Monday, September 24, 2018

Dinosaurs and Israel/Palestine

Have you ever met a five-year old who knows everything about one very specific thing?

Dinosaurs is a common candidate, but it also might be trains, or cars, or baseball. But we'll go with dinosaurs for our example.

You can talk to this kid, and he doesn't know the alphabet, or his address, or how to spell his name. But get him on dinosaurs, and suddenly he's using words like "pachycephalosaurus" and can tell you the dietary habits of every creature that lived in the Triassic period. Something about dinosaurs just causes him to collect knowledge like a packrat -- even though, underneath it all, he's still a five-year old with a five-year old's tiny five-year old brain. It's less knowledge than it is an obsession. And so, as fun as it is sometimes to listen to them talk breathlessly about the preferred habitat of the stegosaurus, it isn't really reflective of anything.

Very often, Israel/Palestine is "dinosaurs" for adults.

Obviously, there are plenty of people who do (really) know a lot about the issue, who have thought hard about Israel/Palestine affairs and given it the care and attention it deserves.

But for some reason, it is also true that there are seemingly infinite people who can't tell you their state's capital yet who know (or think they know) everything about it. They may not be able to tell you where the United Nations is located, but they can give you a six hour sermon about the 1922 partition plan or the relevance of the drafting history of U.N. Resolution 242 as it pertains to the final status of the West Bank. They haven't ever heard of John Locke, but they have intimate familiarity with Haj Amin Al-Husseini's public speeches or Ze'ev Jabotinsky's personal correspondence, and boy howdy do those letters tell you everything you need to know about Zionism or anti-Zionism in 2018.

It's a marvel to watch, in its way. And it exists on both sides, which means that internet spectators can, whenever the mood strikes, watch two figures with a combined nine emojis in their Twitter profiles go to war over whether Gaza is "occupied" under the legal framework set out by the Hague conventions.

But, underneath all that "knowledge", they still don't really know anything. It's an obsession, not knowledge. I've never once seen the sort of breathless recitation associated with this type result in a productive conversation. Not once. It's adults playing with their dinosaur dolls.

Sunday, September 23, 2018

An Alarmingly Late Realization (About RIngs)

You know that game people play, where they say some really obvious mistaken belief they held until were alarmingly old?

Well, I just recently discovered mine.

In The Lord of the Rings, there are various scenes where Frodo puts on the One Ring. In the mythology of the movies (and books), the One Ring makes its wearer invisible to ordinary mortals (say, orcs searching nearby) but quite visible to the ring's master Sauron. Moreover, we are told, the ring "wants to be found" -- it exerts a power over its owner, tempting its holder to wear it so that Sauron knows where it is so that he can get it back.

Anyway, in these scenes Frodo puts the ring on, and then encounters the terrifying gaze of Sauron, at which point he struggles to take it off. He pulls at the ring, which seems to resist him until finally with a grant yank he pries it loose. And for all my life, I assumed Frodo was struggling because the One Ring was resisting him.

But now that I, for the first time in my life, wear a (wedding) ring, I've realized the more banal truth: rings -- of all kinds, even ordinary mortal wedding bands -- kind of require a bit of yanking to get off one's finger.

It just never occurred to me -- until age 32 -- that rings required effort to remove under perfectly normal circumstances.

Tuesday, September 18, 2018

Keeping the Important Questions in Mind

The recent allegations against Brett Kavanaugh, and the argument regarding whether what a "17 year old, presumably very drunk kid" might have done (e.g., sexually assault a fellow student) should have a bearing on his Supreme Court nomination, raise many questions that are important to think about. But some of these questions are more important than others.

Here's an example of an important question:
(1) Should a person who committed a sexual assault as a teenager, and who faced the appropriate legal consequences and has otherwise accepted responsibility for their act, be completely barred from all social and economic opportunities and permanently stripped of their basic participatory rights as citizens (e.g., to vote) for the rest of their life?
Here's an example of a much less important question:
(2) Should a person who committed a sexual assault as a teenager, who has faced no tangible consequences whatsoever at any point in their life and who never acknowledged responsibility, not be given a seat on the single highest judicial body in the country?
And here's an example of a question so utterly unimportant that it's baffling it'd even be asked:
(3) Should we spend any time puzzling through question #2 if we haven't, as a society and in our structure of criminal law and economic practice, unequivocally answered "no" to question #1?
Answer key: (1) No (2) Yes (3) No

Monday, September 17, 2018

Marvel's Spider-Man! Initial Thoughts

I've been playing Marvel's Spider-Man for the past few days, and it is blast. Some quick thoughts:

  • While the web-swinging dynamic remains a little opaque to me -- I rely on button-mashing more than I'd like, and precise landings on small platforms is a skill I've yet to master -- swinging around New York is still an exhilarating experience.
  • It also helps that it is New York. Not "Gotham", not "Bew Bork". Spider-Man as a character really is tied to a sense of place (for good reason -- as one wag put it, if Spider-Man lived in, say, Greensboro, he'd be restricted to fighting crime in a 3-block radius downtown) and the game is perhaps the best representation of a real-life city that I've ever experienced.
  • The combat system, which emphasizes getting and staying in the air, represents an actually fresh take on the fun but somewhat-worn Arkham/Assassin's Creed/Shadow of Mordor beat-em-up model. Still kind of button-mashy, but I feel like I've gotten the hang of it and am dying a lot less frequently than I did in the early going.
  • The game mostly looks beautiful -- occasionally I saw some rough textures on some cut-scene characters (Mr. Li, to be precise), but overall it is very sharp.
  • J. Jonah Jameson is now a right-wing talk radio host, which is a good spin on his character. One of the most interesting parts of his portrayal is that his (expressed) beef with Spider-Man is basically that his presence as a Superhero is directly responsible for criminals escalating into supervillain-ery. Why do I find that interesting? Because it's, more or less, the posture the Christian Bale-era Batman films took towards that character, to much critical admiration.
  • While there is plenty of similarities to the Arkham games, the tone is so different (understandably, Spider-Man and Batman are very different characters). In particular, this game has a brightness and cheeriness to it that Arkham could never have sustained. Ironic, given that Bruce Wayne is a billionaire and Peter Parker is teetering on the edge of homelessness (and Peter can see your dead parents, Bruce, and raise you a dead uncle, so don't even try to play that card).
Anyway, the game is a ton of fun, and I highly recommend it.

Friday, September 14, 2018

What the New York Democratic Primary Results Mean

Well the New York primaries are in the bag, and Andrew Cuomo smoked Cynthia Nixon by a 66/34 margin. The Cuomo-aligned candidates also won the downballot statewide races: Tish James soundly defeated two opponents to win the nomination for Attorney General, and Kathy Hochul held off a very spirited challenge from Jumaane Williams for the Lieutenant Governor's nod.

The news wasn't all bad for progressive challengers -- six of the eight turncoats in the IDC (a group of renegade Democrats who caucused with, and gave control of the state senate to, Republicans) lost last night. And most-scrutinized-state-senate-candidate-in-history Julia Salazar soundly defeated incumbent Martin Dilan (who was not IDC, but was viewed as a relatively conservative figure).

I had registered my predictions for some of these races, and I'd give myself a solid A- on my performance. Sure, "Cuomo will trounce Nixon" and "Felder over Morris" were chalk picks, but I give myself a little more credit for calling Salazar comfortable win over Dilan (which I've heard described as "stunning" but which I was very confident in). My big miss was underestimating the IDC bloodbath (I set the over/under on IDC losses at "two"), but that's an area I'm happy to be proven wrong.

But enough about me. What are the larger implications of yesterday's results?

1. There really is some genuine anti-Democratic establishment sentiment coursing through the deepest-blue turf.

There have been more than a couple locales where candidates the left has been deeply excited about have won by either knocking off incumbents or beating more establishment-oriented candidates -- Alexandria Ocasio-Cortez is the obvious one, along with Ayanna Pressley in Massachusetts, Ilhan Omar in Minnesota, and last night Julia Salazar in Brooklyn. All of these races occurred in very similar types of district -- urban, very blue, cosmopolitan, and highly diverse. That's why Salazar's victory didn't surprise me -- her district fit the profile for where candidates like her have done very, very well this cycle.

2. This sentiment, so far, is not translating to Democratic politics on a broader -- statewide or larger -- basis.

While progressive insurgents have certainly won some high-profile successes, they've also been rather limited in scope. This is the flip-side of the "very similar types of district" argument: the left wave hasn't really gotten any momentum outside of these very friendly, urban environments. It's not just that Nixon lost last night -- a Nixon victory was always a long-shot. But it is quite notable that Nixon actually didn't improve on Zephyr Teachout's 2014 performance against Cuomo -- despite garnering a lot more media attention and working in a far more favorable political environment.

This isn't to say progressives haven't notched some victories in statewide races -- Ben Jealous in Maryland and Andrew Gillum in Florida certainly qualify. But Democratic incumbents on a state level -- Senators and Governors -- have had no trouble turning back progressive challengers.

It's important not to overintepret either of the above against each other. On the one hand, there really is a noticeable shift in Democratic politics occurring in the types of locales where Ocasio-Cortez or Salazar are winning. It's more than idiosyncratic, and it's wrong to dismiss it. On the other hand, it is a shift that so far is confined -- it isn't all places or all Democrats (there's an annoying heads-I-win-tails-you-lose quality to some progressive analyses of, e.g., New York, wherein Julia Salazar's victory shows that what the people really want is Democratic Socialism, and Andrew Cuomo's victory shows that the Democratic Party is hard at work suppressing what the people really want, Democratic Socialism).

3. For the most part, primary challengers are doing their job.

My view on primaries is that they should serve two important purposes. First, punish bad guys. And second, push incumbents to adopt better positions. On that score, I'd say that the results in New York were a rousing success.

Start with the latter metric. No, Nixon didn't win, but she absolutely pushed Cuomo to adopt a raft of more liberal positions, and that's almost as much of a victory as if she'd actually assumed office (one could argue that, given Nixon's lack of actual political or administrative experience, it's a better outcome. A savvy political operator like Cuomo pushing progressive policies may well accomplish more than a well-meaning but inexperienced novice like Nixon). That's the thing about establishment politicians -- if the established wisdom shifts, they'll follow right along.

And on the "punishing bad guys" front, the IDC bloodbath is beautiful political justice. Moreover, I do think that Nixon's campaign helped bring attention and energy to that campaign too (notably, while many of the IDC incumbents occupied districts that were of the left-friendly type I identified above, there was more diversity there -- David Valesky lost his Syracuse area seat, for example, and IDC leader Jeffrey Klein represents a mixed district encompassing parts of the Bronx but also Westchester County). Six Democrats who deserved to lose, lost. And I highly doubt the two IDC survivors will return to similar shenanigans in the future.

The interesting thing about primary challenges is that they can win even if they lose. Sometimes, entrenched incumbents need a scare put in them. A close primary fight keeps them honest, and ensures that they stay inline with where Democratic politics are going.

So overall, I consider last night to have been a heartening display. Sure, there are some incumbents who survived when I might've rather watched them go down in flames. But there were some instances of righteous retribution and, perhaps more importantly, those who survived the ordeal will emerge wiser for it. I think 2018 will be a very good year for progressive politics in New York -- in part because of who won, but maybe in large part based on who came to fight.

Wednesday, September 12, 2018

The Rutgers Antisemitism Investigation Isn't About Free Speech, But it is About "Free Speech"

Last week, the Department of Education announced it was reopening an investigation into alleged antisemitism at Rutgers University. This has led to some consternation -- see this very skeptical New York Times article or this statement of condemnation by J Street -- and the usual fretting that it represents an attack on "free speech". The case is being looped into larger discussions about the Antisemitism Awareness Act, the State Department/IHRA antisemitism definition, and when anti-Israel sentiment crosses into discriminatory antisemitism generally.

But the Rutgers case is a very different animal than how it's being portrayed. The legal (as opposed to factual) questions it poses do not appear related to any disputes about the ASAA or the State Department definition, do not implicate free speech concerns at all, and really should not be controversial to anyone who thinks rules against antisemitism are anything more than pro forma.

Let's start with J Street's statement:
The initial Rutgers investigation into an event held by a Palestinian group on campus was triggered by a complaint from the Zionist Organization of America (ZOA) — an ultra-right group that has sought to suppress virtually all activities critical of Israeli government policy, and which regularly traffics in anti-Palestinian and anti-Muslim bigotry. The complaint was thoroughly investigated and dismissed by the DOE in 2014. Its reopening is not about upholding civil rights or a serious effort to combat anti-Semitism, but about advancing a right-wing agenda that seeks to silence open discussion and debate of the Israeli-Palestinian conflict.
To do so, the Trump administration intends to wield a controversial definition of anti-Semitism that equates criticism of Zionism with anti-Semitism — and which was never intended for use on college campuses.... At J Street, we strongly oppose anti-Semitism in all of its forms. We work to challenge ill-informed criticism of Israel and Zionism — including on college campuses, through the efforts of our student movement J Street U. We strongly believe that such criticisms can and must be treated as constitutionally-protected free speech — not banned and punished by Congress or the executive branch. 
As you might expect, I have no quarrel with how ZOA is described here. But it is notable that the statement gives zero details on what the investigation is, you know, investigating. Instead, it just vaguely complains about a chilling effect on free speech, and asserts its opposition to any efforts to "ban and punish" such speech -- along with a shot at the State Department/IHRA "definition" of antisemitism which they likewise accuse of silencing "criticism of Zionism" (I'll sidebar here and say no, the State definition does not "equate criticism of Zionism with anti-Semitism" -- indeed, it does not mention "Zionism" at all -- and given the central role that canard is currently playing in the UK Labour antisemitism disaster-show it's not a good look for J Street to just casually drop in on the side of the Corbynistas).

And that's a problem, because while the J Street statement invokes the scary prospect of government regulators stepping in to "ban" speech, from what I can tell (and unfortunately I haven't been able to get my hands on the letter DoE civil rights head Ken Marcus sent reopening the investigation, so I'm relying on media reports) the Rutgers investigation isn't investigating or targeting anyone's speech at all. And neither does it (or at least must it) rely upon the State Department/IHRA antisemitism definition to get its wheels going.

As it is being reported, the renewed investigation of Rutgers looks at only one incident: allegations that a pro-Palestinian event, initially advertised as free and open to the public, began charging admission fees upon perceiving that many of those seeking entrance were Jewish and/or Israeli (and accordingly committed either ethnic or national origin based discrimination). The key bit of evidence is an email by one of the organizers saying "We need to start charging because 150 Zionists just showed up!" but that “if someone looks like a supporter, they can get in for free" (this email wasn't considered in the initial agency decision, hence why the matter is being reopened). The argument is that, in this context, "Zionist" stood in for "Jewish" (or "Israeli").

Now, whatever else you want to say about this allegation, it simply isn't a free speech case. Questions about when "speech" becomes a form of discriminatory harassment are among the most difficult ones courts and civil rights agencies have to grapple with. There are cases like that -- ones where, e.g., Jewish students are alleging that a given speaker's words (whether directed at Israel or something else) created a hostile environment that interferes with their full and equal access to a public good. And those cases really do raise genuinely difficult and nettlesome free speech questions.

But this case isn't one of them. The DoE is not investigating any claim that the speaker at this event said certain bad words about Israel or Jews which qualify as discriminatory. The investigation is into a much more run-of-the-mill form of discrimination: Charging differential rates to Jews versus non-Jews, or hiking prices because too many Jews were showing up, is discrimination in its most uncomplicated and unproblematic guise. It just cannot be the case that J Street thinks that requiring public events to not hike prices when the Jews show up constitutes "silencing" of anti-Israel speech.

Now, of course, while hiking prices because too many Jews are showing up is definitely discriminatory, it is entirely fair to say that the email quoted above, in the abstract, does not provide unambiguous evidence that this is what happened. The argument in favor, as Marcus expressed, runs thus:
“In other words, the visual perception of a group of ‘150 Zionists’ referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group,” Marcus wrote, adding that it was unlikely organizers polled each of the 150 entrants on their views regarding Israel. “In cases such as this, it is important to determine whether terms such as ‘Zionist’ are actually code for ‘Jewish.’”
The letter also noted that some students who reported being charged had a Jewish appearance (like wearing a yarmulke, for example).
Basically, while it's not clear how the organizers would know that attendees looked "Zionist", they perhaps could tell that the prospective attendees looked Jewish -- because they had on religious garb, for example, or perhaps had Hebrew-language clothing. Consequently, it is fair to infer that what really triggered the email was the Jewish (or Israeli) appearance of the guests, not their alleged Zionism (or put more finely, the organizers saw a bunch of unfamiliar Jews, figured they must be Zionists, and responded by raising prices). And if that inference holds up, then one has a very straightforward case of antisemitic discrimination.

[A parallel example might help illustrate. A "Men's Rights" organization on campus hosts an anti-feminist speaker known to be controversial. People start to arrive before the speech, and this initial group is predominantly -- though not exclusively -- male (and, perhaps, people generally known by the organizers to be sympathetic to the speaker). But a few moments later, a huge crowd of women arrive in line to hear the talk. An organizer panics, and sends an email: "we need to start charging -- 150 feminists just showed up". Is this sex discrimination? I think plausibly. The organizer doesn't actually know the political orientation of the new arrivals. What he sees is their gender, and then makes an inference regarding their politics (and their favorability towards the speaker) based on that, which is used to justify raising prices. To me, that'd be sex discrimination. And it'd still be sex discrimination even if a few "cool girls" were involved in the hosting of the speaker].

"Zionist", of course, doesn't always equal "Jewish". But sometimes it does, and frequently enough so that in cases like this it's worth looking into as a possibility. And in particular, there are elements in the record here that make it especially likely that "Zionist" was functioning as "Jewish" (similar reasoning is how we can infer that Jeremy Corbyn was using "Zionist" as a stand-in for "Jewish" when he spoke of people who'd lived in England "all their lives" and yet didn't understand "English irony"). The reliance on visual perception -- how does one "look" like a Zionist without "looking" like a Jew -- significantly strengthens the inference that the Jewishness of the prospective attendees was doing dispositive work.

The basic principle -- that "Zionist" sometimes can be used as a code for "Jew", and that consequently the naked use of the word "Zionist" doesn't act as a definitive defense against an antisemitism claim -- should not be controversial and is something I can't imagine J Street actually disagrees with. If one needs the State Department definition of antisemitism to operationalize that principle, that's a huge point in favor of codifying the definition -- but I actually don't think the State definition is necessary to get us there, because again, the structure of the antisemitism claim here actually isn't that complex (here in particular I wish I had Marcus' letter, as I'm curious what work the State Department definition is purportedly doing for the investigation).

Still, perhaps it does illustrate what I've sometimes termed the "cleansing power of anti-Zionism" -- the inversion of the classic "not all criticism of Israel is antisemitic" argument into the much more robust "if something is framed as criticism of Israel, then ipso facto it is not antisemitic." That move is one that it is very important to check, and the ease at which people fall into that groove is perhaps strong evidence of why a more rigorous definition of antisemitism absolutely is required.

Now, I've been treating these allegations as if they were affirmatively established, and they're not. It's possible the email in question wasn't written by an event organizer, or that if it was written it wasn't the cause of the decision to charge for admission, or that there is some other evidence that the Jewish or Israeli character of the prospective attendees was irrelevant to how the pricing change proceeded. My (very) quick glance at the record suggests that some of these defenses might have legs. But there is a huge difference between dismissing this complaint because (say) the email in question didn't cause the pricing change, and dismissing it because in concept the pricing change could not have been antisemitic because the email used the word "Zionist" rather than "Jewish". That's a spectacularly dangerous precedent to set, and so it's disappointing that J Street seems willing to go down that road in a statement that doesn't even seem to recognize the stakes on the table.

Put another way, it's entirely reasonable to contest the alleged facts here. But there are to my eyes only two substantive legal questions at issue:

  1. Does hiking admissions prices based on the perception that too many Jews are attending an event qualify as anti-Jewish discrimination; and
  2. Can, in concept, "Zionist" be seen as a stand-in for "Jewish" when assessing whether a given act was discrimination against Jews?

The answer to both of these has to be yes. It would be really, really bad if a civil rights agency answered "no" to either of these questions, which means it's really important that, however the investigation ultimately is resolved, it makes clear that it is not giving such a negative answer.

Finally, I want to circle back to the "free speech" focus. Again, on substance the Rutgers investigation just doesn't have anything to do with speech. Either the organizers hiked prices in response to perceived Jewish attendance, in which case it is a straightforward case of antisemitism, or they didn't, and it isn't. Speech just doesn't come into play. Which raises the question: Why did J Street and others instinctively run to that well?

There's recently been a raft of scholarship on what's been called the "New Lochnerism" or "First Amendment Lochnerism". For those of you who haven't suffered through law school, Lochner was a turn-of-the-century Supreme Court case which stands in for a judicial era where courts repeatedly struck down progressive economic and social regulations. For decades, popular democratic legislation protecting workers was strangled by a deeply activist Supreme Court's interpretation of the Fourteenth Amendment's due process requirements. The "New Lochnerism" perceives a similar trend today with respect to the First Amendment, which is also slowly being weaponized to undo progressive electoral accomplishments recast as forms of compelled speech. Janus (public-sector union agency fees) is one prominent example, Citizens United (campaign finance) is another, Masterpiece Cakeshop (anti-gay discrimination) is a third.

Discrimination law is particularly vulnerable to this line of argument, because discrimination claims almost always implicate expressive values. I've been saying that the Rutgers case clearly isn't about speech, but a clever philosopher could reframe it that way with little trouble: "I dislike X group, and the way I express my dislike for them is by charging them more money if they want to attend my events." Or "I express my dislike by refusing to hire them" or "I express my dislike by refusing to do business with them." If one accepts that frame, pretty much all anti-discrimination law represents a First Amendment threat: one is being forced to associate with people one would rather not, and one is foreclosed from acting based on specific (discriminatory) motives when other viewpoints are entirely permissible bases for action.

Fortunately, courts have not taken things that far. But the New Lochnerism suggests a growing trend in that direction, and the hysteria over the Rutgers case fits right inside of it. In my writings on antisemitism and discrimination law more broadly, I've emphasized how certain patterns of discourse about antisemitism reflect broader conservative legal trends that threaten a raft of progressive priorities -- not just an antisemitism, but on anti-racism, anti-sexism, anti-Islamophobia (the interpretation that encompasses Jews under Title VI and gives the DoE jurisdiction over the Rutgers case in the first place is the same one that enables anti-Muslim bigotry to be covered), and other bases as well. That "progressives" don't recognize or don't care about these parallels is either remarkably short-sighted or remarkably dangerous.

The Rutgers case isn't about free speech -- there is no free speech interest in raising prices because you're worried too many Jews will be in the room otherwise. But it is about "free speech", the totemic invocation that anytime, anywhere, anyway that outgroups allege they face discrimination, what's really happening is a form of silencing. It's a powerful argument, and therefore a tempting argument -- even in cases like this, where it doesn't remotely fit the facts. But that doesn't make it a good argument. It leads to a very particular, and very unlovely, end point.

There are discursive tropes which suggest that White people are being "silenced" by overbearing, overexpansive, all-encompassing accusations of racism. These tropes in turn support a backlash against anti-racism efforts across the board. There are also tropes which suggest that men are being silenced by overbearing, overexpansive, all-encompassing accusations of sexism; these support a backlash against anti-sexism efforts across the board. And there are identical tropes which suggest that non-Jews are being silenced by overbearing, overexpansive, all-encompassing accusations of antisemitism; these, too, power a backlash against counter-antisemitism efforts globally.

There isn't necessarily perfect overlap between those who find these various tropes appealing. But they're all based on the same principle, and together they all entrench a particular moral and legal vision of anti-discrimination law that is hobbled to the point of impotency. One can't indulge in the one without getting all the rest.

Tuesday, September 11, 2018

New York State Politics Quick Picks

New Yorkers go to the polls on Thursday, choosing primary candidates for state races (the federal primaries -- where, famously, Alexandria Ocasio-Cortez knocked off Rep. Joe Crowley -- were held on a separate date).

I'm not a New Yorker, but I still will venture some predictions on a couple of races of note. To be clear, these are predictions, not endorsements -- I'm saying who I think will win, not who I'd like to win.

Governor's race (Cuomo vs. Nixon)

I've always been a "hey, all the Democratic candidates are basically fine, so don't sweat it if your guy loses the primary" sort of guy. That was true in the 2008 presidential primary, and it was true in the 2016 presidential primary. Many people think Cuomo has been gearing up for a 2020 run, and if he was somehow nominated .... boy, would that test my commitment to the principle (for the record: yes, if by some Bad Place horror-show we're faced with a Cuomo/Trump race in 2020, vote for Cuomo).

Cuomo is one of my least favorite prominent Democratic pols. He's heavy-handed, he's entirely happy to keep Albany's dysfunctional machine intact so long as he holds its reins, and he's worked to stymie progressive priorities throughout his tenure (his fingerprints are all over the repulsive IDC traitors who gave Republicans control over the State Senate -- more on them in a moment).

The good news is, I think Cuomo has been sufficiently damaged that his 2020 ambitions are dead in the water. The bad news is, I think he's going to win his primary this week. I'm not a huge fan of celebrity candidacies, and at times Cynthia Nixon has sounded more like a speak-and-spell of d'jour lefty talking points than an independent personality. Still, I have no doubt she'd make a competent governor, and given how wretched I find Cuomo that's more than enough to justify casting a ballot in her favor. Plus, some of those rote-repeated talking points are actually pretty good policy!

But Nixon has badly lagged in the polls, and her campaign has never gotten much traction upstate. Backers will point to other prominent polling "misses" recently, e.g., Andrew Gillum in Florida or Ayanna Pressley in Massachusetts, where left-wing candidates have blown past expectations in Democratic primaries. But those races either have been (a) open races (Gillum) or (b) single-district elections in deep blue, urban turf (Pressley, Ocasio-Cortez). We haven't seen anti-establishment anger translate into a Democratic incumbent losing statewide yet, and (regrettably) I don't see that changing. Nixon got a late gift with a ill-conceived state party mailer tying her to antisemitism (when even Dov Hikind thinks you've gone too far....), which will only further inflame her base and emphasizes the really grimy nature of the New York Democratic establishment, but I don't think it will be enough.

New York State Senate

A couple of races here have gotten some national attention. The most important, in my eyes, are the challenges to eight former members of the Independent Democratic Conference, a group of breakaway Democrats who until recently caucused with Republicans and gave them control of the state senate (despite a nominal Democratic majority). It was dirty Albany politics at its worst, and in this Trumpist era Democratic primary voters are in no mood for collaborationists. I hope all of them go down, and hard.

Unfortunately, I've seen no polling in these races and the IDC members are scattered among very different districts all across the state. So it's hard to draw any general predictions about whether they'll win or lose. If I had to venture a guess, I'd say that a few scalps will be claimed but that most are going to survive. In a sense, it's a shame that these races haven't gotten the attention of a certain other NY state senate race, since a sense of national momentum could've made all the difference. Alas.

Said "other" race, of course, is the ab-so-lutely wild contest where Julia Salazar, a working-class(?) Jewish(?) immigrant(?) democratic socialist (pretty sure on that, one at least for now) is challenging incumbent Martin Dilan. Every other day seems to bring a new revelation, each more nuts than the last (the most recent is that she's about to be outed as a sexual assault survivor which -- not cool, whoever's doing the outing).

Of course, with Salazar getting all the focus, I was left wondering what exactly was the deal with Dilan. He's not, to my surprise, IDC, which was my initial assumption for why he'd be the subject of such intense progressive vitriol. The line I've heard more recently is that Dilan is seen as too close to developers, though I haven't gotten much more details than that.

One might think that all of this negative press might kneecap Salazar's chances. But I think she's going to win, and going to do so handily. Rightly or wrongly, I think Salazar's backers think of this negative press as a smear campaign that targeting a non-establishment progressive, and so if anything it will make them more enthusiastic about her chances. And while I don't think an AOC or Pressley style insurgency can overcome incumbency advantages statewide in New York, the Brooklyn area that Salazar is running is another matter entirely. Plus, Dilan (again, for whatever reason) doesn't seem to be that popular in his district -- his last challenger got 41% against him, and 2018 is shaping up to be a much better year for candidates of Salazar's ilk.

Finally, there's one other New York State Senate race worthy of mention, also falling in the "technically not-IDC" category. That would be incumbent Simcha Felder's contest against challenger Blake Morris. Felder isn't IDC, but only because he caucuses with the Republican Party outright despite nominally running on a Democratic line. That turncoat status was enough for the New York Times to endorse Morris.

Felder represents a heavily Orthodox Jewish district in New York (including Boro Park), and has distinguished himself by fighting against state oversight of Yeshiva education (alongside an otherwise generally conservative, if unremarkable, voting record). Morris, a secular Jew, says he's counting on "secret" Orthodox Jewish opposition to Felder to ride to victory. Call me old-fashioned, but I prefer to see public signs that a challenger has backing in his community before I predict an upset. I think the Orthodox community will stick with Felder, and he will continue to be a massive thorn in the side of the Democratic caucus in Albany.

Short version:

Cuomo over Nixon

Salazar over Dilan

Felder over Morris

Over/under IDC candidates defeated: Two

Friday, September 07, 2018

Klum and Gunn Leaving Project Runway

I have to admit, I had a pretty clear idea of how I thought the future of Project Runway would proceed.

The show was a Harvey Weinstein production, which, of course, is rightfully toxic. So I assumed it would go on hold until it was sold to someone else, but then would return pretty much as normal. Alternatively, it was possible that they'd cancel the show outright and replace it with something functionally identical but under a new name and management.

But apparently we're getting a mix of the two: Project Runway is coming back (on Bravo) ... but Heidi Klum and Tim Gunn have jumped ship. They're joining a new fashion competition project on Amazon, which seems to me like a very good poach by Amazon.

It's hard to imagine Project Runway without Klum and Gunn (which is why it didn't occur to me that the show would continue without locking them down). Indeed, I'm not wholly convinced it can survive without them. With their departure, the only member of the original team still attached the show (as far as I know) is Nina Garcia -- and while I love me some Nina, I doubt she exerts enough gravitational pull on her own to keep in viewers. Ditto Zak Posen (who replaced Michael Kors some years ago).

And if they go to the bench squad from the various "All-Star" seasons, well, let's see. Joanna Coles was great as a mentor, but she hasn't been associated with the show for years (ever since the show switched its sponsorship from Marie Claire to Elle Magazine). Georgina Chapman is fine but probably won't be associated with the show going forward for obvious reasons. Alyssa Milano is ... competent. Zanna Roberts Rassi is execrable. Isaac Mizrahi is whatever word is somehow worse than execrable. None of them can compete with Planet's Best Human Tim Gunn and the wonderful, ageless, possibly-succubus Heidi Klum.

So this may well be, in effect if not in formalities, the end of Project Runway. And if so, you've given us a lot of fun, a lot of fashion, and a lot of look. Auf wiedersehen.

(For fun, here's an oral history of Project Runway's very first season)

Wednesday, September 05, 2018

On The UK's "Not Anti-Semitic" Teacher Case

A story is currently floating through the Jewish press about a UK tribunal ruling which, we're told, concluded that a dismissed teacher who said (among other things) "Every sane human is anti semitic" was "not anti-Semitic."

Is this accurate? Kind of, though I think it's a bit misleading. But it's also a bit revealing. It's certainly a good illustration of why you should always try to read the actual opinion.

The teacher, one Harpreet Singh, was facing suspension of his license for a variety of alleged infractions, including having engaged in "offensive and/or racist comments" on social media. "Every sane human is anti semitic" was one example, another was "Of course we hate Jews". So pretty straightforward. His defense was, as one might expect, that he does not hate Jews "as such", that he was actually targeting Israel and its supporters, that his comments were taken "out of context," that while they were certainly wrong they were "provoked," and that they were ultimately a "reactive response" regarding an issue he felt "passionate" about.

The tribunal hearing the case concluded that Singh's posts were indeed racist, and that he had accordingly failed to show due tolerance and respect towards the rights and beliefs of others. Perhaps most interestingly, they also found that while Singh had recognized his comments were wrong and offensive, his repeated attempt to contextualize them by noting how they occurred in the context of "passionate" public debate suggested that he was at least potentially at risk to reoffend (in circumstances where said passions were again roused). Consequently, the tribunal voted to suspend his teaching license indefinitely (though he can try -- without guarantee of success -- to try to get the ban lifted after three years).

So why did the tribunal say at one point that it "accepted that Mr. Singh is not anti-Semitic" (and it did indeed say that)? Given that the tribunal did find that Mr. Singh had engaged in racist remarks and did impose a substantial punishment, it doesn't seem quite right to say that the panel was implicitly excusing what Singh said. More likely, it was trying to say something of the form that Mr. Singh was not anti-Semitic "to the bone", that it accepted that these comments were out-of-character, that they were motivated not by hatred of Jews "as such" but rather some desire to come to the defense of Palestinians. It matters that the tribunal nonetheless concluded that the comments were racist -- after all, not everyone agrees that racist targeting of Jews exists in circumstances where it is motivated by anything other than hatred of all Jews-qua-Jews.

Yet even though along the tangible metrics the tribunal seemed to reach the right outcome and apply an appropriate sanction, there still may be some grounds for unease. In his book Contemporary Left Antisemitism, David Hirsh speaks of the phenomenon of "pleading guilty to a lesser charge". Those accused of antisemitism are frequently willing to cop to many things -- they'll accept that their statement was offensive, outlandish, over-the-top, bullying, insensitive ... "to anything so long as it is not antisemitism" (14-15). And ditto those tasked with assessing claims of antisemitism -- they'll agree that the comments in question were extreme, uncivil, nasty, disrespectful, (maybe) even racist -- but for whatever reason they won't be willing to actually pull the trigger on "anti-semitic".

So it is notable that while the tribunal opinion repeatedly labels Singh's comments as "offensive", as "intolerant", as "racist" -- it never once refers to them or him as "anti-Semitic." Indeed, across the entire opinion the only mention of the term -- other than when they quote the comment where Singh effectively calls himself anti-Semitic -- is when the tribunal goes out of its way to absolve Singh of that particular charge.

Now maybe there's an innocent explanation for that. I'm unfamiliar with the particulars of how British professional licensing proceedings are structures; perhaps there are technical reasons for why certain words get used and others not. But there's still that nagging sense that, no matter how clear the case, "anti-Semite" seems to remain a bridge no one is willing to cross. Lesser charges, yes, but not that.

Sunday, August 26, 2018

The Race Is On

The challenge of the 20th century was that humanity could go extinct if a few well-positioned people happened to be reckless, extreme, paranoid, or (in the right cases) deceived.

We managed to meet that challenge (so far).

The challenge of the 21st century is that humanity could go extinct if all of us just keep on living our lives in our normal pattern.

That's a far more difficult challenge to tackle.

We are, as you don't need me to tell you, rapidly racing towards ecological catastrophe. Global warming is approaching runaway levels, threatening a chain-reaction of climatological forces which may well be irreversible and would make human life on Earth impossible. Estimates differ, but the breakout point is almost certainly within this century.

But ironically, along a similar timeframe, we're also racing towards the technological developments that could save us. These are (a) limitless renewable energy and (b) genuine artificial intelligence. If those two currencies -- energy and intelligence -- start to get on a runaway train, then all of the sudden we're back in business. Infinite energy + infinite computing power = ability to solve essentially any problem (certainly in particular the problem of freezing, or potentially even reversing, greenhouse gas emissions). And the breakout points for each of these are, I'd wager, also within this century. So short-term strategies with respect to climate change might simply be delaying actions (see: how nukes might save the world). What we need to do is buy the computers enough time to save us all.

But basically a race. Can we get to free energy and free computation before we get past a climatological point of no return? What's amazing to me is that I genuinely, truly believe it's a toss-up -- and that we'll probably find out the answer (one way or another) in my lifetime.

Of course, the advent of true AI might bring about a whole new host of existential/extinction-level problems (one of the most interesting aspects of the lore of Horizon: Zero Dawn is that they make it quite clear humanity managed to avoid the ecological apocalypse ... only to stumble into a self-replicating killer robot apocalypse). But one disaster at a time.

The Bachelor's Roundup

Today is a big week.

It is my last week as an unmarried man. This coming Sunday, September 2nd, 2018, I will be married. 9/2/18 -- it's very mathematical, and the mathematical around the number "18" too, which is nicely auspicious.

Jill has been out of town since Wednesday -- she says on a work trip, though I think she's just having a second bachelorette party. She gets back late tonight, and then we both fly to Minnesota together on Thursday.

So ... this might be a light posting week. Or not! I'm unpredictable.

* * *

The Washington Post has a long article on the Lumbee Indians of North Carolina and the unique neither-fish-nor-fowl status they have under federal Indian law. I had a case that tangentially connected to the Lumbee when I was at Covington, so I actually was familiar with their situation -- and this article does a good job providing additional depth.

There is little doubt in my mind that, if Trump goes down, his hardcore followers will blame the Jews.

A fascinating -- if chilling -- essay by Cass Sunstein on how ordinary Germans experienced the rise of Nazism. The takeaway is that, for them, things still always felt "ordinary". They went camping, they hung out with friends, they made jokes. We have a very wrong idea of the phenomenology of authoritarianism -- at least for those persons not directly targeted for suppression.

David Hirsh goes into detail to explain what should be obvious: why Jeremy Corbyn dismissing "Zionists" as people who have "lived in this country for a very long time, probably all their lives," and yet "don’t understand English irony" is antisemitic. It leverages specifically antisemitic tropes, and it does so in a way that's only sensible if one is leveraging those tropes (the idea of "Zionists" retaining status as perpetual aliens who remain unassimilable outsiders no matter how long they live in their "host" countries is incoherent without supervening on "Zionist as Jew").

Who could have guessed that, if the fringe group Jewish Voice for Labour put on a forum on antisemitism, it would become a forum for antisemitism? Everyone, that's who!

Regarding the French Open's ban on Serena Williams wearing a "catsuit", it's simultaneously amazing and not at all amazing that misogynoir so easily trumps the truckloads of money and attention Williams -- one of the biggest stars in global sports -- brings to women's tennis.

Friday, August 24, 2018

The Julia Salazar Questions NO ONE Is Asking

Here at The Debate Link, we don't shy away from the hard questions. The ones on everybody's minds, but few dare ask. The ones other news sources are afraid to tackle.

You might have read Tablet Magazine's expose on Julia Salazar, who has made some waves as a Jewish Latina socialist running for a state senate seat in New York (she's challenging Democratic incumbent Martin Dilan).

The Tablet article makes several revelations. Salazar was not (as she had sometimes claimed) an immigrant (she was born in Miami), and her father was not (as she had sometimes claimed) Jewish (though it does appear that she has other Jewish relatives). In addition, Salazar used to identify a (conservative) Christian, and was a campus leader of CUFI (Christians United for Israel) who was also involved with a host of other pro-Israel organizations (ranging from AIPAC to the World Zionist Organization). Over the course of her college career, she tacked sharply to the left -- moving from CUFI to J Street to Mondoweiss-territory -- and converted to Judaism in the process.

Many people are now asking whether Salazar is "really" Jewish or to what extent she misrepresented her background.

But as I said, here at The Debate Link, we don't deal with the questions "many people" are asking. If those are the questions you want to talk about, go elsewhere. Rather, there are two questions burning a hole in my pocket, whose answers I haven't seen anyone really grappling with publicly.

(1) What is the deal with Martin Dilan?

As noted, Salazar is challenging an incumbent Democrat, Martin Dilan, for his New York State Senate seat. When I read that a progressive challenger getting a lot of enthusiasm for her race against an incumbent Democratic New York State Senator, I just assumed that Dilan was probably a member of the IDC -- a group of renegade Democrats who for the past several years had joined forces with Republicans to give the GOP control of the chamber despite a nominal Democratic majority. The IDC is almost single-handedly responsible for blocking a raft of progressive agenda items in a deep-blue state, and as far as I am concerned they can all burn in a fire. They are the epitome of Democrats who deserve primary challenges.

But it turns out that Dilan wasn't an IDC member. Which raises the question: What exactly has he done to raise progressives' ire so? Of course, it's possible the answer is "nothing" and he's just a target of opportunity. But two years ago, a primary challenger who admitted to beating her son as a teenager still took 41% of the vote against him -- suggesting that there is something going on making him vulnerable. But I haven't heard what it is yet.

In general, I view lawmaking and legislating as a skill, and I'm suspicious of populist waves which treat political experience is a vice and amateurism a virtue (see: "Trump is a businessman, not a regular politician"). Fulminating about out-of-touch politicians on Facebook and sharing articles about bad government actors d'jour is easy; actually writing good laws that are fair and respectful to all relevant stakeholders is really difficult. And the people least likely to meet that difficulty curve are those who effectively deny that the project is hard in the first place. Those sorts become demagogues far more frequently than they become effective agents of legislative change.

In practice, that means that I'm generally averse to primarying out veteran politicians unless the incumbent is significantly underperforming compared to what one could expect from their voter base (occasionally, I think it would be good if a given incumbent got a good scare from a primary but still won -- a situation which makes it very difficult to determine how to cast one's own ballot!).  Basically, if you're doing a fine job and you generally vote the right way, then I think experience should carry the day.

But I don't mean for "fine job" to be an impossible bar to meet, and there are absolutely Democrats who deserve to be primaried into dust. The IDC Democrats are an obvious example, and frankly Andrew Cuomo would be another for me (Rep. Dan Lipinski of Illinois is yet another). By contrast, I never got a strong answer on what Joe Crowley supposedly did wrong, or the case against Mike Capuano in Massachusetts, other than a vague call for "fresh blood" or "new voices".

So, is Martin Dilan in the set of Democrats that deserves a primary challenge? I have no idea. But I find it weird that, with as much attention as Salazar has gotten even before this story broke, I've yet to see much in the way of discussion about either why he-qua-him should go or should stay.

(2) What does Salazar's evolution on Israel tell us about the CUFI model of engagement with young people?

As the Tablet article notes, it isn't exactly uncommon for young people's political views to evolve sharply while they're in college. Still, it's worth reflecting on how her story interacts with the narrative some on the pro-Israel right are pushing. They claim that the reason young people are growing less attached to, or more overtly critical of, Israel is because they're only being exposed to one side of the story. The problem is biased narratives and indoctrination.

But say what you will about Salazar -- that argument can't work on her. She spent considerable time in her early college days suffused in the best hasbara the right had to offer: there's no way a World Zionist Organization's campus fellow simply wasn't exposed to the claims and arguments that the pro-Israel right wants to promote.

And indeed, it gets worse: the Tablet story indicates that Salazar's conversion moment -- where she really came to second-guess her staunch pro-Israel commitments and began her journey to the left -- came in the course of a CUFI-sponsored trip to Israel.
According to people who knew Salazar at Columbia, and to messages and social media postings, a distinct shift occurred after the CUFI trip. After the official part of the mission ended in August of 2012, Salazar stayed in the region and visited the West Bank cities of Bethlehem and Hebron—where, according to messages from Salazar seen by Tablet, she empathized with the plight of the territory’s Palestinian population and questioned the pro-Israel narrative in which she had once wholeheartedly believed. She appears to have broken off her affiliation with CUFI as soon as she returned to the United States, just before the 2012 fall semester began.
Basically, not only did immersion in CUFI-style Israel advocacy not immunize Salazar from a left-ward shift, it apparently made her more vulnerable to it. And once the bulwark collapsed, it collapsed completely -- she transitioned over a very short period of time from a hard-core Israel lover to a hard-core Israel critic. Right-wingers crowing over Salazar's now-public life journey fail to acknowledge how she's living repudiation of their entire narrative about pro-Israel politics on campus.

There's a lesson here, if pro-Israel stalwarts would care to learn it: Uncritical rightists become uncritical leftists and vice versa. It's David Horowitz syndrome, and we've seen it over and over again. Wallowing in a happy, uncritical pro-Israel narrative doesn't shield young people from anti-Israel sentiments on campus. The further we isolate our youth from serious, critical reckoning with Israel's flaws alongside its virtues, the harder it's going to hurt when reality hits.

* * *

So those are the questions I care about. You want my stance on the ones everyone else is talking about? Well, basically I endorse Batya Ungar-Sargon's take. I could care less about the details of Salazar's Jewish journey. I've known plenty of people who discovered or reconnected with their Jewish heritage in college, not all of whom had a claim on matrilineal descent, and I've never felt it was my business to police an identity they have genuine ties to and claim in good faith (this is on top of my general uneasiness with hard adherence to rules about matrimonial descent; not to mention the very specific point that Jews of Color are far more likely to be the targets of such scrutiny).

But when you run for office, people are going to research the claims you make and the narratives you tell. That's not wrong; that comes with the territory. If you say you are an immigrant, and it turns out you're American born, there's going to be an article on that and you're going to take a few lumps. It's great that young people, some of whom have little prior experience in the public limelight, are now stepping up and running for significant public office. But that's going to come with scrutiny, and when you take that step you can't then hide behind "I'm young, I'm inexperienced, I'm just an average Joe or Joanna from the block" to ward that off.

The fact is that several elements of Julia Salazar's narrative, at least as presented by her campaign, rest on uneasy factual foundations. When you're a private citizen, that's not news. When you're a political candidate, that's very much news, and it's not foul play for a journalist to dig into it.

Bill To Prevent Election Tampering Stalls Under White House Pressure

A bipartisan bill (sponsors include hard-right Oklahoma Senator James Lankford as well as liberal stalwarts Kamala Harris and Amy Klobuchar) to strengthen American election security has stalled as Republican committee chair Roy Blunt of Missouri apparently caved to White House pressure to block the bill.

The "dilemma" Republicans are facing right now, if you can call it that, is that they seem to believe that the people most likely to try and tamper with our elections are going to do it for their benefit. So the question is whether they'll cede that improper "advantage" for no tangible gain other than a piddling "preserving the integrity of the democratic system".

It's party versus country, yet again. And so far, for this GOP Congress, country has never fared well in that engagement.

Thursday, August 23, 2018

How Contacts Ruined My Sleep Cycle

Warning: There's no deeper meaning to this post. No metaphor, no life lesson. It's literally just an explanation of why I've been going to bed ridiculously late even as I've largely aged out of that life stage. I'm not even sure why I wrote it. But it's done now, and up on the blog it goes.

I've always been a bit of a night owl. As I've aged, though, that quality has mellowed -- at least a little bit. Instead of going to bed at 3 AM and waking up at 1:30 PM, I think my natural sleep cycle is closer to 12:30 AM and 10:30 AM (as I said: a little bit).

But one change in my life has thrown this mellowing process for a loop: Contact lenses.

For most of my life, I didn't wear glasses or contacts. The former I picked up only in my mid-20s. After moving to Berkeley, my vision kept getting worse, and I assumed I needed a new prescription. But it turns out that I actually have a degenerative eye condition (that sounds way worse than it is) called keratoconus. Long story short, instead of having nice round corneas, mine are football shaped.

Keratoconus can't be corrected effectively by glasses. Indeed, it isn't really corrected by normal contacts. So a short while after arriving in Berkeley, I was prescribed new, specialty contacts called scleral lenses. They're larger than regular contacts, and basically function as replacement corneas. In fact, for insurance purposes scleral lenses are technically characterized as a prosthetic. That's right: I have cyborg eyeballs. Fit a Google Glass into those puppies and I can go full Terminator.

Anyway, I digress. By and large, I love my contacts. Aside from being able to talk about my robot eyeballs, scleral lenses are amazingly comfortable, surprisingly easy to put in and take out, and they correct my vision all the way back to 20/20 (my naked-eye vision right now is ... well, it's not 20/20).

There's only one downside: They're ruining my sleep cycle.

The reason is straightforward and almost obnoxiously banal: You don't sleep in scleral lenses. You take them out each night, put them in a cleaning solution (which neutralizes over the course of six hours or so), and pop them back in every morning. It's not a hard process, but it does require that I be in front of the bathroom mirror and do a bit of manual finagling. And once I do it, I pretty much can't see anymore, so I'm done for the night. I can't read, or watch TV, or do anything that requires more than a modicum of sight.

In practice, that means I can't drift off to sleep while doing other things. I used to like reading in bed until I got tired, then just drowsily placing the book on my nightstand and falling asleep. Now I can't do that -- I have to physically get up, walk to the bathroom, pry two pieces of glass out of my eyes, place them in the cleaning solution, and then go back to sleep. That peaceful drift off to sleep is ruined.

As a result, going to bed is a commitment. When I take my contacts out, I am basically locking myself in to not doing anything but sleep for at least the next six hours. Which means I better be done for the day. If I crawl into bed and I'm not feeling tired, well, I can just sit and stare at the blurry ceiling.

As a result, I stay up until I'm absolutely, positively sure I will want to do nothing but fall asleep. And that mentality comes pretty late in the evening. The time when I might feel ready to wind down with a nice book or some light television is considerably earlier than the time when I've got nothing on my agenda but passing out immediately. So I end up staying up much later than I otherwise would have.

And that's how contact lenses ruined my sleep cycle.

Tuesday, August 21, 2018

How Roe Might Die In Life

Sen. Susan Collins (R-ME) has said that Judge Kavanaugh told her he agrees with John Roberts on Roe v. Wade: It's "settled law".

Is this another episode of "how gullible is Susan Collins"? Almost certainly yes. But it also offers an opportunity to at least a plausible avenue whereby Roe could not formally be overturned but could functionally be killed off.

Justice Kennedy provides a model. He was part of the trio of Republican-appointed justices who "saved" Roe v. Wade in Planned Parenthood v. Casey. Also in that case, he and a court majority upheld virtually all of Pennsylvania's substantive restrictions on abortion rights (striking down only the spousal notification requirement). And after Casey, Justice Kennedy continued to vote to permit pretty much any abortion restriction that presented itself to the Supreme Court even as he never came out and said "Roe v. Wade is overturned."

It's easy to imagine a similar trend basically eroding Roe into dust. Casey and Roe each offer rhetoric for the Court to latch onto. Roe explicitly acknowledged that the value of protecting fetal life was an important governmental interest. Casey, for its part, allows abortion to be banned at any point prior to "viability", and advances in medical technology have steadily pushed that date back. Just as Casey announced a new gloss on Roe while still reaffirming its "core holding", it's not hard to imagine a Kavanaugh-centered court suggesting that Roe is intact so long as some women in some states (generally, liberal states where abortion rights are democratically-entrenched) can access it, and that there is no conflict with Roe or Casey's "core holdings" when women can still access the morning-after-pill.

Basically, what'd we'd get in this world is a studied avoidance of actually overturning Roe while still permitting various state-level restrictions which make abortion functionally impossible to obtain. The net result is a world that's observationally equivalent to Roe being overturned, but Roberts and Kavanaugh get to pat themselves on the back as respectful of precedent.

And the thing is -- this sort of move is a John Roberts special. Yes, the Roberts court isn't afraid to explicitly overturn precedents when it has to (e.g., Janus or Citizens United). But what it really loves to do is "distinguish" precedents it dislikes in ways that virtually obliterate the old holding. Gonzalez v. Carhart, upholding a federal "partial-birth abortion" ban while somehow not overturning Stenberg v. Carhart (which struck down a virtually identical state ban), is maybe the keynote example of this move.

I still think the most likely result of a Kavanaugh confirmation is Roe gets (formally) overturned. But the Roberts Court has ample tools at its disposal if it wants to bury Roe without actually killing it. The idea that conservative jurists actually need to utter the words "Roe v. Wade overruled" to effectuate their abortion agenda is almost certainly a myth.

UPDATE: Okay, so it turns out Leah Litman did this, but better.

Saturday, August 18, 2018

But Do They Have Paradox-Absorbing Crumple Zones?

Eugene Volokh flags an interesting case out of Wisconsin lying on that intersection of religious freedom and anti-discrimination. Basically, a male Muslim prison inmate objected to being strip-searched by what appears to be (the record doesn't say explicitly) a transgender male guard. The inmate claims that part of his religious beliefs are that (a) sex is assigned by God at birth (so if you're born a woman, you're a woman) and (b) he cannot be seen naked by any woman save his wife. He's demanding a religious exemption from being strip searched by that guard under RLUIPA (he doesn't object to strip searches generally).

Reading about this, all I could think about it is: how would Breitbart cover this? Which hatred would win out? Would they back the Muslim prison inmate, or the transgender man whose job description includes seeing people naked?

I really think it's a toss-up.

Friday, August 17, 2018

When The Mask Comes Off ... What's Beneath Doesn't Look All That Different

The Prime Minister of Malaysia, Mahathir Mohamad, explains why he is "glad" to be called an antisemite.
“There is one race that cannot be criticized. If you are anti-Semitic, it seems almost as if you are a criminal,” Mohamad said in an interview with the Associated Press on Monday, denying that he disliked Jews, as such. “Anti-Semitic is a term that is invented to prevent people from criticizing the Jews for doing wrong things.”
“When somebody does wrong, I don’t care how big they are. They may be powerful countries but if they do something wrong, I exercise my right of free speech. They criticize me, why can’t I criticize them?”
Mohamad, an avowed anti-Semite, was sworn in as prime minister in May, nearly two decades after he last held office. He is well known for his anti-Semitic rhetoric, writing on his personal blog in 2012 that “Jews rule this world by proxy.”
He has also said, “I am glad to be labeled anti-Semitic […] How can I be otherwise, when the Jews who so often talk of the horrors they suffered during the Holocaust show the same Nazi cruelty and hard-heartedness towards not just their enemies but even towards their allies should any try to stop the senseless killing of their Palestinian enemies.”
This, of course, is rather naked. It speaks of Jews (although the de rigueur conflation with Israel is present), and it does not shy away from (indeed it actively embraces) the idea of antisemitism. In that sense, it is almost too easy of a case. And this is not remotely out of character for Mohamad either.

But where these passages may be of some use is in highlighting how certain antisemitic tropes work in a context where they are freely and openly attached to an antisemitic ideology, the better to spot them when they appear without such an overt gloss. Basically everything Mohamad is saying is something that, dressed up (a little) more nicely, is a common feature of discourse about Jews in global society today.

First, there is the claim that the real victims of antisemitism are those accused of it -- antisemitism is not (or is not primarily) a genuine form of oppression for Jews, but rather is a perk Jews enjoy to shield ourselves from critical review. Compare here Bruce Robbins "The real issue here is anti-Semitism; that is, accusing people of it" or Naomi Klein suggesting that some Jews "think we get one get-away-with-genocide-free-card."

Second, there is the argument that in taking on the Jews, he is taking on someone or something "big". Here he really dips between referring to "Jews" generally and "Israel" specifically (For the record, Malaysia has four times the population of Israel across a territory almost sixteen times its size). Of course, the perception of Jews as inherently "big" -- domineering, cabalistic, pulling the strings -- has deep pride of place in antisemitic rhetoric. Mohamad is appealing to a notion whereby antisemitism always is a form of "punching up", "a movement of the little people against an intangible, global form of domination".  This perspective has come to occupy a critical role in the narrative Corbyn supporters tell of Jewish outrage -- both in the view that Corbyn, in antagonizing the Jews, is tackling the powerful, and in the view that the Jewish backlash is itself attributable to some nefarious conspiracy

Next, there is the invocation of "free speech". Of course, this particular ploy should by now be familiar to anyone forced to endure alt-right trolling of college campuses -- when they choose to be racist, it's just free speech! And if you call it racist, you're suppressing their free speech! But this device makes its appearance regarding antisemitism too, and has done so for a very long time. Jewish Voice for Peace's old blog was titled "MuzzleWatch", and one of the major fringe groups backing the Corbynistas and opposing Jewish efforts to raise awareness of antisemitism in the UK is named "Free Speech on Israel". Glenn Greenwald has likewise dismissed the widespread adoption of the IHRA antisemitism definition as part of a "global campaign to outlaw criticisms of Israel as bigotry".

Then there's the comparison of "Jews" (represented through Israel) to Nazis -- we're all familiar with that play, and I'm glad to see it here if only for completion's sake.

But we'll conclude with the most striking bit, and the one that perhaps seems least applicable to more workaday antisemitic cases: where Mohamad says he is "glad" to be called antisemitic. Here one might say I'm actually being a touch unfair to Mohamad, for what I suspect he means is something more like "while antisemitism -- appropriately (and narrowly) defined -- is terrible; what is called antisemitic in public discourse are actually good, noble, and virtuous positions that one should be proud to hold." This is buttressed by the caveat Mohamad gave at the beginning, where he denies that he "dislikes Jews, as such."

Once again, this has parallels. Steve Bannon notoriously said that being called racist is a "badge of honor"; Steven Salaita's contention that antisemitism has become "honorable" thanks to Zionism plays on the same turf. In all cases, the claim actually isn't "it is good to hate outgroups"; it's something more like "what outgroups claim is hateful, actually is good". Now, to be clear -- that's still a BS response, partially because it is too clever by half, partially because it depends on an epistemic injustice directed against the outgroups whereby their assessments of their own experience of inequality is so unreliable that one should be "honored" if they feel threatened by you. But at least formally, it reduces down to a claim that "one can and should dislike X group insofar as they act in A B C bad ways, or support D E F bad policies."

Which actually circles back, strangely enough, to my Tablet Magazine article on Open Hillel's intervention in the SFSU antisemitism debate. In that article, I cited Bernard Williams for the proposition that virtually no form of racism holds itself out as being a product of raw, unadorned antipathy. It always comes attached to claims that are at least on-face about something that qualifies as a candidate for a reasonable position. Wrote Williams:
Few can be found who will explain their practice merely by saying, 'But they're black: and it is my moral principle to treat black men differently from others'. If any reasons are given at all, they will be reasons that seek to correlate the fact of blackness with certain other considerations which are at least candidates for relevance to the question of how a man should be treated: such as insensitivity, brute stupidity, ineducable irresponsibility, etc. Now these reasons are very often rationalizations, and the correlations claimed are either not really believed, or quite irrationally believed, by those who claim them. But this is a different point; the argument concerns what counts as a moral reason, and the rationalizer broadly agrees with others about what counts as such -- the trouble with him is that his reasons are dictated by his politics, and not conversely. The Nazis' 'anthropologists' who tried to construct theories of Aryanism were paying, in very poor coin, the homage of irrationality to reason.
So too here. I quoted Mohamad's words extensively because to my mind they represent an unquestionable case of antisemitism. But his caveat that he does not dislike Jews "as such" is one that Open Hillel's standard of antisemitism has great trouble grappling with. If Mohamad's point is that he doesn't dislike Jews-qua-Jews, only the bloodthirsty ones, the Zionist ones, the Nazi-like ones, the ones who are "big" and the ones who censor his free speech -- is that antisemitism? Cast in that light, Mohamad isn't actually all that different from the peers I've been comparing him to; perhaps just a little rougher around the edges.

And that, ultimately, is the real point here. One might think that Mahathir Mohamad represents what happens when the screen of respectability comes down and an antisemite simply says what he thinks. But it turns out that, when that happens, what one sees doesn't look all that different from what one sees when the mask stays on. Mohamad uses tropes and claims and devices that are common in discourse about Jews by people who have far more claim to respectability than Mohamad does. One would like to think that's an indictment of the respectable. But it just as easily can become a defense of what we otherwise would think of as undeniable antisemitism.

Thursday, August 16, 2018

Things People Blame the Jews For, Volume XLVIII: Turkey's Currency Collapse

Turkey is going through a currency crisis. The causes are complex, as global finance often is, but one of the known triggers is tariffs imposed by President Trump in retaliation for Turkey's detention of an American pastor.

And another cause is, well, take a guess:
A senior Turkish official has blamed "Jewish-originated Zionist bankers" in a late-night rant for the currency crisis that saw the lira plummet against the US dollar in recent weeks.
Burhan Kuzu, a founding member of Turkey’s governing Justice and Development (AK) Party, made the remark in a series of late-night tweets in which he suggested US President Donald Trump was “not aware” his country was being managed by what he termed “Jewish banking families”.
“The American people believe the dollar is the US's currency,” Mr Kuzu wrote in one tweet in the early hours of Wednesday morning.
“In fact, the world is managed by the cash notes printed by twelve families of Jewish-originated Zionist bankers numbering not more than 300.” 
 In a later tweet, he said Mr Trump could demonstrate "courage" by wresting control of the US dollar from Jewish bankers and printing the notes himself — but that he would be likely be killed if he tried.
Hey, at least it's a step up from being blamed for Uber. Global currency manipulation is definitely a nod back to the classics.

In completely unrelated news, a full 10% of Turkey's remaining Jewish population has applied for Portuguese citizenship in response to rising tides of antisemitism in the country.

Wednesday, August 15, 2018

Who's Your (U.S. Citizen) Daddy?

The Second Circuit decided a very interesting case this week, concerning deportation proceedings against a man whom, it turns out, is a U.S. citizen. The litigant, Levy Jaen, was born abroad to a married couple; he and his family moved to the United States in 1988 when Jaen was 15. The husband was a U.S. citizen, and Jaen's father satisfied all the other requirements through which his citizenship would pass down to his son.

The problem was that Jaen's biological father was not the man her husband was married to. And the biological father (with whom Jaen's mother had an extra-marital affair) was not a U.S. citizen. So the question before the court was who, for the purpose of the federal statute governing citizenship in cases like Jaen's, was Jaen's "father"?

The court concluded that under well-settled principles of common law, the "presumption of legitimacy" that attaches to children born to married couples, Jaen's "father" is assumed to be the man married to his mother (the linchpin precedent for this proposition is a well-known family law case, Michael H. v. Gerald D., authored by Justice Scalia). And because Jaen's father was a U.S. citizen (and satisfied all other statutory requirements for transmitting his citizenship), Jaen was too -- and therefore could not lawfully be deported.

This is a happy ending, though it of course raises the question of circumstances where the facts are reversed (the biological father is a U.S. citizen but the "legitimate" father is not). Moreover, it is a happy ending to a grim tale -- Jaen was imprisoned for the entirety of his immigration proceedings and appeals, notwithstanding the fact that he had a colorable claim to citizenship that ended up being vindicated.

But a happy ending is a happy ending. Also, a shout out to my old firm Covington & Burling, which was on the brief for this case representing Mr. Jaen.

A Semi-Serious Question of Legal Strategy

One of the things Trump v. Hawaii does is that it seems to narrow the circumstances where we can infer discriminatory intent, at least in cases where the allegedly discriminatory-action does not wholly encompass all members of the putatively targeted group.

Of course, Trump is not the only precedent on that point, and in most cases it won't be dispositive one way or the other.

But here's my question: Suppose you were a plaintiff's attorney in a discrimination case, one which hinges on inferring discriminatory intent even though not all members of the protected class were targeted by the action you are challenging. And suppose you had a relatively liberal judge whom you were fairly confident detests the Trump decision. Finally, let's say that for whatever reason your case was somewhat politically contentious and so the judge might not be ideologically-predisposed to rule in your favor anyway.

Obviously, you can cite a string of precedent that supports a favorable ruling in your case. My question is: Would it be helpful to append a "but see" cite to Trump v. Hawaii at the end?

Of course, if Trump is a really powerful precedent for the defense, then one probably doesn't want to draw attention to it in this way. But if it isn't -- if the suggestion is more "in the evolution of anti-discrimination, the defense's argument takes us further down the road Trump v. Hawaii has paved" -- one might think that could be a savvy way of turning the judge against that approach.

I suppose this is another way of asking how quickly Trump v. Hawaii will become part of the anti-canon -- at least for liberal judges.

A Nice Rabbinical Lesson in Not Judging

I came across this earlier today -- it's from an Orthodox Jewish advice column where a woman asks how she can be less judgmental of other Orthodox Jewish women who don't dress according to her standards of modesty.

Obviously, on the substance of the issue I have no skin in the game. Modest dress -- by men or women -- is not a matter of religious significance for me, and indeed I'm not wild about religion arrogating to itself an opinion on the question at all.

But what I like about the answer is that -- putting the substance of the question aside -- I thought it was a great model in thinking through how to be kinder, more open, and less judgmental as a general matter -- something that no doubt we all have occasions to practice.

Anyway, here is the columnist's answer:
In terms of your question, I believe the answer can be found in Pirkei Avos. Our sages teach: “asay l’cha rav, u’konay l’cha chaver, v’haveh dan es kol adam l’kaf z’chus (make for yourself a rabbi, acquire a friend, and judge all men favorably).” Until today, I never understood why these three things are listed together, but upon trying to answer your question, a beautiful connection hit me. 
Let’s start with “judge all men favorably.” [It is] easy to think badly of others when we see them doing things which we consider “wrong,” but judging others favorably is a foundational Torah idea and the way you can do it in this case is: a) assume these women learned a different opinion than you did, because there are a range of opinions when it comes to the laws of modesty (the range is not infinite, but there is a range, which means there is more “grey” and less “black and white” than you may realize), b) assume they learned the same opinion you did but were never shown the beauty of modesty and Jewish law like you were and therefore don’t feel compelled to keep it like you do, c) assume they believe in the idea in theory, but it’s such a big struggle for them – much bigger than it is for you – that they haven’t conquered it yet, d) assume they are doing whatever their parents taught them and never looked into it further to realize there was anything problematic about it. 
Again, as applied to the "modesty" question this does nothing for me. But the core of the suggestion: that in matters of religious dispute, consider that the other person (a) has thought about the issue and has a different view; (b) has thought about the issue but doesn't view it as compelling in their life; (c) has thought about the issue and agrees with your view in theory but finds living up to it to be a greater struggle than you do; or (d) just never really thought about the issue at all -- all of these strike me as better and more charitable ways of approaching the matter compared to just assuming the person is willfully ignorant, obtuse, or wicked.

The questioner also suggested that seeing women who didn't adhere to her own standards of modesty made it harder for her to stay true to her own path. And the columnist gave advice on this matter as well:
But you can’t only judge others favorably without solidifying your own path. Just because these women have their reasons for doing what they do doesn’t (necessarily) mean that they should be your reasons. So “make for yourself a rabbi,” comes first. Find a rabbi (and rebbetzin) who are your speed that you trust as role models and stay close with them. Maintain a certain standard for yourself that your rabbi/community holds by. 
“Acquire a friend” comes after that because while it’s important to have a guide who can you look up to, it’s equally important to have close friends who have shared values so you can support each other even as you see that different “options” exist. It is possible to accept that there are differing opinions to the ones we follow and that there are opinions which we simply disagree with (but reserve judgment on those who follow them), while simultaneously maintaining a high standard for ourselves. Such a balancing act does not come very easily, but then again, nothing worthwhile in life ever does.
Anyway, it jumped out at me as something that was noticeably kind-hearted, even on a matter whose import is quite foreign to me, and so I figured it was worth sharing.

Tuesday, August 14, 2018

If Trump Used the N-Word, It Won't Matter

The debate of the day is whether, if a tape drops where Donald Trump uses the n-word, will it make a difference in how his supporters view him? Some say yes -- the n-word is such a redline that it removes all plausible deniability. I, however, am firmly on team Adam Serwer here:
Some have argued that Republican voters held their noses and voted for Trump because, while odious, issues dear to their hearts like religious freedom, or abortion, or taxes compelled them to make such a choice. But there’s no evidence a large number of Republicans object to Trump’s discriminatory policies, or to his frequent attacks on black public figures. According to one recent CBS poll, while most Americans disapprove of Trump’s record on racial issues, 83 percent of Republicans approve. The vast, overwhelming majority of Republicans aren’t quietly disgusted with Trump, but grateful for Neil Gorsuch. When Trump calls black athletes who protest police brutality “sons of bitches” and demands they be fired, they’re not embarrassed. They like it. Trump knows they like it. That’s why he keeps doing it. 
Given that, it’s hard to imagine that, even if a tape of Trump using the word nigger exists, it would substantially erode political support from his base. The idea that the word is some kind of red line that erases plausible deniability is an illusion. Every time Trump’s behavior violates some conservative value—from his alleged infidelity to his denigration of war heroes and gold-star families to his relentless crony capitalism— pundits predict his undoing, and Trump emerges unscathed. There’s no reason why many of Trump’s strongest supporters wouldn’t also be able to rationalize his use of a racial slur, especially given their enthusiasm for his culture-war provocations. 
It’s possible that this time would be different, that a recording of Trump using a racial slur would meaningfully alter his supporters’ perception of him. But given this track record, it seems very unlikely. 
The more likely outcome is the one that followed the recording of the president saying he likes to grab women “by the pussy.” Most Trump supporters easily acquiesced to the explanation that the remarks were mere “locker-room talk,” despite the more than a dozen women who said otherwise. This time, too, many would likely argue the tape is fake, or taken out of context, or that he’s being victimized by the political-correctness police. Or they’d simply change the subject. (Aren’t there lots of recordings of the Pulitzer Prize–winning artist Kendrick Lamar using the word? Checkmate, libs.)
The only thing I'd underscore here is that there is a propensity in the media to simply refuse to believe that sizable portions of the Republican base is racist. I think this stems from a lingering anxiety about being part of the "liberal media", all coastal elite-ish and out-of-touch with real America, and a corresponding skepticism about their intuitive instincts regarding the racial politics of middle White working class America. Sure, the most obvious reason for why they're attracted to Donald Trump is racism -- but that's such a mean thing to think! So media figures scramble about for alternative explanations that seem less judgmental and hostile -- hence how we've gotten years of "economic anxiety" narratives that just aren't backed by the data.

But the fact is, by and large Republicans like Donald Trump on race. It was racism, after all, that caused him to emerge from the pack of Republican candidates in the first place. Unabashed racism is and always has been Donald Trump's comparative advantage over other high-profile conservatives. And the past several decades have been one long campaign by conservatives in rationalizing what one might have thought would be indisputable cases of bigotry -- they're pros at it at this point.

So no, I don't think a tape of Trump using the n-word will have more than a marginal and fleeting impact on Trump's approvals. The people who like him already know who he is. That's why they like him.