Sunstein Tops

I don't feel at all guilty saying that Cass Sunstein's defense of the Obama hype makes mine look positively weak. Sunstein worked with Obama at the University of Chicago (where he was a part-time lecturer in Constitutional Law), and is absolutely effusive in his praise. But he also notes the facile nature of the "if he weren't Black" line of inquiry:

I have no idea how Obama would be regarded if he were white. (He might be regarded as this generation's Jack Kennedy; the two have a similar quickness, youth, charisma, and capacity for humor.) But for any successful politician, there are many necessary conditions for their success. Would George W. Bush be president if his last name were not Bush? Would Al Gore have become vice-president if his last name had not been Gore? Would Senator McCain be a serious candidate for the presidency if he had not been held prisoner in Vietnam? Would Bush, Gore, or McCain be where they are today if they were African-American or Hispanic? (What kinds of questions are these?)

Well spoken, Professor.

Today in Jew

A couple issues of importance to the Jewish community.

Eugene Volokh reports that the NAACP is suing a Jewish-run dental and health clinc because it closes on Saturday. This, apparently, amounts to the imposition of Jewish religion on the clinic's patrons (most of whom are poor minorities). If ever there was a case of Christian normativity screaming for recognition, this was it. And of course, this certainly does not help revive the faltering Jewish/Black relationship.

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Also over at the VC, David Bernstein reports on the mechanics of Columbia University's speech invitation to Mahmoud Ahmadinejad. It fell through, but it is ironic that the prestigious university invited an on-the-record Holocaust denier to speak on Rosh Hashanah.

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Via my colleagues at The Moderate Voice, another thinker (Ed Lasky) proposes that it is time for Jews to join the GOP. It follows the usual pattern--cite the Democratic anti-Israel far left for anecdotal evidence, and show that Republicans are generally more reflexively pro-Israel than Democrats are. The problems are multiple. As TDL readers know, I keep a wary eye on said left fringe, and would just as soon see them take their illiberal views to another party. But it is facile to say it is controlling. In a caucus that contains over 200 members, Lasky never cites an anti-Israel vote that broke even 50 Democrats. Democratic foreign policy elites--with a few exceptions--continue to be strong on Israel issues. And the poll data Lasky cites still shows a strong plurality of Democratic voters who support Israel over its enemies. Moreover, Lasky skates over (to say the least) the fact that many of the worst offenders on the Israel issue were defeated in Democratic primaries when Jewish voters raised their ire (Earl Hillard and Cynthia McKinney--twice). More fundamentally, while Jews trend strongly pro-Israel, that does not mean we request blind loyalty or single-minded trumpeting of "do-whatever-it-takes" tactics. Because Jews have a personal stake in this conflict, we are more likely to want to see a stable, lasting, just peace. This does not mean that we are any less pro-Israel, but it does mean that most of us would not object to a provision (called for by minority leader Nancy Pelosi and criticized by Lasky) asking that Israel do its best to limit civilian casualties. In addition to simply being the moral thing to do, every innocent who dies in this conflict adds fuel to the fire and makes it less likely that a moderate consensus will coalesce in the Arab world that respects Israel's sovereignity and security concerns. In other words, being "pro-Israel" doesn't necessarily mean what

But far and away the biggest flaw in Lasky's analysis is that he inexplicably thinks of Jews as single-issue voters. But of course, there are many issues of importance to Jews, of which Israel is but one. The Jewish community has and continues to have a broadly liberal consensus on a variety of issues, which also keeps us firmly Democratic camp. Israel isn't even the only issue that affects Jews qua Jews in America. At least as important to us is issues of Church/State separation, the abandonment of which would rapidly make us second-class citizens in our own country. The Republican record on this issue is, to say the least, abysmal. Indeed, numerical fringes not withstanding (and recall, you can find them among Republicans too--Pat Buchanan rises to mind), Jews right now have the best of both worlds--both parties reflect a broadly pro-Israel consensus, so Jews can comfortably vote on the basis of other issues of concern--like economic justice, church/state separation, civil rights, etc.. On those issues, Democrats remain clearly in command from a Jewish perspective. Republicans will never get our votes unless and until they realize we aren't single-issue Israel zombies.

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Phoebe Maltz has a great post on Jewish neo-conservatives (and "neo-conservatives").

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Happy Rosh Hashanah!

The Great Hope

For a while, it had been so long since there has been a White heavyweight champion in boxing, that any potential challenger (no matter how fringe) was invariably labeled "The Great White Hope." It was an odd mix of patronizing and racist, and I didn't like it (with the rise in dominance of Russian bloc heavyweights, it has become less common). On the flip side, the dearth of truly national Black political figures means that often the punditry will nominate certain Black political figures as the "Great Black Hope," at even the slightest inkling of a national following. This, too, is bad, but for very much opposite reasons--it pigeon-holes even spectacularly talented Black politicians as being there "just because they're Black," thus convienantly bracketing them off and assuring the general population that, no matter what the hype is, they aren't really all that great.

John McWhorter makes precisely this argument with respect to Barack Obama--explicitly labeling him as an example of a "Great Black Hope," who is being overpromoted and for the hype is completely unjustified. He says that if Obama was White, we still wouldn't have heard of him no matter his rhetorical brilliance or crinkly smile. To which Noam Scheiber has a devastating two word rebuttal: John Edwards. Edwards got promoted to the national stage almost as quickly as Obama--VP shortlist after two years in the Senate, Presidential material after three. And, as Scheiber notes, not only does Obama have more political experience than Edwards did going in (State Senator, community organizer, constitutional lawyer), his skills (and I agree, this is not a slap at Edwards) simply dwarfs those of the North Carolinian. Edwards is a good speaker. Obama is breath-taking. Edwards is quite sharp. Obama is jaw-droppingly brilliant. They simply aren't on the same level. When it comes to Barack Obama, the hype is for real. It isn't just because he's Black (although I think that it is an excellent sign when so many White Americans are genuinely excited about having a Black President). It's McWhorter who is being patronizing--he can't even fathom that it might be the man's skills and talents that are exciting us. It has to be his race. McWhorter needs to listen more carefully to the Junior Senator. The hype is there because he's the real deal--the type of face we haven't seen in the halls of congress in a long while.

Then and Now

Compare:

With no hope of establishing the analogy on which his thesis about public discourse rests, Nyhan resorts to attacking Power Line. We stand accused of being over-the-top partisans who worship President Bush as a visionary. Even if this were true, it would do nothing for the argument Nyhan wanted to make unless he could show (and he can't) that we viciously attack conservatives who think less of the president than we do.

--Powerline, yesterday

Christine Whitman has written a book titled It's My Party, Too, which...has the temerity to impugn the President's re-election victory...When a Democrat [sic] like Richard Clarke betrays President Bush, that's one thing; when it's done by a Republican, it's unforgivable.

--Powerline, 1/3/05

Does ranting about Whitman's "temerity" to "impugn" Bush's re-election victory and accusing her of a "betray[al]" that's "unforgivable" count as a "vicious[] attack"? I think it just might qualify.

"Voted For Torture!"

U.S. Rep. Lynn Westmoreland (R-GA) said it. About himself. Proudly. A few days later, he backed off, saying that he "voted against the anti-torture bill." As The Plank notes, if you're anti-anti-torture, then you are....?

When queried on specific, Westmoreland had the following to say:

Pressed on whether that means he supports torture, he said, "What's torture? Torture is many things to many people ... people have different breaking points."

Asked whether he would support using electric shocks, he said, "Electric shocks are given to people during initiations to different clubs ... Is that torture? I don't know."

Asked about beatings, he said, "Are you talking about tying his hands behind his back and beating him in the head? No, I'm not for that."

Excuse me while I bash my head against a concrete wall.

Revelation: Jews Hate Genocide

Once again, the President of Sudan is blaming the Jews for all the nasty attention being given to his genocide in Darfur. And once again, my response is: AND PROUD. The speech was at the UN (where else?), and this time the President made the rather peculiar claim that Jews were focusing attention on Darfur to raise money for Israel. I'm sure somewhere in his twisted mind, that makes sense, but I can't decipher how it works, and have no interest in trying.

In the next issue of The New Republic (firewall), an ex-Israeli official argues that the UN is actually Israel's best friend, because by being such a parody of itself when it comes to the Jewish state, it ends up giving Israel a lot more leeway to act against terror than it would sober-minded people actually had to take the UN seriously. I actually disagree--I don't think it does Israel or anyone else favors when such an important geopolitical issue can't be discussed without immediately sounding like a revision of the Protocols. But alas, that seems to be the world we live in. And certainly, with enemies like Sudan, I'm not sure Jews really need friends.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

Neighbors Unite Against Prussian Blue

Eugene Volokh reports that the new neighbors of the White supremacist pop group "Prussian Blue" (14-year old twins and their family) have posted flyers around their community notifying members of the group's radical racist agenda and declaring themselves to be in opposition to "hate."

The family is claiming harrassment. The neighbors disagree:

"This letter is not written as a means to harass the family or to begin a witch hunt," the flier said. "We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families."

As Professor Volokh noted, since PB specifically decided to move to this town because the old one "wasn't White enough", it is perfectly fair for the neighbors to push back against being identified with that sort of racist sentiment.

What would really be great is if the neighborhood began to actively work to end the racial monotony that attracted PB to the area in the first place. But that might be too much to ask.

The Kennedy Indication

Law.com has its preview of the upcoming term. Surprising approximately nobody, Justice Kennedy will play a crucial role in the proceedings.

However, there is some interest to be had in the eternal swing-vote watch. Specifically, there are two clusters of cases which challenge recently settled precedents in which Kennedy was on the dissent. I've predicted that Kennedy will tact to the center to fill O'Connor's role, acting as a balancer to prevent the Court from moving too far to the left or the right--even if that means staking out more liberal positions than he did when O'Connor was the chief moderator. These cases, which pit Kennedy's previously stated ideological commitments against the stability and continuity of precedent, put that theory to the test. The first set deals with school desegregation/affirmative action:

The replacement of O'Connor with Alito may also be determinative in the Court's two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."

The high court last visited the issue of affirmative action in 2003 when it upheld the affirmative-action admissions policy at the University of Michigan Law School, but struck down a differently constituted admissions policy at the undergraduate school. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). O'Connor was the key vote and voice in the law school ruling; Kennedy was in dissent. If the school districts here lose, "It would really, in the context it is before the Court, signal the end of the Brown v. Board of Education desegregation era," said Temple's Rahdert. "What's left of school desegregation are these voluntary plans that try, at the margins, to combat the tendency of having patterns of one-race schools."

This one is less interesting, because I think it is likely that Grutter can be distinguished (not that it should be, or even that it is particularly coherent too, only that it is different enough so it seems a fairly plassible dodge) and the overarching question of affirmative action will be deferred for yet another day.

But the real intriguing one is the upcoming partial birth abortion ban case:

In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003.

Every court to review the law has found it invalid, generally because it is overbroad and because it lacks an exception to protect the health of the woman -- a requirement established by a 5-4 high court decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, which held that Nebraska's partial-birth abortion law was unconstitutional. O'Connor was the critical fifth vote to invalidate the law. Kennedy wrote a bitter dissent.

In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.

There is no getting around the past precedent here. Kennedy was firmly on the dissent in Carhart. But it's still the law (for now), and Congress' response was basically to stick a middle finger in the eye of the court. It didn't even try to write a law consistent with the opinion. This type of challenge to the Court's supremacy is precisely the type of case where I can see Kennedy biting the bullet and voting for continuity even when his personal (and tabula rasa legal) beliefs dictate otherwise. While Lawrence might be an exception, in general, Justice Kennedy does not like to play fast and loose with precedent--and he definitely doesn't like it when Congress takes it upon itself to overturn precedents it finds disagreeable. Ultimately, I think Carhart II will be the biggest indicator of where Justice Kennedy's jurisprudence will point to for the years to come.