Monday, September 23, 2019

Extremist Anti-Zionist Jewish Sect Requests Asylum in Iran

The Lev Tahor sect (really, closer to a cult) of Haredi Orthodox Judaism -- notorious for facing kidnapping and child abuse allegations -- has apparently requested asylum in Iran.

You may remember the Lev Tahor from their time in Guatemala, when Students for Justice in Palestine -- noting that Lev Tahor was (a) Jewish and (b) bad -- concluded that they therefore must be "Zionists". Lev Tahor is in fact extremely aggressively anti-Zionist, which may explain why they think Iran might be a hospitable site for an asylum claim. (As best I can tell, SJP's response to the fact that Lev Tahor is anti-Zionist, not Zionist, was to define the problem out of existence: anti-Zionism is good, Lev Tahor is not good, therefore, Lev Tahor cannot be anti-Zionist).

Sunday, September 22, 2019

Teaching is a Job, in Grad School and Out

The NLRB is gearing up to implement a new rule which would establish that graduate students, even when acting as teaching assistants, are not "employees" of the university and therefore are not entitled to labor law protections (such as the right to unionize). This is the latest swing in an ongoing battle over that issue at the NLRB, which has largely tracked partisan politics: grad students first won the right to unionize under a Clinton-appointee controlled board in 2000, lost it under the Bush administration in 2004, gained it back under Obama in 2016, and are poised to lose it again under Trump in 2019.

The logic of the argument that grad students are not employees is that we are primarily students, and our teaching roles are extensions of our role as students. I'm somewhat uniquely positioned to address this, as I became a graduate student after serving as a (non-permanent) faculty member at two universities, and thus was able to compare whether and to what degree serving as a graduate student instructor (Berkeley's term for a teaching assistant) differed from teaching as a faculty member.

Here's my answer: there's virtually no difference.

There are many things I've done at UC-Berkeley as a "student". Most obviously, I enrolled in classes for credit. I wrote a master's thesis, and will write a dissertation. In these roles, my relationship to the departmental faculty is pedagogical -- they are there to teach and mentor me, and I interact with them in effectively the same way as I did to my teachers as an undergraduate or a secondary school student.

But as far as Berkeley is concerned, I do not teach classes to be taught how to teach. I teach classes because Berkeley needs people to teach classes, and they've decided I'm qualified to do it. As a GSI, both my day-to-day and semester-long routines are effectively the same as when I was a faculty member. I build my own lesson plans, hold office hours, give lectures, grade papers, write letters of recommendation, and often times create assignments. Nothing in how GSI work is structured remotely resembles any pedagogical practice akin to the professor/student relation that exists when I, say, submit a dissertation draft. As a GSI, I receive effectively no mentoring or even oversight by faculty members (indeed, in three of the four classes I've taught as GSI, the lead instructor was another graduate student). The only substantial difference between being a lecturer at the law school and a GSI in the political science department is that in the latter case I do not have control of my class's overall syllabus -- but all this means is that I'm a worker underneath a boss. To the extent that Berkeley has taken an interest in teaching me how to teach, it's done so through a class in pedagogy. It is an accident of structure that my GSI responsibilities come attached to my studies as a PhD student -- they are scarcely different in form than what I would be doing if I was an adjunct instructor.

This ruling will not directly affect me (it only applies to private universities). And I say all of this as someone who has had a sometimes adversarial relationship with my own graduate student union. But that doesn't change the obvious fact that when I teach, I'm engaging in work, not study, and the law should therefore treat me as a worker, not a student. The determination that graduate students serving as teaching assistants are not acting as "employees" but as "students" is patently absurd to anyone who has ever worked as TA.

Saturday, September 21, 2019

What is Up With Minnesota Republicans and Antisemitism?

I know we all prefer to talk about she-who-must-constantly-be-named, but real talk: what is up with Minnesota Republicans and antisemitism?

First, there was 1st District Rep. Jim Hagedorn, who said Joe Lieberman's Iraq War boiled down to "Jew or Arab?" and accused his Democratic opponent of being "owned" by George Soros.

Then NRCC Rep. Tom Emmer, who holds down Minnesota's 6th District, sent out a fundraising letter accusing a triumverate of wealthy Jews (Soros, Michael Bloomberg, and Tom Steyer) of having "BOUGHT control of Congress" (when Minnesota Jews communicated their concerns that this echoed antisemitic verbiage, the response of the NRCC was essentially to tell them to get bent).

Now we have recordings of ex-Rep. Jason Lewis, until late of the 2nd District (and front-runner for the GOP nomination to take on Senator Tina Smith) claiming that Republicans (yes, Republicans) have "dual loyalties" to Israel and insisting that the "Jewish lobby" controls the Republican Party. He also raised concerns about persons who hold dual American and Israeli citizenship, falsely grouping John Bolton -- who's not Jewish -- into that category (gosh, I wonder what caused him to make that mistake?).

It almost makes you pine for the days of Michele Bachmann and her "chootz-pah" -- all she did was accuse American Jews of "selling out" Israel (and call for all Jews to convert to Christianity, though she did eventually apologize for that one).

For what it's worth, I haven't found any antisemitism in the record of the 8th District's Pete Stauber -- the only other Republican (alongside Emmer and Hagedorn) currently holding federal or state-wide elected office in Minnesota. So good on him, I guess (or maybe it's only a matter of time?).

Friday, September 20, 2019

If For Once You Do Succeed, Try Try Try Again

I don't want to say "this is the pathology of the Israeli left in a nutshell", because there are frankly too many pathologies to fit inside any one nutshell, but it absolutely deserves mention:
In April, Arab voters helped push left-wing Meretz over the 3.25 percent electoral threshold, saving it from total collapse. A key Meretz stronghold in the last election was Beit Jann. This Druze village in northern Israel is famous for having one of the country’s top-performing high schools and the former principal of that establishment, Ali Salalha, was No. 5 on the Meretz slate in April when the party won nearly two-thirds of the local vote — its best showing anywhere. But when he was moved down to an unrealistic spot on the Democratic Union list [which Meretz joined with], Salalha quit the party and voters in Beit Jann took their revenge at the ballot box on Tuesday: The Democratic Union barely captured 3 percent of the vote there.
"Hey, we had great success putting this local Druze star high on our ballot list! We probably should learn a lesson from that?"

"Absolutely! Quick -- demote him so far down he quits the party in frustration!"

Maybe lesson learned? Probably not.

Thursday, September 19, 2019

Israel's Arab Parties are Kicking the Door Down

The second Israeli election of 2019 is now in the books. Ballots are still being counted, but we can be almost entirely sure that when all is said and done, the Joint List -- a unified bloc of Israel's Arab parties (plus the Israeli communist party, which represents both Jews and Arabs) will be Israel's third largest party. Right now, the JL has won 13 seats in the Knesset (Blue & White is in the lead with 33, followed by Likud with 31; the Sephardic-religious party Shas is in fourth with 8).

This is a superb showing for the Arab bloc, which overcame vicious incitement and suppression efforts, and they have not been hesitant to dunk on Netanyahu in celebration (when Netanyahu asked what ministerial positions Blue & White promised the JL, party leader Ayman Odeh replied "The Minister of Affairs of Sending You Home.").

And I think this is actually even a bigger deal than many are letting on. Historically, Arab parties have not sat in government -- both because they've refused and because the Jewish parties have refused to sit with them. It is unlikely that this will change this time around -- though there remains a chance that JL could support a Blue & White coalition from outside the government.

Yet we are starting to see some cracks. Labor has explicitly urged B&W leader Benny Gantz invite the Arab parties to the negotiating table to potentially join a coalition, and apparently Gantz and Odeh will be having a meeting. Whereas in April the Arab parties didn't recommend anyone for Prime Minister, now there are some indications they may back Gantz -- they've at least put out a list of commitments they want from Blue & White on issues ranging from restarting the Israeli/Palestinian peace process to fighting crime in Arab neighborhoods.

But the most likely outcome of coalition negotiations is probably a "unity government" with both Blue & White and Likud joining a few smaller parties. In that universe, the Joint List -- as the largest party not in government -- would become leader of the opposition; a position which, ironically, would give them unprecedented access and influence within Israel's government.

All of this --  the feting for coalitions, the potential kingmaker status, the position as presumptive leaders of the opposition -- is a result of one thing: Arabs turning out to vote. I've noted for awhile now that the "left" (or at least "not-right") bloc doesn't have a plausible route to power in Israel any more that doesn't go through the Arab community, and results like these will impress that fact on people's minds. Labor is starting to get it, Gantz is starting to get it, and the Arab parties themselves are certainly starting to get it.

And this is how change happens. Forget waiting for the majority feel magnanimous. Kick the door down and make yourself a political force to be reckoned with. Go back and read Carmichael and Hamilton's Black Power -- you make yourself into an indispensable voting bloc whose support is necessary to prevailing in a given election, and you can extract a lot of goods even in the most hostile society.

The Joint List is in a position of real power right now. They've earned it. Time to see how they use it.

Monday, September 16, 2019

The Non-Mismatch of Rich Kids

Paul Tough has a bracing article in the New York Times about how collegiate admissions practices systematically favor underperforming wealthy kids who can afford to pay full tuition, framed around efforts to reverse that trend at Connecticut's Trinity College (via).

The short version is that, outside an incredibly tiny slice of hyper-elite schools like Harvard, most universities need tuition dollars in order to make their budgets work (this would include very good schools like Trinity, ranked in the top 50 of U.S. liberal arts colleges). Poorer students, who need scholarship support, represent a loss of tuition dollars -- in effect, schools need to balance our the low-income students they admit with high-income tuition-payers, even in cases where the poorer student is on merit alone a better candidate.

The way this plays out in practice is usually match-ups between high-GPA/low-SAT poorer students versus low-GPA/high-SAT wealthier students, which are repeatedly resolved in favor of the latter. The high standardized test scores are viewed as at least balancing out the low GPA, so it isn't really a case of taking a less-qualified wealthier kid over a scrappier, smarter, but poorer candidate. But often, it turns out, these test scores are themselves an artifact of wealth -- they reflect nothing more than that the student can afford SAT tutors and knows how to "play the game". Once they get to college, they revert back to high school form -- relative underperformers, unmotivated, and not on the level of their peers.
When Angel Pérez arrived at Trinity and took a close look at the way the admissions office had been making its decisions, what he found left him deeply concerned. “We were taking some students who probably should not have been admitted, but we were taking them because they could pay,” he told me. “They went to good high schools, but they were maybe at the bottom of their class. The motivation wasn’t there. So the academic quality of our student body was dropping.” 
At Trinity, Pérez’s predecessors had been able to capitalize on a pattern that admissions officers say they often see: At expensive prep schools, even students close to the bottom of the class usually have above-average SAT scores, mostly because they have access to high-octane test-prep classes and tutors. 
“O.K., you’re not motivated, you’re doing the minimum at your high school,” Pérez explained, describing the students Trinity used to admit in droves. “You have not worked as hard as your peers. But you did the test prep, and you learned how to play the SAT game.” 
If you work in admissions at a place like Trinity was before Pérez arrived, SAT scores can provide a convenient justification for admitting the kind of students you might feel compelled to accept because they can pay full tuition. It’s hard to feel good about choosing an academically undeserving rich kid over a striving and ambitious poor kid with better high school grades. But if the rich student you’re admitting has a higher SAT score than the poor student you’re rejecting, you can tell yourself that your decision was based on “college readiness” rather than ability to pay. 
The problem is, rich kids who aren’t motivated to work hard and get good grades in high school often aren’t college-ready, however inflated their SAT scores may be. At Trinity, this meant there was a growing number of affluent students on campus who couldn’t keep up in class and weren’t interested in trying. “It had a morale effect on our faculty,” Pérez told me. “They were teaching a very divided campus. The majority of students were really smart and engaged and curious, and then you’ve got these other students” — the affluent group with pumped-up SAT scores and lower G.P.A.s — “who were wondering, How did I get into this school?
The whole article is great, but I highlight this section because it at least gestures at an issue I've been  flagging for years: the potential (but largely unremarked upon) "mismatch" of wealthy students being admitted to universities that they are insufficiently prepared for. The "mismatch" hypothesis was pioneered by Richard Sander as an objection to race-based affirmative action programs which, he contended, systematically place minority students at schools above their intellectual level and thus harm their putative beneficiary. The talented student who would be a great fit for and excel at the University of Maryland instead is admitted to Cornell, where he struggles mightily -- ultimately losing more than he gains.

It was an interesting argument, but I argued then and maintain now that it is one whose logic would apply across many other cases where students are admitted to colleges that are -- at least based purely on academics -- "reach" schools. Athletes are one obvious example, but wealthy students whose case-for-admission relies primarily on (a) their ability to pay and (b) goosed standardized test scores that are also primarily a function of ability to pay would be another. Yet parents, guidance counselors, advisers, employers -- nobody acts as if these students will be hurt if they are admitted to Cornell instead of Maryland. Indeed, the entire structure of the collegiate application system is premised on the opposite -- a mad rush to ensure they do get into the "best" school possible.

Maybe they're all deluded; though it's just as likely that they will instead benefit exactly as they anticipate -- optimistically, from being pushed and forced to find a new gear in themselves, cynically from the value of letterhead. This is the only article I've ever seen even gesture at the possibility that the wealthy admits are themselves being ill-served -- finding themselves in an academic environment they're ill-prepared for, regressing back to their high school mean, and wondering whether they really belong at all (elsewhere in the article, we're told that Pell Grant recipients -- a good proxy for low-income students -- have significantly higher graduation rates than the student body writ large, suggesting that they're on the whole a stronger cadre of students).

But really, the fleeting consideration of this possibility is the exception that tests the rule. Is anybody truly concerned that the wealthy kid who got into Trinity primarily because they could afford to pay full-freight will be damaged for life? We might (and probably do) have sympathy for the meritocracy-based arguments that say he shouldn't have been admitted, but are we really also going to act like the objection to this system is for his own good too? No, obviously. The circumstances where smart, qualified, but poorer students are denied admission to good schools in favor of less-talented, less-qualified, but wealthier candidates is wrong -- but not because it's actually to the disadvantage of the latter group.

If You Can't Blame Omar ... Well, Buckle Up and Try Again

The other day, a thread by a right-wing commentator named Robby Starbuck made its way onto my Twitter feed, whipping up hysteria about "Somalis" beating up and robbing White people in Ilhan Omar's district.

There are several problems with this, starting with the fact that none of the local coverage I've read says that the perpetrators are entirely or even primarily Somali, and moving onward and outward to the incredible allegation local street crime is generally national news and only isn't when the perpetrators are Black (hey, have you heard about the gang of White students who beat up a Black classmate in Florida? No? Somehow it missed out on its entitlement to being the lead story on the Washington Post!).

As it happens, I used to live a few blocks away from the area where these crimes occurred. Crime wasn't rampant, but it wasn't entirely unheard of -- especially crime of the "robbing drunk pedestrians leaving the baseball stadium and/or surrounding bars" variety, which by all accounts appears to be what happened here. It's not a race war, and the neighborhood isn't under siege. It's crime.

In any event, I noted that -- at least at the time of Starbuck's tweet -- most non-Minnesotans probably hadn't yet heard about the arson targeting a synagogue in Duluth,* probably because it occurred in Rep. Pete Stauber's (R) district and thus couldn't be pinned on Ilhan Omar.

Of course, I'm giving people too much credit, because of course now I am seeing folks doing the whole "what about the synagogue fire!" at Rep. Omar -- and yet not, strangely-or-not-strangely enough, Rep. Stauber. For the record, Rep. Omar tweeted about the Duluth arson -- which occurred 150 miles away from her district -- on September 10th, while Rep. Stauber (who, to reiterate, actually represents Duluth) did so on September 12th.

Believe it or not, I don't bring that up as a "gotcha" at Rep. Stauber -- politicians move at different paces and one can always play the "why didn't you speak up on this faster" game. I raise it because it should, by all rights, conclusively falsify the notion that Omar was anything but way out in front on this tragedy, and deserves nothing but credit on it.

But it doesn't matter. Too many people, including too many people in my community, have been driven utterly, completely, unjustifiably bonkers by Ilhan Omar. It's fine to disagree with her on policy -- I disagree with her on (some) policies, most notably her backing of BDS. It's not fine to drop in on her any time something bad happens to a Jew within a 4,000 miles radius and go "Well? Well!?!" You want to talk about "tropes", or "implicit bias", or "double-standards" -- start right there and take a nice long drink from the fountain. It is a constant, ever-present feature of the discourse around Ilhan Omar, and it should sicken us.

* Following an arrest of the suspect, a local homeless man, police say they do not believe it was a hate crime. Of course, it still was a devastating loss for the Duluth Jewish community -- which had ample reason to fear that it was a hate crime, and certainly is following the ongoing investigation with interest.

Israel's Future in an Illiberal World

This essay by Robert Kagan on the current illiberal trajectory of the Israeli state is absolutely outstanding. I can't recommend it highly enough.

Most columns which talk about Israel in conjunction with the rise of global illiberal nationalism basically are exercises in what Marx would've called "bourgeois moralism" -- calling for Israel to resist it (or to stop actively participating in it) because it's wrong. Now, unlike Marx I think there is a perfectly valid place for moralistic appeals. But it certainly opens itself up to a response from a certain sort of fellow, who deems him or herself a hard-headed realist, who knows that such high-minded ethical appeals have no actual purchase in the dog-eat-dog, every-nation-for-itself world of realpolitik. Israel has to do what's best for Israel -- same as every other country. If that means shedding democracy, or liberalism, or egalitarianism, well, boo-hoo for them.

Kagan's contribution is useful because it is expressly addressed to that sort of fellow, and I endorse it not because I agree with this outlook but because I recognize it is an important one that many people -- rightly or not -- hold.

Kagan's essay explores what Israel's status would be -- not what it ought to be, not what it should be if states were fair and just and nice, but what it would be -- in an illiberal world where America and other major powers were motivated primarily by a sort of insular, anti-cosmopolitan nationalism. In this world, bonds between nations would, where they form at all, be based on material concerns and the conveniences of power -- the world Charles de Gaulle imagined when he said "nations don't have friends, only interests." And the answer is that while in the immediate term Israel might find friends in the budding illiberal powers currently popping up -- from Trump to Orban to Modi to Putin -- in the long-term such a world would almost certainly result in an Israel isolated, alone, and -- at best -- abandoned to its own fate.

Historically, Israel viewed its own security and standing as a new and relatively fragile state as being intricately connected to its status as a democratic state and society that would be a member in good-standing of the liberal political order. In a world where Israel's neighbors had more people, more territory, more wealth, and more oil, the main factor that could bind any major power to the Jewish state is a perception of shared values.

But the decline of the post-Cold War liberal order (liberal America and the EU) and the rise of illiberal alternatives (e.g., China and Russia, but also Trumpism in America and right-wing populism in Europe and globally) has given Israel a choice in didn't have before. Today, Israel doesn't have to be liberal in order to gain the support from other global powers. China doesn't care if Israel is democratic. Russia hardly minds if Israel is repressive. And within the traditional seats of international liberalism, one sees rot from the inside -- from Trump's rise to the chaos over Brexit. A right-wing populist like Netanyahu doesn't lack for ideological allies in the international system.

Yet, Kagan warns, Israel is delusional if it thinks that an "America first!" America, no longer concerned with trifling things like "democracy" or "shared liberal values", will be a reliable ally ever outward into the future. Why would it? Insular nationalism by its very nature doesn't lend itself to establishing these sort of enduring, values-based bonds. It is facile to assume that America will simultaneously retreat from seeking to promote a vision of liberal internationalism yet will remain committed to the security and flourishing of small nations halfway across the globe whose very presence seems to alienate much larger and objectively more important countries. If shared values matter, Israel can argue the fact that it's a pariah among some many states is a case of hypocrisy, illiberalism, or outright hate, and that it'd be just plain wrong for America to give into it. But that refrain -- whether fair or not as an ethical matter -- is simply irrelevant if America's foreign policy is "America first!" Only in a world where international ethics matter can Israel appeal to ethics as basis of a stable diplomatic relationship.

Kagan draws a parallel to right-wing Polish nationalists, who somehow think that a US that chooses to abandon NATO will nonetheless maintain a special security commitment to Poland. Those figures are out of their minds: if America ceases to care about the NATO alliance, it will in turn cease to care about Poland -- if not immediately, then shortly thereafter. More broadly: if America is in the game only for itself, playing real power politics, eventually Israel will find itself cut loose as soon as its in the transient American interest to abandon it.
What makes Israelis think if the United States were to cease supporting the liberal world order and began shedding the alliances it created after World War II, that the only ally it would not shed would be Israel? (Amusingly, many Poles these days also seem to believe that if the United States pulled out of NATO, it would still maintain the security relationship with Poland.) And how would Israel fare in the kind of world that would emerge if the United States stopped trying to uphold the liberal order? Such a world would once again be a multipolar struggle for power and advantage, pitting Russia, China, India, Japan, Iran, the stronger European powers and the United States against one another — all with large populations, significant territories and vast economies. What would be the fate of tiny nations such as Israel in such a world, no matter how well they might be armed and no matter how advanced their economies? In today’s world, Israel is strong and successful. It outshines its weaker and less-developed neighbors. But in the world of self-interested sovereign nation-states, a world with no liberal community, Israel is a mouse surrounded by elephants, all clamoring for a piece of the Middle East. Historically, from the Romans to the Ottomans to the British and French, the peoples of the Middle East have enjoyed only such autonomy as the ruling empires granted them. Otherwise, they were pawns and victims in a much larger game in which they were hopelessly outmatched.  
Could Israel, with its few millions of citizens, surrounded by enemies on all sides, and no longer living under the umbrella of the United States’ global hegemony, rely on the support of European nations ruled by right-wing nationalists? 
The answer is simply: no. It cannot rely on the enduring backing of foreign nation's committed to their own brand of domestic ultranationalism (it is frankly bizarre that anyone with a modicum of knowledge about Jewish history could believe otherwise), and a world where Israel has thrown its lot with that crowd is a world that will rapidly become exceptionally dangerous for Israel. Kagan concludes:
The price Israel paid for being born into the liberal world order was that it would have to suffer liberal criticisms and be held to liberal standards. This may have been difficult and even, from Israelis’ perspective, unfair, but Israeli leaders have borne this burden for 70 years because they knew Israel had no choice, that there was no home for Israel except within the liberal world order. That many Israelis now believe they have a choice is a reflection of our times, but it is a dangerous illusion. Those Netanyahu campaign posters showing him shaking hands with Putin, Modi and Trump carry the tagline, “A Different League.” Indeed, it is. Good luck.
Good luck indeed. The world Netanyahu hopes to help build is a world where Israel one day -- and perhaps not a particularly distant day -- will find itself truly alone, truly cut-off, and if the worst comes without America or anyone else interested in bailing it out.

Friday, September 13, 2019

How To Be Honored By Conspiracy Theorists

There's a conspiracy theorist who periodically sends me emails. Today, for example, it was a sustained discussion about "dancing Israelis on 9/11" -- an oldie, but I suppose back at the top of the mind given the recent 10th anniversary.

These emails, though are not sent just to me -- he helpfully doesn't bcc his recipient list, so I can see exactly who else he thinks is worth targeting with messages insisting that the WTC attacks were a Zionist plot!

And what it list it is! It's just 18 people, but they include such eminent figures as Cass Sunstein, Larry Lessig, Mark Tushnet, Adrian Vermeule, Noah Feldman, Stephen Carter, Adam Winkler, Ekow Yankah ... and me! Me! In such august company! To even be included in the same (spit-flecked conspiracy-mongering) sentence as those luminaries -- I can't express what an honor it is. It's right up there with the time I discovered someone had created a troll website just to call me a "disgusting Zionist punk".

Focus on the positive, that's my motto.

Wednesday, September 11, 2019

North Carolina Republicans Commemorate 9/11 in the Most NC-Republican Style Imaginable

It is the anniversary of 9/11, a somber occasion where Americans reflect with sadness upon one of the worst terrorist atrocities ever to have impacting our nation -- but perhaps also with a bit of hope, recalling the brief moment of patriotic unity that brought us together as one nation, indivisible.

Meanwhile, in North Carolina:
While many of their Democratic counterparts were attending a 9/11 memorial event, Republicans in the North Carolina House of Representatives took the opportunity Wednesday to override the governor’s veto of the state budget. Rep. Jason Saine (R) made the motion to reconsider the controversial budget, prompting chaos to ensue in the nearly half-empty chamber. House Democratic leader Darren Jackson said he was told by Republicans there would be no recorded votes that morning, leading him to tell his caucus that they did not need to be at the session. Speaker Tim Moore (R) ignored objections from the 12 Democrats—of 55 total—present, and allowed the vote to proceed.
The Democrats in attendance told reporters they did not all have a chance to vote. According to Jackson, their microphones were cut off.
It's no accident that North Carolina was the state where a GOP candidate was literally caught ballot tampering to try and steal a federal election. There probably isn't a state in the union where the Republican Party has grown more openly contemptuous of the democratic process than the Tarheel State (yes, I'd say they even beat Wisconsin).

Tuesday, September 10, 2019

Takeaways From the NC-09 Special

Republican Dan Bishop defeated Democrat Dan McCready in a North Carolina special congressional election 51-49, keeping this historically conservative seat red (Trump won it in 2016 by 11 points). The special election occurred because the initial result in 2018, a narrow Republican victory (by a sub-1000 vote margin), was tossed out after massive voter fraud efforts were uncovered in support of the prevailing GOP candidate.

So, what do we make of it?

The highest tide of the "Blue Wave" has receded

2018 was always going to be a high-water mark for the Democratic Party. Just as the 2010 Tea Party backlash didn't presage a GOP victory in 2012, huge Democratic wins in 2018 doesn't necessarily tell us that much about 2020. A narrow Democratic victory in Wisconsin in 2018 translated to a narrow Democratic defeat in 2019, for example, and that bodes extremely ominously for 2020. And so too here: Bishop generally overperformed GOP 2018 numbers all across the district save Mecklenberg County (mostly suburban Charlotte) -- though he still dramatically underperformed Trump's margins. "Losing a Trump +11 district by less than a point" was the Democratic high water mark, and it receded to "losing it by two points."

The big question, then, is not whether Democratic gains would ebb after 2018, but by how much.

There are no moral victories, but there are data points

Commenting on a similar special election race in early 2018, I wrote that while there are no "moral victories" in politics, there are data points, and Democrats overperforming their 2016 margins by approximately 10 points is such a data point even when that still results in a narrow defeat. Some people scuffed because "a loss is a loss", but history vindicated the trend lines.

Since 2018, Democrats in special elections have outperformed Hillary Clinton's performance by approximately 5.5 points. That's not "crushing Blue Wave" territory, but it's certainly good news. It'd be enough to flip North Carolina blue, for example (and a 9 point swing, like we saw in this election, would do so decisively).

Sub/urban vs. rural continues to be the division of note

We sometimes speak lazily of "rural" as a synonym for "White conservative", but places like North Carolina ought remind us that there are plenty of southern locales with significant rural Black populations. McCready won Scotland County (population 36,000, 51% White) and Anson County (population 25,000, 49% White) by double-digit margins. But that's not surprising: Hillary Clinton won both those counties by double-digit margins too. Bishop's best county by far was not rural but exurban Union County, which he took by 20 points.

Nonetheless, when one looks at trend lines the sub/urban vs. rural divide certainly seems to be alive and well. Those blue-ish rural counties? McCready might have won them, but he barely improved on Clinton's numbers and was way behind his 2018 performance. By contrast, Mecklenberg County, which comprises parts of Charlotte and its suburbs, was the one place McCready overperformed: his 13 point margin beat his benchmark indicator by 4 points and obliterated Clinton's 47/50 defeat in 2016.

Meanwhile, a 20 point Republican victory in the exurbs of Union County sounds good until you compare it to Trump's 31 point margin in 2016. It was in rural areas, including those blue-ish leaning ones, that Bishop made up serious ground. Holding McCready to the same margins in Anson County that Hillary Clinton got is a big deal when Clinton lost the district by 11 and McCready lost by just 2.

From a strategic standpoint, there's different conclusions one could draw from this. One conclusion is that well-educated suburban areas are the wave of the Democratic future and liberal organizations should try to consolidate gains there -- if places like Mecklenberg go from light-red swing districts to double-digit Democratic strongholds, that's a disaster for Republicans in North Carolina, Georgia, Texas, and many other states besides. A different conclusion is that these areas aren't enough to win and McCready's failure to mobilize turnout in heavily African-American regions of his district shows that Democrats cannot take these voters for granted anymore. It does no good to run up the score in the suburbs if you lose the entire margin when reliably Democratic Black voters stay home.

Voter fraud works?

In the Atlantic, David Graham makes the provocative point that -- while we don't know if Dan McCready would have won the 2018 election had his Republican opponent not engaged in ballot tampering -- there's no question that it helped GOP chances even though he got caught. Republicans were always going to be better positioned to win here in a 2019 special versus in the 2018 blue wave (see "highest tide has receded", above). And so in that sense, the voter fraud move paid off. Hopefully that lesson isn't internalized.

Monday, September 09, 2019

The One Thing The Sanford Primary Is Good For

Former South Carolina Governor and Representative Mark Sanford (R) has announced a primary challenge against President Trump. This could have been valuable, except that instead of challenging Trump on the basis of his rank bigotry -- which Sanford is actually decently positioned to tackle -- he's focusing his campaign on the national debt. Seriously.

The one benefit of a Sanford challenge (and his inevitably mauling) is that it does give a clean resolution to the "it's not that I like Trump's rank bigotry, I just think Democrats are profligate spenders and I couldn't bring myself to vote for them" narrative:

"So then you'll vote for a Republican alternative who focuses on fiscal responsibility and doesn't carry Trump's bigoted baggage?"

"Hell no. #MAGA2020!"

(Of course, this perhaps assumes that Republicans will even allow a primary challenge to Trump which -- well, let's just say not all states are onboard with that).

Saturday, September 07, 2019

Federal Court: "Jewish" Isn't a Race Under Title VII

Last year, I wrote about a federal court opinion in Bonadona v. Louisiana College, addressing whether Jewishness is a "race" for purposes of Title VII litigation. The question rarely comes up, because Title VII also protects against religious discrimination, and so Jews suing on basis of antisemitism typically just use that as their statutory hook. But Bonadona involved a Jewish-born convert to Christianity, who was nonetheless allegedly denied a position at a Christian university on the basis of his "Jewish blood" (yes, that phrase exactly). So he couldn't claim religious discrimination -- he was Christian, just like his would-be employers -- but the reference to "Jewish blood" certainly smacks of an employer who viewed (and disparaged) Jewishness as a race.

The decision last year concluded that Jewishness is, or at least could be, a race for Title VII purposes. But it was actually only a magistrate's recommendation, and a few days ago the district court judge apparently overruled that recommendation (via) and decided that Title VII categorically does not provide protections to Jews as a "race" because Jewishness was not understood to be a race in 1964 (I say apparently only because the court's opinion does not mention or discuss the magistrate's recommendation in any way).

This lack of discussion is disappointing, since the magistrate's opinion raised some issues that I think are worthy of discussion but get no attention in the relatively sparse treatment offered by the district court. The latter's analysis begins and ends with (for what it's worth, uncited) declaration that Jewishness wasn't viewed as a race in 1964, and so consequently the statute could not have been intended to encompass Jews (at least, as a race). This distinguishes the Bonadona case from other precedents which found Jewishness was a race for the purpose of Section 1981 litigation -- Jewishness was seen as a race in the 1860s, but wasn't by the 1960s.

To me, though, this analysis isn't persuasive, and smacks of a sort of vulgar textualism (what in the constitutional context is sometimes called "original expected applications originalism) that is just wrong as a matter of fundamental legal interpretation. The right question -- even from an originalist/textualist vantage -- isn't whether Jews were (by everyone? the majority? themselves?) viewed as a race in 1964 (or 1866). It's whether, under the prevailing understanding of "race" that would have dictated meaning in 1964, Jews are being viewed as a race now (either generally, or in the particular fact pattern at issue).

For example, suppose that in the mid-1970s, a race of human mole people emerged from beneath the earth and sought to integrate into above-ground human society. Though they're biologically human, they have their own distinct customs and practices, and are physiologically distinguished by their dark blue skin. In the United States, they are quickly assimilated into normative American race politics (e.g., White supremacists hate them, some people are nervous about allowing them into their children's public schools, a network of stereotypes about them quickly entrenches itself, and so on). Are they a "race" for Title VII purposes? It'd be weird to answer "no" because in 1964, "moleman" (not yet having been discovered) wasn't recognized as a race. Rather, the question is, given what "race" was understood to have meant in 1964, whether the manner in which the mole people are being treated corresponds to a racial category. If the answer is "yes", then they're a race for purposes of the statute. If not, then they're not.

The reason we have to stretch to a hypothetical about "mole people" is that it's quite hard, under prevailing contemporary understandings of race, to imagine a clear cut example of a new race being "discovered". In reality, while race is not a static concept, social groupings don't move into or out of the category all at once. In the case of Jews, for example, sometimes we've been viewed as a race and other times not, and even within a discrete time period some people have viewed us as a distinct race and others not. White supremacists today still discriminate against Jews on racial, not (just) religious, grounds, even though many other people do not view Jews as racially distinct. That was probably equally true in 1964. It seems very odd to say that discrimination that is both expressly described by the perpetrators and acutely experienced by the victims as occurring on racial grounds is nonetheless not on basis of "race" because ... what, exactly? Jews aren't "really" a race? There isn't a metaphysical  or biological reality to race, other than how it's performed -- the act of treating a group as racially distinct is all there is to race-ing a group.

Consequently, I'd suggest that, at minimum Jews are a race for Title VII purposes in cases where the discriminatory treatment they experience is racialized. The markers of racialized treatment -- which I think had purchase in 1964 -- are things like viewing ones personal character or human value as dictated by one's biological ancestry, assuming sweeping similarities across a wide range of character traits based on perceived physiological or genetic similarity, viewing the group as one which has the potential to degrade or "pollute" the gene pool, perceiving membership in the group as per se (or at least highly suggestive) evidence for all individual members that they are congenitally incapable of integrating with others not-like-it, and so on. Admittedly this may not be amenable to being nailed down  with precision-- but that fuzziness is probably why Title VII doesn't attempt a definition of "race" (if it were as simple as "the groups that were generally classified as races in 1964", then the statute could have easily just given that list). To a large extent, when it comes to whether a particular group is being viewed as a race, "we know it when we see it".

Does the above rule -- where one is a race when one's discriminatory treatment is racialized -- cover all cases of antisemitism? Not necessarily. Someone who refuses to hire a Jew because "they don't worship the same God I do" is engaging in religious discrimination, but that sort of statement does not on its own evince a view of Jews as a distinct racial group. One can imagine a range of cases that get grayer and grayer as you approach the middle, but refusing to hire someone because of their "Jewish blood" seems to sit pretty comfortable on the far side of the spectrum.

And this, I think, represents a more faithful application of the original understanding of the word "race" in Title VII than the casual inquiry given by the District Court. It is unlikely that the drafters of the Civil Rights Act thought of themselves as protecting certain ahistorical and immutable categories of "races" that existed from the depths of antiquity and would persevere endlessly into the future. By 1964, when we had started abandoning the view of race as a biological reality and instead treated as a sociological category, a "race" for Title VII purposes is a group that is treated as a race in cases covered by the statute.

Thursday, September 05, 2019

The Chaos Principle

The "best paper" in APSA's political psychology section this year was an exploration of the role of "chaos incitement" in contemporary politics, with particular reference to the rise of Trumpism (H/T).
The authors describe “chaos incitement” as a “strategy of last resort by marginalized status-seekers,” willing to adopt disruptive tactics. Trump, in turn, has consistently sought to strengthen the perception that America is in chaos, a perception that has enhanced his support while seeming to reinforce his claim that his predecessors, especially President Barack Obama, were failures.
Petersen, Osmundsen and Arceneaux find that those who meet their definition of having a “need for chaos” express that need by willingly spreading disinformation. Their goal is not to advance their own ideology but to undermine political elites, left and right, and to “mobilize others against politicians in general.” These disrupters do not “share rumors because they believe them to be true. For the core group, hostile political rumors are simply a tool to create havoc.”
This isn't purely a right-wing phenomena -- Bernie Sanders also carries some appeal to this cadre, and surely it describes much of what draws people to Corbynism in the UK -- but it does tend to benefit the right more. And that's actually a really important observation when considering how to appraise this sort of rhetoric when it does appear on the left. Generalized fulminations whereby "all politicians" -- left or right, Democrat or Republican -- are bought, corrupt, in the pocket of big businesses, indistinguishably in thrall to the interests of a narrow elite, help Sanders-types internally in intra-progressive debates, but help conservatives generally across a wider partisan system.

This generates a serious problem, because a quite viable and attractive strategy for left insurgents to win within the Democratic Party -- focusing on allegations that the DNC is corrupt, primaries are rigged, most Democratic pols are basically indistinguishable from Trump anyway -- is likely to prove cataclysmic for progressive chances in general elections. The reason isn't, as it's sometimes portrayed, that the party will have moved "too far to the left". Rather, it's because the political stylings and psychological orientation of this mode of argument, which more-or-less indiscriminately targets established institutions (including everything from party leadership to academic communities to scientific consensus), is one that structurally favors conservatives over progressives.

What It Means for Jews To Vote Tory

Daniel Sugarman has an interesting column on the prospect of UK Jews voting for the Conservative Party, simply because Jeremy Corbyn is unacceptable. What's interesting about it is that it pretty forthrightly acknowledges that Boris Johnson's Conservatives are unacceptable too -- to name just one issue, their Islamophobia is on par with Labour's antisemitism.

Sugarman frames his discussion around a Muslim colleague of his who loathes Corbyn, fully acknowledges his role in fomenting Labour's antisemitism crisis, yet indicates he might have to hold his nose and vote Labour anyway because the prospect of empowering Johnson's hatred towards his community is too awful to stomach. The premise of the column is that this logic is wholly reasonable and permissible -- it is legitimate for a Muslim voter in the UK, fully aware of (and repelled by) Labour's antisemitism, to nonetheless prioritize his or her own safety and vote against the Conservatives; and by the same token it is legitimate for a Jewish voter in the UK, fully aware of (and repelled by) the Tories's Islamophobia, to nonetheless prioritize his or her own safety and vote against Labour.

It's worth underscoring just what this logic actually implies, though. Many have thought that any British voter who votes Labour for any reason is, ipso facto, selling Jews out -- signaling that the appalling antisemitism that has followed in Corbyn's wake is unimportant or even acceptable. But Sugarman's argument means we can't accept this, anymore than we can accept that Jews voting against Corbyn and for Johnson are thereby signaling toleration for Islamophobia. People have all sorts of reasons for voting the way they do. Moreover, while Sugarman's logic sanctions Jews voting for Tories, it gives no such rationale for why anyone else should do so. After all, there is no a priori reason why a young non-Jewish, non-Muslim progressive voter should prioritize rejecting Corbyn's antisemitism over Johnson's Islamophobia. If both of those weigh equally on their conscience, then they cancel out, and then the question is whether Corbyn's Labour Party is better generally than Johnson's Conservatives -- presumably, most progressives would quite reasonably find the former to be more amenable to their interests.

True, under normal circumstances, it is fair to demand that people sacrifice certain private interests in deference to important moral considerations -- this is why the Trump voter who doesn't approve of "Build the Wall" and "Keep Muslims Out", but really, really wants a tax cut, can fairly be deemed to be racist (the failure to properly prioritize in the face of overwhelming moral necessity represents a dereliction of one's duty of care towards racialized others). But the point of Sugarman's analogy is that here there are huge moral catastrophes looming on both sides (and we haven't even mentioned Brexit yet). UK politics right now is a tragedy -- between Labour and Tory, there are no good options, or even acceptable options. It's just a choice between competing abominations. So long as one recognizes the sort of play that they're in, I don't really begrudge how they decide to act out their role.

Of course, for me this entire discussion immediately raises the question: why not LibDems? They aren't perfect, but they're unabashedly anti-Brexit and lack the institutionalized bigotry that afflicts their larger compatriots.  But while, unlike the US, the LibDems give British voters a valid third party option, Britain's first-past-the-post system nonetheless can see wild results in constituencies where more than two parties are seriously contesting. It's not out of the question that a reasonable voter might have to vote strategically, which brings us right back to where we started.

I've remarked before that the chaos in UK Labour is perhaps the only thing that's ever given me sympathy for "Never Trump" Republicans. On the one hand, the health and future of a viable, non-hateful British progressive community depends on Corbyn getting spanked. Only that can break the fever. This was one of the (many) tragedies of 2016: had Trump lost, it is at least possible -- possible -- that Republicans would have concluded that the path they were traveling was unsustainable and had a moment of reckoning. But now that Trump won, certain seals that should've never been broken have been shattered -- I'm skeptical that we will see a GOP that's even a tolerably ethical choice for decades. If Corbyn loses, maybe the spell breaks. But if he wins -- if, in spite of everything, it turns out that this brand of feverish populism and conspiracy-mongering is capable of carrying an election -- the damage could be felt for generations.

And yet: these are not normal times. It's one thing to suffer through a cycle of conservative governance -- nations survive those, as terrible as they are, and the damage they inflict -- while often extensive, is rarely permanent. But thanks to Brexit, the UK is in a singular political moment -- poised to self-sabotage in an unprecedented way that could not be fixed or even seriously ameliorated next cycle. The prospect of handing over government to the Tories and allowing Boris Johnson to lead a Brexit as he sees fit is horrifying to contemplate -- it is a sacrifice that goes way beyond a few years time in the opposition.

Complicating it all is the fact that -- as much as Brexit represents the defining issue of this generation of British politics -- Jeremy Corbyn doesn't oppose Brexit. It'd be one thing to demand that voters hold their nose and vote Labour anyway to stop Brexit -- but it's far from clear that Corbyn's Labour party would actually do that. In a real sense, the two main party choices are between an Islamophobic conservative party desiring a Hard Brexit at any cost, and an antisemitic progressive party pushing for a "Soft Brexit" (or Lexit) that doesn't actually exist. Some choice.

I don't envy anyone who has to make it. Were it me, here would be my chain of voting of priority:

  1. Vote LibDem, in any race where it's feasible they'll win;
  2. In races where the LibDem candidate can't feasibly win but the Labour candidate can, vote Labour if the candidate is both (a) seriously pro-Remain and (b) not antisemitic or an apologist for antisemitism in Labour (and there are -- yes, really -- plenty of Labour MPs who are not. There is a huge difference between Ruth Smeeth and Chris Williamson);
  3. If the Labour candidate fails these tests, vote Conservative if the candidate is (a) seriously pro-Remain and (b) not Islamophobic or otherwise hateful;
  4. If both the Labour and Conservative candidates fail their litmus tests, then vote for the best remaining candidate (even if they stand no chance at winning). 

Tuesday, September 03, 2019

Tories Lose Working Majority as Pro-EU MP Defects To LIbDems

UK Prime Minister Boris Johnson's Conservative working majority in parliament -- which was down to a single vote -- is now gone, as former Minister Philip Lee dramatically walked over to the LibDem bench and joined the opposition in the middle of a Johnson speech. Lee had long been a pro-Remain voice in the party, but said the final straw was arch-Leaver Jacob Rees-Mogg mocking the doctor who had written the official report on the healthcare consequences of a no-Deal Brexit -- one in which he warned that increased patient mortality was a likely result.

At the same time, parliament dealt a huge blow to Johnson by voting to preserve their authority to stop a no-Deal Brexit. Twenty-one Tory MPs bucked the party (and braved threats of expulsion from the Conservative ranks); Johnson has sworn to call early elections in response.

UPDATE: The Tory rebels have had their whips removed and now sit as Independents.

Saturday, August 31, 2019

Ma Vector Roundup

I'm on the job hunt this fall, and "Ma Vector" is my official unofficial callsign (it's a long story).

* * *

Iranian judoka Saeid Mollaei apparently flees to Germany from Japan in an asylum bid. He had been under intense pressure to throw matches in order to avoid facing an Israeli competitor, Sagi Muki, in international tournaments (Muki just became the first Israeli to win a world championship). Mollaei will apparently be eligible to compete in the 2020 Olympics on the "refugee" team.

New York Republicans remove antisemitic video; replace it with antisemitic text.

Contra The Young Turks, and with all due respect to John Delaney, the reason John Delaney "peaked at 2%" starts and ends with "who on earth is John Delaney?"

Several Chinese undergraduate students at Arizona State were denied entry to the United States and deported back to China. This follows on the heels of a Palestinian student at Harvard also being denied entry, reportedly due to political comments by some of his Facebook friends.

Antisemitic beliefs are taking hold in the Evangelical Christian community.

Trump's efforts to gain the support of Jewish voters don't seem to be working -- probably because he doesn't understand what motivates Jewish voters.

Boris Johnson's net approvals as PM are at -6%. Jeremy Corbyn's net approvals are -59%.

Wednesday, August 28, 2019

Trump Administration Targets US Troops in New Anti-Citizenship Rule

The Trump administration has issued new rules denying automatic citizenship to the children of U.S. servicemembers and government employees born while their parents are serving abroad. Until now, such persons were deemed to be "residing" in the U.S. and so therefore were automatically citizens at birth. Under the new rules, while the children remain entitled to citizenship, their parents will have to proactively apply on their behalf before they turn 18 -- new bureaucratic hoops that undoubtedly will cause some children to unwittingly never actually attain citizenship. The legal justification strikes me as quite thin -- under U.S. law, it already is the case that servicemembers and their spouses are legally deemed to be "residing" in the U.S. when deployed overseas, but the Trump administration says that the statute doesn't specifically say their children are so residing. I'd say that if you're born to someone deemed to be legally residing in the U.S., it'd be fair to infer to you were born residing in the U.S. as well. And until now, that was law.

There's no real point to this. It appears to be motivated by nothing more than the Trump administration's indiscriminate obsession with tightening immigration laws. Hell, here the primary victims are going to American citizen parents who are already sacrificing to represent their country. This is a gratuitous slap in the face to them. Who out there is thinking "it's just so unfair that the children of Americans serving their country abroad get citizenship automatically, just as they would if their parents were stationed stateside?" Who is the constituency that wants to target this population?

The only thing I can think of is that Stephen Miller and company are hoping that, in twenty-five years or so, they'll be able to snag a few more cases like this one: deporting people who grew up American, assumed they were American, lived as Americans, and yet will be banished from America if they at all run afoul of the criminal justice system. Most of us read that story and had our hearts wrenched. The Trump administration reads it and smells opportunity.

All of which is to say, and say again, the cruelty is the point.

Monday, August 26, 2019

The Winnowing Begins

The Democratic primary field is finally starting to winnow down a bit. Some candidates, like John Hickenlooper, Jay Inslee, and Seth Moulton, have formally dropped out. But the bigger crunch on more marginal candidates might be the failure to qualify for the next debate. Currently on the chopping block, due to low polling figures, donor numbers, or both, are:

  • Rep. Tulsi Gabbard
  • Marianne Williamson
  • Tom Steyer
  • Sen. Kirsten Gillibrand
  • Mayor Bill de Blasio
  • Gov. Steve Bullock
  • Ex-Rep. John Delaney
  • Rep. Tim Ryan
Will anyone miss any of these people once they're gone? I wouldn't have minded a little more Kirsten Gillibrand, but the fact is her campaign never really seemed to get off the ground and I've come to accept that. I might have said the same for Steve Bullock, except he falls in the "should be running for Senate" category. 

Beyond that, this is a list people who were always going to be also-rans (Ryan, Delaney, de Blasio) and people who were always going to be also-rans and also are deeply terrible (Gabbard, Williamson). Tom Steyer's decision to pump millions into a vanity campaign that had zero chance of winning instead of investing in things like voter access or state legislative races is also pretty hard to swallow.

Technically, these candidates still could soldier on, but one has to think the writing is on the wall. The remaining candidates who've qualified for the next debate are:
  • Former Vice President Joe Biden
  • Sen. Elizabeth Warren
  • Sen. Bernie Sanders
  • Sen. Cory Booker
  • Mayor Pete Buttigieg
  • Former Housing Secretary Julián Castro
  • Sen. Kamala Harris
  • Sen. Amy Klobuchar
  • Ex-Rep. Beto O'Rourke
  • Andrew Yang
That, to me, is a far more manageable field. Yang's the oddball, Buttigieg I think has already peaked, and I'm pretty well over O'Rourke at this point, but I think a field of this size offers some of the more middle players like Castro or Booker at least the potential space to grow -- and if they can't make a move now, that's a good sign that they never will.

Friday, August 23, 2019

Partial Expression and Anti-Discrimination Law

Today, the Eighth Circuit Court of Appeals, by a 2-1 vote (Judges Stras and Shepherd in the majority, with Judge Kelly dissenting), held that it was unconstitutional to apply Minnesota's anti-discrimination statute (which covers sexual orientation discrimination) to a videography company that wanted to get into the wedding video business but objected to filming gay weddings. Insofar as the statute required the videography company to treat same-sex and opposite-sex marriages alike (i.e., film both of them), it violated the videographer's free speech rights, since it effectively compelled them to express favorable attitudes towards same-sex marriages (which they in fact object to on religious grounds).

In the context of anti-BDS law debates and others, I've been writing a fair bit about how cases like this well-illustrate why liberals should be wary about endorsing sweeping interpretations of the First Amendment as conflicting with (and trumping) anti-discrimination claims. As "First Amendment Lochnerism" swells in influence, there is more and more of a risk of huge swaths of anti-discrimination law being struck down as unlawful discrimination. After all, anti-discrimination law inherently asks that people associate with those they'd rather not associate with, and implicitly register their approval of social relations they might not approve of. If this is interpreted as an affront to their free speech rights, then anti-discrimination law as a whole is in mortal peril.

That said, it is clearly the case that there are genuine and nettlesome free speech problems that can emerge in cases like this. And I do not think they can be ignored just because the plaintiff is engaged in for-profit work. Movie-making is, after all, often a for-profit business, yet it would be catastrophic if the government could say therefore there is no free speech rights available to directors or screen-writers in the content of their creations.

So -- are wedding videographers or photographers different? And if so, how?

The core distinction the majority seems to rely upon is that between "expressive" and "non-expressive" activity. Something like making a movie is an expressive act. It is artistic, it requires editorial judgment, it is the creation of art. Movies are thought of as a reflection of a creator's expressive vision; a medium for them to transmit a particular thought or view about a slice of the world. Contrast that to serving food at a restaurant: this is not typically thought of as a means of sending a message. Compelling someone to make a movie they don't want to make would do violence to their First Amendment rights. Compelling someone to serve food to someone they don't want to feed would not.

To be sure, all activity can be "expressive" in some sense -- for example, a bigot might say that requiring him to serve a black customer at his restaurant implicitly expresses the view that the customer is his equal and worthy of service. But the idea behind the distinction is that most people do not typically view the act of serving food at a restaurant to be expressive, and so requiring restaurants to serve customers in a non-discriminatory fashion doesn't burden speech even if it "incidentally" has certain expressive feature (like "I'm willing to serve this customer").

The court concluded that making a wedding video is an expressive activity. The videographers, in their words, use their "unique skill[s] to identify and tell compelling stories through video." "They exercise creative control over the videos they produce and make 'editorial judgments' about 'what events to take on, what video content to use, what audio content to use, what text to use . . . , the order in which to present content, [and] whether to use voiceovers.'" This is all quintessentially expressive in nature, and so compelling a business to effectively "editorialize" in favor of a wedding they disapprove of is a First Amendment violation -- it forces them to directly, not incidentally, express thoughts they disavow.

There's some force to this. But something about it kept nagging at me, and I was trying to nail down what it was. Here's my best stab at it:

Nobody hires a wedding photographer or videographer for the purpose of expressing their genuine views about the wedding. Their job is to make the bride and groom, and their special day, look and feel great. For all I know, our photographer showed up to our wedding and thought that the decor was tacky and that Jill and I were a disaster for each other and that the Jewishness of it all was an offense to God. But of course, he didn't express any of those views, even in his "expressive" photographs. That's not his job, and he knows it, and everyone who sees his photographs knows it too. The flip side is that, when people look at our (lovely) wedding photographs, nobody says "wow -- your wedding photographer must have really thought your wedding was beautiful" (let alone "he must have really approved of your wedding").

A wedding photographer does engage in expression -- but only partially. There are expressive elements to what our wedding photographer did, that can be directly imputed to him: the virtuosity of a shot, or the way he used lighting, for instance. But note the contrast: if I look at my wedding photos, I do impute to the photographer artistic decisions about the staging of the shot, but I don't impute to him views about the merits of the wedding itself. Photography is expressive, but in this case not comprehensively so. It is, we might say, "partially" expressive, and it seems reasonable to say that First Amendment protections only extend to the part of the expression that reasonably, not incidentally, is imputable to the author of the speech.

Compare this to the words spoken by a wedding officiant. When she delivers remarks at the altar, most listeners would reasonably take them to be an expression of her own views -- if she says "you two make a great couple", that is (with perhaps some latitude for puffery) her own expressive view on the matter. And so if she was uncomfortable speaking positive words about any particular marriage (for religious reasons or otherwise), it would be wrong to compel her to do so.

But the distinction isn't between visual and verbal or textual mediums. On the one hand, a movie (as in one shown at the theater), is fairly thought to represent the vision and expression of the directors (and actors and screenwriters, perhaps collectively) "all the way down" -- not just in terms of technical attributes like how to frame a given scene, but also in terms of the message being communicated. If a documentary filmmaker presents a given subject in a positive light, that's generally imputed to the filmmaker -- they think positively of the subject -- in a way that doesn't track for a wedding videographer.

And on the other hand, text if a restaurant serves a dessert that says "happy birthday!" on it, nobody thinks that the chef is actually doing so to express his or her substantive views on the merits of your birthday (I hate to burst anyone's bubble here). That's true even though there may well be expressive elements to the dessert that I do attribute directly to the chef. If I see a beautifully designed cake that says "happy birthday" on it, I view the chef-qua-chef as expressing his or her own message in the design far more than I do in the "happy birthday".

So it's not enough to draw an expressive versus non-expressive distinction. I agree that making a wedding video is expressive, but I disagree that (under normal circumstances) it is expressive as to the merits of the wedding. Along that dimension, the videographer's implicit "endorsement" of the same-sex wedding they film stands on identical footing to the restaurateur's implicit "endorsement" of racial equality with regard to the Black customer they serve. In both cases, it is incidental, and so in neither case should it significant weight.

Indeed, it cannot be the case that any expressive component in a business transaction sufficed to render it entirely expressive and therefore wholly insulated from regulation under the First Amendment. Even in the food service example -- which we've relied upon as our easy case -- very much can incorporate an expressive dimension, for example, in decisions on plating, interpretations of dishes, and so on. A restaurant can say, accurately, that it exercises "editorial discretion" on these matters, and so could potentially have a First Amendment difference if the state tried to regulate its "editorializing" in these domains (I say "potentially" because while a state law which seeks to declare how a veal marsala must be plated would assuredly fail under the First Amendment, one which insists that a "veal marsala" must contain veal -- "interpretation" notwithstanding -- could at least feasibly survive). But surely the expression here is confined to that domain, and it does not mean that the choice in who the restaurant serves is now expressive as well.

Put (sort of) simply, the question is not whether the conduct has any expressive character. It's whether the expressive character of the conduct is what generates the allegedly compelled speech. If it doesn't, then the fact that a given piece of expressive conduct also comes attached to an implicit endorsement of a view that speaker disapproves of is incidental, in the same way that it is incidental where the conduct is not expressive at all.

I don't pretend that I've just offered a simple, knockdown solution to one of constitutional law's thorniest dilemmas. But I do think we live in an era where wildly expansive understandings of the First Amendment are being wielded as a weapon against huge swaths of the regulatory state, and anti-discrimination law is one of the most inviting targets. We need to start thinking more carefully about limiting principles, lest virtually all discrimination become enshrined with constitutional protection.

Tuesday, August 20, 2019

How Trump and Bibi Have Changed the American-Israel Relationship Forever

There's change in the air.

The decision by the Israeli government to bar two Democratic congresswomen from Israel -- Rashida Tlaib and Ilhan Omar -- has led to unprecedented pushback against Israel by Democratic Party politicians. Even representatives thought of as pro-Israel stalwarts are furious, and they're not making any effort to hide their ire.

Some people are attributing this change to fear, or more accurately, the removal of fear. Democrats aren't "afraid" to criticize Israel anymore. They're no longer "cowering" before the all-powerful Israel Lobby.

But this misunderstands what's happening, because it misunderstands how the Israel lobby has operated in Washington.

Contrary to popular belief, the Israel lobby does not generally rely on fear and intimidation. It secured its power through many years of relationship-building, gaining trust, and establishing channels of communication. It was very rare that AIPAC or anyone else had to play "bad cop" (and in fact, AIPAC is very ineffective when it tries to take on that role). Democrats were not "silenced" on Israel -- yearning to speak out, but cowed by threat and menace. Rather, Democrats were enmeshed in a dialogic relationship with the pro-Israel community that relied upon mutuality and reciprocity; the sense that each side would listen and by listened to in turn.

And that -- decades of hard, arduous work -- has been almost entirely torpedoed over the past few years.
“There’s concern with regard to the U.S. government official involved here for politicizing his role and using his diplomatic platform to behave in a way that for the past 2 1/2  years that has been very undiplomatic,” said Halie Soifer, the director of the Jewish Democratic Council of America, who served in the Obama State Department and as a Senate foreign relations staffer.
Dermer is especially despised among Jewish Democrats and pro-Israel Democrats for what they regard as partisan disrespect for their office and their pro-Israel bona fides. Jewish Democrats in Congress, who once looked forward to attending Israeli Embassy events, now are less likely to make an appearance.
Until the 2015 Iran speech by Netanyahu, Dermer maintained civil ties with Democrats. Especially galling for Democrats was that Dermer and Netanyahu agreed to a condition of then-Speaker John Boehner, R-Ohio, that the planning be kept a secret. (Planning for the speech started in late 2014, and Boehner surprised Democrats and the pro-Israel community with his announcement of Netanyahu’s speech the day after Obama delivered the State of the Union on Jan. 20, 2015.) 
Once Dermer worked with Republicans to ambush Democrats, he was seen as partisan.
[Rep. Steny] Hoyer is especially infuriated because he extracted the commitment from Dermer to allow in Tlaib and Omar so that he could talk other lawmakers into joining a trip to Israel sponsored by the American Israel Education Foundation, an affiliate of the American Israel Public Affairs Committee. Hoyer got 41 Democrats to go, which is believed to be the highest number ever. Hoyer has led the trip for decades. 
Hoyer took the group to Israel, talked up the alliance and declared it a success before he was blindsided by the decision on Tlaib and Omar. While conservative Jewish groups hailed the decision, saying Israel was in its rights to keep out two lawmakers who support the movement to boycott Israel, pro-Israel critics said it gave ammunition to those who accuse Israel of being anti-democratic and an unreliable ally. 
Aaron Keyak, a longtime Democratic Hill staffer who is now a consultant to Jewish and liberal groups, said the anger ran deep precisely because of the trust that Jewish and pro-Israel Democrats had long placed in Israel and its governments. 
“These are friends going back decades pleading with their friends in Jerusalem and at the embassy not to let this happen,” Keyak said in an interview. “What helps sustain the U.S.-Israel friendships are the person-to-person friendships between our two governments. It was not just the overall relationship that was damaged, it was those personal relationships that were also betrayed.” 
This is the big change. It's not newfound "courage", it's not the removal of "fear". There's nothing new now that would make Democrats less "fearful"; it's not like Mossad Hit Squads went on vacation this summer. What's new is a failure of trust; the knowledge that this relationship of mutuality and reciprocity now clearly flows entirely one way. Democrats have learned, in a very real and visceral way, that all those years of dialogue, all that time invested in building a relationship, counts for absolutely nothing. The Israeli government is happy to sell them all out for .5% boost in the Knesset poll and a pat on the back from Donald Trump.

This relationship took decades to develop. The damage that's been done just this week (to say nothing of the past few years) will take at least as long to undo -- if it ever can be.

Friday, August 16, 2019

Collected Thoughts on Excluding Omar and Tlaib

I've got another kidney stone. It struck on Monday, and then I felt pain Tuesday, Wednesday, and today. Thursday was my only pain-free day this week, and I have to assume that was the universe balancing the scales and recognizing that the Israeli government's truly terrible decision to exclude Reps. Ilhan Omar (D-MN) and Rashida Tlaib (D-MI) from the country was plenty enough aggravation on its own.

I went on a pretty vigorous tweet storm all through yesterday. Below I bullet point most of what I expressed on that site (which, as you may know, I've taken "private"), but my main takeaway is this:

There's no serious case that either Rep. Omar or Rep. Tlaib presents a security threat to Israel (I've seen some people insinuate that they might incite a riot at the Temple Mount which -- I'm not sure I can physically roll my eyes hard enough). In practice, the "risk" Omar and Tlaib present is simply that they will hear  mean things about Israel and then say their own mean things about Israel. That's the locus of the complaint about the "balance" of the trip; that's the locus of the accusation that they merely want to rabble-rouse. What people are concerned about is they will go to the West Bank, hear people saying mean things about Israel, and repeat those mean things back to American audiences.

But -- and I mean this in all earnestness -- so what? So what if that's what happens? To be clear: I don't think Omar and Tlaib were coming just to say mean things about Israel. But even if they were -- there's no security threat. The state will survive (how pathetic would it be if it crumbled?). It'd be speech. It'd be discourse. That's the price of living in a liberal, free society. Sometimes people say mean things about you. Sometimes those mean things are unfair. Sometimes those mean things are entirely fair. Whatever. It comes with the territory (pun initially not intended, but I'll own it now). It's not a valid basis for a travel ban.

It used to be that Israel was emphatic that "come see us and you'll think better of us". Now Israel is terrified that if people come see them--at least, see them unchaperoned, without a constant guiding hand ensuring they see only the choice parts--they'll think of worse of them. That's the sign of a society in decay. To be sure, I think Omar and Tlaib probably would come away from their visit with a rather grim appraisal of Israel's treatment of Palestinians. But then, there's ample basis to appraise that treatment grimly--there's no inherent foul there. People can come to the West Bank and be honestly appalled by what they see.

Only police states confuse "people saying mean things" with security threats. A free society can survive--and perhaps even learn from--critics giving it grim appraisals. People talk a huge game about how Omar and Tlaib could "learn" from their trip to Israel and Palestine -- and no doubt they could. But the flip side is that Israel, too, can learn from the testimony of Palestinians laboring under occupation, and from efforts to bring that testimony to the fore. It is wrong -- not to mention insulting -- to treat discourse about Israel/Palestine as if it were a one-way street, where wise, omniscient Israeli/Jewish teachers dribble knowledge onto benighted, ignorant Muslims and Arabs.

Below is a recap of my other collected thoughts on the matter (many but not all of which were on Twitter):

  • This was a terrible and unjustified decision. Let's lead off with that and give it its own bullet point all to itself.
  • There is no reason to think that this decision was "what Omar and Tlaib wanted" since it made Israel look authoritarian and repressive. That is projection, to avoid speaking the more uncomfortable conclusion that "Omar and Tlaib might have had a point" in suggesting Israel acts in an authoritarian and repressive fashion.
  • I neither think this decision was solely Trump's doing -- Israel "caving" to his pressure -- nor do I think he played no role in the decision. I think he successfully convinced Netanyahu to do something that he already kind of wanted to do in the first place, even knowing it probably was a bad idea. Trump was like the frat boy friend egging his buddy into doing another shot flight. That Bibi was probably dimly aware it wasn't the wisest decision in the world doesn't mean that he wasn't ultimately fulfilling his own desires. Ultimately, this was a decision of Israel's right-wing government and they deserve to take the full brunt of punishment for it.
  • I understand why everyone is calling this "counterproductive" from Israel, since it will undoubtedly give a huge boost to the BDS movement. But, as I wrote in the Lara Alqasem case, that really depends on what Israel is trying to "produce". In many ways, Bibi benefits from an ascendant BDS movement, just as they benefit from him; and he likewise benefits from a world divided between conservatives who love everything he does and liberals who loathe him. So the fact that this decision puts wind in the sails of BDS, while further lashing Israel to a purely right-wing mast and alienating it from erstwhile progressive allies, is not necessarily a miscalculation -- it's the intended and desired effect.
  • On that note, remember the other day when 21 Israeli MKs wrote to Congress and said that a two-state solution was "more dangerous" than BDS? Well, if you ever wanted an example of what it looks like to trade "increased BDS support" for "kneecapping two-state solution support", this was it (even though Tlaib isn't a two-stater -- Omar is -- this act was aimed like a laser at the most prominent base of support for two-stateism in America: that is, Democrats).
  • On the other hand, shouldn't these right-wing Israelis be more excited to welcome Tlaib than most other Congresspeople? After all, she opposes the "dangerous" two-state solution! Oh wait, I forgot: in her one-state world, everyone gets to vote. That won't do at all, will it?
  • I love Emma Goldberg's description of how Israel will slide away from liberal democracy via Hemingway's description of how he went bankrupt: "Two ways. Gradually, then suddenly." And by love, I mean it gives me a sick feeling of recognition in my stomach.
  • Justifying the ban on the grounds that Omar and Tlaib's visit wasn't "balanced" because they weren't meeting with Israeli or Palestinian government figures, only NGOs, and these are bad NGOs -- spare me. To tell visiting U.S. politicians "you can come, but only if you speak with the 'right' people/visit the 'right' sites/speak the 'correct' words" sounds like something you'd hear from the North Korean embassy. Omar and Tlaib should be entitled to visit with whomever they want to visit, and come to whatever conclusions they end up coming to. If those conclusions are unfair, we should trust the ability to defeat them with more speech, not enforced silence. But again: we can't conflate "unfair" with "critical". It's entirely feasible that a fair-minded individual hearing testimony from West Bank Palestinians will come to a sharply critical conclusion.
  • Some of the attacks on the NGOs Omar and Tlaib were scheduled to meet with are the usual chad gadya (has a leader who's linked to a group which kicked the dog ....) nonsense, but there are some groups with some genuinely bad history. I've consequently seen people suggest that we need to also hold Omar and Tlaib accountable for their part in this fiasco for meeting with members of those groups. Fair enough: I'm happy to hold them accountable, weighted and prioritized in proportion to their relative culpability. In keeping with that metric, I might get around to returning to criticizing their draft itinerary sometime in 2035.
  • Fine, one more thing on the itinerary: Am I correct in reading it as taking Omar and  Tlaib either solely or primarily to the West Bank and East Jerusalem? If so, it's entirely understandable why they'd refer to those locales as "Palestine".
  • Rep. Tlaib initially applied for a humanitarian waiver to visit her family, which was approved, but then she backed out given the conditions the Israeli government was going to impose on the visit (basically, not engaging in "boycott activities"). The usual suspects are crowing: she cares less about her family than she does about boycotting! I say (a) Rep. Tlaib is well within her rights to not prostrate herself to the dictates of a foreign government seeking to humiliate her, and (b) what about the past few days gives anyone the confidence in the Israeli government's ability to fairly adjudge what qualifies as a "boycott activity"?
  • The argument that Israel, as a sovereign state, has a "right" to exclude whomever it wants substitutes a juridical argument for an ethical (and practical) one. Sovereign states are formally empowered to do all sorts of terrible and/or stupid things. This was one of them. Hearing nominal anti-BDS folks make this claim -- which could as easily be applied to "universities and academics have the right to collaborate (or not) with whomever they want to" is probably causing another kidney stone to develop as we speak.
  • The other thing is that Israel is proving itself completely incapable of exercising this "right" in a reasonable manner that distinguishes between genuine threats to national security and unhappiness that people sometimes come to Israel and then say mean things. One of the reasons we liberals seek to limit unchecked government power is precisely because of the suspicion that it won't be exercised responsibly or non-arbitrarily.
  • Of course, the fact that Israel also exercises the practical authority to exclude people not just from Israel-proper, but the West Bank as well, gives lie to the notion that Palestinians even conceptually could have their right to self-determination vindicated solely by voting in PA elections.
  • Silver lining: pretty much the entirety of the American Jewish establishment -- AIPAC, AJC, ADL, J Street, Simon Wiesenthal Center -- came out against this decision. Huzzah for that.
  • Tarnish on even that silver lining: the Conference of President's weak-sauce statement on the matter. "Many of the organizations expressed disagreement with the government’s decision", but "Ultimately, the government of Israel made its assessment of the countervailing arguments and acted upon their conclusion." Really, that's what you're giving us? It's amazing how the Conference doesn't care about the "consensus" of the Jewish community when that consensus is a progressive one.
  • When a prominent member of or institution associated with an outgroup does something awful, it is natural for members of that outgroup to feel acutely vulnerable. In part, that's because they know that this awfulness will be wielded against them; in part, that's because frequently they have feelings for or connections to the target person and institution, and it is painful to see them act in such a terrible fashion. Of course, that feeling of vulnerability needn't and shouldn't be the primary story as compared to those directly victimized by the awful behavior. But it is not per se wrong, or "centering", to acknowledge and validate the existence of the sentiment; nor is such an acknowledgment necessarily one that stands in competition with recognizing the direct damage of the instigating act.
  • The next time a Democrat occupies the Oval Office, I have to wonder what sort of penance is going to be demanded from the Israeli government for years upon years of insult and humiliation. It's not going to be back to as it was before. It's not even going to back as it was in the Obama administration. Democrats will -- rightfully -- insist that Israel pay a price for what it's been doing these past four (if not twelve) years. The flipside of recognizing the importance of preserving Israel as a bipartisan issue is that Israel aligning itself fully and completely with the Republican Party is going to come at a cost. It will be interesting to consider what that cost will be.