Law vs. Antisemitism vs. McCarthyites

In the spring of 2023, I co-convened and hosted the second annual "Law vs. Antisemitism" conference at Lewis & Clark Law School. It, and the ensuing symposium issue published by the Lewis & Clark Law Review, was one of my proudest professional accomplishments.

As I was organizing the conference and soliciting participants, I had one absolute bedrock rule I swore I would not break: nobody but the organizers, using our best professional judgment, could tell us who would speak at, sponsor, or otherwise participate in the conference.

One reason for that rule was that one of our sponsor's was the ADL (and Steven Freeman of the ADL one of our two keynote speakers, alongside Eric Ward). Even in 2023, there was an active campaign in some circles to "drop the ADL" and to refuse participation in events the ADL co-sponsored. My position on that was that nobody could tell us who our sponsors would be. And the corollary position was that none of our sponsors could tell us who our participants would be. End of story.

For the most part, this firm redline I drew was an entirely moot point. None of our sponsors (including the ADL and the Academic Engagement Network, which I was then a member of) expressed any interest in dictating who could participate. And none of our participants raised any questions about who was sponsoring us. We did get a few emails from outsiders who asked rather motivated questions about whether representatives from this or that hobbyhorse cause would or would not be participating. My answer to those emails was straightforward: any such group was welcome to submit a proposal, and they would be assessed on the same basis as any other potential speaker (though as I recall all of these messages came after the proposal deadline had closed anyway). With a single exception (which I'll discuss in a second), nobody involved in the conference sought or received any alteration of any aspect of the conference's program based on ideological objections to a co-participant. The result was an extraordinarily vibrant and successful conference where speakers from diverse perspectives and ideological backgrounds got to converse and learn from one another. It was a great experience.

I have not attended the subsequent Law vs. Antisemitism conferences. This year I'm on paternity leave, and last year I was frankly burnt out. But I still think it's a great conference and a great asset to the community.

So I was frankly furious to read what can only be described as a hit piece in the Jewish Insider targeting this year's conference, titled "ADL, AEN sponsor UCLA antisemitism conference that featured speakers tied to anti-Zionist groups." The article is clearly written with a scandalized tone -- how could these respectable organizations permit such scoundrels in a room they sponsored! -- and it has already yielded results: both the AEN and ADL have promised to withhold future participation and support for the conference unless they are given veto power to "exclude" speakers they disagree with.

No academic conference with any integrity could accede to such a demand. If the ADL pulls out of the conference going forward, it will have only made a decision to "drop" itself. And on the merits, there simply is no basis to object here. What the ADL and AEN are asking for is fundamentally incompatible with the Law vs. Antisemitism conference project.

To begin: while the nature of the topic means we've always drawn more deeply from the "practitioner" space than many of our peers, the LvA conference is first and foremost an academic conference. It is not a pep rally, it is not a cheerleading initiative, it is not a "safe space", and it is not a therapy session. There are and should be diverse views present; we were not selecting for an ideological line, and we do not promise that anyone's ideological orthodoxies won't be challenged. 

This resulted in a range of left-to-right views represented amongst conference participants, which is how it should be. For example, when the Lewis & Clark Law Review was selecting papers to be published in the accompanying symposium issue (we had more submissions than space), I advocated that Ken Marcus' IHRA paper be included -- not because I agreed with it (I didn't), but because it represented a perspective that I knew was important and relevant to a live debate. I don't agree with his take on IHRA, but I'm not going to pretend like it isn't a live perspective that deliberators on the subject of antisemitism need to grapple with. Again, that's how things should be -- and while there that intervention was to the benefit of a conservative voice, like it or not, anti-Zionist views on antisemitism are also important and relevant to a live debate and deserve their space in academic conferences (whether I agree with them or not). They don't get to monopolize the space; but they can't be artificially excluded either. Pretending this debate doesn't exist and wishing it away doesn't do anyone any favors.

As alluded to above, there was one sop we made to ideological demands at the Lewis & Clark conference -- one of our conservative speakers said he would not be on a panel with a certain progressive speaker. This condition was agreed to by one of my co-organizers without my knowledge or consent; and when I found out I was furious -- partially because on principle I didn't believe our speakers should be able to dictate our panel setups, and partially because I wanted ideologically diverse panels and demands like this interfered with that project. This conservative should have been forced to grapple with the challenges posed by a progressive critic; and vice versa -- that's what makes conferences like this valuable.

That experience makes me take particular note of those persons who walked out or announced future non-participation because there were panels they deemed "one-sided" or otherwise included speakers they said "crossed the red line". The problem here is obvious: one cannot simultaneously have a no-platform rule where one refuses to be in a room with anti-Zionists and then complain about one-sided panels! And if we zoom out on the subject of "one-sidedness", the article identifies a total of three "problematic" speakers. I don't know how many speakers there were at this conference overall, but at mine there were around thirty-five. Three of thirty-five does not suggest a conference that was on the whole one-sided or ideologically stacked (or if it was, it's stacked in a Zionist direction). The article suggests that the anti-Zionists were given special highlighting or feting. They were not. They were part of a larger event and they got to speak their piece on the same terms and in the same environment as everyone else.

What we're seeing here, rather, is certain speakers who refuse to tolerate being in a space that is not univocally Zionist -- and then, upon their departure, complain that the space is ideologically biased. This is a self-fulfilling prophecy. One suspects the departure will yield a wider academic boycott of the conference from the political right, which will push the conference's center of gravity further to the left, which the conservatives will then use to claim vindication regarding their decision not to participate. But let's be clear: they were welcome. They were present. Their ideological compatriots were in the overwhelming majority of participants. They left not because they were pushed out, but because they demanded an ideological litmus test and the conference would not indulge them -- any more than we would or will indulge similar no-platform demands seeking to impose an anti-Zionist ideological uniformity.

The point of articles like this are to facilitate ideological censorship and a narrowing of academic exchange. If you have a problem with conferences that maintain an ideological anti-Zionist litmus test; then you can't endorse conferences maintaining an ideological pro-Zionist litmus test. And likewise, the attempt to present the presence of a handful of anti-Zionist speakers as corrupting the entirety of the conference is just as problematic as an attempt to present the presence of a handful of Zionist speakers as corrupting the entirety of a conference. In all cases, the target is the very project of open and free academic exchange.

In any situation like this, where an event features both JVP-type folk and ADL-type folk, it is a fifty/fifty shot whether the former will threaten to boycott unless the latter are excluded, or the latter will threaten to boycott unless the former are excluded. Here, it was the second; sometimes it will go the other way. I'm always stunned that the people who make these ultimatums don't recognize that they always come off a whiny, censorial bullies; but it doesn't seem to stop anyone. Nonetheless -- the ADL and AEN come off as whiny, censorial bullies here, and that's through no fault of anyone but themselves. Again, one doesn't need a campaign to "drop the ADL" if they're just going to end up dropping themselves.

I have no doubt that all the speakers who were selected to present at this conference were picked because they provided an interesting perspective that would deepen the academic conversation on the subject of antisemitism. They were not picked because the organizers "agreed" with everything they have said or would say. It is not a vice but a virtue that these perspectives will not all be agreed to by all; an academic conference that is deliberately trying to create an ideological monoculture is a conference that should be run by someone else.

Coincidentally, I was on a panel at a different conference a few weeks ago with one of the "problem" speakers at the LvA, University of Toronto professor Mohammed Fadel. The subject was campus free speech issues related to Israel/Palestine, and we disagreed on a lot -- sometimes sharply. But it was a productive and pleasant conversation, and that's how these things should be. 

Also coincidentally, a few days ago I formally resigned my membership in the AEN. It had been dormant for some time, but in the wake of Trump's all-out assault on academia and academic freedom, I lacked confidence that AEN would stand up for the principles of academic engagement that attracted me to it in the first place. Replying to my message, the AEN's leader expressed her disappointment and reminded me of the AEN's sponsorship of the LvA conference. That just a few days later they announced they would drop that sponsorship because the conference refused to impose a rule of intellectual orthodoxy only confirms my decision was the right one.

The Blogosphere is Dead. Long Live the Blogosphere!

I'm not sure when the last time I updated my blogroll was -- I both didn't remember, and didn't remember how to do it -- but I figured it out in time to add Divided Argument at the recommendation of Paul Horwitz. His selling point was that it "includes some of the finest former Volokh Conspiracy bloggers", and he isn't wrong.

I know everyone says the blogosphere is dead, but a few of us keep chugging along. It's nice to see signs of life in the old girl.

Mouseketeer

Last night, I saw a mouse in my house.

It was around 3 AM, and I was finishing up my overnight parenting shift (I cover bedtime to 3 AM; Jill wakes up to pump from 3 - 3:30 or so, and then she covers through the rest of the morning). I only saw the mouse for an instant as it scampered under a kitchen cabinet. I yelped in surprise, but then finished my various tasks before going to wake Jill up (though the yelp probably already accomplished that).

And then I just melted down.

I don't know what came over me. I didn't want the mouse in the house. But I also didn't want to hurt it, nor did I want the responsibility for getting rid of it (a responsibility which, in my eyes, ran an intolerable risk that I'd hurt it). I was terrified that I was going to injure or harm it in the course of trying to catch and remove it; or that if I didn't succeed in catching and removing it the mouse would never be out of the house. And the entire thought process just made me come entirely unglued. I was crying in the bathroom in a state of complete panic; I actually wanted to flee to a hotel. It was ridiculous.

Now I'm trying to work out what background neurosis is actually operating here. I've always been a sensitive sort -- one of my major childhood trauma stories centered on a caterpillar I accidentally ran over with a garbage can I was pulling inside. And I've always found mice to be inordinately cute (my second-grade play was "Of Mice and Mozart", though I actually did not play the role of a narrator-mouse).

But I think what's mostly going on relates, of course, to my own baby. On the one hand, it is extra important not to have a mouse running around the floor when one has a baby who's main daily activity is lying on a playmat on the floor. What if the mouse scratches the baby? But on the other hand, small, cute, and adorable are the main characteristics of my baby, so the idea of harming (or being responsible for harming) something small, cute, and adorable is one easily liable to psychological projection. I suspect that there's a deeper layer of stress about parental responsibility and keeping our baby safe and protected in an unpredictable world, but I don't think I need to dig any deeper on that.

Anyway, I researched humane traps, which helped (though the descriptions were often juxtaposed against nightmarish accounts of glue traps, which very much did not help). And Jill -- who after seeing me fall to pieces last night agreed to take point on this project -- contacted a pest control service to stop by (we need it anyway, as we've long had an ant problem). I also found the hole it came through in the kitchen and stuffed some steel wool into it, so hopefully that serves as a stopgap. 

It's going to work out. But man, that was an unexpected emotional rapids ride I went through.

(Also, Jamelle Bouie followed me on BlueSky right as I was working through all those emotions. It was a lot).

Laying Aside One's Toys

One of the first law review articles I ever remember reading and loving was Vesan Kevasan and Michael Stokes Paulsen's "Let's Mess with Texas", arguing (in the wake of an extreme GOP gerrymander orchestrated by Tom DeLay) that -- under the treaty governing its admission to the United States -- Texas could go even further by dividing itself into five mini-states. These "Texas tots" could of course also be gerrymandered, thus giving Republicans not just a bunch of bonus House seats, but several Senate seats besides.

Nothing came of the article, of course. It was viewed as an amusing exercise and a bit of provocation; a way of seeing how one could play with various legal principles and arguments to reach absurd results while still staying nominally inside the rules of the game. Their follow-up article, "Is West Virginia Unconstitutional", was similarly silly, fun, provocative, and obviously not ever pursued.

I am not here to say those articles should not have been written. To the contrary, I think that in a healthy legal climate, articles like these are fantastic. They're like avant-garde art -- they push boundaries, get readers to think in new ways, and provoke thought and discussion even as they are ultimately recognized as impractical and nonstarters. We should not divvy up Texas, and we should not abolish West Virginia, but those articles still were fun to read and had a lot to teach us.

But in an unhealthy legal climate, where norms are routinely shattered and long-standing legal limits are crumbling at alarming speed, this sort of play must be set aside. What in other times might be playful and provocative takes on a very different tenor when serious (or at least powerful) people are taking everything seriously.

I'm referring, of course, to the spate of right-wing scholars who responded to Donald Trump's attempted suspension of the constitutional guarantee of birthright citizenship by sprinting as fast as possible to "make the case" for it. The resulting endeavors were an embarrassing display of openly prostituting oneself to their dearest leader: starting with half-cocked tweets before moving to half-baked op-eds and blogposts, and now one of their half-completed essays is apparently being published in the Notre Dame Law Review.

As earnest scholarship, this is all transparent bullshit -- it's blindingly, painfully, shamefully obvious that the whole bit is purely results-oriented, designed to "create a debate" where none actually existed. The "best" category one could slot it into is in the mode of the playful provocations above -- can one, while appearing to stay nominally inside the rules of the game, dislodge a longstanding presumption of constitutional law everyone has taken for granted? If one can pull it off, isn't one roguish and rakish and a dashing flouter of the status quo? 

But in times like these, that "play" -- isn't. It's not charming, or funny, or quirky, or even thought-provoking. We are not in time where we enjoy the luxury of indulging in such play, because it isn't actually play at all -- it is a terrifyingly live possibility that countless American citizens will be summarily denaturalized and placed at the mercy of the state.

A few years ago, I wrote about certain right-wing ideologues who were upset that, as their faction of nationalist-conservatism ascended in power, they were no longer treated with the tolerant patience that they enjoyed in their formative years as plucky little law students. "You’re fine when you’re just a yappy little dog that can’t bite," one said, but "if you grow up to be a big dog that can actually do stuff, then you’re probably going to be put down." They framed this as a story of liberal intolerance. But it's actually exactly how things are supposed to go -- the whole point of liberal tolerance is that we're willing to discuss a lot more than we're willing to endorse as actual lived policy. We can read and consider and have serious debates over the ideas of Lenin in a political theory class precisely because there's a background presumption that Leninism isn't coming back. But

if the Leninists actually start seizing political power and instituting the purges, that would be bad! And if they said, "Oh, it was fine to debate our ideas in the classroom, but now that we're actually in charge and establishing gulags you have a problem with it," well, yeah, I do! Clearly! 

Again, I greatly prefer the days where we could be more indulgent. It's a much more vibrant and enjoyable world to be in. It's fun to play with the avant-garde sometimes. It's much nicer to contemplate "messing with Texas" as a thought experiment when we're all reasonably confident it isn't actually on the table.

But we're not in that world right now. And the "scholars" who are making play with people's lives -- not as a thought experiment, not as a hypothetical, but in a very real way with very real stakes -- don't deserve our respect or indulgence. In these times, we must lay aside our toys.

Don't Accommodate Conspiracists

The other day, Yair Rosenberg flagged a bill introduced by Republican Rep. Thomas Massie (R-KY, and almost certainly the most openly antisemitic member of Congress in office today), titled the "Dual Loyalty Disclosure Act," which would require all persons running for office to disclose what countries (other than the United States) they hold citizenship in. Nominally targeting dual citizens, the bill, Rosenberg observed, was clearly inspired by various "lists" circulating on neo-Nazi sites which allege that all Jewish members of Congress are dual citizens of (and thus dually-loyal to) Israel. To that, Rosenberg wrote, "Ironically, the bill would debunk one of the very conspiracy theories that inspired it" (since the disclosure list would reveal that no Jewish MoC has Israeli citizenship).

I meant no disrespect to Yair when I replied that the bill would not "debunk" the conspiracy at all. "[T]he nature of these conspiracies immunizes them from debunking." The truth is already out there, and has not accomplished anything -- so offering more "truth" isn't going to serve as remedy. Rather, I said "When you humor conspiracy theorists by suggesting they have 'legitimate' concerns, you only encourage them."

This is a lesson that generalizes. "Voter fraud", for instance, is an essentially non-existent problem in this country. Nonetheless, the Supreme Court endorsed the state's right to impose voter ID laws to tackle the perception of widespread voter fraud -- even though that perception was (by the Court's own admission) not remotely grounded in the objective record. The Court rationalized its decision as enabling the state to generate greater "confidence" in election results in the face of this widespread, albeit objectively false, sentiment that voter fraud was a serious problem.

This, to put it mildly, did not work. Humoring those who harbored lurid and outlandish beliefs about voter fraud did not cause them to develop greater "confidence" in the electoral system; it instead encouraged them to dig in deeper (culminating, of course, in Trump's attempted insurrection following the 2020 election). A second's worth of reflection could have predicted this would be so: their original fears weren't grounded in reality, so obviously a reality-based solution isn't going to assuage them. All it does it suggest they are on the right track. But whatever grievance or paranoia generated their conspiracy to begin with -- most likely "minorities are sometimes winning elections when I don't want them to" -- that isn't effected at all. You cannot indulge.

Or take vaccines. We've gotten, it seems, a column a week lecturing the medical profession that they must figure out ways to "reassure" "vaccine-hesitant" Americans who, while perhaps objectively misinformed, also have "legitimate concerns" that need to be addressed. Again, the notion that more robust studies or in-depth research could "assuage" "concerns" misapprehends how anti-vaccine sentiment works. RFK Jr. does not want to be "reassured" about vaccine safety, he wants to believe that vaccines are dangerous, and will actively resist efforts at appeasement that still end up concluding that vaccines are in fact, safe. The fact that vaccine safety is settled science means that science must be unsettled. That's no doubt why the new NIH head is so enthusiastic about promoting "dissent" -- not from the administration's new orthodoxies about transgender healthcare, of course, but about the utility of vaccination. It's certainly why RFK picked a serial fraudster to lead the new "studies" into the alleged links between vaccines and autism. When you accommodate the cranks, they get crankier.

"Media bias", same thing. And there's a branch of criticism of academia that, I think, falls into this category as well. Here, too, we are regularly regaled with lectures on how, while Trump's assault on academic freedom may be a step too far, universities did maybe bring it on themselves with their stifling group think and endorsement of wacky leftist priorities. I took a sinful amount of pleasure reading Tressie McMillan Cottom positively curb-stomp Bret Stephens as the latter tried to trot out his tired applause lines about the alleged woes of contemporary academia. Actually, there are plenty of robust debates inside our classrooms. Actually, humanities majors do fine in the job market. Actually, the "lowest-quality institutions" extant in academia today are not "Columbia" and "Berkeley", they're predatory for-profit institutions who plunged hundreds of thousands of Americans into crushing debt by falsely promising a "career-ready" education ("colleges not unlike the one that our current dear leader once ran as a purely economic enterprise.").

For academia, too, there are no reforms that are going to satisfy people prone to believe that the academia is compromised of "factories of Maoist cadres", because the actual state of academia bears no relation to their views on it. Accommodating their fantasies won't make them back off, it will just convince them they've been vindicated.

This doesn't mean that there are no steps university stakeholders should take to improve the robustness of discussion and debate on campus, ensure that campus communities of diverse backgrounds and viewpoints feel included and are treated equitably, and so on -- any more than urging that we dismiss anti-vaccine cranks means that we stop caring about medical quality control and safety testing. Rather, the point is we should do these things for ourselves, not for earning elusive and probably chimerical "credibility" from insatiable critics. Chasing their approval is a fool's errand.

Unmasking a Social Collapse

The image of masked federal agents seizing Rumeysa Ozturk on the street for the "offense" of writing a disfavored op-ed on Gaza is chilling enough. But surely there is an extra dose of irony in the masks themselves, seeing how the MAGA right has specifically identified banning masks as one of its main demands in its ongoing assault on academia in general and protests in particular.

Of course, wearing a mask has also become a progressive marker of good citizenship in recent years. There's always irony enough to go around.

In so many ways, masks are a microcosm of everything that's gone wrong in our politics over the last five years. First, we saw the histrionic conservative protests over mask mandates, where wearing a scrap of fabric over one's face in the middle of a lethal pandemic was portrayed as the greatest civil rights violation in living memory. Soon, not content with not wearing their own masks, the right extended outward to try to actively curtail voluntarily masking by others, using spurious comparisons to the KKK as flimsy justification for what was obviously kulturkampf.

A few years later, though, as masks became de rigueur in the protester scene, we saw a few too many progressives get a little too cute in merging the medical justification for masking with an obvious desire to shield people from accountability for criminal activity or violation of campus rules. The idea that the protesters who stormed an Israel history class at Columbia wore masks out of respect for avoiding contagious disease is ludicrous.

But it wasn't long afterwards that the progressives' legitimate concerns were validated once again, as unmasked individuals associated with campus protests found themselves easy marks for Trump's authoritarian predations. It was Mahmoud Khalil's decision not to wear a mask, after all, that made him a prime target to inaugurate Trump's censorial crackdown on international students. Here masking isn't about evading legitimate consequences for unlawful acts, it's about protecting oneself from out-of-control abuses of power.

And of course, the masked officers making sure to conceal their identity while abducting a student off the street for WrongThink makes for the full circle: a terrifying encroachment on civil liberties that brings to mind the secret police of history's most repressive regimes.

The reality is that the ethics surrounding masks seem uniquely resistant to being formalized into rules, and instead demand a modicum of virtue and common sense. Anyone should be able to tell the moral difference between masking as a prophylactic health measure, versus masking to shield oneself from public accountability. Yet any malicious actor can easily say, without being easily refuted, that they are wearing their mask for medical reasons. How would one refute that?

A healthy society resolves these problems simply by being healthy. We accept frankly trivial burdens like mask mandates if its necessary to stop a pandemic. We recognize that masked hooligans trashing a classroom are not the same as EMTs in an ambulance. We expect our police to conduct their operations in a manner that permits review and accountability, so that we can all be confident the law will be followed.

Our society is not healthy. And so choices that should be taken for granted, no longer can be.

How To Support Anti-Hamas Protests in Gaza

You may have seen that protests have broken out in the Gaza Strip targeting Hamas.

This is a great thing, and the bravery of these protesters deserves nothing but applause. They should be viewed as of a piece with other brave protesters standing up to authoritarian practices in places like Turkey, Israel, and (for that matter) the United States.

But I've noticed some pro-Israel commenters highlighting these protests with a weird tone of empty triumphalism. They're excited about the protests because they're anti-Hamas (makes sense), but beyond expressing that giddiness there's just ... nothing else there in terms of what they, or we, or anyone outside of Gaza might do to back the protesters up.

Nothing on how we might actually support these protests (hint: I suspect they will not find dropping bombs on their heads helpful). And nothing on what, tangibly, we think these protesters should get as an alternative to Hamas rule (again, I doubt they're excited at the process of being evicted to make room for a MAGA seaside resort development).

But if you're going to claim the mantle of supporting these protests, those are the sorts of questions you need to have answers for. You don't get to say "gee, these protests are swell -- anyway, back to bombing!"  (I suppose there is a very slim chance the protesters want the war to continue as a means of ousting Hamas, but anyone making that claim on the protesters' behalf, absent them saying so themselves, bears a very high burden of persuasion). 

And you also don't get to just be coy about the end status of Gaza. I don't have a direct line to the protesters' ears, but I assume they want some form of genuine self-governance and independence. If one isn't willing to accede to that, you also don't get to claim the protests for your own purposes.

Again, the complete inability of Israel to articulate a plausible "day after" upon toppling Hamas is one reason this war is dragging on without end. As long as the war continues, Gaza is Schrodinger's territory -- neither reoccupied and annexed nor granted freedom and independence. Israel doesn't want to commit to either option, so it delays and delays and delays by extending and extending and extending the war.

Justice Jackson on "Giving Up" in the Face of Tyranny

When I teach the Steel Seizure Case, the Supreme Court's seminal decision on domestic executive power during wartime, I tell my students that while Justice Black may have written the lead opinion, it's Justice Jackson's concurrence that they really need to study. I also tell them that while being a Supreme Court Justice is more than enough to earn one's Wikipedia page, Justice Jackson has another entry in the annals of history: lead prosecutor during the Nuremberg War Crimes trials following World War II. It was evident, I say, that Justice Jackson had this experience in mind when considering the question of permitting runaway executive power justified on the basis of a wartime "emergency."

With that background in place, I draw my students' attention to how Justice Jackson concludes his opinion; in particular, his recognition of the potential futility of the judicial branch trying to stand alone against a truly unbounded executive claiming emergency powers, and why that potential failure should not license judges to simply accept the ascendance of a tyrant:

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.... We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"—to be governed by those impersonal forces which we call law.... The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

The other day, J. Michael Luttig -- former Fourth Circuit Judge and conservative darling turned sharp Trump critic -- published an essay in the New York Times insisting that Trump's war on the judiciary "won't end well for Trump." To this, Josh Blackman unsurprisingly argued the opposite, suggesting it is the courts that will lose this battle and that they should bend the knee to Trump and spare themselves the inevitable humiliation.

For my part, I don't know who will win this showdown (if a showdown there is to be). History does not inspire unalloyed confidence in either direction. 

But I do know that the courts must not surrender in advance.

Justice Jackson was right: it may be that the institutions that undergird our democratic experiment are destined to pass away. But the courts must be the last, not the first, to give them up.

What Will Be the Democratic Party's Anti-Incumbent Keyes Number?

Way back in 2005 (20 years ago(!)) the blogosphere discovered the "Crazification Factor" of 27% -- the baseline percentage of Americans who will take an action for reasons that defy any rational explanation whatsoever. The background came in a discussion of President George W. Bush's cratering approval numbers, and a query as to how low they might go, and it's still fun to read to this day:

John: Hey, Bush is now at 37% approval. I feel much less like Kevin McCarthy screaming in traffic. But I wonder what his base is --

Tyrone: 27%.

John: ... you said that immediately, and with some authority.

Tyrone: Obama vs. Alan Keyes. Keyes was from out of state, so you can eliminate any established political base; both candidates were black, so you can factor out racism; and Keyes was plainly, obviously, completely crazy. Batshit crazy. Head-trauma crazy. But 27% of the population of Illinois voted for him. They put party identification, personal prejudice, whatever ahead of rational judgement. Hell, even like 5% of Democrats voted for him. That's crazy behaviour. I think you have to assume a 27% Crazification Factor in any population.

For this reason, the "Crazification Factor" is also known as the "Keyes Number". And though undoubtedly the product of significant cherry-picking, it was fun in the years that followed to find other crazy propositions that clustered around 27% support.

I was thinking about this nugget of blogger history upon reading about an announced primary challenge against incumbent Rep. Jan Schakowsky (D-IL) by progressive influencer Kat Abughazaleh. The announced basis for the challenge is general discontent with Democratic leadership and the "gerontocracy" not being aggressive enough in fighting the Trump administration. But the problem is that nobody -- not even Abughazaleh -- can point to any problems on that front for Schakowsky, specifically. Abughazaleh herself agrees that Schakowsky has been a good Democrat!

Beyond that, Abughazaleh has never held elected office, has no significant political experience, is from out-of-state (she voted in DC last election), and doesn't live in Schakowsky's district. In terms of traditional bases of support, Abughazaleh has literally nothing going for her other than "I am not a long-standing incumbent Democrat."

To be clear, I'm not saying one would have to be crazy to vote for Abughazaleh. Rather, what made the Keyes Factor notable was that the Keyes/Obama race helpfully isolated out every possible reason one might vote for a candidate aside from "I'm attracted to the crazy." Likewise, I'm pointing out that if Abughazaleh does end up facing off against Schakowsky (and the latter hasn't decided if she's seeking reelection), any support the latter gets will be purely, 100% attributable to people voting entirely on the basis of generalized anti-incumbent/anti-established Democrat rage, untethered either to any particular vices of the incumbent or any particular virtues of the challenger. It will, in other words, provide a useful baseline for seeing how powerful this sentiment is amongst the Democratic electorate, because it is a race that is uniquely free of other confounding variables. 

This race will not be like George Latimer beating Jamaal Bowman (an especially well-established challenger taking out a somewhat wounded incumbent, with clear ideological differences), or AOC beating Joe Crowley (a uniquely talented challenger ousting an incumbent asleep at the wheel). Here, the only impetus that might push a voter to pick Abughazaleh over Schakowsky is "Schakowsky is an old, long-tenured incumbent, and I don't like that." That's clearly a sentiment that has no small amount of force amongst Democrats right now -- but is it enough to actually win a race?

I don't think it is. My guess, assuming a head-to-head matchup between Schakowsky and Abughazaleh? I think the latter will end up pulling around 27%. We'll see if I'm right.

UPDATE: Erik Loomis writes a post on this race that I think pretty well encapsulates the dynamic I'm describing above. He opens by admitting he has no quarrel with Schakowsky or her performance in Congress; she has been a solid Democrat. Nonetheless, he finds Abughazaleh appealing because of grievances towards other Democrats that -- with the single exception of "she's old" -- he admits don't apply to Schakowsky.

This offers me a good opportunity to restate my general views on primaries:

(1) I will freely admit I default to being more "pro-incumbent" than a lot of my peers. This is because I view politics as a job and I think one gets better at it with experience (this is also why I oppose term limits). I am deeply skeptical of the populist "we just need some common-sense wisdom from outsiders in order to get things done in Washington" take. I also think primaries-for-the-sake-of-primaries are needlessly fratricidal and shunt energy that should be used to fight Republicans into D-on-D violence. Consequently, for me the burden of persuasion is always on the challenger to justify their primary challenge.

(2) That said, there are lots of good reasons that can justify a primary challenge! A substantially different ideological vision? Absolutely. Proof that the incumbent has gotten too cozy with Republicans and is selling out party priorities? Definitely (hello IDC!). Political heresies that can't be justified by the demographics of the district (fair or not, we have to give more leeway to Joe Manchin than to Dan Lipinski)? 100%. A serious scandal? Obviously. Indeed, where there is a good reason for antipathy towards a specific incumbent, then I think a primary challenge is the right way to push the party in a more positive direction. Nobody is entitled to keep their seat in absence of good performance.

(3) But there does need to be a real reason. "The incumbent is old", without that manifesting in terms of incapacity or unwillingness to "fight", is not a reason. "I feel I deserve to be a bigger deal" is also not a reason (looking at you, Joe Kennedy). "It's time for new blood" is also not, on its own, a real reason.

(4) And finally, I think it is actually bad to challenge incumbents who have objectively good records. We want our politicians to be properly incentivized vis-a-vis good performance. When they misbehave, we should put a little fear into them (and a serious primary challenge is a great way to do that). But the corollary is that when they do well, they should be rewarded with political security. Do badly, get primaried; do well, keep your seat. But if doing the right thing doesn't yield electoral rewards, then the material incentive structure for politicians to do good things frays considerably, and we have to start relying on less reliable and more idiosyncratic mechanisms to get our representatives to vote in the appropriate fashion.

Will My Child Grow Up To Be a Human?

The other day, Jill and I were playing a common game with our baby -- telling him all the different things he could be when he grows up.

"Are you going to be ... a writer?" "Are you going to be a hockey player?" "Are you going to be an artist?" "Are you going to be a crypto bro?" (we grimaced for the last one).

Our baby is ten weeks old. He isn't much of anything yet. We don't know what he's going to be. And in the present moment, that unknown doesn't just inspire hope and anticipation. It also inspires deep anxiety and worry. We don't know if our child is going to grow up to be the type of person who is under attack by his own government.

For example, we don't know if our baby is going to have a learning disability. And that matters, given the crusade conservative politicians have launched against education programs for disabled children; one conservative commentator on Fox & Friends bluntly described the conservative position on "making sure disabled kids have access to a public education" as "we're against it."

We don't know if our baby is going to have a serious or chronic medical condition. That matters, given the  deep desire by the Trump administration to gut the American healthcare system, coupled with the bloody swath they're already cutting through critical medical research programs.

We don't know if our baby is going to be gay, or trans, or otherwise queer. That matters, given the inhumane attacks on queer personhood that have been promoted over the past few weeks, threatening to undo decades of progress towards actualizing the American promise of equal justice under law.

Of course, he might not turn out to be any of these things. We don't know, just like we don't know if he'll be a writer or a hockey player or an artist or (shudder) a crypto bro.

So we just have to wait and see, and hope that whatever our child grows into, it'll be one of the categories our country still recognizes as fully human.