Solidarity is for Goyim

Apparently there was another instance of Nazi flyers appearing on Berkeley printers and fax machines. I hadn't heard about it; the Berkeley administration didn't see fit to tell us. This isn't the first time this has happened. I asked Jill, and she said it's actually a rather regular occurrence at this point. It's virtually just background noise.

I thought about this in tandem with those bomb threats that raked across Jewish Community Centers this month -- dozens of them, coordinated, nationwide. It was, unsurprisingly, all over the Jewish media. Did it also resonate among our putative allies? I remember Carly Pildis' pleading tweet:

I am looking for ANY social justice/human rights/anti-racism/anti-oppression group to stand in support with our community today.

— (((Carly Pildis))) (@CarlyPildis) January 18, 2017

Did she find any? I don't know. There was a powerful statement from the Ahmadiyya Muslim Community USA. But it does seem exceptional. Maybe there were more. I do know that it scarcely even occurred to me to look for such solidarity. I've become conditioned not to expect it. It's not that other groups never have our backs, but it's a rare enough occurrence that it doesn't factor into my default strategies for protecting Jews.

I keep going. Researching this post, I Google "solidarity with Jews." The first hit is a link titled "Jews lead march for solidarity with Muslims." A noble undertaking to be sure, but that's not solidarity with Jews. Solidarity, apparently, is something Jews give. It is not something we receive.

I continued to think. I remember the email I wrote following the election to the UC-Berkeley Vice Chancellor of Equity and Inclusion, when her message to the community offering support to (a lengthy list of) threatened campus populations failed to include Jews. I remember how, just a few days after that dust-up, my union sent its own email standing in solidarity with an even larger group -- still managing to omit Jews.

Meanwhile, I came across an event hosted by the Berkeley Fellowship of Unitarian Universalists' Social Justice group featuring notorious antisemite Alison Weir. Weir regularly collaborates with neo-Nazis and White supremacists. She questioned the Garland nomination because there were too many Jews on the Supreme Court. She contends that the medieval "blood libel" -- responsible for countless antisemitic massacres across history -- is accurate. She has referred to Judaism as a "ruthless and supremacist faith." I know Unitarian Universalists -- including clergy who do solidarity work. In accordance with said solidarity, they have supported sit-ins in front of Jewish communal organizations who cut ties with the Movement for Black Lives after the latter accused Israel of genocide. Will they address the log in their eye?

Maybe. Maybe not. It's a busy time for folks combating hate, after all. So many groups need solidarity.

Of course, there's a pattern at work here. Berkeley doesn't publicize the fact that its printers are regularly appropriated to launch antisemitic Jeremiads. It not being publicized means that persons who might be receptive to a claim of solidarity aren't on notice that Jews are in need of it. Not thinking that Jews are in need of it, they don't view the absence of distinctively Jewish voices or campaign as a loss or gap. Indeed, being blissfully unaware of the continued fact of antisemitic oppression, they may think of Jews as in the category of those who should solely be givers of solidarity and support. The politics of Jewish invisibility continues unmolested.

This narrative may seem too innocent, though I would not be averse to citing some James Baldwin: "It is the innocence which constitutes the crime." Yet it is not entirely even criminal innocence. There are affirmative beliefs about Jews that contribute to the problem. Solidarity with Jews means breaking down the sense that Jews are already spoken for, are anti-discrimination winners, are if anything too greedy in what we demand from our fellows. It requires overcoming the deep Gentile Fragility (if I can appropriate a term) that has a hair-trigger around claims of antisemitism. It requires active work and active unlearning of established patterns. It requires acknowledging that antisemitism is not an external infection but emerges out of our own movements and our own practices. Opposing antisemitism will sometimes mean reassessing things precious to us. It will sometimes require costly grace.

Some might say that, until we are included as equals in communities of solidarity, we should not contribute our energies to the fight. Why should we fight for others who will do nothing for us? A tempting proposition, but not one that appeals to me. I engage in such a fight for self, because it's right, not because of what I expect in return. Nor does it mean I claim that Jews have it worse than anyone else, that we are uniquely threatened. Every group faces its particular set of challenges, the glass blocking the way is as always sometimes visible and sometimes obscure.

But let's be clear: Swastikas are appearing on campuses, on fraternities, in Jewish neighborhoods. Bomb threats are being called in by the dozens on Jewish communal centers. Jews are being compared to Nazis by persons on the right and left -- persons who will in the next breath loudly proclaim their allyship to the Jewish people. Social actors shun Jewish spaces, activists blacklist Jewish voices. In our own way and in our own context, Jews are among those groups under threat. We are not people that can be justly excised from communities of solidarity. We have the right to demand inclusion.

But we aren't included yet. Right now, solidarity is for goyim. A provocative indictment for solidarity activists to grapple with, but that is my charge.

It's Impossible To Be Antisemitic, Part 2246

Hey, remember that time an Australian theater refused to allow a (non-Israel-related) Jewish group to put on performances commemorating the Holocaust because the theater thought it would be incompatible with their opposition to Israel? Now, an Australian mayor declined to attend a ceremonial synagogue service because of "the gross and illegal occupation of the West Bank which creates intense international division and bitterness and, unresolved, will cause endless terrorism around the globe, including here."

Think he's antisemitic? Wrong! Always wrong!

“Many people hold very strong views about, in this case the occupation of the West Bank. Many people who are indeed Jewish do so, and I am myself half-Jewish. To infer from a view about occupation that someone is anti-Jewish…it’s just ridiculous,” [Mosman Mayor Peter] Abelson said.

One almost might think that attendance at a non-Israel related Jewish event in Australia could be meaningfully distinguished from one's views about the occupation of the West Bank. Of course, one might have also thought that firebombing a synagogue could be meaningfully distinguished from one's views about Israeli military campaigns in Gaza. Alas.

They're Getting Bolder

Two weeks ago a slew of bomb threats hit Jewish Community Centers across the country. Today, there was another wave of threats, at least 32 JCCs targeted nationwide. And they're getting bolder: whereas the first set of calls were recordings, this time around the threats were delivered live.

I have numerous friends -- Jewish and non-Jewish -- whose kids have been evacuated from their preschools due to these vile acts. They're wondering how to explain to a four-year old why they suddenly had to depart their school. The kids at that age, thankfully, are generally unaware of what's going on. But it's not just little kids. A Jewish Day School in Minnesota (near where I used to attend synagogue) was affected; eighth graders were reportedly carrying barefooted preschoolers across the snow to reach safety in a nearby empty building.

This is part of the reality we live in now. This is part of the reality which we voted in now.

Stop Caricaturing Intersectionality!

My new post for The Forward's "Sisterhood" blog (and my first time writing for Forward!) focuses on "intersectionality" and how virtually none of its critics understand what it means. It's not about the mythical Oppression Olympics where we race to find the proverbial disabled poor Black lesbian trans woman. It's about understanding the unique experiences that emerge from the confluence of different identities -- that to be (say) a "Jewish woman" is not simply to add the categories of "Jew" and "woman" together. This has much to say about the status of Jews in the modern world -- including the antisemitism we continue to regularly face, which very often intersects with and leverages the other identities we inhabit to devastating effect.

Indeed, if anything the Jewish "problem" with intersectionality shouldn't be that there's too much of it but too little -- all too often, Jewish experience is not included under its ambit (something symptomatic of a larger exclusion within the "identity politics" field). There are exceptions -- I note Marla Brettschneider's recently published Jewish Feminism and Intersectionality, and the column I wrote with Analucia Lopezrevoredo on intersesctionality and Mizrahi Jews -- but there remains much work to be done.

Still unsure if you should click the link? Check out these endorsements in the comments!

• "I daresay the writer could benefit from a chemical lobotomy." -- Gnarlodious
• " Intersectional Feminism.... kind of like Nazism but without the open mind." -- Joshua Seidel (Josh is that weird guy who identifies as "Jewish alt-right", so in fairness he would be the expert on open-minded Nazism)
• "Intersectionality is another loony leftist lie." -- Rob

Tough to argue with that!

Can Jared Kushner Be Barred From a White House Position?

Writing in The Forward, Akiva Shapiro suggests that the anti-Nepotism law which purports to bar Jared Kushner from a White House position is an unconstitutional impingement on the executive's appointment power. Is he right? I actually think the argument has significant legs,* but I do have some questions.

Shapiro contends that "[b]y design, the President must have the freedom to use whatever measures he sees fit in making any and all nominations and appointments." He cites Hamilton in Federalist 76 as saying that the President has the sole discretion in determining who should be nominated for an office, and contends that the Constitution's explicit limit on appointing a sitting Senator or Representative to an executive office also implicitly denies that there are any other limits on who the Executive can nominate.

This is well and good as far as it goes, and I find it persuasive in the case of Senate-confirmable appointments (where the appropriate check on the President's appointment power is the Senate's authority to vote yay or nay on the nomination). But Kushner's position does not demand Senate confirmation. Indeed, what makes this a difficult legal question is that, unlike appointing someone to a cabinet position, a role like Kushner's is not explicitly envisioned in the Constitution (thus making it difficult to glean what the constitutional rule is).

To clarify, let's go to the constitutional text: Article II, Section 2.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Kushner's prospective role as a political advisor is not (for reasons not worth getting into) an "Officer of the United States," and so does not need Senate confirmation. If he is an inferior officer, then Congress can decide who gets to appoint him -- the President, the courts, or the heads of departments. Here, of course, it is the President who gets to appoint his chief advisors. But in this context can Congress impose restrictions on who can be appointed?

Possibly. In United States v. Perkins, the Court considered whether Congress could impose restrictions on the removal of an inferior officer whose appointment went through the head of a department. Distinguishing the case of a Senate-confirmable appointee, the Court wrote:

We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.

The head of a Department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.

116 U.S. 483, 485 (1886) (emphasis added).

On the one hand, Perkins is very different from the present case: It is a removal, not an appointments case, and it is departmental rather than an executive appointment. But the italicized language suggests that where an actor has "no constitutional prerogative of appointment" -- that is, where it is up to Congress to decide who gets to make an appointment -- then Congress has the authority to set the conditions upon which the appointment is made. If Kushner is an inferior officer, then, and subject to congressional rules regarding who gets to make the appointment, he may consequently be subject to congressional rules regarding who is allowed to receive the appointment as well.

This, in turn, assumes that Kushner is even an "inferior officer". Inferior officers, the Supreme Court has observed, are those "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmond v. United States, 520 U.S. 651, 663 (1997). A purely political advisor doesn't seem to fit this mold either; there is no Senate-confirmable officer he serves under. And if Kushner wouldn't be a principal or an inferior officer, then there aren't any constitutional rules speaking to his appointment one way or another. This goes to the larger point that the modern executive branch qua branch, with its wide network of aides and advisors, really isn't contemplated in the Constitution at all.

So the question is, for those government officials whose appointment process is not spelled out in the Constitution, is it permissible for Congress to impose certain rules prohibiting nepotism or favoritism? In normal circumstances, I think the answer is yes, but I'm in agreement that the particular case of a close presidential advisor may warrant special attention. The existence of these sorts of advisors is thought to be intrinsic to the functioning of the Presidency as an institution, and it stands to reason that there at least the President must have absolute discretion in deciding who he will and won't receive advice from (this is similar logic to how we get the concept of "executive privilege", which is also unwritten in the Constitution). Under this view, it actually matters a great deal that Kushner won't be receiving a salary: it is one thing to guard against relatives receiving payouts from the public fisc, it's quite another to say that the President is forbidden from getting advice from someone just because he's a relative. Arguably, what matters most in the analysis here is what perks Kushner gets by virtue of his formal White House title that go above and beyond his pre-existing ability to advice the President at the pleasure of the President.

One final observation is worth making, then. Last week I observed that there is, in fact, very little law or regulation that requires good conduct out of our politician -- much less than one might expect. Much of what we take for granted as basic norms political behavior -- including, perhaps, not turning the executive branch into an arm of one's private or familial business -- are just that: norms. They exist because they are accepted to exist and because we don't tolerate departure from them. Which means that when someone tries to test those norms -- not releasing their taxes, indefinitely refusing to confirm a judge, appointing relatives to high-level governmental positions -- they don't enforce themselves. It's up to us to do it.

On this note, it is worth emphasizing just how dangerous the collapse of GOP commitment to nonpartisan constitutional, ethical, and ideological principles witnessed over the past eight years and now culminating in their utter capitulation to Trump is. Oversight doesn't happen unless the overseers decide to make it happen. Congressional checks don't happen unless Congress decides to act as a check. Democratic accountability doesn't happen unless the demos decides to hold people accountable. When these things don't happen, there is very little that formal law and rule can do to prop up what we let down. I get the sense that some people feel comfortable pushing the envelope around our political norms because they believe that nothing truly bad will happen; if things go too far someone will step in and self-correct. This just isn't true, and in many ways the election of Trump is proof of that. People let the conspiratorial conservative id rampage about unchecked because they assumed that it wouldn't really lead to anything too terrible -- surely, it wouldn't actually yield a President Trump. Well it did, because there's no deux ex machina to save us from what we've already proven we're politically willing to tolerate.

* In fact, I think it's all moot because I suspect Shapiro is correct in his prediction that no plaintiff exists with standing who could challenge Kushner's appointment.

Undocumental

I just want to warmly welcome to the blogosphere Undocumental, written by my friend Joel Sati. Joel is an undocumented immigrant from Kenya (he's open about this and it is a central theme of his writing and activism, hence why I share it), residing in America since age 9.

As it happens, Joel also went to high school only a few miles away from me in Montgomery County, Maryland. He graduated from Montgomery College (he attended after finding out -- in the midst of senior year college applications -- that he was undocumented and therefore many of the higher education options available to his classmates were closed to him) and the City College of New York. Joel is currently a PhD student in Jurisprudence and Social Policy here at UC-Berkeley, which is where we met, and I am privileged to call him a friend and colleague.

Welcome!

Booker!

Cory Booker is very likely to be a top-tier Democratic candidate for President in 2020. This comes with scrutiny and questions, as it should. And so it is perhaps unsurprising that Booker has gotten a lot of recent attention for, on the one hand, his testimony against Jeff Sessions and, on the other hand, his vote against allowing the importation of prescription drugs from Canada.

On the latter point, I've found the defenses I've read so far of Booker's vote relatively limp. That said, I think the best take has come from (of all people) Erik Loomis:

Cory Booker has a reasonably high chance of being the Democratic nominee in 2020. There are good reasons for this. He gave a great speech at the DNC that really rallied everyone who heard it against hate. Given the amount of hate that is coming, this is a good thing. His testifying against Jeff Sessions was excellent. He is charismatic and has a great chance of reviving the Obama coalition. That charisma and leadership potential is absolutely crucial for whoever the nominee is going to be. 

At the same time, the nominee is almost certainly to be someone who can speak to some sort of economic populism. Maybe that can be Cory Booker. But he has a lot to answer for. His embrace of charter schools and the inherent anti-unionism involved in them made him a heck of a lot of enemies. So have his close ties to Wall Street. And now we have him voting against allowing the importation of prescription drugs from overseas. All of these are real problems for him and should make us ask him very hard questions. I get that he is from New Jersey. He is also basically untouchable in that state. He can defy Wall Street and the Big Pharma companies based in New Jersey to run for the presidency. He needs to if he indeed is going to do that. Unfortunately, he does not seem to understand that. And thus he is going to be rightfully criticized from the left.

So it strikes me as entirely right that liberals should be putting pressure on Booker to adopt better positions on economic matters. Maybe they'll be successful, maybe they won't. Most likely, we'll see some tack to the left but less than many in the base would have liked -- which is the nature of the beast.

What I will predict is that, even if Booker does perform admirably between now and 2020, there is a cadre of "progressives" for whom it will never be enough -- his past positions make him an inherent nonstarter. They will say that Booker is only pandering, that he isn't a true believer -- not understanding that the point of political action is to get politicians to decide that your position is one worth pandering to. The difference between liberal and conservative politicians isn't that the former come preloaded with the dream progressive agenda. The difference is that liberal politicians are susceptible to liberal political pressure in a way conservatives aren't. Whatever else he is, Cory Booker is a liberal in this respect -- he can be influenced from the left.