Saturday, May 02, 2009

Reflections and Projections

The New York Times gathers a bunch of legal luminaries to reflect on Justice Souter's career and legacy. The Washington Post collects a different set of legal eagles to give their thoughts on who Obama should nominate. There is a surprisingly strong consensus against nominating an appellate court judge (a sentiment I really do not share, to be honest).

Oh, and Ed Whelan urges the nomination of 2nd Circuit Judge Jose Cabranes, because he's a member of the "once-dominant species of liberal proponents of judicial restraint." Certainly not because he's 69 years old and will likely have a short tenure on the court before he can (fingers crossed) be replaced by a Republican.

Friday, May 01, 2009

Whose Seat?

Apropos Mark Halperin's worry that White men don't have sufficient representation on the Supreme Court (currently they hold 7 of 9) seats, I wonder if conservatives will be as concerned about insuring that Justice Souter's seat doesn't become an effective "White man's seat" as they were about the horrifying prospect (thankfully averted) that Justice O'Connor would be replaced by another woman.

UPDATE: I forgot how conservatives can easily dodge out of this problem: Just nominate the most qualified person! Which obviously means a White guy. 96% of all Supreme Court Justices and counting, so you know you can rely on White Guy(tm) experience!

Parasite Lost

As cool as it would be if my current Civil Procedure professor became the next Supreme Court Justice (and it would be very, very cool), it would kind of throw a wrench in my plans for it to happen this early. I was hoping to clerk for her first, and then watch her get appointed, thus parasitically attaching myself to her meteoric rise to power. Now, I'll have to hope she'll remember my deft maneuver to answer a question about state's rights by talking about precedent for five minutes.

That being said: Go Judge Wood!

Sestak Still Might Challenge Specter

Rep. (and retired Admiral) Joe Sestak (D-PA) is refusing to rule out a primary challenge towards Republican-turned-Democrat Arlen Specter (D-PA). Sestak has a stellar resume and has proven to be an effective campaigner, trouncing a 10-term (albeit scandal-plagued) incumbent to win his Republican-leaning seat in 2006 and winning re-election handily in 2008.

While the Democratic Party machinery has officially united behind Specter, and Sestak specifically admits he'd be bucking the party if he ran, I wouldn't be surprised if there wasn't some wink and nod collusion between Sestak and the party here, to put some leftward pressure on Specter and keep him honest. It does no good to have Specter as a Democrat if he refuses to join on cloture votes and works to water down Democratic legislation. The only thing that will stop him from taking that route is if he has to worry, at least a little bit, about a primary challenge.

Sestak says that his ultimate decision will be based on Specter's votes on health care, veterans' issues, and the military. I'm guessing his announcement is just meant to keep Specter conscious of his political position. If the new Democrat behaves himself, Sestak will probably drop out, mission accomplished.

Thursday, April 30, 2009

Souter's Out?

The word is that Justice David Souter plans to retire. Let the speculation on his replacement begin!

Back in the day, I put my money down on 2nd Circuit Judge Sonia Sotomayor as Obama's first nominee. That was assuming that he'd face a intransigent Republican minority that he'd have to appease -- otherwise, I think Obama would be far more likely to nominate a more aggressively liberal lion to the bench. So, is that the situation right now? On the one hand, the Republican minority has been pretty incorrigible as of late. On the other hand, that might just show that compromise is useless. And in any event, the Senate is about to find itself with a 60 vote Democratic super-majority. But will it hold strong? I'd like to think that Harry Reid can keep his caucus in line at least for cloture motions, but never underestimate the Democratic Party's lack of a spine.

UPDATE: One thing I have been wondering about is who the first Republican will be to characterize Souter as a "moderate conservative" and demand his replacement be in the same mold? After a decade and a half of flaming him as essentially Benedict Arnold mixed with Che Guevera, I can't wait.

Nussbaum is a Baller

But it's more official than normal: University of Chicago's very own Martha Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics in the Divinity School, Philosophy and the Law School (with secondary affiliations in Political Science and Classics) has been awarded the 2009 Henry M. Phillips Prize in Jurisprudence, given by the American Philosophical Society in recognition of outstanding lifetime contributions to the field of jurisprudence.

Nussbaum is only the second woman to ever win the award, and only the 22nd overall in the prize's 121 year history.

Congratulations to Prof. Nussbaum, and a hearty thank you for being such a great asset to the intellectual and social climate of the university.

Lincoln's Code

I have a new student-post up at the Faculty Blog on Columbia Professor John Witt's ongoing project, "Lincoln's Code: The Laws of War and the Dilemma of American History."

Wiped Off The Map

I couldn't parody this: BMI and Airbus literally removed Israel from its on-air maps for certain planes intended for Arab destinations. This is bad enough, but when the plane was instead used for a flight to Tel Aviv, the passengers found that as far as their in-flight maps were concerned, their destination didn't exist -- in fact, they were actually headed for Mecca.

UPDATE: BMI apologized, but to my ears they seem kind of wishy-washy on whether or not they'll change the maps or just swap the planes.

The Cleansing Power of Anti-Zionism

The Livingstone formulation runs as such: "For too long, any criticism of Israel has been unjustly demonized as anti-Semitism." When applied to a specific bit of speech, this formulation can generate several sub-debates. It can go to the facial elements of the claim: Did the critic actually call you anti-Semitic? Was your criticism actually of Israel and not Jews? The assumptions underlying the Livingstone also can be called into question: Does anyone actually believe that all criticism of Israel is anti-Semitic? Has anyone actually forwarded that as a serious intellectual position? And on the other hand, the fact that not all criticism of Israel is anti-Semitic doesn't mean that X particular criticism isn't -- it still very well might be. The debate is really a tempest in a teapot: Some criticism of Israel is anti-Semitic, some isn't, and the question is whether this particular falls into column A or column B.

But Norm Geras believes that we may be seeing a subtle shift. For a substantial segment of the public commenteriat, he argues,
It doesn't matter if criticism of and attitudes to Israel are anti-Semitic, so long as they are also anti-Zionist.

And he cites to several reactions to Mahmoud Ahmadinejad's Geneva speech which effectively concede that it was anti-Semitic while simultaneously arguing that it was wrong to protest or walk out on them because it distracts from the "real issue", namely Ahmadinejad's purportedly accurate view of Zionism and the Israeli/Palestinian conflict.

This is a subtle distinction, but a significant step in the wrong direction (albeit also a significant step in the direction of honesty). The old debate tried to hermetically seal off "anti-Semitism" from "anti-Zionism", as if it were impossible for the two to overlap. The new claim concedes that anti-Zionism can take an anti-Semitic form, but argues that this doesn't matter -- the anti-Zionism takes precedence over and effectively washes clean the anti-Semitism.

The upshot of this view is the adoption of the Michael Neumann (Prof. of Philosophy at Trent University) view of anti-Semitism, namely, that it is "inexcusable", but only to the degree that failing to answer your Aunt's last letter is -- Neumann says the goal "is not to excuse genuine antisemitism; it is to trivialize it." Or to quote more extensively from Prof. Neumann:
In short, the real scandal today is not antisemitism but the importance it is given. Israel has committed war crimes. It has implicated Jews generally in these crimes, and Jews generally have hastened to implicate themselves. This has provoked hatred against Jews. Why not? Some of this hatred is racist, some isn't, but who cares? Why should we pay any attention to this issue at all? Is the fact that Israel's race war has provoked bitter anger of any importance besides the war itself? Is the remote possibility that somewhere, sometime, somehow, this hatred may in theory, possibly kill some Jews of any importance besides the brutal, actual, physical persecution of Palestinians, and the hundreds of thousands of votes for Arabs to be herded into transit camps?

The persons Geras is quoting are making this precise same argument -- one based on precedence. Opposing Zionism is more of a moral imperative than opposing anti-Semitism is, hence, it is a greater affront to progressivism when the admittedly anti-Semitic anti-Zionist is shunned than when he is welcomed.

Prof. Neumann says that everyone has the responsibility to determine their own moral priorities. I agree. However, it is not unreasonable for me to view someone who explicitly considers my social and political equality to be of subordinate (indeed trivial) value as my enemy. The honesty of Ahmadinejad's defenders is that they have chosen a side: They are in favor of the Palestinians and, insofar as that commitment pits them against a social sphere which provides fairness and security to the Jews, they are avowedly anti-Jew. If they want to take that position fine. But
True progressives understand that desiring liberation for any group only makes sense as part of a broader commitment to liberation for all. Otherwise, it is mere partisanship and self-interest, and that is no basis for making normative claims. Commitment to human equality means breaking the dichotomy between "struggle" and "surrender", and pursuing a third way: listening, cooperation, respect, and co-existence. Jews and Palestinians alike (and their allies) have an obligation to pursue their liberation in a way that is respectful of and makes room for the equal humanity, dignity, independence, and self-determination of the other. Anything else is dressed-up chauvinism.

Again, this is all their prerogative. I merely ask that it not be considered left.

A Very 'umble Court

The Uriah Heep John Roberts court looks poised to flash some of that vaunted judicial humility again, by striking down a critical portion of the Voting Rights Act:
The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that's a long, long journey for the humble, minimalist Roberts Court.

This is a clause which passed 98-0 in the Senate and with only around 30 dissenting votes in the House. Fortunately, we have an activist principled Supreme Court unafraid to second-guess legislative fact finding on the scope and distribution of racial problems in voting.

I Didn't Realize He Had a Choice in the Matter

CNN headline: Steele: I agree with Rush Limbaugh. No kidding.

Wednesday, April 29, 2009

What's in a Flag?

I don't really have anything to add, but I did want to note this: Ta-Nehisi Coates has a good post up on the Confederate Flag and its connection to racism, and reposted a comment which adds a lot more texture to the discussion that I, an upper-class Yank, wouldn't have known about.

Down to Earth

These must be those unreal Americans I've been hearing about. Byron York argues that Obama's "sky-high ratings among African-Americans make some of his positions appear a bit more popular overall than they actually are."

Because clearly, it doesn't count if Black people are happy. Pollsters should adjust accordingly by weighting Black responses at only 3/5 the value of Whites.

UPDATE: Adam Serwer situates Byron York's "Black people don't count" post within a larger category of conservative writing which notes how awesome they'd be doing if only certain segments of America disappeared.

Why Give Up Now?

I just got an interesting email from Columbia Law School:
Dear David Schraub:

Thank you for your continued interest in Columbia Law School. We are
excited to report to you that we have received all the required components
of your application and that your file is now complete. We will forward
your file to the Admissions Committee, which will evaluate it in the order
in which it was completed. Good luck in the admissions process and we hope
to welcome you here as a member of the Class of 2012!

Best wishes,

Office of Admissions

Columbia Law School
Mail Code 4004
435 West 116th Street
New York, NY 10027-7297
Telephone: (212) 854-2670
Fax: (212) 854-1109

I hate to say it, but I have some disappointing news for Columbia as to the status of my law school admissions decisions....

UPDATE: They just emailed me to say it was a computer glitch (obviously). I wrote back to wish them luck as the acceptance decisions finish out.

Also, now that we're over a year distant, I think I can safely reveal that it was Columbia which asked for my fall term grades several months after receiving my application which included, you guessed it, my fall term grades. This led to a very confused David for awhile.

Astute readers will guess, correctly, that this means NYU was the "already-admitted U" which acknowledged my application and promised a decision by April two weeks after admitting me to their fine school.

I'm so bad at keeping secrets.

Hush That Sarcasm

Ta-Nehisi Coates sarcastically wonders why none of his commenters wrote "THIS IS EXCELLENT NEWS!!! FOR HILLARY!!!!11"

But while it maybe isn't excellent news for her, Publius does eruditely point out that in many ways, we have Hillary Clinton's decision to prolong her primary campaign to thank for Specter's defection:
Today’s flip further vindicates Clinton’s decision to fight it out to the bitter end in last year’s primary. Looking back, nothing but positives came out of that contest. As I’ve explained before, the primary had an “anti-Tasmanian Devil” effect – rather than chaos, it left stronger party organization and big increases of registered voters in its wake.

And it’s that structural shift that doomed Specter. He couldn’t afford to lose hundreds of thousands of moderate PA Republicans.

This aspect of Specter's decision reconfirms one of the secrets of Obama’s electoral success. People point to the charisma and “hope and change” business. And that’s all fine. But we shouldn’t overlook Obama’s emphasis on nitty-gritty, massive organizing efforts (great article on those efforts here). Obama won with a lot of elbow grease and planning – it wasn’t because of speeches. The “old” politics of organization and registration made the “new” politics possible.

If Hillary hadn't stayed in the race, all those new registrations (and more importantly, registration switches from GOP to Dem) probably wouldn't have happened. If they hadn't have happened, Specter probably could have won a GOP primary, and would never have switched.

So, nice work, Hillary Clinton. You just got us a Senate seat. The Party thanks you.

Tuesday, April 28, 2009

Get Well Soon

My regards and well wishes to the Minnesota 1L who got shot the other night. Apparently I was lucky to get out of the violent deathtrap that is Minnesota for the cool serenity of Chicago.

Eric Cantor: The Jewish Michael Steele

Matt Yglesias notes that with the defection of Arlen Specter and the defeat of Norm Coleman, Rep. Eric Cantor (R-VA) is the sole remaining Jewish Republican in Congress. He titles his post "The Democrats' Jewish Problem".

Drown This

Best intro to a piece covering Arlen Specter's defection goes to WaPo writer Dan Balz:
How much more can the Republicans take? Demoralized, shrinking and seemingly lacking an agenda beyond the word "no," Republicans today saw their ranks further thinned with the stunning news that Pennsylvania Sen. Arlen Specter is switching parties and will run for reelection in 2010 as a Democrat.

Meanwhile, Sen. Jim DeMint (R-SC) finds reason to celebrate, saying "I would rather have 30 Republicans in the Senate who really believe in principles of limited government, free markets, free people, than to have 60 that don't have a set of beliefs." John Cole points out that at this rate, the GOP should get there by 2016 and also asks if "the GOP small enough to drown in a bathtub yet?"

Restoring the Right to Hate

The good folks at Engage pointed me to a new paper by CUNY professor (not of law, incidentally) Kenneth Marcus, Jurisprudence of the New Anti-Semitism, 44 Wake Forest L. Rev. 101 (2009). It's pretty good, though there are some things (mainly organizational) that annoy me about it. I really like its overview of the events at UC-Irvine which sparked one of the first high-profile complaints about institutionalized anti-Semitism in the United States -- and the willful inability of American law to take it seriously (114-123). I think it does important work in terms of linking anti-Semitism study to broader currents in anti-discrimination law and scholarship, including the more progressive anti-subordination fields that I identify with, though its analysis could be stronger. In general, I think it's an article that doesn't quite have its identity (Genealogy? Legal doctrinal? Normative argument?) nailed down. But so few folks are writing articles like this that I recommend it anyway, with a grade of 7/10.

One quote he gives, from Bernard-Henri Lévy, really did strike a chord with me, relating off my earlier Why Israel post. Lévy argues that the "New Anti-Semitism" has three main pillars: anti-Semitism-denial, Holocaust-denial, and anti-Zionism. He claims that, after the Holocaust decisively delegitimized older, more overt forms of anti-Semitism these elements are necessary
for people to feel once again the desire and, above all, the right to burn all the synagogues they want, to attack boys wearing yarmulkes, to harass large numbers of rabbis, to kill not just one but many Ilan Halimis--in order for anti-Semitism to be reborn on a grand scale. [136, quoting Bernard-Henri Lévy, Left in Dark Times: A Stand Against the New Barbarism 155 (Benjamin Moser trans., 2008)]

As I've said earlier, I can't speak to the state of mind of the various persons who promulgate views I and many others find hateful. I can only state my own sentiment and feeling as a Jew -- that when I hear these words, it sounds to me like the speakers are thirsting to resume the old hatred; and questing for a renewal of the long-standing social sanction to enact hatred against the Jews. For most of history (in the locations Jews have lived), there has been an explicit license to the general people that it is permissible to discriminate against and detest Jews. Anti-Jewish bigotry was a birthright of the people; it was something that they were owed. Outside the United States, Jews have filled the role of being the Faces at the Bottom of the Well; the group that every other group was allowed to despise and inferiorize.

The repercussions stemming from the Holocaust deprived the community of a substantial right they had hitherto enjoyed. It was yet another case of the Jews stealing something that was rightfully possessed by another. Hatred directed at the "Zionists" seems to be an endeavor to restore the property interest Gentiles have long enjoyed in hating Jews. If they can't hate us as Jews, perhaps they can still hate us as "Zionists".

The evocation of those sentiments alone has tangible impacts on my ability to participate as an equal in the public sphere. It means I have to be alert about when and how I identify myself as a Jew. It makes me presumptively wary of certain spaces -- spaces I should have every right to participate in -- as being potential hotbeds of those who would reject me and mine as full members of the human community. And perhaps most damagingly, because the persons propounding these ideologies have focused so much of their attention (to great effect) at rendering any discussion of anti-Semitism facially illegitimate, the lesson I've taken when I feel threatened or aggrieved as a Jew is that identifying the problem is the gravest breach of discursive norms imaginable -- indeed, it is a insidious power play meant to mask a hidden and evil agenda by playing on public egalitarian attitudes which have deigned to treat Jews as equals (formally, at least).

Do I know that this is the explicit or even subconscious motivation of any given speaker? No. But bluntly put, I'm not sure why "innocent" intentions should be held to render the aforementioned concerns irrelevant. The reinscription of anti-Semitic dogma back into the polity, the chilling and silencing effect on Jews worldwide, the nourishment of violence against Jews -- these don't become any less bad just because their sources have good intentions. Much the opposite -- I think these realities make it incumbent on the speakers to re-evaluate what good intentions mean, and impress upon them a greater obligation to understand precisely what their ideology is doing. Despite tremendous pressures to be silent, Jewish voices have spoken loudly and eloquently on the effects they are facing which flow from these ideologies. Their targets, for their part, have distinguished themselves by an abject refusal to accord any legitimacy to these critiques -- proceeding apace without missing a beat, weaving the critique itself into their original song (namely, the verse about spurious claims of anti-Semitism).

At some point, ignorance starts become willful -- a conscious refusal to engage with the Other in order to preserve the right to hate irrespective of its material effects. And then I have to ask -- why do I care about your intentions anyway? You don't seem to have any intent on hearing my voice, refusing to do so threatens my security -- to me, from my vantage point, that's a bad intention.

And There's....60!

Sen. Arlen Specter (R D-PA) shocks the political world with a party switch.

Yes, it might have been his only route for political survival. But he'd been a Republican for a long time, and even stuck his neck out by coming out against EFCA (a position which, bizarrely, he apparently is sticking to, which will make the Democratic primary as hellish as the Republican one would have been). I genuinely expected he would have retired first. But the modern day GOP is so infuriatingly alienating to his moderates that I guess Specter felt he had to take a stand.

Once Al Franken gets seated, this is a 60 seat majority in the Senate (although Specter says he wouldn't be an "automatic" vote for cloture). I assumed we'd have to wait until 2010 for that. But thanks to intractable Republican extremism, Channukah comes early.

Specter's whole statement can be found here.

Monday, April 27, 2009

Is Plagiarism the Highest Form of Flattery?

I ask because I just got a hit from a Colorado State University server feeding from Plagiarism Detect. I assume it's because someone turned in a paper than came up positive for this post.

Uh-oh, spaghetti-o. Somebody's in trouble.

Next time, if you want to flatter me, just send me a card.

Pork Pork Pork Pork!

People who look dumb today: Susan Collins, Chuck Schumer, and everybody who laughed at David Obey.

UPDATE: Alberto Hurtado has the novel argument that, even though Republicans led the charge for removing epidemic preparations from the stimulus bill, it's the Democrats fault for listening to them. Believe me, I am happy to promulgate a norm for the rest of this Congressional session promising never to make that mistake again.

When the Swine Flu doesn't destroy the world, I'll have the joy not just of seeing civilization survive another day, but giving even further demonstration that Hurtado is a tremendous asshole.

Sunday, April 26, 2009

Wendy Kahn Wraps up Durban II

An interesting summary of the proceedings by the National Director of the South African Jewish Board of Deputies. It does sound like the Jewish community took the right lessons from Durban I. They came organized, prepared, and in force, and prevented the atmosphere from replicating Durban I's vicious hate-fest. Obviously, it is a shame that Ahmadinejad was given a platform. But the flurry of condemnations directed at him were more than gratifying, and High Commissioner Navi Pillay had a point when she said "if governments leave the process they are not present to respond."

UPDATE: On the other hand, the team dispatched to defend Israel came out as disillusioned as ever.

The Ahmadinejad Waltz

Steps in various directions, but you always get back to the same place. Step forward:
Iranian President Mahmoud Ahmadinejad, in an interview broadcast Sunday, said his government would accept a two-state solution for Israelis and Palestinians if Palestinians did.

"Whatever decision they take is fine with us," he told ABC's "This Week."

"We are not going to determine anything. Whatever decision they take, we will support that. We think that this is the right of the Palestinian people. However we fully expect other states to do so as well."

Step back:
Ahmadinejad, who has called for the end of Israel's existence as a Jewish state, also argued that people in the region should be allowed to hold a referendum — and if they vote Israel out of existence, other nations should accept that.

I wonder what happens if the Palestinians accept a two-state solution and the surrounding nations nevertheless vote Israel off the island?

Which is the sort of thing one wonders in lieu of: "What gives people who live outside of Israel's borders the right to vote on Israel's existence in the first place?"