposing pro-gun outcomes, text of the alleged legal rule be damned. We'll see. I'm not optimistic.

Sunday, July 17, 2022

When Will Dead and Maimed Women and Girls Become Old News?

It's been less than a month since Roe v. Wade was overturned, and already the consequences are being felt by women and girls around the country whose health and lives are suddenly imperiled. Many of these stories have gotten significant coverage. To name a few:

All of these cases occur fresh in the wake of the Supreme Court's Dobbs decision. All demonstrate, in vivid detail, how the health and safety of women and girls in America has been dramatically imperiled by the Court's imperious decision. Some right-wing commentators have labeled in "suspicious" how many of these stories are emerging so shortly after Dobbs. There is nothing suspicious about it: of course the consequences of banning abortion would manifest immediately after banning abortion. These stories are what will happen in the first month after Dobbs, and the second, and the third, and the twelfth. These stories are the new normal.

Which raises an important question: what happens when they become normal?

These stories are getting coverage now because they're novel. They are breaking reports about the new reality we live under. But in two, three, twelve months, these stories will still be occurring, but they'll no longer be new. Will they still be covered? Or will the media move on?

One can easily imagine in September and October and November newspaper editors deciding that the latest instance of a child rape victim being forced to scurry across state lines, or a miscarrying woman being left to bleed out in a hospital, or a patient denied prescribed medication by an overzealous pharmacist, are yesterday's news. They'll recede into the background, not because they've gone away, but because they're omnipresent.

This isn't an inevitability. News networks don't skip covering crime stories just because "there are muggings every day". One would hope that they'd apply the same logic to women. Every time one of these laws maims or kills or harasses a girl or woman in their community, that should be a story. The drumbeat shouldn't stop, because the story isn't stopping. It should never be "old news" .

We'll see. I'm skeptical. But we'll see.

Thursday, July 14, 2022

The Default Conservative Response to Inconvenient Facts is to Cry "Liar!"

Many of you have probably been following the horrific story of a ten-year old rape victim from Ohio who was forced to travel to Indiana to have an abortion following her home state's criminalization of the procedure.

No doubt some of you witnessed a collective right-wing response to the story, which was simply to declare it a lie. The Wall Street Journal editorial board called the story "too good to confirm". Ohio Rep. Jim Jordan (R) called it "another lie". National Review contributor Michael Brendan Dougherty called it a "fictive abortion and a fictive rape." Ohio Attorney General Dave Yost suggested the story was a fabrication because he hadn't heard a "whisper" about such a rape case from local law enforcement officials. It was everywhere.

Then the story was (further) confirmed, and those who called it a lie retreated with various amounts of egg on their face. Which is to say, they mostly said they were right to assume the story was made up even though it wasn't.

This has been the main meta-media response to the controversy: agreeing that there were "red flags" about the story such as its "weird timing" that meant we should all have taken very seriously the collective right-wing declaration that the story was a hoax, even though it turns out to have been horrifyingly true.

There were no significant "red flags" here. It is not suspicious that the Indianapolis Star did not publish the name, address, photograph, and social security number of a minor rape victim. It is not "weird" that stories of the horrible consequences of criminalizing abortion would begin to emerge shortly after abortion was criminalized. Obviously, if there is actual evidence of malfeasance or fabrication, one should look into that. But that wasn't present here.*

No, what happened here is very straightforward: A story was published that constituted an inconvenient fact for conservatives. So they declared it to be a lie. That's it. That's all that prompted the reaction. No "red flags", no "reasonable grounds to question". The story was inconvenient, and the response was to cry "liar!"

If we had to do meta-coverage of this story, that's what should have been the frame. It is, after all, the same basic instinct that motivated the cries that the 2020 election was "stolen". What prompted those cries was not any "evidence" or "suspicions" or "red flags". Biden winning was an inconvenient fact, and the default right-wing response to an inconvenient fact is to declare it a lie. Same reason why January 6 insurrectionists are declared to be "antifa". Same reason why mass shootings are alleged to be false flags. Same thing for global warming, same thing for whether Israeli soldiers shot Shireen Abu Aqleh, same thing for Trump's connections with Russia. This is not something occurring in isolation. It is a pattern of behavior, and a deeply dangerous one at that. It's always a lie, it's always "fake news".

So if the media wanted to soul-search its coverage, it should start there. What does it mean that conservatives now reflexively and instinctively declare any story that troubles their ideological waters to be a lie, and what does it mean that the media still views those cries as having credence?

This response, after all, is toxic to the proper functioning of democratic politics. Yet rather than identify it for what it is, let alone push back on it, the media aids and abets it with thumb-sucking self-abnegations agreeing "questions were raised." No they weren't! The mere fact that Republicans don't like a given fact or event or story about the world is not and should not be enough for the media to agree that its truth is up for dispute.

So that's the story I want to see. I want a deep dive into how conservatives have begun calling any inconvenient fact a lie. I want a clear and unvarnished explication of the pattern of behavior, contextualizing the most recent instance by reference to other prominent cases where they've run that same playbook. I want comments from self-reflective journalists about why these unevidenced cries of "liar" are given credence, and whether it is appropriate to continue to give credence to those cries going forward.

That's the metastory. Someone should get on it.

Oh, and for those of you wondering: now that the story has been fully confirmed, conservatives are sweeping into action ... by launching a criminal investigation of the doctor who cared for the child and proposing legislation that would criminalizing giving the child an abortion in Indiana. Because the current Republican orthodoxy is that adolescent rape victims should have to give birth or die trying.

* The closest exception I'll cop to is the Ohio Attorney General saying he hadn't heard of such a case, with the strong implication that if the case existed he would have known about it. But since it turned out there was such a case, the proper response for the media going forward is to treat Attorney General Yost as presumptively uncredible unless proven otherwise. Of course, the actual response will be to continue to treat uncorroborated declarations by Yost as rock-hard proof, while spinning in circles to explain why a doctor going on the record about an event they have first-hand knowledge about is too flimsy to take seriously.