Tuesday, June 19, 2018

Loving the Children To Death

Right now, the Republican Party is trying to square a very nettlesome circle. On the one hand, they want to communicate that they care about the immigrant children the Trump administration is ripping away from their families. On the other hand, they want to do as little as possible to actually challenge Trump's policies or effectuate any meaningful change -- especially if it might mean (heaven forbid) some of these kids actually get to stay in the United States and build a safe and productive life here.

The latest bit of rhetoric emerging out of this impossible dynamic is the claim that it is for the children's own good that they are being ripped from their families and locked into cages. Moderate Republican(tm) Susan Collins kicked this off, wailing about how "dangerous" it is for parents try and cross the American border as cover for refusing to join Democratic efforts to end family separation.

More recently, that gambit has been extended to allege that the children in question are actually trafficking victims and that therefore efforts to prevent family separation are the real acts of child abuse. Arkansas Senator Tom Cotton, for example, tweeted the following today:
Meanwhile, his Nebraska colleague Ben Sasse took a more circuitous route -- sprinkled with many rhetorical condemnations of the family separation policy -- to arrive mostly at the same place:
This bad new policy is a reaction against a bad old policy. The old policy was “catch-and-release.” Under catch-and-release, if someone made it to the border and claimed asylum (whether true or not, and most of the time it wasn’t true), they were released into the U.S. until a future hearing date....
Catch-and-release – combined with inefficient deportation and other ineffective policies – created a magnet whereby lots of people came to the border who were not actually asylum-seekers. This magnet not only attracted illegal immigrants generally, but also produced an uptick in human trafficking across our border.... 
Human trafficking organizations are not just evil; they’re also often smart. Many quickly learned the “magic words” they needed to say under catch-and-release to guarantee admission into the U.S. Because of this, some of the folks showing up at the border claiming to be families are not actually families. Some are a trafficker with one or more trafficked children. Sometimes border agents can identify this, but many times they aren’t sure. 
Any policy that incentivizes illegal immigration is terrible governance. But even more troubling is that catch-and-release rewarded traffickers, who knew they could easily get their victims to market in the U.S.
Incidentally, "Ben Sasse takes a more circuitous route to arrive at the same place as Tom Cotton" basically describes the Republican Party dynamic on every noteworthy case of Trump administration extremism.

Anyway, first thing to say about the trafficking talking point is that it's basically bogus: DHS statistics indicate that 0.61% of family apprehensions at the border are even alleged to be cases where smugglers have falsely presented a trafficking victim as a family member.

But let's take the tiny minority of trafficking cases at face value. Those kids whom Collins and Cotton and Sasse are so concerned about? They're the ones the Trump administration is putting in cages. One might forget that the immigrant children are supposedly the victims in the GOP story, given how every Republican solution centers around keeping them incarcerated until they can be sent back to their countries of origin (where, remember, they were by stipulation abducted and smuggled across international borders -- so not a great place for them). Much like Syrian children, immigrant children (whether victims of traffickers or not) are good enough for Republicans to imprison, but not good enough to rescue.

It's no accident that the more honest voices of the Trump movement -- the Ann Coulters of the world -- are perfectly explicit in stating that the children are just as much of the enemy as their supposed "traffickers". Nothing the Republican Party has done over the past several years has been remotely consistent with the idea that they actual view immigrant children as valuable human beings whom we have an obligation to treat with respect. The priority is ensuring -- at any cost -- that they do not have the opportunity to build a dignified life for themselves in America. If that means ripping them from their parent's arms, so be it. If they means permanently destroying families, so be it. If that means sending them back to countries where they'll be executed by paramilitary gangs, so be it.

Republicans care a lot about immigrant children. It's a shame that all that care and concern goes mostly into destroying their lives.

Monday, June 18, 2018

SPLC Apologizes to Maajid Nawaz

The Southern Policy Law Center has formally apologized to Maajid Nawaz and the Quilliam Foundation for including them in a 2016 list of "anti-Muslim extremists" (they're also paying a multi-million dollar settlement, earmarked for fighting anti-Muslim bigotry as well as Islamist extremism).

I remember when that SPLC document came out -- I was at most dimly aware of Nawaz at that point, but as I wrote at the time "even solely going off what the SPLC says about him in this document the case for labeling him an 'anti-Muslim extremist' seems exceptionally thin. Placing him on a list that includes Pam Geller seems recklessly irresponsible at best, discrediting at worst." So it's good that the SPLC apologized, although I'm a bit surprised that they did -- it's been two years, and while Nawaz had threatened a defamation suit, the legal basis for such an action was exceptionally thin.

On that note, it is worth reiterating Ken White's cautionary note, which is that while -- again -- the SPLC almost certainly wronged Nawaz from a moral and ethical point of view, legally they should have been in the clear. Their description of Nawaz and Quilliam as anti-Muslim extremists, irresponsible and unwarranted as it was, still clearly falls in the realm of protected opinion. To the extent that the tool of anti-defamation law was used to extract this settlement, that has worrying First Amendment implications notwithstanding the fact that on-substance it was the right thing for the SPLC to do.

Tuesday, June 12, 2018

IfNotNo....?

My last post on IfNotNow's attempt to introduce Palestinian narratives into Jewish summer camp programming suggested that INN missed an opportunity to Brandi Maxxxx its putative adversaries. (The "Brandi Maxxxx" strategy is when a somewhat-marginal group or institution holds its position out as being of a kind with that of a centrist group -- in this case, e.g., emerging out of genuine love for Israel and a place of care and concern for Israel's future -- thereby forcing the centrist group to either implicitly accede to the connection or aggressively repudiate the principles).

The unnecessarily harsh and distancing statement of INN directed at Camp Ramah (one of the major Jewish camps INN had sought to work with) emphasized the gap between the two (and therefore, in effect, the non-mainstream nature of INN's position) and effectively let Ramah claim the "big tent" high ground. By contrast, if INN had suggested that they and Ramah were in agreement, in order for Ramah to disavow INN it would have to "register a much more specific disavowal of IfNotNow and discussion of the occupation in its camps, in which case -- IfNotNow has a much stronger basis for critique against Ramah and Jewish camps going forward."

But now Ramah has come out with a new statement that basically did that anyway. It is rather gratuitously nasty in tone and makes it pretty clear that it is the one taking its ball and going home, not INN. The result is that INN gains a lot more credence, in my book, when it asserts that organizations like Ramah are institutionally allergic to any serious reckoning with the reality of the occupation and Palestinian lives. It also reemphasizes something I've long railed against: that when it comes to Israel politics, the Jewish community places a border on its left flank but not its right. Ramah is rigorous and emphatic in policing how far to the left its willing to let its staff go on Israel -- but there's no indication that there's any standards they apply on the right.

(Interestingly, the commentary IfNotNow gave to this letter was I thought much better in tone than its prior response to Ramah's more moderate initial statement. It might just be a matter of comparison though -- it's easy to look reasonable and fair-minded when your interlocutor so nakedly decides to go overboard).

Monday, June 11, 2018

Second-Class Jews and the Future of the Jewish State

When I wrote my Forward article on how Israel doesn't care about American Jews, the most common response from Israeli readers was "that's right, we don't -- and fuck you for saying so."

The second-most common reply was to suggest that while American Jews certainly mattered to them, they'd never risk Israeli security in order to assuage American Jewish concerns.

If the former message was, in its pugnacious way, confirmatory, the latter response was revealing for what it overlooked. For while it's true that my article talked about issues related to "security" as one area where American Jews were routinely ignored, it quite consciously did not limit itself to that forum.
But it’s not just about questions of security. Israel has shown no interest in dislodging the Orthodox hammerlock on Israeli religious practice, despite the burdens it places on mostly non-Orthodox diaspora Jews. And the decision to renege on the egalitarian prayer agreement at the Western Wall, where we saw perhaps the single most concentrated explosion of American Jewish fury at Israeli government policy, made it abundantly clear that American Jews count for nothing in Israel’s political deliberations.
These issues do not plausibly relate to "security". And, if anything, they are doing more to drive splits between the American and Israeli Jewish community, as the American Jewish Committee recently stressed at a Jerusalem conference (the gap between how American Jews and Israeli Jews view these issues is staggering). Yet it was as if they weren't even being spoken of -- so loud was the mantra "security, security, security".

As the AJC pointed out in blunt terms, the Israeli government -- by capitulating over and over again to the ultra-Orthodox Rabbinate -- is basically telling the 85% of American Jews who are not Orthodox that they don't count as Jews. The failure to create an egalitarian prayer space at the Western Wall means half the world's Jewish population is forbidden from praying at our religion's holiest site -- were it any other nation, the term for that would be antisemitism. Those of us with Jewish partners who did not grow up Jewish, those of us who were raised Jewish but lacked a Jewish parent, those of us in Jewish communities who are not acknowledged to be Jewish by the Rabbinate, we're realizing just how precarious our status as Jews is in the putative Jewish state.

And yet the Israeli government thinks that these Jews-they-don't-acknowledge-as-Jews will indefinitely go to bat for them in Congress, on college campuses, at the UN? Why? What hubris, what chutzpah, makes them believe this? How arrogant must they be to think there can be an ongoing asymmetrical relationship of heartfelt caring on one side and utter, abject contempt on the other?

Sunday, June 10, 2018

American Jews are Republican and Anti-Zionist in Roughly Equal (Tiny) Numbers

The American Jewish Committee has released its 2018 survey of American Jewish opinion (along with Israeli Jewish opinion -- and they conveniently offer a side-by-side comparison here).

A lot of it is predictable: American Jews loathe Trump, support gun control, support DACA, and oppose greater immigration restrictions. Some of it doesn't surprise me but might surprise some: American Jews think Trump is doing a lousy job handling the U.S./Israel relationship, think Russia is the greatest threat to America (well ahead of Iran and North Korea, in a statistical dead heat for second), and think caring about Israel is important to our identities as Jews.

(One area I desperately wish the AJC had polled on is on Jewish attitudes towards BDS -- both "support/oppose" numbers as well as "a lot/somewhat/a little/not at all antisemitic" numbers).

But if one digs into the data a bit more, there are some fun observations to be had. For one, American Jews continue to overwhelmingly identify as Democrats (51% versus 16% Republicans). This tracks 2016 voting patterns, where 60% of respondents voted for Clinton versus 19% for Trump.

The survey doesn't ask about Zionist identity, but it does ask whether respondents believe Israel can be a Jewish and democratic state, and then asks those who say no whether it should be Jewish or democratic. If we use the "no, and it should be a democratic state" as a rough proxy for anti-Zionist -- well, that figure is 20%.

So basically, the proportion of American Jews who are anti-Zionist is about the same as the proportion of American Jews who are Republican -- and in both cases, it is less than the proportion of Idaho voters who backed Hillary Clinton. Which is to say, in the scheme of things, both are trivial. (Incidentally, the percentage of American Jews who oppose a two-state solution "in the current situation" sits at about 30% -- not quite as tiny, but still pretty small).

Of course, that a given topical minority is rather small doesn't mean that it shouldn't have a voice, and I'm agnostic as to exactly how much of a voice such a group should have in broader Jewish communal affairs. There's a fine line to be drawn between pluralism and representativeness.

But equally-sized groups should be treated equally. As much (or as little) attention as we pay and influence we accord to Jewish Republicans is precisely as much as should be meted out to Jewish anti-Zionists. Fair is fair, after all.

Friday, June 08, 2018

IfNotYes ...?

I have a relatively negative view of IfNotNow. It's certainly not from any pro-occupation place, but every time I see them in action they appear to have the political instincts of an arsonist. I once said of Simone Zimmerman "some people haven't met a forest fire they didn't ache to pour gasoline on," and I feel like that fits INN pretty well too. As someone who's never thought regarding the Israeli/Palestinian conflict "you know what this needs? More incendiary rhetoric and us-versus-them tribal organization!" IfNotNow was never going to be among my favorites.

In many ways, I view IfNotNow as the Jewish heirs to the "Occupy" movement -- both in their preference for disruptive politics (not my cup of tea, but not per se invalid) and their utter allergy to actually accomplishing anything concrete if it involves working through establishment channels (which drives me up the wall). Hence their signature move: hosting sit-ins with Jewish organizations they think are insufficiently anti-occupation, and then refuse to actually meet with said organizations when they agree to discuss their demands. The results are ... basically what we saw with Occupy: managing to harness a ton of progressive energy, and then have it completely dissipate with nothing to show for it save self-righteous declarations about how pure they are and how broken "the system is". They're all ethics of conviction, no ethics of responsibility.

Here's the latest: IfNotNow has been hosting training sessions for Jewish camp counselors (that is, counselors at Jewish camps, not counselors who happen to be Jewish) to help them teach about the Occupation. Cool, in concept. Following those reports, one of the camp bodies released a statement saying, in part:
We, the leadership of Ramah, are proud that Zionism is a central part of our core mission, as we nurture within our campers and staff members a deep and enduring love for Israel.
Unfortunately, some recent articles in the Jewish press have mischaracterized our educational mission, leading some to believe that our 70-year history of strong pro-Israel ideology has changed. It has not. 
[...]
Our older teens and staff members represent a range of opinions on many contemporary issues, and a wide variety of positions supporting Israel can be voiced and discussed. We do not, however, permit the sharing of anti-Israel educational messages at camp.
 Okay. Now, one could interpret this as a repudiation of IfNotNow, saying their training sessions are "anti-Israel" or do not come from a "deep and enduring love for Israel." But IfNotNow could also very easily nestle itself inside this message, affirming that its educational mission stems from a "deep and enduring love for Israel" and that its arguments exist with then the "wide variety of positions supporting Israel" that Ramah is open to facilitating.

Guess which side IfNotNow picked? Yep, the one that maximizes confrontation.




Now, part of this may be a matter of honesty, of a sort. INN is internally diverse on questions of Zionism, and it is possible that some members would blanch at the idea that their anti-occupation curriculum even comes from a place of "deep and enduring love for Israel." But that's their problem, and at most I think it's only part of the story. The bigger issue is that IfNotNow really loves its lone wolf fetish, which depends on constructing the Jewish center as irredeemable opponents who must be wholly thrown off (one advantage of this is that it conveniently takes compromise -- and the threat compromise poses to moral purity -- off the table).

And there are other approaches available. I wrote years ago about what I called "the Brandi Maxxxx strategy" for Jewish liberals, which basically is a form of killing-by-agreement. Keep on insisting that mainline Jewish organizations actually agree with you -- that only a two-state solution is acceptable, that the occupation exacts terrible costs on Palestinians, and so on -- and force them either to very explicitly disavow those positions or accede to the linkage of the Jewish left and center in the public imagination. Consider the following hypothetical response by IfNotNow to Ramah's statement:
IfNotNow is pleased that Jewish campers will have the opportunity to learn about the reality of occupation at Camp Ramah. 
Our discussions with Mitch Cohen confirmed that this is an important arena of learning for young Jews, and we fully agree that such discussions are an integral part of the "variety of positions" Jewish should be exposed to and entirely consonant with "deep and enduring love for Israel" that the camp tries to facilitate.
That is entirely consistent with the Ramah statement -- it just very publicly and agreeably posits a harmony between the two organizations. But lest you think it's a case of IfNotNow rolling over, notice the position it puts Ramah in. They can specifically agree with INN's statement, in which case -- IfNotNow wins. They can not respond to it at all, in which case -- IfNotNow wins. Or they can register a much more specific disavowal of IfNotNow and discussion of the occupation in its camps, in which case -- IfNotNow has a much stronger basis for critique against Ramah and Jewish camps going forward (which is to say: IfNotNow wins).

I suspect that Door #2 would be the most likely outcome, and the upshot of that is that they've got an open door towards bringing in the sort of learning that they want. But my sense is that IfNotNow cares a lot less about getting the occupation taught at Jewish summer camp than they care about being able to loudly declare how radical and disruptive it'd be if the occupation were taught at Jewish summer camp. If getting the former requires them to use conciliatory rhetoric or suggest that the distance between themselves and mainline Jewish organizations isn't the gaping chasm they like to portray it as -- well, they can always go back to the ethics of conviction, can't they?

It's not quite an inability to take "yes" for an answer. But it's something very close.

Tuesday, June 05, 2018

Things People Blame the Jews For, Volume XLV: Electing Trump (and Making Russia Pay For It)

I already did an entry in this series where people blamed the Jews for Trump's election (it ... did not take long). But this one is a little different. It's not a claim that Jews voted for Trump (spoiler alert: we didn't). It's a much more nested little argument from John Schindler, a former NSA intelligence analyst who thinks that all this talk about Russian interference in the election might just be a smokescreen distracting from the real culprits.

Oh, those sly dogs.

The hook here is an interview George Papadopoulos's new wife did with the Daily Caller, where she claimed that he only plead guilty to charges brought by Special Counsel Robert Mueller "to avoid facing charges that he was an agent of the Israeli government."

Mueller hasn't corroborated the account. But Schindler sure took it up and started running ... hard:

[T]here are strange Israeli footprints all over the Trump-Russia story. Quite a few of the shady figures close to the president and his business affairs are American Jews of Soviet heritage who possess connections to Israel. Felix Sater and Michael Cohen are only the best-known of this dubious crew. Those men are also connected to Chabad of Port Washington, a Jewish community center on Long Island that is part of the worldwide Chabad movement—which just happens to possess close links to Vladimir Putin and his Kremlin.
For the record, Cohen was born in Long Island to a Holocaust-survivor father -- I wonder if that's what "Soviet heritage" (is "Soviet" an ethnicity now?) means in this context? While he clearly has significant family ties to the Ukraine, I've actually been able to find little in his family history that suggests particularly "Soviet" leanings.

To be honest, it wouldn't surprise me if Israeli intelligence had contacts with the Trump campaign during the election run-up -- he was such an inviting target that it's hard to imagine them passing up the chance. And to the extent the evidence leads in that direction, we should follow it fearlessly.

But the claim that the entire thing was an Israeli plot of whom they made Russia their patsies? That's on quite a different level.

Monday, June 04, 2018

Having Your (Masterpiece) Cake and Eating It Too

The Supreme Court  has issued its long-anticipated decision in the Masterpiece Cake case (where a Christian baker refused to make a wedding cake for a same-sex couple). It ruled in favor of the baker by a 7-2 vote, but on exceedingly narrow grounds (I'll get to those in a moment) that provide virtually no guidance to resolving similar cases in the future. On the other hand, given the way oral argument went, I'd say we might have even dodged a bullet.

Basically, Justice Kennedy's majority opinion concluded that certain statements by the Colorado Civil Rights Commission (which concluded that the baker had discriminated against the couple in violation of Colorado law) indicated that they held anti-religious bias. This bias tainted the proceedings in an unconstitutional manner, and hence the ruling had to be set aside.

On that point, there are two comments worth making. First, in the abstract I wholly agree that religious hostility provides a sufficient basis for invalidating a government action even in cases where -- absent said hostility -- the substantive decision might well be constitutional. If a commissioner in a case like this said "I'll be damned if I'm going to rule in favor of some towel-wearing heathen," that to me is an obvious constitutional violation on its own. So to the extent Masterpiece Cake clarifies that point of law, I have no quarrel.

Second, as applied to the facts of this case I think the evidence of anti-religious animus on the part of the Commission is pretty thin. Certainly, it is microscopic compared to the evidence of anti-religious animus in the travel ban case -- though who knows if that will matter. But if the upshot of this case is that governmental decision-makers need to step more lightly around grandstanding declarations when dealing with sensitive areas of discrimination and religious freedom, that's not the worst thing in the world.

In any event, because the Court's decision was based on a finding of religious animus in the administrative proceedings, Justice Kennedy specifically stated that the Court was making no proclamation on how a case with even identical facts (but absent the biased state-level decisionmaker) should be decided. Hence why we get no real guidance on how to handle similar disputes going forward. But the majority opinion actually contains a lot of dictum emphasizing that there are perfectly legitimate anti-discrimination considerations the state has here and can legitimately impose (in a neutral, generally-applicable fashion) onto religious objectors. So to some extent, the tea-leaf reading off this case is considerably better than one might think.

But while much of the attention has focused on the religious freedom aspects of the case, it's the compelled speech issue that I think will be more nettlesome going forward. The Court declined to wade into that issue in this case, both because it was resting on the narrow religious animus ground and because the relevant parts of the record in this case were surprisingly opaque (Justice Thomas made a game effort to argue that the issue was ripe in this case, but I'm unconvinced).

When does selling a cake become a form of (compelled) expression by the baker? On the one hand, simply selling an "off-the-rack" cake should not be viewed as compelled expression by the seller that they approve of the buyer or what the buyer plans to do with the cake (a half-century old Supreme Court case quite quickly dispensed with a claim that a barbeque vendor could circumvent anti-racism laws compelling him to serve Black customers because doing so would communicate the message that he believes in racial equality, in violation of his religious beliefs). On the far other side, consider cake orders with specific messages to be engraved like "Homosexuality is a detestable sin" (the Colorado Commission received complaints when several bakers refused to bake cakes with that message, and dismissed them). There, the compelled speech claim seems stronger. Presumably, that would have to hold in cases where the text was something like "God loves gay people same as straight" -- it's expression, and if someone genuinely doesn't want to express that message, I don't think the government can compel him to do it.

There are any number of cases in the middle. I don't think a custom-cake order necessarily becomes a case of expression (e.g., a cake with no text but where the purchaser wants a specific design) -- but what if it is specifically requested to have rainbow coloration? Or consider more anodyne messages like "Congratulations Jim and Steve". Such cases are going to reflect some difficult judgments, and we still have only dim contours on what the right legal guidelines are.

As for the other opinions: Justice Gorsuch's was predictably terrible. It rests primarily on the somewhat odd belief that there is a distinct product called a "same-sex wedding cake" that is different in-kind from a "wedding cake" (is it something in the food coloring?). Consequently, Justice Gorsuch can deny that there is any discrimination occurring against same-sex couples because the baker presumably would decline to sell both straight and gay customers a "same-sex wedding cake". This is the same logic through which gay marriage bans were not forms of anti-gay discrimination because gay and straight individuals could not perform a gay marriage, and it is eviscerated both in Justice Kagan's concurrence and Justice Ginsburg's dissent. As Justice Kagan aptly put it: "A vendor can choose the products he sells, but not the customers he serves—no matter the reason." A wedding cake is a wedding cake -- it doesn't magically become a different product because of the sexual orientation of the purchaser.

Indeed, one thing that this case made clear for me is that the category "gay marriage" may have outlived its usefulness. In American law, there are no longer "gay marriages" as a qualitatively distinct entity. There are "marriages", which are sometimes entered into by straight couples and sometimes by gay couples. Of course, people in private life are free to maintain the distinction, and sometimes those private views can carry weight (the obvious case being the right of a religious officiant not to solemnize a gay wedding). But these should be seen as areas where we're departing from the general neutrality of the law and accordingly need justification; the default understanding should be weddings are weddings are weddings.

Sunday, June 03, 2018

First Rule of Jews Is ... Don't Talk About Jews

Carrie Rickey has a fabulous article in the Forward documenting Hollywood's history of casting non-Jews to play Jews (alongside the famous propensity of Jewish actors to change their name in a goyish direction -- paging Jonathan Stuart Leibowitz). I was a bit surprised it didn't mention the most recent example of this -- the non-Jewish Rachel Brosnahan cast as the lead in the exceptionally Jewish Marvelous Mrs. Maisel. I did recall reading at least a few murmurs of discontent about this, though the general vibe among the Jews I know is that it's a great performance on a great show.

Anyway, the paradox Rickey identifies in her article is that many of the Hollywood moguls who resolutely refused to cast Jews in Jewish parts (and often tried to avoid Jewish themes altogether) were themselves Jewish. What gives? The answer is that these Jews were convinced "that movies about Jews would incite anti-Semitism" -- they wanted at all costs to avoid the sense that they were tribalistic, or insular, or that Hollywood was (as it was in the antisemitic imagination) a "Jewish" front. One upshot of this was that the people freest to produce movies about Jews were the non-Jews. Another, of course, was that non-Jews were considered less objectionable or dangerous choices to play what Jewish roles their were.

There's actually a parallel to the academic world here. Academia in the United States has certainly had a robust Jewish presence, but for many years these Jews almost never wrote on Jewish topics (see here for how this played out in Anthropology). Jews were in fact specifically counseled to avoid such matters, lest they be seen as provincial or tribal. And so for the most part, we wrote on other things. Even now, when there's been a flowering of "identity" research in academia (e.g., "ethnic studies"), Jewish Studies have lagged considerably behind -- again, a fact belied by the raw numbers of Jews in academia (on that score, we continue to be just fine). I can tell you I've been counseled on more than one occasion -- albeit with varying degrees of explicitness -- to downplay or cover the Jewish elements of my research agenda. So this is ongoing.

No Qualified Immunity? For Prison Officials? In the 8th Circuit? What Is Happening?

First of all, if you're not reading Short Circuit (hosted on the Volokh Conspiracy blog), you're missing out. It's a great compendium of interesting circuit (and state appellate) court decisions, issued every week.

For example, this week we got Williams v. York, a deliberate indifference to medical needs claim brought by an Arkansas state prisoner. And -- get this -- the prison officials didn't get qualified immunity! If that sentence means nothing to you, you're most people. But if you have any familiarity with qualified immunity jurisprudence or prison litigation -- especially in the Eighth Circuit -- then it's jaw-dropping.

Williams benefited from drawing perhaps the best possible panel (Kelly, Arnold, and Smith). And he "benefited" because the facts really were shocking -- he experienced facial disfiguration, pus oozing from his gums, and mouth boils, all of which persisted for months after he first alerted prison officials to his condition and were obviously apparent even to laymen with no medical or dental training. In fact, Williams pulled out two of his own teeth before getting to see a dentist. Gross -- but also, powerful evidence.

So his case actually gets to proceed to trial. Congrats, Williams!

Also worth flagging is Rodriguez v. County of Los Angeles, a Ninth Circuit case involving sadistic beatings by prison guards of non-resisting inmates (the guards chanted the ritualistic "stop resisting!" while administering the beatings). The most interesting part is the officer's argument that the suit was barred because the prisoners failed to "exhaust administrative remedies" -- by which they mean, they failed to submit a complaint through the prison's internal review process. Generally that suffices to knock out a suit, but the court let it slide -- probably because the last time one of the inmates tried to file such a grievance he was put in the yard with rival gang members who somehow got their hands on razors and kicked the shit out of him.

Finally, McGirr v. Rehme tells a fascinating tale of a now-disbarred trial attorney whose been systematically shuffling his assets around to try and avoid a $42 million judgment granted to his own clients after he helped defraud them out of their settlement money. But here I think Short Circuit buried the lede -- the attorney in question is the husband of a federal district court judge! And, if footnote 9 is to be believed, several of the attorney's more "curious" transactions have been filtered through said wife.

Friday, June 01, 2018

Everything Falls Apart

So a different syndication service I use -- NetworkedBlogs -- is shutting down. I'm not happy with dlvr.it (it's utterly inadequate for cross-posting tumblr), and I can't get IFTTT to work consistently.

Yes, this post is really primarily another test attempt.

I was at a wedding and a funeral this week (really -- all in the family, too), and one of my relatives encouragingly told me that I need to get my blog out to more readers. But at this rate, it's going to go out to no readers at all.

Any suggestions on other (free) replacement services would not go unappreciated.

Monday, May 28, 2018

Big Media David: Tamika Mallory's Israel Rehabilitation Tour Hits Haaretz

Haaretz has republished a version of my post from earlier this month: "Tamika Mallory's Israel Rehabilitation Tour."

Also, if you're trying to comment on my blog using OpenID, it doesn't work anymore. That's not based on anything I did (though I am still fiddling with my new syndication service) -- Google got rid of the feature. You'll need some sort of Google ID to comment now. Sorry.

Friday, May 25, 2018

New Website, New Syndicator

I've got a new personal website!

I finally bit the bullet and got myself professional(ish) homepage for my academic life. It felt like it was time, and I wanted to nail down the davidschraub.com URL.

The new site has links to my CV, most of my articles, and all my popular press publications, as well as a nifty "about me" section. Don't worry though -- the blog is staying right here (to the point where I actually went out of my way to delete the "blog" tab from the website template. Tempt me not, Satan!).

This post is also an opportunity to test-run the new syndication service I'm using: dlvr.it. For awhile now, IFTTT has been markedly unreliable, and this past week it seemed to stop working almost entirely. Hopefully, this will result in my feeds being cross-posted more reliably, but there still might be some kinks as I set up my account.

The French Have Some Weird Views About Zionism

Ifop, on behalf of the Union of Jewish Students in France, commissioned a poll on Israel and Zionism. Here are some things a majority of French respondents believe:

  1. "Zionism is an international organization that seeks to influence the world and societies to the Jews’ benefit."
  2. "Zionism is a racist ideology"
  3. Anti-Zionism is an antisemitic ideology.
  4. Zionism is a "movement of liberation and emancipation for the Jewish people."
Presumably, most of these aren't overlapping. But since they all claimed majority support, by definition there must be some people who think both that "Zionism is a racist ideology" and "Anti-Zionism is an antisemitic ideology", or "Zionism is a movement for liberation and emancipation for the Jewish people" and "Zionism is an international organization that seeks to influence the world and societies to the Jews’ benefit."

I can't tell if that means their views on Zionism are really deep, or just incoherent. My vote is "incoherent."

Wednesday, May 23, 2018

The Semiotics of Kneeling

The NFL has announced a new rule banning players from kneeling during the National Anthem. If they don't wish to stand, they can wait in the locker room.

I'm not the first to observe that maybe all those who've spent the past few years fretting about snowflake college students who furiously demand protection from offensive speech might maybe asked to spare a note of protest here.

But now is as good a time as any to remind people that when Colin Kaepernick elected to kneel during the National Anthem, it was explicitly not intended as a signal of disrespect to the country or to the flag. Indeed, he adopted that particular mode of protest precisely because it communicated his message in a respectful manner.

The act of kneeling was suggested to Kaepernick by military veteran and fellow NFLer Nate Boyer, as an alternative to sitting during the anthem. Unlike staying seating, kneeling is almost always associated with a form of respect -- even deference. Prior to Kaepernick, the most likely reason you'd see someone kneeling on a sporting field is if there is an injury (I distinctively remember doing it during youth soccer). Obviously, nobody thinks that kneeling there is meant as a form of taunting or abuse. Rather, it's designed to signal "somebody is hurt, and we are acknowledging their hurt -- we're not going to simply carry on as if this isn't happening."

This semiotic meaning of kneeling was explicitly what Kaepernick was drawing on. Boyer drew the connection to soldiers who knelt before the grave of a fallen comrade -- again, a show of respect. The idea was to communicate that in America right now Black people are hurting, that there is an injury, and we need to respect and acknowledge that. On face, this should have been quite familiar precisely because it drew upon a practice that any sports fan is well-acquainted with and which carries an easy parallel to the point Kaepernick was trying to make. That it is now being presented as something different -- an act of defiance or disrespect -- isn't even a communicative misfire: it is a conscious attempt to replace an otherwise clear and powerful message with a different, more easily dismissed meaning.

Kneeling during the pledge is not a form of flouting or turning one's back on America anymore than kneeling during an injury represents a disavowal of the injured player. And this also explains why staying in the locker room does not suffice as an adequate substitute for kneeling -- it lacks, ironically enough, the posture of respectful public engagement communicated by kneeling.

I've written a whole article about what the Book of Job, and other instances of biblical protest, can tell us about contemporary political disputes. Early in the Book of Job, as Job is forced to endure ever-more terrible torments, his wife urges him to simply turn his back: "Curse God, and die." But Job never does this. Job is a story of a man abused by God who protests this treatment, struggles against it, demands explanation for it -- but who never, ever cuts his relationship with God. To the contrary, he is insistent in demanding that the very real relationship they have be vindicated. "Why do you hide your face from me, and treat me as an enemy?" The power in Job's protest is precisely that it remains "in the fray" of engagement -- it is always presented as and remains as the cry of a man who does value and does care about his relationship with God.

Remaining in the locker room can't replace kneeling because it does not communicate any sort of ongoing, meaningful relationship between the protester and the subject of protest. Ironically, I think it would be far more disrespectful to the flag and the country compared to kneeling -- akin to ostentatiously turning one's back or casually chatting in the background as the anthem plays. The semiotic message of kneeling -- that there is something to grieve, an injury to acknowledge, whose relevance emerges out of a thick social relationship which the kneeler remains committed to -- can't be replicated in a private space.

And so it might be worthwhile to reflect on the very end of the Book of Job. Midway through the story, several of Job's friends begin an argument with Job, urging him to desist from challenging God or presuming to know that he is being treated unjustly. By what right does Job claim the authority to question God in this way?

This argument gets interrupted when God finally emerges, "out of a whirlwind" to confront Job. But in the denouement, God speaks once more -- not to Job, but to his friends. He instructs them to repent, "for you have not spoken of me the thing that is just, as my servant Job has." At the very end, Job is vindicated, and those who told him to stay silent, or passively defer to God, are chastised. "You have not spoken of me the thing that is just, as my servant Job has."

These words, repeated twice, are the last words God ever speaks directly to man in the Hebrew Bible.

Big(ger) Media David: NPR Goes National

The story a local NPR affiliate did on Arizona's anti-BDS law -- currently under challenge by the ACLU -- was picked up nationwide. They actually had to reinterview me for sound quality reasons (like a true professional, I did it from my hotel room in Minneapolis), and once again I actually don't hate the sound of my own voice. Judge for yourself though (I come in towards the end).

Monday, May 21, 2018

Quote of the Day: Frederick William IV on Jews

I found this in Hannah Arendt's The Origins of Totalitarianism (Harvest 1994), p. 33 n.31. Asked what he intended to do with the Jews, Frederick William IV, King of Prussia, replied:
I wish them well in every respect, but I want them to feel that they are Jews.
The quote is used to illustrate the paradox of 19th century European elite views towards Jews -- simultaneously expressing (sometimes) warm feelings towards Jews in the abstract, while nonetheless continuing to harbor openly antisemitic attitudes.

This is also reflected in a quote by Wilhelm von Humboldt which Arendt was very fond of: "I love the Jew really only en masse; en detail I strictly avoid him." This was notable because von Humboldt -- great liberal that he was -- was known as one of the great allies of the Jews at the level of political theory. And indeed, contrary to the text of the quote von Humboldt did actually have several Jewish friends. Nonetheless, it reflects the push and pull between abstract commitments to equality (or even fraternity) as against deeply-entrenched antisemitic attitudes.

Interesting side note: The Origins of Totalitarianism was written in 1951. But in 1948, Arendt published in article in Jewish Social Studies titled "Privileged Jews", which presaged some of the content. It's an interesting read: discussing the status of certain elite Jews who in pre-emancipation Europe really did enjoy certain privileges (on account of wealth or education), and how that (partially) privileged status interacted both with antisemitic sentiment in European society and with later moves towards general emancipation.

Thursday, May 17, 2018

Judge Diana E. Murphy (1934 - 2018)

Last night, I received the very sad news that Judge Diana E. Murphy had passed away. She was 84.

As many of you know, I clerked for Judge Murphy from 2012 through 2013 (occasioning the great and terrible one year blackout of this blog). It was one of the great honors and great joys of my life. While I knew she was having health problems, I'm still in a bit of shock -- I'm in Minnesota right now, and I was actually planning on visiting her in chambers today before getting the news from one of my co-clerks last night.

Among the many, many friends and colleagues who adored her, I'm exceedingly lucky to be one of those writing a tribute to her that will be published in the Minnesota Law Review in a few months. For now, I'll just say that Judge Murphy was an inspiration in every possible sense of the term: she was smart, she was empathetic, she was caring, she was funny, and she was kind. There's no other judge I'd rather have clerked for, and I'm unaccountably fortunate to have had her in my life.

She was widely loved, and she'll be missed. Rest in peace, Judge.

Wednesday, May 16, 2018

Big Media David: Israel Doesn't Care About American Jews

I've been on a travel kick this week -- came back to DC for a wedding, stayed for Mother's Day, and now am departing for Minnesota for my wedding tasting(!) -- and, as you may have noticed, haven't really been able to blog. Frankly, given how terrible this week has been, I don't mind being mostly off the grid.

But I did make time to write a column for the Forward on what's been a very painful realization for me: While American Jews care a lot about Israel, Israel doesn't give a damn about American Jews.

We've spent all this time and energy to foster a sense of "connection" between American Jews and Israel, only to discover that it flows almost entirely one way. We'll step up to bat time and again to defend Israel in debates and controversies, even when we're unsure of the wisdom of their particular policy choices. But when we try to assert reciprocity, what do we get?

  • A sneering disdain for the two-state solution, or basically any efforts to secure political equality for Palestinians;
  • A busted Western Wall agreement;
  • Continued fealty to an ultra-Orthodox Rabbinate that openly discriminates against the denominations that represent most American Jews; 
  • Invocations and prayers by viciously bigoted Evangelical preachers guaranteed to make American Jews blanche; and
  • A level of snuggling up to Donald Trump that might as well constitute a taunt.

On any one of these issues, one might be able to say "Israel's a democracy, it gets to make it's own calls." Nobody is saying American Jews should be able to dictate Israeli policy. But we could justly say Israeli Jews should consider American Jewish perspectives, just as we've often (very often) heard that American Jews should consider Israeli viewpoints. But when time and again, over and over, we're completely ignored to the degree that there's barely even the pretense of considering the position or status of American Jews as a data point of consideration -- well, it becomes very obvious how much we matter in the scheme of things.

Israel, it seems, has made a calculated decision that it can do without American Jews. Whatever we can give them -- votes, aid, opposition to BDS, whatever -- they can get from other sources. Now one might have thought -- and many of us did think -- that the relationship between American and Israeli Jews wasn't one built solely on necessity or self-interest; it didn't depend on what one party could give to the other, it was a relationship grounded on a sense of shared identity and camaraderie. But no longer think that's true. Israel has decided it doesn't need us, and -- more importantly -- that if it doesn't need us, it doesn't care about us.

Friday, May 11, 2018

Big Media David: NPR on Arizona's anti-BDS Law

I was interviewed by NPR's Phoenix affiliate regarding the ACLU's challenge Arizona's anti-BDS law. I was positioned as the academic expert alongside the ACLU and its client challenging the law, and the AJC and Arizona Attorney General's office, defending it. Presumably, they found me either because of this column on the Israel Anti-Boycott Act or this one on the problem with trusting state bureaucrats to fight your anti-BDS battle. So I neither came out for or against the law, but rather tried to situate it inside broader controversies balancing free speech and with anti-discrimination law. The main normative point I tried to make was that when these laws are passed primarily to score an ideological point, they aren't always written or applied with the utmost care, and that poses particular dangers in the First Amendment context.

The other interesting thing I discovered while researching the case is that the Arizona AG's office does not interpret its law as covering a boycott targeting, say, HP for its alleged complicity in human rights abuses in the West Bank. Only a general boycott of all (or virtually all) Israeli products would qualify (see pp. 8-10). Whether or not that's the correct interpretation of the statute, it is a much narrower understanding of what BDS is than is typically cast either by the movement's backers or critics.

Anyway, I think it's an interesting case (and I think the NPR story was solid, all told). Most importantly, when listening to it I didn't absolutely hate the sound of my own voice, which is a rarity for me. But on that score YMMV.

Wednesday, May 09, 2018

Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:
Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 
While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.
The manager then escorted the white woman to her car, Pruitt said.
While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.
Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.

Qualified Grader Roundup

I passed my qualifying exam last week, which is the last formal hurdle before I begin writing my dissertation. That's a weird sentence to write -- like talking about the last safety check before jumping out of an airplane, or the last underling to defeat before facing the Ultimate Final Boss Monster -- but it's where I am.

At the same time, my students' final exams are due today, so my immediate future is not as a writer or as a grader. And since it would be just catastrophic if anything distracted me from that essential task, I suppose it's time to clear some browser space.

* * *

I wrote last week about alleged discrimination against Jewish chaplains in the army; now we get a different story about retaliation against a chaplain in the Air Force after he converted to Judaism.

This is the story of another immigrant we, the United States of America, effectively murdered in the most gruesome way possible (the penultimate part of the story -- before the death -- is an amputated penis) via a mixture of grotesque indifference to obvious medical need and complete lack of empathy.

UC-Berkeley releases its report on campus free speech issues. One interesting thing about it is that it is not really focused on questions law. Rather, it takes for granted that Berkeley is constrained in various ways by the First Amendment, and rather than dwelling on where those precise borders lie it tries to ask what practical steps the university can take -- consistent with those strictures -- to foster and maintain a healthy speech culture.

Also germane: Jeffrey Sachs has an interesting data set on instances of speech suppression on campus. Interestingly, there have been more successful terminations of left-of-center college professors for "bad" speech than conservative professors -- and while on its own that might be explained by different base rates, the big spike in left (but not right) firings from 2015 to 2017 can't be. The other interesting finding was that -- contrary to some narratives about the so-called "Palestine exception" to the First Amendment -- Israel issues were of comparatively minor importance. There were, depending on how you count Joy Karega (Oberlin) and Michael Chikindas (Rutgers), between three and five Israel-related terminations (or coerced resignations) over the data-collecting period (out of a total of 58). Of the unambiguous cases, two were for anti-Israel speech (Steven Salaita at Illinois and N. Bruce Duthu, who returned to the regular Dartmouth faculty from a deanship position due to backlash over his role in the NAISA BDS resolution), one was for pro-Israel/anti-BDS speech (Melissa Landa at the University of Maryland).

The mixture of deep hostility to divorce, openly male supremacist theology, and physical abuse is a toxic combination in the Southern Baptist church.

Speaking of toxic Protestants, a wing of the Presbyterian Church has published a follow-up to its notorious Zionism Unsettled document -- 110 pages on why Israel is the locus point of global colonialism and genocide (this sounds familiar....) through everything from eating hummus ("cultural genocide") to wanting to actually talk to people ("normalizing oppression"). This is the latest in a series of PCUSA highlights, including calls for all Jews to "come home to America" and my absolute favorite exhortation by a Christian minister on this issue: "Jesus wasn’t afraid to tell the Jews when they were wrong."

An interesting "This American Life" segment on an ill-fated Alabama field trip to see Schindler's List.

Two good pieces on police misconduct that I wanted to flag. One is by a Black police officer commenting on business trespass calls (like the Starbucks affair). The argument here is that when individuals call the cops against seemingly innocuous conduct, there is to some extent a fobbing off of responsibility to then say the police officers are the wrongdoers rather than the caller (cf. Colorado State). The other is in the Atlantic on how we might want to extend our narratives of police bravery or cowardice to cover instances where they whistleblow (or cover off) instances of violence, racism, or misconduct by their colleagues.

Monday, May 07, 2018

Tamika Mallory's Israel Rehabilitation Tour

When the controversy over antisemitism and Tamika Mallory first flared up, I noted that it had one very interesting characteristic: it wasn't about Israel. This is somewhat uncommon in left-of-center antisemitism disputes, and one could almost hear the gears grinding in Mallory's would-be defenders. So used to having "criticism of Israel isn't antisemitic" as their "get-out-of-talking-about-antisemitism-free" card, they were left almost dumbstruck.

Mallory has been notoriously resistant to any serious reckoning with antisemitic sentiment on her part. She views herself as the victim here, and so she's seemingly cast about for new avenues to antagonize her Jewish tormentors. First it was going after the ADL. Now, as part of a "fact-finding" trip to Israel, it's blaming Netanyahu for Trump's border wall and Muslim ban.
In response to this tweet, Abe Silberstein articulated a common sense of Jewish dismay.
But in some ways I think Silberstein is missing the point. Mallory isn't tweeting unaware of what Jews think about her. Rather, her goal in this Israel trip is precisely to rehabilitate her reputation -- albeit not amongst Jews.

Antisemitism, like racism, tends to take the path of least resistance down to the ground. As Paul Berman noted, while we
like to think of hatred of the Jews as a low, base sentiment that is entertained by nasty, ignorant people, wallowing in their own hatefulness. . . . normally it’s not like that. Hatred for the Jews has generally taken the form of a lofty sentiment, instead of a lowly one – a noble feeling embraced by people who believe they stand for the highest and most admirable of moral views.
If one dislikes Jews, there are many ways for that disdain to manifest. But among these diverse options, people with antisemitic views want to express those views in ways that will gain social approval -- at least in the communities they care about. Hence, we should expect that antisemitic sentiments will be systematically channeled in directions where their expression can expect to find validation and laudation. The content of those sentiments will vary from community to community. In some railing against "globalist financiers" will do the trick. In others speaking of those who "crucified Christ" will work. And of course, in still others, lambasting Zionist perfidy is the winning ticket.*

Note the argument is not that "criticism of Israel is inherently antisemitic", any more than I'm saying orthodox Christian beliefs are inherently antisemitic or opposing the political preferences of wealthy billionaires is. My argument is exactly what was stated above: that in certain communities positions of this ilk provide a convenient point of discharge for antisemitic sentiments that offer up the path of least resistance. Precisely because there are perfectly valid critiques of Israel that are, on face, wholly laudable from within a progressive paradigm, a speaker harboring antipathy towards Jews and looking for a socially-acceptable vector to express them will gravitate toward that issue. A conservative speaker with the same internal sense of grievance towards Jews might pick a different path to the ground. Put another way, we should expect that if someone with progressive-inclinations harbors antisemitic sentiments (consciously or not), they'd be most likely to express them in the idiom of anti-Israel speech. Why wouldn't they? Antisemitism will always be expressed in the dominant language of the place and the time, and it is entirely predictable that people will seek to express antisemitism in ways that enhance rather than detract from their social standing.

In Mallory's case, then, the shift from Farrakhan to the ADL to Israel is a move from forms of antisemitism that encountered great resistance to that which will (again, in the relevant communities) gain plaudits. It is a rehabilitation tour because it moves her sense of grievance towards Jews out of a context where even her allies would have trouble defending her, to an arena where people in her community are quite accustomed to dismissing Jewish complaints. Even though the sequence of events for Mallory offers compelling evidence that she's at least in part motivated by a sense of antipathy against Jews, because she's now expressing her disdain in terms of anti-Israel sentiment people will ironically view further complaints about her antisemitism as weaker rather than stronger.

Finally, I want to remark on the specific content of her tweet -- claiming that Trump's anti-immigrant and anti-Muslim policies are cases of him following the Israeli lead -- because I think it's also "rehabilitative" in its way, and it's worth articulating why that's so. As many people have noted, there is something more than a bit absurd about the contention that American conservatives need an Israeli example to enact racist and White supremacist policies. Moreover, it ends up acting as an indirect apologia for American racism -- asserting that it is not truly homegrown but rather is a foreign disease imported from Israel. Why would Tamika Mallory find that sort of claim attractive?

I discussed a similar move when Winona LaDuke made a putative critique of America's implication in colonialist and genocidal practices by saying "we are Israel". One would think that "Israel is us" would be the more accurate label, since "even if we thought that Israel was a valid case of colonialism ... surely it isn't the paradigm case."
But note the subtle shift of responsibility here -- our misdeeds are characterized as following another's evil example. Israel stands in for our own misdeeds -- it is the platonic ideal of our own wrongs. We are not intrinsically bad, we're only bad insofar as we're "Israel". Our absolution comes when we're no longer Israel. It offers a way to maintain a sense of moral growth and possibility by externalizing the source of the sins onto another body deemed irredeemably corrupt.
There is, I suggest, a perverse form of patriotism at work here. By suggesting that American misdeeds are actually instances of a foreign (Jewish) infection, the implication is that the American body itself is not the problem. The issue is outwards, not inwards. The fundamental appeal of "the Jews are our misfortune" is that it actually allows for a sort of redemptive American narrative to emerge, and for even those most critical of contemporary American policies to lay claim to it.

One thing that is often-forgotten when talking about antisemitism, or racism, or other systemic hatreds, is that they are productive ideologies. They build things, they engender alliances, they motivate actions. Reflexive claims that antisemitism "hurts our movement" always thus struck me as far too pat -- of course it depends on how one defines the goals of the movement, but more fundamentally it overlooks the way that antisemitism can represent a genuine and attractive tool of mobilization. Given the choice between arguing against American support for the Muslim ban by articulating how it reflects fundamental malformations that are deeply-rooted in our national character, versus arguing against it by saying we've been led astray by the Jews -- it's quite plausible that the second route might be more effective than the first.

And so again, we see a form of rehabilitation here. Any organization seeking to make the sort of wide-ranging and deep-cutting critique of discriminatory American practices that the Woman's March does is going to face the inevitable charge that it is "anti-American" in some way. It is hard to counter these accusations, even though they are deeply unfair, because it's always hard to demonstrate love for a place or institution while simultaneously leveling a radical critique (something Jews with sharp objections to many Israeli policies are quite painfully aware of). So the temptation will be to cheat: the problem isn't with America, you see; the problem is with those Jews over there ruining America. One need not reject America; one need only "de-Zionise" it.

People think that when Tamika Mallory blames Israel as the source of American anti-immigrant and Islamophobic policies, she's revealing herself to be more radical than ever before. In reality, though, it is a significant step back towards the mainstream. The radical critique -- the one that it is so hard for many Americans to latch onto -- is the claim that we, America, are our own problem. We are responsible for our own decisions; our hatreds, our injustices, our wrongdoings stem from nobody but ourselves. In Richard Rorty's trenchant words: "There is nothing deep down inside us except what we have put there ourselves." But to the extent that problem is not in ourselves, but rather came to us from Israel -- well much of that discomfort can go away and a radical critique instantly becomes far more digestible.

Plenty of people who'd resist mightily the notion that there is something fundamentally wrong with America are entirely happy to agree that there's something fundamentally wrong with outsiders, with aliens, with others, who've insidiously managed to infect our great nation. And so I suspect that Mallory will find many willing and eager recipients of this new message. After all, it is saying nothing more than what so many have long wished to hear.

* Racism almost certainly works in the same way. People don't just want to be racist, they want to be racist in ways that earn them validation and enhanced social standing. Hence, they will flock to argumentative pathways which allow them to express hostility or disdain for racial outgroups in ways that are socially legitimate. There's a reason why so much anti-Latino sentiment now gets channeled through language about "securing the border". The issue isn't that there are no valid arguments to be had about how permissive or restrictive our immigration policy should be. The issue is that, in context, these debates are simply the most convenient forum where persons already harboring anti-Latino sentiments can discharge their antipathy with minimum social resistance. One of the primary impacts of Trumpism has been to greatly increase the number of viable social pathways for expressing racist, antisemitic, Islamophobic, and other bigoted sentiments -- greatly multiplying their "paths to the ground" and hence dramatically magnifying their social reach.

Sunday, May 06, 2018

The Train Has No Brakes: Hillel Station Approaches

A group of student organizations at Cal Poly demand increases in funding for all student clubs -- except the Zionist ones. This follows the University of California Press just publishing a book calling for the American academy to be "de-Zionised" -- a chilling phrase that I had to look up to see if David Duke hadn't gotten there first.

And if you think this branch of activism is going to stop short before it gets to Hillel -- you're wrong.

An SJP activist at Stony Brook University declares "We want Zionism off this campus, so we want Hillel off this campus" (a "proper Jewish organization" where Jews can, apparently, have Sabbath services and do little else, would be acceptable).

An English Professor says that "Hillel has as much place on university campuses as does the KKK."

OPIRG refused to work with University of Ottawa Hillel when it hosted a member of the African Jewish community who did work on interfaith sustainable development projects because "Zionist Ideology does not fit within OPIRG's mandate of human right's (sic), social justice." And at York University, a Professor sent a letter to the university president demanding Hillel be disbanded as an "agent" of a foreign government.

I've leveled my share of critiques at Hillel -- for being undemocratic, for applying its "partnership guidelines" in absurd and unjustifiable waysfor privileging perceived "pro-Israel" bona fides as taking precedence over any and all other Jewish values. And why shouldn't I? No organization is immune from challenge, and if you can't criticize, you can't optimize.

But perfection is not a standard I, or any of us, should demand out of campus groups -- Jewish or otherwise -- and the attempts to expel Hillel from campus life are in no way related to valid dissent regarding the proper structuring of the Jewish collegiate experience.

There is a train that says that any iteration of Zionism or association with Jews and Israel is intolerably toxic and must be expunged. It has no brakes, and it will sooner rather than later come after Hillel and the entirety of Jewish communal life on college campuses. It already happened decades ago in the UK, where there was a concerted campaign in the 1970s and 80s to bar Jewish Societies ("JSocs") from campus as intrinsically racist. And as that tide rushes in once again, it's incumbent upon Hillel's backers and its critics to unite against it. This cannot stand.

Friday, May 04, 2018

Maplewood, MO Bond Trap Case Moves Forward

One of the more arcane, but important, issues to gain renewed spotlight in the wake of Ferguson is how the deeply fragmented municipal structure of the greater St. Louis area encourages abusive policing practices. Basically, the area around St. Louis is divided into countless tiny independent municipalities, each which often has their own police force, governmental units, judicial system, and so on.

It's not really economical for each of these small towns to run their own mini-government, and so many of them have resorted to policing-for-profit. They squeeze out revenue from vulnerable community members (often people of color) by exceedingly aggressive traffic law enforcement, predatory bond practices, overpolicing of minor regulatory violations, and other like practices (The DOJ report on Ferguson highlighted these practices as part of its findings that the Ferguson PD routinely violated the law and operated with an eye towards revenue generation rather than serving its own community).

Right now, for example, there is a lawsuit against the city of Maplewood, Missouri (population: 8,046) alleging that it has a deliberate policy of trapping poor motorists facing traffic finds with bond payments that they can't afford to pay. The plaintiffs
assert the City automatically issues an arrest warrant whenever someone ticketed for violating its traffic and vehicle laws fails to pay a fine or appear in court. Once arrested, the motorist is allegedly presented with a Hobson's choice: Either pay a bond the amount of which was set in advance without any determination of his ability to pay it, or sit in jail possibly for days. The plaintiffs further contend that once a warrant has been issued, a motorist cannot avoid it by voluntarily returning to the municipal court or paying the outstanding fine, but must either submit to a custodial arrest or retain a lawyer to argue a motion before the municipal judge to vacate the warrant. If the court does not grant the motion, the motorist, whose presence in court the judge allegedly demands, will be arrested and jailed. Jail, the plaintiffs assert, is the means by which the City attempts to coerce the motorist into paying the bond to secure his release. The complaint indicates that the City's policy or custom involves additional steps that can ensnare motorists in repeated cycles of arrest, jailing, and pressure to pay a bond irrespective of their ability to do so. 
Today, the United States Court of Appeals for the Eighth Circuit allowed that claim to proceed, rejecting city arguments that it is immune from suit. This is a preliminary ruling completely detached from the substantive merits of the case (for technical reasons not worth going into, it's easier to sue cities compared to states for alleged constitutional violations); no doubt as the case proceeds there will be textured arguments about the specific nature of Maplewood's bond practices and any viable defenses that they can put forward.

Nonetheless, it is absolutely a good thing that this sort of behavior is being spotlighted and will now have to stand up to federal judicial scrutiny. This is a case worth keeping an eye on.

Wednesday, May 02, 2018

White Supremacist Found Guilty in Beating of Charlottesville Counterprotester

A jury has convicted Jacob Scott Goodwin of malicious wounding after he was caught on film beating DeAndre Harris while brandishing a large shield and wearing a tactical helmet.

The trial studiously avoided discussing race -- for example, the fact that Goodwin was wearing an "88" pin (alluding to Heil Hitler) and another with the insignia of a White nationalist party -- until the very end, where Goodwin's defense attorney told the jury "They want you to convict this man because he’s white, and DeAndre is a black man."

The argument -- as well as Goodwin's claim that he was acting in self-defense when he broke Harris' arm and injured his spine while kicking him repeatedly on the ground -- apparently didn't sway the jury, which recommended a 10 year prison sentence.

Tuesday, May 01, 2018

Pay No Mind To Door #3....

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:
(1) Feminists secretly want the ERA to fail; or
(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.
Maybe. But might I suggest there might be something behind door #3?
(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.
Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

Monday, April 30, 2018

They Would Still Say It About Jews; They'd Still Say It About Others Too

The Army is investigating its own lead chaplains in the elite 101st Airborne Division after they summarily terminated (with no explanation) the division's longstanding Jewish lay leaders. The chaplains had refused to ever attend Jewish services despite multiple invitations, and at one point tried to block the Jewish leaders from hosting Passover services because they'd occur on the same day as Good Friday. At the moment, Jews at Fort Campbell, Kentucky are left without any Shabbat and High Holiday services for the first time in decades.

Meanwhile, the top-polling Republican candidate for the California Senate race (and second overall in the Golden State's frankly idiotic top-two "jungle primary") is a raging antisemite who's calling for a government "free from Jews" and running on a campaign of "counter-semitism".

I group these together because I think they're both examples of discrimination that many people would use as an example of the sort of thing "we'd never tolerate if it were happening to Jews." But they do happen, and they're happening now. They're also not unique to Jews -- other minority groups, such as Muslims and immigrants and Blacks, face their own iteration of such bigotry, in the public square, right now.

As Faulkner wrote: "The past is never dead. It isn't even past." These things we say nobody ever says, or believes, or does? They're still done. They're still done to Jews. They're still done to others too.