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.

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.

After our meeting with Mitch Cohen, Director of @NationalRamah in March of this year, we believed that they would keep their word and muster the moral courage to include Palestinian narratives and have the tough conversations that we know are necessary, especially this summer.

— IfNotNow🔥 (@IfNotNowOrg) June 8, 2018

However, as the leadership of @ramahwisconsin makes clear, they “have made no changes in our approaches to Israel education from previous summers.”

— IfNotNow🔥 (@IfNotNowOrg) June 8, 2018

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.

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.

“What if the real secret of the Trump campaign isn’t that it’s a Kremlin operation, rather an Israeli operation masquerading as a Russian one?”

— John Schindler (@20committee) June 5, 2018

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.

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.

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 there 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.