Wednesday, January 18, 2017

It's Impossible To Be Antisemitic, Part 2246

Hey, remember that time an Australian theater refused to allow a (non-Israel-related) Jewish group to put on performances commemorating the Holocaust because the theater thought it would be incompatible with their opposition to Israel? Now, an Australian mayor declined to attend a ceremonial synagogue service because of "the gross and illegal occupation of the West Bank which creates intense international division and bitterness and, unresolved, will cause endless terrorism around the globe, including here."

Think he's antisemitic? Wrong! Always wrong!
“Many people hold very strong views about, in this case the occupation of the West Bank. Many people who are indeed Jewish do so, and I am myself half-Jewish. To infer from a view about occupation that someone is anti-Jewish…it’s just ridiculous,” [Mosman Mayor Peter] Abelson said.
One almost might think that attendance at a non-Israel related Jewish event in Australia could be meaningfully distinguished from one's views about the occupation of the West Bank. Of course, one might have also thought that firebombing a synagogue could be meaningfully distinguished from one's views about Israeli military campaigns in Gaza. Alas.

They're Getting Bolder

Two weeks ago a slew of bomb threats hit Jewish Community Centers across the country. Today, there was another wave of threats, at least 32 JCCs targeted nationwide. And they're getting bolder: whereas the first set of calls were recordings, this time around the threats were delivered live.

I have numerous friends -- Jewish and non-Jewish -- whose kids have been evacuated from their preschools due to these vile acts. They're wondering how to explain to a four-year old why they suddenly had to depart their school. The kids at that age, thankfully, are generally unaware of what's going on. But it's not just little kids. A Jewish Day School in Minnesota (near where I used to attend synagogue) was affected; eighth graders were reportedly carrying barefooted preschoolers across the snow to reach safety in a nearby empty building.

This is part of the reality we live in now. This is part of the reality which we voted in now.

Stop Caricaturing Intersectionality!

My new post for The Forward's "Sisterhood" blog (and my first time writing for Forward!) focuses on "intersectionality" and how virtually none of its critics understand what it means. It's not about the mythical Oppression Olympics where we race to find the proverbial disabled poor Black lesbian trans woman. It's about understanding the unique experiences that emerge from the confluence of different identities -- that to be (say) a "Jewish woman" is not simply to add the categories of "Jew" and "woman" together. This has much to say about the status of Jews in the modern world -- including the antisemitism we continue to regularly face, which very often intersects with and leverages the other identities we inhabit to devastating effect.

Indeed, if anything the Jewish "problem" with intersectionality shouldn't be that there's too much of it but too little -- all too often, Jewish experience is not included under its ambit (something symptomatic of a larger exclusion within the "identity politics" field). There are exceptions -- I note Marla Brettschneider's recently published Jewish Feminism and Intersectionality, and the column I wrote with Analucia Lopezrevoredo on intersesctionality and Mizrahi Jews -- but there remains much work to be done.

Still unsure if you should click the link? Check out these endorsements in the comments!
  • "I daresay the writer could benefit from a chemical lobotomy." -- Gnarlodious
  • " Intersectional Feminism.... kind of like Nazism but without the open mind." -- Joshua Seidel (Josh is that weird guy who identifies as "Jewish alt-right", so in fairness he would be the expert on open-minded Nazism)
  • "Intersectionality is another loony leftist lie." -- Rob
Tough to argue with that!

Tuesday, January 17, 2017

Can Jared Kushner Be Barred From a White House Position?

Writing in The Forward, Akiva Shapiro suggests that the anti-Nepotism law which purports to bar Jared Kushner from a White House position is an unconstitutional impingement on the executive's appointment power. Is he right? I actually think the argument has significant legs,* but I do have some questions.

Shapiro contends that "[b]y design, the President must have the freedom to use whatever measures he sees fit in making any and all nominations and appointments." He cites Hamilton in Federalist 76 as saying that the President has the sole discretion in determining who should be nominated for an office, and contends that the Constitution's explicit limit on appointing a sitting Senator or Representative to an executive office also implicitly denies that there are any other limits on who the Executive can nominate.

This is well and good as far as it goes, and I find it persuasive in the case of Senate-confirmable appointments (where the appropriate check on the President's appointment power is the Senate's authority to vote yay or nay on the nomination). But Kushner's position does not demand Senate confirmation. Indeed, what makes this a difficult legal question is that, unlike appointing someone to a cabinet position, a role like Kushner's is not explicitly envisioned in the Constitution (thus making it difficult to glean what the constitutional rule is).

To clarify, let's go to the constitutional text: Article II, Section 2.
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Kushner's prospective role as a political advisor is not (for reasons not worth getting into) an "Officer of the United States," and so does not need Senate confirmation. If he is an inferior officer, then Congress can decide who gets to appoint him -- the President, the courts, or the heads of departments. Here, of course, it is the President who gets to appoint his chief advisors. But in this context can Congress impose restrictions on who can be appointed?

Possibly. In United States v. Perkins, the Court considered whether Congress could impose restrictions on the removal of an inferior officer whose appointment went through the head of a department. Distinguishing the case of a Senate-confirmable appointee, the Court wrote:
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.
The head of a Department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.
116 U.S. 483, 485 (1886) (emphasis added).

On the one hand, Perkins is very different from the present case: It is a removal, not an appointments case, and it is departmental rather than an executive appointment. But the italicized language suggests that where an actor has "no constitutional prerogative of appointment" -- that is, where it is up to Congress to decide who gets to make an appointment -- then Congress has the authority to set the conditions upon which the appointment is made. If Kushner is an inferior officer, then, and subject to congressional rules regarding who gets to make the appointment, he may consequently be subject to congressional rules regarding who is allowed to receive the appointment as well.

This, in turn, assumes that Kushner is even an "inferior officer". Inferior officers, the Supreme Court has observed, are those "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmond v. United States, 520 U.S. 651, 663 (1997). A purely political advisor doesn't seem to fit this mold either; there is no Senate-confirmable officer he serves under. And if Kushner wouldn't be a principal or an inferior officer, then there aren't any constitutional rules speaking to his appointment one way or another. This goes to the larger point that the modern executive branch qua branch, with its wide network of aides and advisors, really isn't contemplated in the Constitution at all.

So the question is, for those government officials whose appointment process is not spelled out in the Constitution, is it permissible for Congress to impose certain rules prohibiting nepotism or favoritism? In normal circumstances, I think the answer is yes, but I'm in agreement that the particular case of a close presidential advisor may warrant special attention. The existence of these sorts of advisors is thought to be intrinsic to the functioning of the Presidency as an institution, and it stands to reason that there at least the President must have absolute discretion in deciding who he will and won't receive advice from (this is similar logic to how we get the concept of "executive privilege", which is also unwritten in the Constitution). Under this view, it actually matters a great deal that Kushner won't be receiving a salary: it is one thing to guard against relatives receiving payouts from the public fisc, it's quite another to say that the President is forbidden from getting advice from someone just because he's a relative. Arguably, what matters most in the analysis here is what perks Kushner gets by virtue of his formal White House title that go above and beyond his pre-existing ability to advice the President at the pleasure of the President.

One final observation is worth making, then. Last week I observed that there is, in fact, very little law or regulation that requires good conduct out of our politician -- much less than one might expect. Much of what we take for granted as basic norms political behavior -- including, perhaps, not turning the executive branch into an arm of one's private or familial business -- are just that: norms. They exist because they are accepted to exist and because we don't tolerate departure from them. Which means that when someone tries to test those norms -- not releasing their taxes, indefinitely refusing to confirm a judge, appointing relatives to high-level governmental positions -- they don't enforce themselves. It's up to us to do it.

On this note, it is worth emphasizing just how dangerous the collapse of GOP commitment to nonpartisan constitutional, ethical, and ideological principles witnessed over the past eight years and now culminating in their utter capitulation to Trump is. Oversight doesn't happen unless the overseers decide to make it happen. Congressional checks don't happen unless Congress decides to act as a check. Democratic accountability doesn't happen unless the demos decides to hold people accountable. When these things don't happen, there is very little that formal law and rule can do to prop up what we let down. I get the sense that some people feel comfortable pushing the envelope around our political norms because they believe that nothing truly bad will happen; if things go too far someone will step in and self-correct. This just isn't true, and in many ways the election of Trump is proof of that. People let the conspiratorial conservative id rampage about unchecked because they assumed that it wouldn't really lead to anything too terrible -- surely, it wouldn't actually yield a President Trump. Well it did, because there's no deux ex machina to save us from what we've already proven we're politically willing to tolerate.

* In fact, I think it's all moot because I suspect Shapiro is correct in his prediction that no plaintiff exists with standing who could challenge Kushner's appointment.

Sunday, January 15, 2017


I just want to warmly welcome to the blogosphere Undocumental, written by my friend Joel Sati. Joel is an undocumented immigrant from Kenya (he's open about this and it is a central theme of his writing and activism, hence why I share it), residing in America since age 9.

As it happens, Joel also went to high school only a few miles away from me in Montgomery County, Maryland. He graduated from Montgomery College (he attended after finding out -- in the midst of senior year college applications -- that he was undocumented and therefore many of the higher education options available to his classmates were closed to him) and the City College of New York. Joel is currently a PhD student in Jurisprudence and Social Policy here at UC-Berkeley, which is where we met, and I am privileged to call him a friend and colleague.



Cory Booker is very likely to be a top-tier Democratic candidate for President in 2020. This comes with scrutiny and questions, as it should. And so it is perhaps unsurprising that Booker has gotten a lot of recent attention for, on the one hand, his testimony against Jeff Sessions and, on the other hand, his vote against allowing the importation of prescription drugs from Canada.

On the latter point, I've found the defenses I've read so far of Booker's vote relatively limp. That said, I think the best take has come from (of all people) Erik Loomis:
Cory Booker has a reasonably high chance of being the Democratic nominee in 2020. There are good reasons for this. He gave a great speech at the DNC that really rallied everyone who heard it against hate. Given the amount of hate that is coming, this is a good thing. His testifying against Jeff Sessions was excellent. He is charismatic and has a great chance of reviving the Obama coalition. That charisma and leadership potential is absolutely crucial for whoever the nominee is going to be. 
At the same time, the nominee is almost certainly to be someone who can speak to some sort of economic populism. Maybe that can be Cory Booker. But he has a lot to answer for. His embrace of charter schools and the inherent anti-unionism involved in them made him a heck of a lot of enemies. So have his close ties to Wall Street. And now we have him voting against allowing the importation of prescription drugs from overseas. All of these are real problems for him and should make us ask him very hard questions. I get that he is from New Jersey. He is also basically untouchable in that state. He can defy Wall Street and the Big Pharma companies based in New Jersey to run for the presidency. He needs to if he indeed is going to do that. Unfortunately, he does not seem to understand that. And thus he is going to be rightfully criticized from the left.
So it strikes me as entirely right that liberals should be putting pressure on Booker to adopt better positions on economic matters. Maybe they'll be successful, maybe they won't. Most likely, we'll see some tack to the left but less than many in the base would have liked -- which is the nature of the beast.

What I will predict is that, even if Booker does perform admirably between now and 2020, there is a cadre of "progressives" for whom it will never be enough -- his past positions make him an inherent nonstarter. They will say that Booker is only pandering, that he isn't a true believer -- not understanding that the point of political action is to get politicians to decide that your position is one worth pandering to. The difference between liberal and conservative politicians isn't that the former come preloaded with the dream progressive agenda. The difference is that liberal politicians are susceptible to liberal political pressure in a way conservatives aren't. Whatever else he is, Cory Booker is a liberal in this respect -- he can be influenced from the left.

Saturday, January 14, 2017

Quote of the Day: Bernard Williams on Unadorned Hatred

In one of those statements that is obvious on reflection but which I hadn't really thought of until it was pointed out to me, Bernard Williams argues that virtually no one really argues that people should be treated differently or worse "simply" or "solely" because of their race (or sex, or other like identities):
This point is in fact conceded by those who practice such things as colour discrimination. Few can be found who will explain their practice merely by saying, 'But they're black: and it is my moral principle to treat black men differently from others'. If any reasons are given at all, they will be reasons that seek to correlate the fact of blackness with certain other considerations which are at least candidates for relevance to the question of how a man should be treated: such as insensitivity, brute stupidity, ineducable irresponsibility, etc. Now these reasons are very often rationalizations, and the correlations claimed are either not really believed, or quite irrationally believed, by those who claim them. But this is a different point; the argument concerns what counts as a moral reason, and the rationalizer broadly agrees with others about what counts as such -- the trouble with him is that his reasons are dictated by his politics, and not conversely. The Nazis' 'anthropologists' who tried to construct theories of Aryanism were paying, in very poor coin, the homage of irrationality to reason.
Bernard Williams, "The Idea of Equality," in P. Laslett & W.G. Runciman (eds.), Philosophy, Politics, and Society (Oxford: Blackwell 1962), 112-17.

That last line, about paying "the homage of irrationality to reason", is what earns the quote a place on the blog. But the whole argument matters. Again, virtually all assertions of hate against a particular outgroup are dressed up in this sort of garb -- albeit some wearing more layers than others. Recall the "bombing a synagogue isn't antisemitic if its based on dislike for Israel" case. They don't hate Jews, the argument goes, they hate (alleged bad conduct done by Jews). But this is utterly ordinary as a case of antisemitism.  People who hate Jews do so, they say, because Jews are greedy, or bloodthirsty, or conniving, or murderers. It virtually never unadorned, and so the fact of adornment itself doesn't falsify the hypothesis that the attitude is discriminatory.

Friday, January 13, 2017

Rate That Apology, Part 6: Ira Madison III

During the Jeff Sessions confirmation hearing, MTV journalist Ira Madison III posted a tweet captioning a picture of Sessions holding his Asian-American granddaughter. The tweet has now been deleted, but it read:
Sessions, sir, kindly return this Asian baby to the Toys "R" Us store you stole her from.
After deleting the tweet, Madison posted the following "explanation" on Medium:
Hello. Yesterday saw the confirmation hearing of Jeff Sessions. As he was called to testify, Sessions placed his Asian American granddaughter on his lap. I made a joke alluding to the irony of a 70 year old career politician placing his post-millennial, multi-racial granddaughter on his lap to shield himself from criticism of his long standing record. My work is satirical and my words on my Twitter account have never represented MTV’s personal mission statement. But what was intended to be a provocative joke about Sessions’ record put his family in the crossfire and for that I am sorry. 
I am also sorry my joke unnecessarily distracted from the more serious matter at hand. I — and many many other Americans — genuinely believe that Jeff Sessions’ deeply troubling past on issues relating to race and immigration are disqualifying and look forward to holding him and other potential members of Donald Trump’s administration accountable for their actions. Sessions has already been rejected once by the United States Senate for his unfortunate racist comments, behaviors, and views, including praising a 1924 Immigration Law intended to end “acceptance of all races.” He was rebuked by Republicans and Democrats alike in the 1980s, unfortunately, he’s before us again. 
Going forward, we cannot be distracted from Sessions’ history, the histories of many of the men and women Trump wishes to appoint to his administration, or the online rhetoric designed to shut down debate and intimidate and terrify with violent threats and fear of doxxing. This is indicative of life on the internet for many endangered and marginalized groups right now and we must be vigilant. My writing, in part, will always be devoted to justice and I look forward to seeking it out wherever I can in the next four years and beyond.
Alas, this is not going to enter my annals of good apologies. One of the cardinal sins in a bad apology is when the author gets "on a soapbox about how [they're] really right about the core issue and just happened to express [themselves] poorly." That's definitely at work here -- a 2:1 ratio of "soapbox" paragraphs to "apology" paragraphs (and that's being generous in labeling the entire first paragraph as an "apology").

Moreover, the apology paragraph -- really more of a sentence -- is blurry and evasive. Sure, there's something intrinsically tacky about dragging a toddler into a political "joke" in this manner, and I guess that it is encompassed by talking about "put[ting] his family in the crossfire." But there's also a racialized element to the joke that can't be ignored and which this apology attempts to shunt aside. To characterize the joke as targeting "the irony of a 70 year old career politician placing his post-millennial, multi-racial granddaughter on his lap" beggars belief. Anyone with a pulse reading this joke saw it as a crude dismissal of multi-racial families among stereotypically conservative communities: "there's no way Jeff Sessions really has an Asian granddaughter, lol -- she must be a prop!" An apology which does not acknowledge and atone for that cadence, isn't one.

Grade: 3/10

Thursday, January 12, 2017

It's Impossible to be Antisemitic, Part 2245

A German court today upheld a lower court ruling that firebombing a synagogue is not necessarily antisemitic, if it is done as a protest of Israeli policies. I alluded to the lower court decision two years ago, and I am blown away  at just how common this line of reasoning is:

In any event, just as it's now impossible for anything to be racist, it's also impossible for anything to be antisemitic.

Wednesday, January 11, 2017

It's Impossible To Be Racist, Part 2244

Alabama Representative Mo Brooks (R), on what's driving opposition to the Sessions appointment and support for the Voting Rights Act:
"It's really about political power and racial division and what I've referred to on occasion as the 'war on whites,’” he added. “They are trying to motivate the African-American vote to vote-bloc for Democrats by using every 'Republican is a racist' tool that they can envision, even if they have to lie about it."
Perhaps we can compromise, and agree that while not "every" Republican is a racist, the ones who talk about a "war on whites" certainly are?

The End of Scandal Norms

I haven't been paying super close attention to the story that Russia has some damning info on Trump that it's holding over his head. Maybe they do. Maybe they don't. This sort of raw intelligence is always -- at best -- hit or miss. But even if it is true that they've got it, I'm skeptical that it matters.

Let's say that this info is out there. Maybe it's Trump watching Russian prostitutes piss on the bed the Obamas slept in. Or maybe it's something else. Doesn't matter. And let's say it leaks. Here's the sequence of events:
  • Media reports on the news breathlessly, insists that Trump's administration can never survive a scandal of this magnitude.
  • Democrats seize on the news, demand hearings, resignations, hearings, and more hearings.
  • A few Republicans issue murmurs of about "inappropriate behavior." More than a few denounce the leak as Russian interference (now it's a problem) and suddenly demand we focus on that.
  • Somebody -- probably in the National Review -- writes a "clever" column on how leftists are hypocritical because they oppose revenge porn. Mary Anne Franks gets more citations from conservative columnists than she ever dreamed nightmare.
  • Republican congressional leaders do nothing. Media starts asking "are they really going to do nothing?"
  • Republican congressional leaders continue to do nothing. Eventually the storm dies down.
  • Scene.
This has been the great, terrible discovery of Mitch McConnell and the 21st century GOP: nobody can force them to do anything.

I first noticed this with former Bush AG Alberto Gonzales, who nearly rode out a seemingly-infinite array of scandals. And when he finally did resign, it was impossible to figure out why. There was no legal obligation to do so. Normally, we chalk up that sort of behavior to "norms" -- but the norms had already been shredded. Gonzales already demonstrated that the sorts of "norms" which would "normally" compel a resignation could be ignored more or less indefinitely. For whatever reason, he just didn't ride the train to the end.

It was Mitch McConnell who decided to take that train all the way to the terminus. You can't make a filibuster-proof majority mandatory for every bill? Why not? You can't just refuse to even hold hearings on a Supreme Court nominee for a year? Watch him! Other politicians caught on to the act. Remember Scott Desjarlais, the pro-life Republican from Tennessee who, as a doctor, had slept with several patients(!) and was caught on tape pressuring his mistress(!!) to have an abortion(!!!)? Everyone assumed he just had to resign. You know where he is now? Still in Congress.

Turns out, you don't have to do much of anything if you don't want to. There is an extraordinarily narrow range of levers through which one can be compelled to act in Washington: impeachments, being voted out of office, mandatory court orders ... it's not all that large, and it doesn't cover all that much. Much of what we take for granted our government will do is not legally compelled, but is based on politicians following established patterns of political culture. Among those patterns is that a major scandal will lead to an investigation and some measure of accountability. But nobody forces Congress to launch an investigation, and nobody forces administration officials to resign or even acknowledge scandals reported in the media.

If they ignore it long enough, the storm will eventually pass. And that is what will happen if Russia does have something on Trump and it does eventually leak. The media will convince itself that something has to happen. And then nothing will.

How AIPAC Works (and Doesn't)

This is a really great, in-depth piece by Armin Rosen on how AIPAC exercises influence in Washington -- and the limits of said influence. While many people think of AIPAC as this towering, 900 lbs monster which makes and destroys political careers, the organization actually has a very different mode of operation. It builds relationships. It makes sure that, whoever is in office of whichever party, they have a route to that person's office so that they can make their concerns known.

While this has been obviously effective, Rosen contends that the Iran Deal case shows the limits of the strategy. Because AIPAC is exceptionally cautious about building and maintaining relationships, it cannot and does not threaten any serious consequences for Congresspersons who flout their will. Representatives were willing to buck AIPAC because they knew AIPAC wasn't going to cut them loose for the apostasy. And that, in turn, has made certain other (generally rightward) forces on the "pro-Israel" community think that AIPAC's lost its edge. What good is it being the proverbially unstoppable "Israel Lobby" if you get stopped on the one issue you actually throw your entire weight behind?

There's a degree to which that's true, though I think Rosen understates the benefits of AIPAC's relationship model even in the wake of the Iran Deal. It's almost certainly true that AIPAC's model is ill-suited to a drawn out fight where a powerful political figure, like the President, digs in his heels and directly contravenes a core AIPAC policy objective. But there will inevitably be very few cases like that, because when it comes to foreign policy -- even Israel-related foreign policy -- it will not be that often that major political figures will have independent preferences strong enough to prompt such a knockdown fight. Where AIPAC's model shines is in greasing the path for the mundane, everyday bits of legislation and funding that only a very few people care about. In those circumstances, relationships and access rule the roost, and AIPAC works very, very well.

I'd also be curious as to Rosen's view on another of my hypothesis: that regarding the degree to which Jewish groups are comfortable publicly feuding with Democratic versus Republican politicians on Israel. Rosen observes that most of AIPAC's staff are Democrats (unsurprising -- it is a predominantly Jewish group, after all), and my argument has been that Jewish groups are willing to argue with Democratic politicians because they have the essential confidence that such arguments won't break the relationship entirely. They're "in the family", so to speak. Friends fight, but that doesn't mean they don't cease being friends. By contrast, there seems to be an implicit concern that any non-trivial attack on GOP policy initiatives by a Jewish group will see a swift and brutal excommunication by the Republicans. For a relationship-focused group like AIPAC, this is a harrowing proposition. Simply put, if the name of the game for AIPAC is relationships, then preserving Republican relationships requires a lot more hand-holding and obsequiousness compared to their more resilient Democratic counterparts (who can handle a tough period like the Iran negotiations and still come back to the table on matters of shared interest later on).