The Sausage Factory of Law and Politics

Back in March, I commented on the development of international legal norms related to the Israeli/Palestinian conflict with reference to Oliver Wendell Holmes' famous maxim: "Great cases, like hard cases, make bad law." The idea is that the Israeli/Palestinian conflict is the paradigmatic "great case" -- it is one that comes with tons of attention, advocacy, passion, politics, and pressure. Legal rules that develop out of that cauldron are not likely to be those that actual make sense as ordering principles for the international system. Rather, they are those which crop out from the sum of all the various pressure on the system.

Daniel Taub, writing in the Boston Globe, fills in some details which make me feel even more confident (unfortunately) in my evaluation:

A SHORT WHILE ago I met with a group of eminent jurists who were on a fact-finding mission, examining Israel's military operation in Gaza. After listening to their concerns and criticisms, I asked them: "Considering the rocket attacks launched against Israel by terrorist groups in Gaza, what in your view would have constituted a lawful response?" The answer was total silence.

The troubling notion that international law has no practical advice for a state facing terrorist attacks other than to grin and bear it is increasingly pervasive. John Dugard, the UN Special Rapporteur on Human Rights in the Palestinian territories, issued eight reports on Israel's responses to terrorism and never found a single measure adopted by Israel to be lawful or proportionate. His successor, Richard Falk, recently issued a report that goes one remarkable step further. In the conditions existing in Gaza, he asserts, any Israel military response would be "inherently unlawful." According to Falk's understanding of international law, Israel has no right whatsoever to defend itself.

It is possible that Israel just has some compulsion towards barbaric activity, and willfully avoids any response to terrorism that doesn't break the law. But I doubt it, and in any event Falk's extension seems to fit better with my view that "disputes [about the relevant international legal standards] are being 'settled' with an eye towards vindicating as many Palestinian and/or Arab claims as possible," because that what the relevant political actors demand out of UN rapporteurs. Like Taub, I don't really have an idea of what a "lawful" counter-insurgency program would look like to these theorists -- Falk indicates that there simply is no such thing, which is a fundamentally idiotic way of ordering international law under any metric other than "screwing over Israel". It's a shame, because as I've written, this is a question that desperately calls for some serious progressive scholarly scrutiny.

But we're too busy positioning ourselves on the right side of the great case to notice that we're creating bad law in the process.

Judge Sotomayor Just Shot Up the Badass Meter

Funny thing. Verum Serum excerpts from a speech by Judge Sonia Sotomayor, where she talks a lot about the role of "experience" (as in, one's experience as a White man or a Latina woman) in judging. She quite vigorously defends the notion that identity matters, and disclaims the idea that there is some grand ahistorical legal "right answer" that transcends perspective or partiality. Verum finds this terrifying. Needless, to say, I (White, male, straight -- alas Jewish -- me) love it. She even cites to Martha Minow!

Some of these arguments go back to what I wrote defending Justice Ginsburg when she said that female judges may possess certain "sensitivities" that male judges lack. This is almost indisputably true -- women, for example, live having been pregnant or knowing they could become pregnant. Men don't experience that. Recent studies (thanks to Gaucho for pointing to the link) have demonstrated that male judicial voting patterns on sexual discrimination cases are significantly impacted by having a woman on the panel -- even controlling for ideology. And since the law often asks judges to determine questions which turn on subjective experience (is X regulation an "undue burden" on a women's right to choose? Was a given fact pattern "pervasive sexual harassment"?), these experiential differences matter. That isn't to say that gender or race is determinative in cases in which gender or race might serve to differentiate experiences. Race and gender are (among) the identity axis which construct the vantage point through which we see the world -- this affects, but does not determine, how we interpret it.*

There is a certain naivety possessed by many lay folk -- and a good many lawyers and law students, alas -- that The Law exists hermetically sealed from human sight or touch. I can understand how lay folks buy into the myth -- it is the dominant conception -- but I utterly fail to see how anyone who has been through a year of law school can still clutch to it. Courts are constantly forced to ask questions about the nature of justice and fairness, to make evaluative decisions, in short, to judge. The entire body of common law is essentially one long game of "what makes sense?" Constitutional law is no different: What is "cruel" punishment? What process is "due"? What is the technical definition of "equal protection"?

These are not questions that come with objective answers; indeed, I would question quite strongly whether they are even candidates for objective truth. To be sure, we often claim they are -- we take the position held by whoever currently holds the crown gavel and proclaim it to be Divine Revelation Black Letter Law. But this claim to impartiality is a chimera -- it doesn't correspond to anything real. A rule that works from the perspective of one position in the social order or one bundle of value commitments may seem bizarre or oppressive to another person differently situated or with a different set of commitments. We aren't equipped with the tools to resolve these disputes by brute intellectual force: our choices are between simply entrenching the dominant view and calling it True, or honestly engaging with and grappling with alternatives, with an eye towards mutual agreement and a commitment to mutual respect. From within this paradigm, it is beyond obvious that a multiplicity of perspectives is of benefit to the judicial branch. This has been recognized by theorists left (Jack Balkin, Cass Sunstein) and right (Richard Posner).

If we are serious in upholding a value of inclusion and mutual respect, we must be prepared to hear alternative perspectives which may clash -- sometimes dramatically -- with what we take to be settled or obvious interpretations (of law, of policy, of social organization, of anything). Otherwise, as Jack Balkin puts it, "we may confuse our conception of what is reasonable with Reason itself." It is, of course, more comforting to cloister ourselves into homogeneous bubbles and then shake our fist at those who wish to introduce "bias" into the system. But that is not consistent with a commitment to law, ethics, or equality.

* See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford UP 2000), Ch. 4.

Wanted Bodies

Through Amber, a couple of great posts on the objectivity of male bodies. The main one is from Hugo Schwyzer, and he in turn links to Figleaf. It's a topic I've explored before in my post "Second Thing We Do, Objectify All The Men", so this post will be more scatter-shot. It's also a topic I'd love to get the perspective of the Happy Bodies gals on.

Schwyzer relates his experience that the first time he ever was expressly cast as someone wanted, desired, was in the context of a same-sex relationship. In his relationships with women, the idea that someone might lust after him was utterly bizarre and foreign. This intrigued me, because my introduction to this whole line of thinking stemmed out of an article by Leslie Green, entitled "Pornographies" (J. Political Philosophy, Vol. 8.1, 27-52 (2002)). One of Green's major arguments was a defense of gay pornography precisely because it objectifies gay men: men who, in Green's estimation, are perpetually told that their sexuality is something deviant and disgusting, that nobody could ever want them or find them desirable or attractive, that they have no objective worth. Pornography shows them that, yes, your body is one that is something that someone might want -- and that sentiment is an important aspect of human personhood.

It may be that Schwyzer and Green's arguments are not irreconcilable -- the internal norms and culture in the gay community may differ from how broader society views homosexuality, and the affirmation that gay male sexuality is desirable may be of particular importance to closeted gay men, or those from more repressive and homophobic backgrounds who may still be laboring under beliefs which taught them that their very identity was disgusting.

But Schwyzer's post made me reflect about my own experiences as a straight man -- have I ever felt particularly desired? When I enrolled in college, I joked that I just assured myself four years of never getting a date. My best qualities (as I saw them) were that I was nice, polite, and intelligent. Enrolling at top five Liberal Arts school in Minnesota meant throwing away all my competitive advantages. It's not that I think of myself as ugly -- I don't -- but the joke rests on the idea that it is absurd to think anyone might want me for my body of all things. Looking back, prior to my current relationship (which is very body affirming -- as you'd hope dating a body positivity blogger!) I can think of precisely one moment where a woman complimented my body. I also remember being somewhat at a loss of how to react -- I was certainly pleased, but fairly baffled as well. Jill has a favorite body part of mine (no, not that one), and while I like that she likes it, it still is something I find a little puzzling.

The post Hugo links to talks about the unforeseen consequences of men not having a conception of themselves as objects of desire. One upshot is that men have only a weak grasp of what constitutes an attractive male. Apparently, some women think we are simply overcompensating the "no homo" bit when we aver that we can't say if a given guy is attractive. The fact is that, as the Fred Thompson debacle so conclusively demonstrated, no, we're really actually confused. Outside a few obvious poles ("Gilbert Gottfried or Brad Pitt"), the terrain of "attractive man" is foreign territory.

It's not that women don't talk amongst themselves about which guys are hot and why. It's that there are almost no public channels where it is permissible to discuss men in terms of their bodies. The public language of desire has men as the desiring, and women as the desirable. It is a one-way street.

Hugo writes that "The answer lies in creating a new vocabulary for desire, in empowering women as well as men to gaze, and in expanding our own sense of what is good and beautiful, aesthetically and erotically pleasing." This is a phrase fraught with peril, even as I endorse its particulars. "Gaze" is an important term in feminist discourse, and not generally one used in a positive sense. Women are under the male gaze because they are presented solely as objects for male desire. That is how they walk through the world -- they can't avoid it. So how is it that we can say that we want to "empower women as well as men to gaze"?

Both objective and subjective worth are critical to a full sense of personhood. That is Green's position, and that is mine as well. Women suffer from the male gaze because it is the near-totality of how their lives matter in a patriarchal society. For persons who are respected as subjects, there is no danger in being gazed upon, because we know there is the foundational acknowledgment of one's basic human dignity. Quite the opposite -- for persons accorded subject-status, it can be quite damaging to be deprived of a sense of desirability.

In my post, I argued that control (better: autonomy) is the critical element: we can put ourselves out as a desirable object when we know that we have the right to withdraw ourselves. Women, today, do not have that right -- stepping out onto the street is seen as an implied license to be morphed into a sexual object; and there is no safety net of acknowledged subjectivity lying beneath them. Empowerment to gaze comes from the dismantlement of this structure.

Pop Pop Pop

Fun fact: Apparently there was a drive-by shooting a block away from my apartment today, at around noon. Never a dull moment in Chicago.

Boycott Outcomes

So we've been talking about Naomi Klein's push to boycott Israel. And specifically, the possible results. But of course, there are several possible results, and nobody really knows which one of them will come true (though some seem far more likely than others). So I thought I'd run through several of the scenarios I see and their likely upshots. I'll reiterate that, as per Klein own argument, I'm only measuring from a consequentialist standpoint: "Will it work?" Other factors, like "it makes me feel like I'm making a difference" don't really play into this analysis.

Scenario 1: Klein's proposal doesn't get much traction it. It stays limited to the usual relatively-fringe suspects, and doesn't rise to a level that really captures the attention of the Israeli government or populace. But obviously, it still gets hotly debated in the blogosphere. For the most part, this is a pretty neutral outcome, but not entirely: It's a waste of energies that better could be directed elsewhere -- from the boycott promoters, but also from the bodies dedicated to opposing the boycott. Engage, I'm sure, would be far happier if it could devote its time to proactive pro-peace organizing, rather than playing defense against Klein and Co.. This is probably the most likely outcome.

Scenario 2: Klein's campaign gains enough traction to get on the Israeli radar and make them take notice, but not enough to actual coerce them into making any particular changes. Israelis respond with anger and mistrust -- foregrounding their fears that the entire world is against them and they can only rely on themselves. They disengage from negotiations and discount world opinion to an even greater degree than before. This, obviously, further enflames the boycotters, who feel vindicated in believing that Israel is unapproachable and that coercion is the only viable response. Seeing that BDS didn't have the desired effects, they boycotters may align with more radical elements still, but even if they don't, there is still a dramatic net increase in polarization and mistrust. The cycle of conflict is entrenched even deeper. I think this is the second most likely outcome.

Scenario 3: Klein's campaign gains serious momentum and forces the Israeli government to make tough choices. Once it becomes clear that the BDS campaign isn't a fad, the brief surge in right-wing sentiment collapses in favor of a consensus to negotiate. The negotiations rapidly lead to a two-state solution based around 1967 borders, with maybe a few adjustments, and a consensus over Jerusalem, territorial congruity, security agreements, and mutual recognition. Refugees are paid compensation and resettled in the new Palestine. Israel's neighbors make good on their commitments and quickly sign peace treaties. Everyone congratulates each other and goes home, problem solved. This is the ideal that Klein is presumably hoping for.

Scenario 4: Klein's campaign gains serious momentum and forces the Israeli government to make tough choices. A weakened Israeli government tries to negotiate, but the Hamas-led Palestinian government seizes the opportunity to up their demands to include resettlement of refugees in Israel proper, recognition of Israel as a fundamental part of the Muslim world, and the holding of Ahmadinejad's "regional referendum" to decide the ultimate resolution of the conflict. Israel refuses, believing that the result of the referendum is likely "no Israel", and negotiations stall. The BDS movement fractures as its supporters squabble over whether Hamas pushed too far, and the upshot is essentially the same as Scenario 2, if not worse.

Scenario 5: Starts like S3 -- Israel begins negotiations with a Fatah-led Palestinian government and comes out with an agreement largely along the lines outlined in S3. However, more radical elements in the Palestinian government refuse to accept it, making demands more akin to S4 (I don't mean to discount the possibility that such an agreement would be vitriolically opposed by certain Israeli elements too, but there isn't a history of civil war over governmental decisions in Israel, and there is in Palestine). Armed skirmishes continue, and Israel argues that either Palestinians weren't negotiating in good faith, or can't deliver on their promises. Depending on how the timeline plays out, this might still result in the creation of a Palestinian state -- just one in an extremely tense relationship with Israel -- and that may well be characterized as a net benefit compared to a non-independent Palestine which is in an extremely tense relationship with Israel. Or it might come before the state is established, and we're back to square one. The BDS campaign has its own debate as to who is at fault for the collapse of the deal, and whether or not the "radical" demands are worthy of their own support -- it is quite possible that they continue to support the boycott and throw their support behind more radical alternatives.

Scenario 6 (or 5b): Also starts like S3. Like in S5, a large chunk of Palestinian society continues to assert more radical demands, and a significant sector of the BDS movement agrees. The BDS mandate expands beyond ending the occupation to more radical critiques of Israeli society. They demand an abandonment of Israel's "racist" character as a Jewish state, full "right of return" for Palestinian refugees, and a unitary "one state" solution. Though a portion of the campaign peels off, refusing to endorse the extension, folks like Klein discover that they are minorities in their own campaign, that they can't put the monster back in its cage, and in fact the new "radical" demands are accepted by the majority of their own movement. Already weakened by past concessions, and faced with a newly invigorated anti-Israel movement with broad popular support attained through the popularity of the original BDS sensing ultimate victory, Israel accedes to a unitary solution and its Jewish character is "democratically" dissolved. I should write that while I consider this a "bad" outcome on face, there are some particular risks to this outcome -- e.g., massive retaliatory political violence, an Islamist government repatriates the (European?) Jews back to Europe, or even just the establishment of Islamic theocratic law (of varying degrees of orthodoxy) upon the Jewish now-minority.

There are obviously more permutations then those I've written, and you can blend many of the elements of the various scenarios I've separated. I'll just make two general observations. First, I'll note that I see only two positive outcomes: S3 and arguably S5. S3 is clearly what I gather BDS supporters are banking on. It is what I have described as a "nothing but net" shot -- everybody has to play their roles perfectly for it to work out. The BDS movement has to attain critical mass -- but without relying in any significant way upon those who wouldn't be satisfied with merely an end to the Occupation. The Palestinian government must likewise be willing and able to refrain from seizing the initiative and trying to extract additional concessions on issues like refugee right of return. The movement can't spark the development of greater "strong" anti-Israel sentiment (i.e., "Israel shouldn't exist at all"). This is possible -- but it is hardly guaranteed, and involves nailing a bunch of die rolls in a row.

S5 might be a net positive over the status quo, depending on how it specifically plays out, but it comes with major credibility costs of its own. Even if I could be guaranteed that S5 was the way BDS would play out, my intuition is that alternative paths towards peace, such as those pursued by J Street or Engage, are likely to provide superior benefits, and thus I would be disinclined to render my support.

Second, I'll reiterate that I think that Scenarios 1 and 2 are considerably more likely than any of the alternatives, and neither holds an appetizing result (1 being merely unproductive, 2 being actively destructive). This a reasonable assumption, if for no other reason that it is hard to build massive global social movements, and all else being equal it is more likely than not that the movement will fail to get off the ground or fail to achieve critical mass. So proponents of Klein's BDS have to either (a) demonstrate conclusively that they'll pass the threshold so that the debate is between Scenarios 3-6, or (b) explain why a BDS movement that does not reach that critical mass won't result in the outcomes I predict. A "failed" attempt at a BDS comes with costs too, possibly severe costs, so our debate on whether or not to support it can't fiat success. So while we can debate the relative likelihoods of our four "success" scenarios, at some level it is akin to debating which lottery game comes with the best odds. As it happens, I think even the "success" scenarios are more likely to result in negative outcomes (if I was to rank them in order of likelihood, I'd say 5,4,3,6 -- and I think it is very likely that a sizable chunk of a large-scale BDS movement would throw itself behind Palestinian demands significantly more radical than "end the occupation"), but that ranks pretty low on what I hope the takeaway of this post is.

Maine, Stay!

Maine becomes the latest victim of the Mauve Hand's march through New England, as Gov. John Baldacci (D) signed a bill legalizing gay marriage. But, as always seems to be the case, the fight isn't over yet: If opponents can get 55,000 signatures, they can "suspend" the law until a referendum can be held.

I doubt we'll be able to keep it off the ballot, but maybe this time we can win the ensuing vote.

Quote of the Evening

From Bradley Burston:

In a region where the only workable solutions have something to outrage and ultimately disappoint everyone involved, the unilateral withdrawal has this much going for it: No one wants it.

The article is on the appointment of Michael Oren as Israel's ambassador to the United States and is entitled "[T]his is how the occupation ends".

Joe the Spokesman

The still semi-famous Joe the Plumber says that he "wouldn't have them anywhere near my children," them being "queers."

The sad part is that, when I sarcastically ask "aren't Republicans thrilled they made this guy the face of their 'real American'?" I think the answer might still be an unsarcastic "yes".

Top Comes Down

I've worked really, really hard to stay out of the Carrie Prejean story. She's free to defend "opposite marriage" as much as she wants; I am in turn free to think (or even speak!) of her as a hateful bigot. What could be more American?

Anyway, CNN reports that Ms. Prejean has some undisclosed topless photos in past. This is news because (a) it could cause her to lose her title as "Miss California" (topless modeling has to be disclosed to the competition organizers in advance) and (b) because it seems, er, in tension with her conservative Christian views on matters of sexual autonomy.

I find myself conflicted, as usual. I do not have any problem with Ms. Prejean posing however she wishes -- for fun or for profit. And while it is up to the pageantry officials to determine whether they wish to enforce the rules against her, from a public standpoint I reject any efforts to say what she is doing is morally wrong or abominable. That commitment stems directly from the same set of principles which causes me to believe her views on gay marriage are vicious and cruel. The persons who condemn her for her nude modeling often do so from the same moral standpoint which nourishes her own views about gay marriage. Clearly, Ms. Prejean has found some alternative foundation upon which to live her life. It's an open question whether it is morally or logically coherent. I'd be interested to hear her views why gay marriage is wrongful, but nude modeling is not.

McConnell Leaves the Bench

And adding insult to injury, he's not rejoining us at Chicago. He's stepping down to take up a post at Stanford University.

Chicago, I have to point out, is looking for a new Dean. A couple of students mentioned McConnell's name, but I didn't think he would go anywhere from the bench after having been so recently confirmed. Apparently he got wanderlust faster than any of us thought.

This also, incidentally, probably decreases to nil the chances that I won't try to clerk for some crazy raging leftist.

Project SCOTUS Justice

Paul Campos collects an array of disturbing comments implying that any female judge appointed to the SCOTUS needs to be appropriately thin. Specifically, appearance (oh, excuse me, "health") is being used to attack Sotomayor and Kagan in favor of Wardlaw and Wood.

There are so many factors that go into choosing your SCOTUS nominee, making it virtually impossible to know whether any particular element played a role. But still: Gag. Kagan and Sotomayor are extremely qualified nominees who would make great justices. It's entirely possible Obama might end up choosing someone else. But it should be based on a real reason.

Also, has anyone looked a Nino lately? So thin and svelte!

Comment Pull

Richard Posner, bored with his lackadaisical schedule, apparently has a blog for The Atlantic, Jonathan Adler reports. Adler's commenters wag:

rick.felt: Now that Judge Posner's brilliant mind has been added to the Atlantic's galaxy of blogging stars, perhaps we can finally figure out who Trig Palin's real mother is.

U.Va Grad: Actually, Posner will write a piece or two advocating that Trig be put up for sale.

Racing with the Clock

Tzipi Livni has a message for the pro-Israel community:

The former foreign minister also told the conference of the pro-Israel lobby that time is not on Israel's side, and that a solution to the conflict with the Palestinians is not "an Israeli concession but an Israeli interest."

"If we try to buy time our problems will get worse not better," Livni said, adding that Israel's leaders must make difficult decisions sooner rather than later. "It is the evasion of difficult decisions, not taking them, that is the strategic threat to Israel's future."

Livni told the group that her objective is to ensure the future of Israel as a Jewish and democratic State, even if it requires relinquishing land.

"We need to maintain a Jewish majority in Israel," Livni said. "This is not a technical matter, it is a matter of our survival. And in the choice between giving up our values, the 'raison d'etre' of Israel, and giving up part of the land, I choose the land."

This was at her AIPAC talk, for the record.

Livni also noted that Iran's recent aggression has opened new doors for Israel to make connections with its Arab neighbors. This is something I've observed too -- virtually all of Israel's recent diplomatic victories with nations like Saudi Arabia have come because states are looking to bandwagon against their Persian neighbor. Iran is caught in a tough spot here -- it wants to take a leadership role in the Arab world, but it isn't itself Arab and its regional ambitions are mistrusted by the older powers in the region. It is, of course, ironic that Iran's machinations might end up strengthening Israel's position in the world. But these are currents that have been moving for some time, and I'm glad that top Israeli officials are starting to pursue this angle.

Our Plan is Freedom

Senator Jim "30 GOP" DeMint (R-SC) lays out his plan for making the GOP a big-tent party.

To win back the trust of the American people, we must be a "big tent" party. But big tents need strong poles, and the strongest pole of our party -- the organizing principle and the crucial alternative to the Democrats -- must be freedom. The federal government is too big, takes too much of our money, and makes too many of our decisions. If Republicans can't agree on that, elections are the least of our problems.
[...]
Freedom will mean different things to different Republicans, but it can tether a diverse coalition to inalienable principles. Republicans can welcome a vigorous debate about legalized abortion or same-sex marriage; but we should be able to agree that social policies should be set through a democratic process, not by unelected judges. Our party benefits from national-security debates; but Republicans can start from the premise that the U.S. is an exceptional nation and force for good in history. We can argue about how to rein in the federal Leviathan; but we should agree that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.

Moderate and liberal Republicans who think a South Carolina conservative like me has too much influence are right! I don't want to make decisions for them. That's why I'm working to reduce Washington's grip on our lives and devolve power to the states, communities and individuals, so that Northeastern Republicans, Western Republicans, Southern Republicans, and Midwestern Republicans can define their own brands of Republicanism. It's the Democrats who want to impose a rigid, uniform agenda on all Americans. Freedom Republicanism is about choice -- in education, health care, energy and more. It's OK if those choices look different in South Carolina, Maine and California.

Do you even think he realizes how "government makes too many of our decisions" and "social policies should be set through a democratic process" are the complete, utter, opposites of each other? It ain't unelected judges who brought us Social Security, Medicare, and the various other "tax and spend" policies DeMint decries. We got those through the democratic process.

Meanwhile, if DeMint is serious about this devolving/small-government ideology, then I look forward to his votes to reverse DOMA and the federal partial birth abortion ban. Except -- I keep forgetting! Being a "small government" Republican is a sacred, inalienable principle that "government can only intervene in the areas I care about."

AIPAC Lobbies for a Two-State Solution

I get the feeling this Jerusalem Post article is slightly exaggerating the importance of this. I have no idea of supporting a two-state solution is even a shift in AIPAC's policies. And I can't tell if AIPAC is making lobbying for a two-state solution specifically a central program, or if it is just part of the overall agenda it is forwarding to Congress.

Even still, it is a good thing. The more Congresspersons on the record supporting a two-state solution, the better off we all are. And the more unified the pro-Israel community is on the point, the more we can dissipate the notion that being "pro-Israel" means being implacably opposed to Palestinian rights.

Klein's Conceit

My friend Julie (c/p Alas) says that this Naomi Klein article finally brought her around to the BDS (boycott, divestment, sanctions) campaign against Israel. She says Klein "responded very effectively to almost every concern that I had."

Hmmm. Maybe we just have different concerns, but to my ears Klein's responses were almost laughably weak. Yet I'm not laughing, because the construction of the Israeli/Palestinian conflict she is trying to impress upon the rest of us is, I believe, lethal towards efforts which will actually bring an end to the conflict and instead promise more antagonism, more anger, more hostility, and more extremism.

I devoted a rather long comment explaining why the linchpin of Klein's argument for Why Israel is basically that "Israel is small and weak, and doesn't require any substantial sacrifices out of the boycotters," so I won't rehash that. I'll also briefly point out that Klein is pretty clearly resting her justification for treating Israel in this fashion on utilitarian, not retributive grounds -- that is, because she thinks this sort of punitive action will lead to positive results, not because Israel necessarily "deserves" it more than the countries she is ignoring. I wrote about the differences between utilitarian and retributive models here; suffice to say, there are advantages and pitfalls to both, and it is way beyond the scope of this post to argue in favor of one or the other. But if one has particularly strong retributivist (or utilitarian) inclinations, it is something to keep in mind.

From that light, the biggest implication to draw from Klein's position is that if it could be shown that, say, Operation Cast Lead was a critical step towards peace, Klein would be obliged to support that to, regardless of whether Palestinians "deserved" it. Utilitarians aren't about achieving cosmic justice. It is all about the bottom line. To be slightly less confrontational, it means that Klein's argument has to be defended purely on its instrumental value -- concerns about the relative goodness or badness of Israelis or Palestinians is off the table. One can't say, in other words, that you have to support the boycott because it is the only way to effectively punish Israel for its misdeeds, and we have an obligation to pursue justice. And Klein would have to respond to alternative, constructive endeavors not by saying that they aren't sufficiently attuned to Palestinian suffering, but solely on the question of whether they will work better or worse than her program.

But anyway. I want to focus on Klein's other two points, which are, to be as kind as possible, inane. But I want to take them in reverse order, because I think the first one is the most important.

Klein's latter point is in response to the claim that "Boycotts sever communication; we need more dialogue, not less." She responds "with a personal story," which is another way of saying "my response is pathetic but maybe if I flail my arms you won't notice." She talks about how when she published her book in Israel, she selected an anti-occupation press and directed that all the profits go to them. First, I'm not sure how donating your proceeds to an Israeli company rather than keeping them (i.e., putting more money into the Israeli economy) adheres either to the letter or spirit of a boycott. Second, it is at best ambivalently cross-applicable to other economic interactions -- she uses this "personal story" because she knows there is no way to replicate it across a broader spectrum. Third, given that the her BDS campaign apparently also targets Israeli academics and artists, it is difficult to take seriously the claim that it boycotts the economy but not the people. And in general, I think that if someone said "You are so vile that I refuse to buy any of your products. Dialogue about it?", the most likely response is a hearty "Fuck off!" Here, incidentally, I want to raise the question about whether a BDS campaign that is targeted as broadly as Klein seems to want might violate the Civil Rights Act of 1964 (forbidding "discrimination on the ground of ... national origin"). I know, for example, that the British proponents of an academic boycott of Israel were informed that such an act could violate parallel provisions of British law.

In any event, Klein is essentially dismissive about the dialogic project, saying that "We are drowning in ways to rant at one another across national boundaries. No boycott can stop us." Well, as much as a I love a good rant, perhaps some of us don't consider "rant" and "dialogue" to be the same thing. By using the language of "rant", Klein indicates quite strongly that she doesn't think dialogue will go anywhere -- it will inevitably result in people simply screaming at each other. Buy into that model if you want, but be explicit about it. Elsewhere, she implies that the dialogic problems aren't real because a boycott will spark conversation amongst the boycotters. I didn't realize they weren't on speaking terms with each other to begin with; but regardless, sparking conversation between folks who already agree isn't really the point of using discourse to solve problems.

This goes to Klein's other point, which tries to convince us that niceties like moral suasion and diplomatic engagement are futile. This comes in response to the claim that BDS would alienate Israelis. She concedes it, but says that "The world has tried what used to be called 'constructive engagement.' It has failed utterly." I read this, and my first thought was "who was doing constructive engagement in the last eight years"? The Bush administration's policy towards Israel was self-consciously hands off -- it publicly cast itself against the Clinton program of actively intervening in the Israeli/Palestinian conflict to try and push a solution. Trade alone is not "constructive engagement". Constructive engagement is showing through word and deed that we are your friend, and then using that position to try and impress the need to make necessary changes. Step two is pretty important in that maneuver.

After that, I hearkened back to a comments conversation I had with Kevin Andre Elliot (it was how we "met", actually) on civility. Kevin argued that civility had proven itself not to work in terms of overcoming American racism. I retorted that "saying something 'hasn't worked' with regards to civil rights is redundant. If it had worked, we wouldn't be having the conversation." But that was equally true about "incivility" -- it's not like Louis Farrakhan shocked White America out of its apathy. One could indict basically anything we've "tried" over the past 100 years we've lived in a racial hierarchy -- from "civility" to "incivility" to "having a civil rights movement" to America itself, on the grounds that they have "failed utterly". It's a meaningless point -- superficially persuasive when isolated from context, but utterly without critical bite when examined with the slightest scrutiny.

In all truthfulness, any longstanding conflict will have had a cocktail of tactics and strategies tried, many of them contradictory to each other. Picking any one of them out of a hat and saying "this one has failed" is a pretty arbitrary endeavor. Israel has faced a BDS movement from its inception -- from the Arab states that to this day have no diplomatic relations with it, no trade with it, and often make it a criminal offense to even interact with it. Klein takes that history and says "we haven't boycotted hard enough!" But maybe that's the policy that's been an utter failure. A significant chunk of Israel's policies are justified based on the threat it feels from its hostile neighbors, combined with the belief that they will never recognize Israel or treat it as an equal no matter what actions it takes. What would be the result if that was immediately and unconditionally taken off the table? I don't know -- it might work, and it might not. Unlike Klein (and definitely unlike Ampersand, who devotes nearly all of his comments to the proposition that it is utterly inconceivable that anything bad could possibly happen to Israel), given the complex array of factors, interest, tactics, strategies, and events in play here, I don't pretend omniscience about the true causal links or clairvoyance about how any given shift will play out. But BDS is at least as plausible a target for "failed policies" as engagement is.

I think it is worth noting that Klein's history, which purportedly shows that BDS is the only way forward, is more than contrived, it is almost entirely at odds with the actual facts. None of the major Israeli steps towards peaceful coexistence -- Camp David, the peace accords with Jordan, Madrid, Oslo, Camp David II -- came in the wake of anything as antagonistic and hostile as a Western BDS movement. They all flowed from what Klein dismisses as "constructive engagement." Klein starts her timeline in 2006, which is convenient in that it ignores Israel's unilateral withdrawal from Gaza in 2005 and Lebanon in 2000 (and covers only Bush years -- an administration which as noted above specifically declined to engage the conflict). There is simply no reason to believe Israel is non-responsive to anything but a movement like BDS, and Klein is disingenuous when she implies otherwise.

In the Alas comments, Amp justifies supporting BDS on the grounds that it is "the only prominent non-violent international civilian movement to oppose Israeli violence against Palestinians." Radicals love to create these false binaries, where any choice that's less confrontational doesn't count, and anyone who doesn't buy into the favored program is a collaborationist (at the moment, he tells me my position is "[in]compatible with a serious commitment to the idea that the lives and human rights of Palestinians have value."). But here, it is simply a lie, and I honestly don't know where Amp gets off trying to pretend that it isn't.

This really gets at the heart of the matter, which is Klein trying to take constructive engagement off the table. Because at the end of the day, we are faced with a choice: We can choose to support constructive and diplomatic efforts at ending the conflict, focused on building bridges, fostering connectedness and reminding Israelis and Palestinians that at the end of the day, "us and them" have to work together. Or we can choose hostile and antagonistic ones, which focus on re-entrenching divisions and promoting an attitude of "us versus them" and the glorious struggle. The simplest way I can describe the split here is that Klein wants to intensify the conflict (hoping that this extra push can end it once and for all), whereas I want to relieve the pressure -- trying to walk both sides off the precipice. I simply don't believe that the problem with the Israeli/Palestinian conflict is that the respective partisans have been too timid. Fundamentally, I think the last thing this conflict needs is the opening of yet another front.

There are constructive endeavors which don't reinscribe the language and mentality of conflict. OneVoice is a prominent example. TULIP -- Trade Unions Linking Israel and Palestine -- is another (it amazes me how much labor-oriented progressives seem hell-bent on torching links between Israeli and Palestinian unions). I doubt that a BDS campaign is compatible with support for OneVoice; I know that it is akin to throwing a Molotov cocktail at TULIP. You can align yourself with PACBI or TULIP, but not both. Don't pretend your hands are tied -- a don't pretend you can straddle the line. It's a choice.

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.

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!