Trump and the Conservative Judiciary's Legitimacy Crisis

The Supreme Court has agreed to hear a series of cases testing the authority of government to exercise oversight over Donald Trump. Trump has bitterly resisted turning over certain documents to congressional and state regulators, despite most legal commentators viewing his arguments as frivolous.

Now, historically it has not been the case that a SCOTUS hearing bodes well for an incumbent president on matters such as these. Just ask Richard Nixon or Bill Clinton.

But there is a lot of anxiety in legal circles that this might be different. As Scott Lemieux put it: "Supreme Court to indicate exactly how deeply it's in the tank for Donald Trump."

One thought I've been turning over in my head is the possibility that, in a very real sense, the very legitimacy of the conservative judiciary -- especially (though not exclusively) Trump appointees -- is bound up in them ruthlessly dismissing any legal argument that might delegitimize the Trump administration.

This is not something that's been true of every administration. It's probably a myth to have ever thought of a court as wholly apolitical. But I don't think Bush-appointed judges necessarily thought ruling against the Bush administration threatened their legitimacy; ditto for Obama-appointed judges re: Obama.

The big difference is that with Trump, the issue isn't the possibility that here or there administrative actions fell outside the authority of the law (something that will happen to all administrations, at least periodically). It's not even a matter of losing a "signature issue" (as with, say, Obama and the Affordable Care Act). With Trump, the judiciary is repeatedly confronting legal questions that cut to the heart of his basic status as a legitimate leader of a democratic state. Legitimate in the sense of not being a naked avatar of White Supremacy, as in the Muslim ban and immigration cases. Legitimate in the sense of not being a cesspit of pure corruption, as in the Ukraine/Russia and tax returns cases. It's even more extensive of a legitimacy crisis tham the Clinton or Nixon cases, because with Trump it isn't a discrete case of (serious) illicit conduct, but the possibility that his entire administration is a corrupt, bigoted enterprise.

If you're person whose authority to exercise the judicial power comes from an appointment by Donald Trump, and Donald Trump's entire presidency is fundamentally delegitimated as either a racist or corrupt criminal endeavor, that starts to crack the foundations of one's own authority. What does it mean for, say, Neomi Rao if her very presence on the bench is attributable to a guy who it turns out is basically a mafia don? One shudders to think. And so it becomes incredibly important for judges in that position to insulate Trump (and by extension, themselves) from that conclusion.

Moreover, I think -- while this is more of a stretch -- that this outlook extends to conservative judges who were not appointed by Trump himself. Trump has appointed, by and large, orthodox conservative judges. This is a bit ironic, given that the conservative legal elite prior to 2016 would probably not have comprised Trump's biggest fans -- they were the sorts of conservatives who would have privately and sometimes publicly contended that Trump was a lawless maniac. That Trump has appointed these judges is taken by these orthodox legal conservatives as a welcome surprise. They are resolutely avoiding pondering what it means if the man who they well know thinks of rule-of-law as a speedbump also thinks that the ideal judges to have on the bench are judges who think and act just like them.

What this means is that Trumpism has effectively tied itself to the orthodox conservative legal movement. If Donald Trump had nominated judges of a very different type than those typical of Republican administrations, "smashing the establishment", then the old guard might have turned against them. Instead, like a medieval lord who marries into the family of a rival, he's drawn them inextricably together. The legitimacy of Trump-nominated judges depends on the legitimacy of Trump, and since Trump-nominated judges are generally indistinguishable from other conservative judges, that means that conservative judges generally -- and the entire conservative judicial philosophy -- depends on the legitimacy of Trump too.

(A similar issue, I think, explains why Republican politicians have closed ranks so decisively around Trump. The same voters who elected them elected Trump, and declaring Trump a corrupt racist means admitting that the electoral coalition that approves of corrupt racists also chose them. Of course, Republican politicians also have to be re-elected, which means that they have not just "legitimacy"-based but also quite practical interests in pandering to the electoral coalition that supports Trump).

This doesn't mean that no conservative or Trump-appointed judge will ever rule against him. But it does suggest that they will be fiercely resistant to making rulings which extend beyond the normal wins-and-losses that all presidential administrations take, and instead suggest a more fundamental rot. They will never rule in a fashion that suggests Trump is a flagrant racist, because that would imply that they were the ideal judicial choice of a racist. They will be loathe to allow investigations that would prove Trump corrupt, because that would imply that they were the preference of lawless, bought-out presidency.

The conservative judiciary has to protect Trump in order to protect themselves. Get ready for the wagons to circle once more.

My Atlantic Debut: The Story Behind the Firestorm over Trump's Antisemitism Order

I've been keeping a bit of a lower profile this year -- I'm on the job market, and so it just seemed prudent to maybe tamp down on anything that even had the slightest risk of provoking controversy or offending a hiring committee.

Anyway, here I am writing in the giant international platform that is The Atlantic on Trump's antisemitism executive order (this follows on the heels of yesterday's JTA article on Trump's antisemitic IAC speech and the response of groups like the AJC to that).

Fortunately, the stress of managing reactions to a new publication will be canceled out by a relaxing day of following British election returns. I can feel my energy returning already!

British Jews Should Announce They Can't Support Corbyn--or Johnson

This was a piece I initially wrote for publication outside of the blog. It had a tumultuous journey, including being accepted in one newspaper before the editor withdrew the offer an hour later. Most recently, it spent two weeks in limbo after the editor who was considering it solicited the draft ... then immediately went on vacation for a week. When he returned, he promised to get to it "first thing Monday". I never heard from him again.

Anyway, the election is tomorrow and there's still no sign that he will get back to me, so you're getting the piece here. It's slightly less timely than I'd like -- though much more timely than if I posted it after election day.

* * *

Earlier this month, The Guardian published a letter from twenty-four prominent non-Jewish figures, publicly declaring that they could not support Labour in the next election due to the raging antisemitism that has enveloped the party under Jeremy Corbyn’s leadership.

For the UK’s beleaguered Jewish community, it was a taste of that elusive elixir: solidarity. The knowledge that Jews do not stand alone, that we do have allies, that there are people who will not stand idly by and do nothing as this wave of antisemitism comes bearing down. That the letter’s signatories included figures like Islamophobia watchdog Fiyaz Mughal, who is intimately and painfully aware of the direct dangers a Tory government would do to him and his community, only makes it more powerful. In a very real sense, this is what it means to have true allies.

These past few years have been rough on British Jews, but if there is a silver lining, it is in moments like these: the public witnessing of all those who remain willing to plant their banner and fight antisemitism. The statements of resignation from persons who no longer can associate with a party that has become a force for hatred against the nation’s Jews. The figures—some Jewish (like MP Ruth Smeeth), some not (like London Mayor Sadiq Khan)—still bravely resisting antisemitism from within the party.

And there is grim satisfaction to be taken in Corbyn’s almost comically-high public disapproval ratings—which have reached upwards of 75% in some polls. For this, too, is at least in part a public and visceral repudiation of the brand of antisemitism Corbyn has come to represent.

Yet it is the ironic misery of the Jewish fate that we cannot even take unmediated satisfaction in those rejecting Labour antisemitism. Why? Well, because of the primary alternative to Labour: the Conservative Party, led by Boris Johnson.

The Tories have their own antisemitism problems, although—and as a liberal it pains me to say this—they pale in comparison to those afflicting Labour, at least today. And for me, I’ve probably written more on Labour antisemitism than I have on any other social problem outside of America or Israel.

But if the Tories are not today as antisemitic as is Labour, where the Tories can be aptly compared to Labour is along the axis of racism, Islamophobia and xenophobia. It is fair to say that on those issues, the Conservative Party is institutionally xenophobic in a manner that is on par with Labour’s own institutional antisemitism. Or put differently: Boris Johnson is to Muslims, Blacks, and Asians what Jeremy Corbyn is to Jews.

This is hardly unknown, and the latent nativism of the Conservative Party’s Brexit policy is only the tip of the iceberg. We saw the ugliness of Conservative racism in the Windrush Scandal, where Afro-Caribbean British citizens were harassed, detained, and even deported as part of the Tories’ pledge to create a “hostile environment” for undesired immigrants in the country (notwithstanding the fact that the Windrush Generation consisted of natural-born British subjects). We saw it in the game efforts by Muslim Conservative politicians to draw attention to festering Islamophobia amongst Tory candidates and politicians, and the grinding resistance of the Conservative political leadership to seriously investigate the issue—surely, this resonates with Labour’s own kicking-and-screaming approach to rooting out antisemitism inside its own ranks.

And—like with Corbyn’s Labour party—Tory xenophobia starts right at the top. In 2018, Boris Johnson was slurring Muslim women in Europe as “letter boxes”. Advocates at that time urged then-Prime Minister Theresa May to withdraw Johnson’s whip. She declined. Now he’s Prime Minister. In the meantime, Islamophobic instances in the country surged 375%.

There is a terrible commonality here: the legitimate fears Jews have about a Corbyn-led British government are mirrored by the equally legitimate worries BAMEs (Blacks, Asians, and Minority Ethnics) about the prospect of another term of Conservative rule.

To be clear: the Jewish community has not endorsed these Conservative predations. They are overwhelmingly opposed to Brexit. They have spoken out and stood out against racism, Islamophobia, and xenophobia, and have done so consistently.

But there is another step that has not yet been taken. The Jewish community might return solidarity with solidarity, and write their own letter announcing that they cannot sanction voting for Labour—or the Tories. Twenty-four Jewish luminaries, each pledging that just as Labour’s antisemitism means that they cannot support Labour, Conservative racism and xenophobia preclude them from backing the Tories.

The UK, after all, is not a complete two-party system, and in many constituencies there are very live options that extend beyond Labour and Tory. The resurgent Liberal Democrats, for one, bolstered by refugees repelled by Labour antisemitism or Conservative xenophobia and showing renewed strength particularly in marginal constituencies where Labour is flagging. Regionally, the SNP or Plaid Cymru also are often competitive. Even the Greens, in some locales, are a viable option.

None of these parties are perfect. One does not need to search far to find instances of antisemitism in these other parties, for example, and the Liberal Democrats still have trust to re-earn following their disastrous stint as junior coalition partners to the Tories less than a decade ago.

But imperfections notwithstanding, none of these parties has completely caved to gutter populism in the way that both Labour and Tory have. They are cosmopolitan in orientation. They have faced antisemitism and other forms of prejudice, but they’ve responded decisively to it. They are not perfect, but they are viable choices, in a way that neither the Tories nor Labour can at this point claim to be.

And yet, still this companion letter—rejecting Conservative hatred with the same public moral clarity as The Guardian writers rejected Labour hatred—hasn’t been written. As much as many dislike Conservative politics, as much as many loathe Boris Johnson and the insular nativism he stands for—we have not forthrightly declared that the bigotry of his party is of equal moral weight and equal moral impermissibility at the bigotry of Corbyn’s party. We have not insisted that both be rejected.

Responding to the argument that Labour antisemitism had to be overlooked because of the pressing necessity of avoiding the disasters of a Tory government, the Guardian letter writers asked “Which other community’s concerns are disposable in this way? Who would be next?”

One could perhaps forgive the Windrush Generation for taking a tentative step forward in reply.

So again: why hasn’t that companion letter been written? Why hasn’t there been the declaration that the Windrushers, the migrants, the Muslims—that these community’s concerns are indispensable in the exact same way that the Jewish community’s concerns should (but often are not) be viewed as indispensable? Why has the wonderful solidarity demonstrated by the Guardian letter not been returned in kind?

The most common answer is that as terrible as Johnson is and as repulsive as Tory policies are, only a Conservative majority can guarantee that Corbyn will not become Prime Minister. Even the LibDems might ultimately elect to coalition with Labour if together they’d form a majority (ironically, many left-wing voters who dislike Corbyn but loathe Johnson express the same worry in reverse to explain why they can’t vote LibDem—they’re convinced that Jo Swinson would instead cut a deal to preserve a Conservative majority). As terrible as Johnson is, stopping Corbyn has to be the number one priority for British Jews. And a vote for anyone but the Tory candidates is, ultimately, a vote for Jeremy Corbyn.

Jewish voters who act under this logic, they would say, are by no means endorsing Brexit, which they detest, or xenophobia, which they abhor. They hate these things, genuinely and sincerely. But their hand has been forced. In this moment, they have to look out for Number One.

I understand this logic. I understand why some Jews might believe that in this moment, we cannot spare the luxury of thinking of others.

 I understand it. But it is, ultimately, spectacularly short-sighted.

To begin, if we accept that British Jews are justified in voting Tory because we are justified looking out for our own existential self-preservation, then we have to accept that non-Jewish minorities are similarly justified in voting Labour in pursuit of their own communal security and safety. We cannot simultaneously say that our vote for the Tories cannot be construed as an endorsement of Conservative xenophobia but their vote for Labour represents tacit approval of Corbynista antisemitism. Maybe both groups feel their hands are tied; trapped between a bad option and a disastrous one. And so we get one letter from the Chief Rabbi, excoriating Jeremy Corbyn as an “unfit” leader, and another competing letter from the Muslim Council of Britain, bemoaning Conservatives open tolerance of Islamophobia.

But if the Jews reluctantly vote Conservative “in our self-interest” and BAME citizens reluctantly vote Labour “in their self-interest”—well, there are a lot more BAME voters in Britain than there are Jewish voters. So the result would be a massive net gain for Labour. Some pursuit of self-interest.

Meanwhile, those Brits who are neither Jewish nor members of any other minority group are given no guidance by this approach. There is no particular reason, after all, for why they should favor ameliorating Jewish fears of antisemitism over BAME fears of xenophobia. From their vantage point, these issues effectively cancel out, and they are freed to vote without regard to caring about either antisemitism or Islamophobia. At the very moment where these issues have been foregrounded in the British public imagination in an unprecedented way, insisting upon the primacy of pure self-interest would ensure that this attention would be squandered and rendered moot.

Of course, all this does not even contemplate the horrible dilemma imposed upon those persons who are both Jewish and BAME—the Afro-Caribbean Jew, for instance. They are truly being torn asunder, told that no matter how they vote they will be betraying a part of their whole self.

And finally, whatever we can say about the status of Tory antisemitism today, painful experience demonstrates that tides of xenophobia, nativism, and illiberal nationalism reflected in the Conservative Party will always eventually swallow Jews as well. That day will come, and if history is any guide it will come quickly. Jews should think twice and thrice before contemplating giving any succor to that brand of politics, no matter what seductive gestures it makes at us today.

So no—it will not do for Jews to back the Tories out of “self-interest”, for doing so will ultimately fail even in protecting ourselves. Ultimately, the reason that Jews should clearly and vocally reject both Labour and Tory is not sentimentality, but solidarity—solidarity in its truest and most robust sense. There simply are not enough Jews in the United Kingdom to make going it alone a viable strategy. We need allies, and so we need to find a way to respond to the reality of Labour antisemitism in a way that binds us closer to our allies rather than atomizing us apart. The solidarity they showed us must be reciprocated in kind.

If there is one theme I have heard over and over again from UK Jews, it is the fear of becoming “politically homeless”: unable to stomach voting for Tory nativism, unable to countenance backing Labour antisemitism.

But as The Guardian letter demonstrated, Jews still have friends, and allies, and people who will have our backs no matter what. And if you’ve got friends, allies, and people who have your back, what do you do if you’re worried about homelessness?

I’d say, you start building a new house—one with room enough for all of us.

This Jew is Tired

It's been a rough week (he says, on a Thursday [dear God it's still only Wednesday -- DS]).

It began with President Trump once again dipping back into the antisemitism well in a speech before the Israeli American Council -- repeatedly treating American Jews as if we were Israelis and not American, calling us "not nice people" who would nonetheless vote for him because our great "wealth" was at stake.

It continued when Jewish communal representatives -- typified by the AJC -- could only issue the most mealy-mouthed half-condemnations (couched in lots of insulating rhetoric about how wonderful Trump has been as a friend of the Jews). One could see American Jews start to steam in frustration that, once again, antisemitism on the right would be given a pass (it already feels like forever since I wrote this, but it was actually just released on JTA a few hours ago).

Then a few days later, the New York Times put out what appeared to be a bombshell story contending that the Trump administration was going to issue an Executive Order reclassifying Jews as a separate "nationality". Already raw from the IAC speech, and mistrustful of our communal representatives who seemed to discount the threatening subtext of that speech, Jews boiled over -- furious at the prospect that American Jews should be viewed as being of any nation but America.

A few of us familiar with the civil rights context -- in particular, that Title VI only covers "race, color, and national origin", but not religion -- suspected that the EO was really just going to reiterate a policy interpretation dating back to the Obama and Bush administrations: that when antisemitism targets Jews on basis of actual or perceived ethnicity or ancestry, it is covered under the statute. But we found ourselves shouting into a void as people worked themselves into a greater and greater frenzy. Jews who a few days ago were singing the praises of neo-Bundism were now emphatic that Jewishness was "just" a religion -- a position which would, if adopted, remove Jews from the ambit of Title VI protections altogether.

I could see decades worth of civil rights progress unraveling in the face of an ever-increasing frenzy. Reflexive opposition based on incomplete information was making otherwise sensible people start putting out ideas that would virtually dynamite huge swaths of the legal apparatus standing against antisemitism -- and they were doing so under the banner of fighting antisemitism. And on a personal level, after spending literally years trying to draw attention to the mainstreaming of antisemitism on the political right, this is what gets the Jewish community to finally blow its top? This is what we rebel against? I was actually getting nauseous.

Thankfully, things died down a little today as the EO's text was actually released and people realized it was not redefining "Jew" out of "American". Attention now has shifted to the EO's implementation of the IHRA antisemitism definition -- a non-legal definition that was not designed for use in legal enforcement actions and whose vagueness and imprecision risks, if not managed carefully, chilling protected First Amendment activity.

But I scarcely have the bandwidth to dive into that issue (and boy does it ever need diving into), because while all of this was happening there was a shoot-out at a Jewish grocery store in New Jersey, killing five. At first, police said they didn't think it was "terrorism-related". Then the story shifted -- maybe the store had been specifically targeted. Now we've learned that at least one of the perpetrators was a Black Hebrew Israelite -- portions of which have long been associated with radical antisemitic activity. And that, in turn, has brought out some of the ugliest iterations of the Twitterati, who are just transparently delighted that this shooter was Black and are eager to let actual Black Jews know it. It's despicable. It's despicable that Black Jews aren't even allowed to mourn antisemitic violence without someone insisting they take responsibility for it.

Want to know one difference between being a White Jew and a Black Jew? When a White guy shoots up a synagogue, I don't worry that the next time I show up people at my shul will look at me and question whether I'm one of them.

But what we should really be focusing on is that this appears to be an antisemitic shooting, and it confirms what -- contra a particular sort of grievance-monger would have you believe -- is in fact very well-known and very well-attended-to in the Jewish community: that there is a branch of radical antisemitism in other minority communities that can and has turned violent against Jews. Black Hebrew Israelites do not fall neatly on a left-right spectrum (you should read this entire Emma Green column, and not just because it makes this point), and it's crude and debased to think that just because Black therefore Left. But regardless of where one situates it ideologically, it is certainly a distinct form of antisemitism that needs to be taken seriously as distinctive.

Not that anyone needed to tell us that. But by golly you can bet people will tell us that, over and over again, as if we didn't already know, as if we needed the lecture while we grieved.

What a week. What a terrible, tiring week.

Can We Just Resist the Bauble for Once?

The Justice Department Inspector General completed its review into the FBI's counterintelligence investigation into links between the Trump campaign and Russia, and found no wrongdoing. If you're Attorney General Bill Barr, this is obviously The Wrong Answer, and by golly he's going to keep on creating new investigations until someone gives the Right One.

At which point, we all know what's going to happen, right? The newspaper headlines will blare "Justice Department: FBI Behaved Inappropriately in Trump-Russia Investigation." Trump will declare victory. The media will put on its sternest contemplation face as it ponders this new revelation. Nobody will have the guts to say it's an obvious concoction, and not worth any attention at all.

But -- futility aside -- I'll still issue my plea: Can we not? Given that we all know exactly what it is coming, why it's coming, and what it is -- can we just resist the shiny bauble? Just this once?

I know, we can't. But still ... please?