It's All Political

As I predicted, the D.C. Circuit will rehear Halbig en banc. Again, I don't think this decision was either compelled or foreclosed by FRAP 35, because I don't think that there is any real standard regarding whether to grant rehearing en banc other than "if the court feels like it" (though the persistance with which some commentators skate past "resolving a circuit split" as a reason for en banc review astounds me, given that it is one of the more common rationales for such review).

Of course, it is widely predicted that the full D.C. Circuit will be more favorable to the government's interpretation of the Affordable Care Act than was the three-judge panel. This fact makes opponents of the ACA sad. Or, in the case of Michael Cannon, it causes them to fulminate about how the decision to rehear is "political". Here is his rationale:

(1) Senate Democrats eliminated the filibuster on most judicial nominations primarily so they could seat President Obama’s nominees to the D.C. Circuit; (2) President Obama and Senate Democrats then “packed” the D.C. Circuit with their judicial nominees; (3) the Halbig ruling was written by a judge supported by President Obama when he was a senator and praised by Democrats for his fair-mindedness; (4) President Obama nevertheless appealed the Halbig ruling to a panel where, thanks to the elimination of the filibuster on most judicial nominees, Democratic appointees now outnumber Republican appointees by 8-5; (5) D.C. Circuit court Judge Harry Edwards made political arguments both during oral arguments over Halbig, when he shouted at plaintiffs’ counsel that they were trying to “gut the statute,” and in his dissent, where he questioned the plaintiffs’ motives; (6) Senate Majority Leader Harry Reid said the Halbig ruling vindicates the decision to pack the D.C. Circuit; (7) the president’s supporters urged him to appeal the Halbig ruling to the full D.C. Circuit, (8) this move is consistent with the Obama administration’s strategy of delaying this litigation as long as possible, which would tend to prejudice the courts because delay further entrenches the subsidies that the Halbig ruling declared illegal, and increases the disruption that will be caused by eliminating those subsidies; and (9) granting en banc review is a highly unusual move for the D.C. Circuit, in large part due to the influence of Edwards, who has argued at length against en banc rehearings because they consume considerable resources and threaten comity among the judges on the circuit.

You'll note that, nine subdivisions notwithstanding, there are not in fact nine different reasons here. Most of them are various building blocks on the claim made in #2, that the D.C. Circuit was "packed" with Democratic nominees after the elimination of the filibuster. Erm, no. "Packing", as in FDR's notorious Court-packing plan, occurs when one increases the number of slots on a judicial (or other) body so as to give oneself more opportunities to make appointments. "Filling preexisting vacancies", by contrast, is not "packing" the Court under any definition -- otherwise every judicial nomination is a form of packing. When I began my clerkship on the Eighth Circuit, for example, that court's composition of active judges was split 9-2 in favor of Republicans (it's now 8-3). That's not because it was "packed", it's because President Bush was fortunate enough to see seven vacancies open up on the Court during his tenure (President Clinton saw two, President Obama so far has seen one). The imbalance is because he filled vacancies; it would be absurd to say he "packed" the court.

What else? Well, #6-8 seem to all assert that it's "political" for supporters of the ACA to want to win in court, rather than just giving up. Oh, and then we have the idea in #5 that saying that the Halbig challenge would "gut the statute" is a "political argument." Put aside the fact that it's, you know, true -- what's "political" about this argument? This is perfectly legal in nature -- the upshot of accepting the Halbig challenge is that a central component of the Affordable Care Act would, legally, cease to function. The political angle is that lots of people would cheer said outcome because they want the ACA to collapse -- but that doesn't make the descriptive observation any less legalistic.

But as bad as all of this is, it pales in comparison to the mutilation of Chevron that we see at the end of the piece:

I do not see the outcome of en banc review as a foregone conclusion. Consider: even though the Obama administration’s record in these cases is 3-1, the government has lost ground as Halbig and King have moved through the federal courts. At the district-court level, the government won twice, once at Chevron Step One (Halbig) and once at Chevron Step Two (King). At the appellate-court level, only one out of six judges found for the government at Chevron Step One. Four Democratic appointees lent some weight to the plaintiffs’ argument that the Obama administration is violating the clear language of the PPACA.

For those of you who aren't versed on administrative law, Chevron is the case that governs judicial review of agency interpretations of federal statutes (as we have here). "Step one" asks if the statutory text is clear and unambiguous. If it is, that resolves the case (either the agency is or is not following the clear and unambiguous statutory command). By contrast, if the text is ambiguous, then we go to "step two" and ask if the agency's interpretation is a "permissible" one (which is to say, not "the best one" or "the one the court would adopt", but one that acceptable). Functionally speaking, most of the action occurs at step one, because if the court agrees that the text is ambiguous it will be pretty hard to persuade them that an agency interpretation of said ambiguity is ludicrous on its face.

Cannon, you'll note, seems to have this all backwards. The government winning at step two does not "len[d] some weight to the plaintiffs' argument that the Obama administration is violating the clear language of PPACA." To the contrary, it stands for the proposition that the statutory language is not clear at all but the government's read of it is a perfectly valid and permissible one. Now Cannon is right that it is "better", in a sense, for the challengers to lose at step two rather than step one -- but that's just because it's deeply embarrassing for a challenger to ever lose at step one. Whereas a loss at step two occurs simply out of deference to the government, a loss at step one means the court is affirmatively declaring that the plaintiffs' position is unambiguously incorrect as a reading of the statute. To say that the Obama administration is "losing ground" reminds me of Anthony Lane's immortal response to fans who proclaimed that Star Wars Episode III was an improvement over the other two prequels: "True, but only in the same way that dying from natural causes is preferable to crucifixion."

The Text and the Context

On twitter I flagged this post by my former colleague Rob Kar as a truly superb piece of work on the Steven Salaita controversy. I wanted to place that endorsement here as well, because it earned it. And in addition to being stellar on its own merits, it also is a great exemplar of how someone can write a piece I endorse without reservation even where I don't actually agree with all of its points. As should be clear by now, I absolutely agree with Kar's analysis of the academic freedom issues and I think he has a lucid and empathic take on the motivations of all the various players. Since I have taken the position that some of Salaita's tweets are anti-Semitic, while Kar disagrees, that is the topic of this post -- but I don't want that in any way to detract from my admiration for what Kar wrote here or the points he is making (in fact, if I didn't want to have an excuse to praise Kar I probably wouldn't even be using his post as an example -- in the blogosphere no good post goes unpunished, I'm afraid).

Rob's analysis with respect to anti-Semitism focuses considerably on the need to read Salaita's words "in context", agreeing "that reading these [tweets] alone, and out of context, did give me some cause for concern." He is joined in this refrain by, among others, Scott Lemieux ("[W]e should not read the tweet in isolation but in the context of his other writings.") and Dan Filler (Salaita's tweets "must be read in context, rather than individually, if one wants to claim any insights into what he is thinking...."). I am pro-context. I agree with these statements. Though perhaps in context I do not, because I do not have a clear sense about what the speakers mean by the word "context."

Typically, when folks say Salaita needs to be read in "context", they have been contending we must read all (or a representative sample) of Salaita's tweets, not just those that seem to be him in a worst light. At a superficial level this could be read as the anti-discrimination version of the proverbial plagiarist who seeks to defend himself "by showing how much of his work he did not pirate." But I take the exponents of this argument to actually be saying that the meaning of Salaita's tweets should be inferred by reference to his other statements (especially those which immediately surround the offending ones), which cast light upon how best to interpret other such utterances. For example, seeing that Salaita has found certain Jews praiseworthy, has condemned anti-Semitism (albeit in broad strokes, and without any acknowledgment that Jews might have a privileged or even particularly useful understanding of what anti-Semitism entails), and has stated that he views "anti-Semitism" (as he understands it, rather than as Jews do) to be a very grave wrong indeed, should color our read of his tweet contending that "anti-Semitism" (in quotes) has become honorable.

This argument is correct, as far as it goes. All of those facts should be taken into account. I agree that they do imply that Salaita is talking about "false" or "erroneous" charges of anti-Semitism; specifically, his belief that the typical or paradigm case where something is called "anti-Semitic" (at least by a Zionist) is false or erroneous. And I agree that Salaita probably views whatever narrow instances of anti-Semitism he concedes to be "true" charges to be grave sins (though in terms of specifics we basically have ... Macklemore). Yet even with all of that "context", it hardly compels the conclusion that Salaita's statement is unproblematic and that any read of it which views it as anti-Semitic is nonsense. Everyone at least proclaims opposition to various -isms; the existence of such statements is at this stage such a platitude that it scarcely seems relevant, much less dispositive, regarding any analysis into whether a given set of statements implicates a particular -ism. And even taken on pro-Salaita terms, the formulation he used -- which functionally accuses the overwhelmingly majority of Jews of being such pathological liars with respect to their purported oppression that people should be honored if we claim to feel threatened by them -- is problematic in its own right and is utterly toxic to the possibility that any Jew (outside the narrow band that Salaita deems acceptable) who wants to have a serious discussion about the nature of contemporary anti-Semitism will get a fair hearing.

For this, too, is context. Part of the context of Salaita's tweet is a context in which "as usual, Jews are lying/suppressing free inquiry/insane" is considered a valid response to literally any rendition of anti-Jewish hate or violence, anywhere, in any circumstances. What the argument misses, in other words, is that context is not limited to that which Salaita himself creates. Being aware of the salience of the context I mentioned but consciously choosing to ignore it (if not actively trade on it) is a valid consideration in appraising whether something is hateful or not. Indeed, since I don't think the fundamental inquiry here is whether Salaita has a bad heart; I would suggest that it is actually irrelevant whether Salaita was aware of that context (though in this case I think there is little doubt that Salaita is aware of, and agrees with, the prominent trope that Jews routinely make false accusations of anti-Semitism to "silence" all criticism of Israel).

"There is no outside-text", as the deconstructionist mantra goes -- or as I prefer it: "there is no text, only context". The call for context tends not to actually take itself that seriously -- it does not actually want the totality of context to come into play, it wants to arrogate to Salaita and his supporters (political supporters, that is; obviously I am a "supporter" in the limited sense that I think his offer should be reinstated) the exclusive right to define the relevant reality and exclude competing counter-narratives. We are obligated to accept as "context" not just what Salaita says about himself, but what he says about the majority of world Jewry. Context does matter, and it matters when it provides evidence that Salaita does not conceptualize himself as a Jew-hater and does not view his project as one that is designed to demonstrate antipathy towards Jews. But that's not the only context that matters and it is not the only context that is relevant. Equally meaningful is the cultural meaning of what Salaita says -- social contexts which deny that Jewish voices are credible, social contexts which may be perfectly polite to good Jews, respectable Jews, so long as they remain good and respectable and approved by folks like Steve Salaita.

Silence and Salaita

I've pretty much said what I wanted to say about the case of Steven Salaita: Yes I think some of his statements were anti-Semitic; and no, that doesn't mean the withdrawal of his job offer isn't a violation of academic freedom. That's my position and I'm sticking to it.

But with the news that Salaita's appointment may in fact be forwarded to the Board, I got curious as to what major Jewish organizations were saying about that matter. After all, we all know that his un-hiring was the result of their devious influence and their reckless desire to squelch all dissent, right? Ready? Here we go:

ADL: Nothing.

AJC: Nothing.

AIPAC: Nothing.

ZOA (surely I can rely on them to be embarrassing): Nothing!

A whole lot of nothing.

Now, this doesn't mean that "pro-Israel" politics had nothing to do with Chancellor Wise's decision. It would hardly surprise me if some donor who considered him or herself to be pro-Israel made a fuss, and Wise thought that bringing Salaita on would be more headaches than it was worth. If that was her reasoning, of course, she gravely miscalculated. But even if she hadn't, the job of a Chancellor is to endure "headaches" such as that. Universities can survive a few loons on their faculty, but they can't survive donors interfering with their academic mission.

In any event, I bring up the silence of various prominent Jewish organizations not because they're owed any cookies -- maybe one thinks that they had an affirmative obligation to intercede on Salaita's behalf (though given that Salaita has queried whether the ADL should be labeled a hate group, it's doubtful whether he'd appreciate their backing). I only mention it because if Salaita's un-hiring stands, it won't be attributable to the "Israel Lobby" unleashing its terrible power. And by contrast if the decision is reversed, then it won't be a crippling blow to the previously indomitable Israel Lobby either. This is a fight that pro-Israel forces, at least in an institutional capacity, did not get involved in.