You Can't Message Your Way Out of Your Own Heartfelt Extremism

Following their preferred candidate getting absolutely blitzed in a swing-state judicial election due to his anti-abortion extremism, conservatives are now trying to argue that they need to pivot to better messaging on abortion. 

There are a whole host of reasons why this won't work, starting with the fact that their favored "moderate", "compromise", "good message" alternative is Lindsey Graham's proposed nationwide compulsory women-maiming law. But another reason why it won't work is that the Republican Party cannot control the behavior of its own membership -- most notably, those in the GOP's YOLO Joker caucus (federal judiciary division) -- who insist on nothing short of the absolute most draconian limits on reproductive care imaginable:

A federal judge in Texas blocked U.S. government approval of a key abortion medication Friday, siding with abortion foes in an unprecedented lawsuit and potentially upending nationwide access to the pill widely used to terminate pregnancies.

The highly anticipated ruling puts on hold the Food and Drug Administration’s approval of mifepristone, a medication first cleared for use in the United States in 2000. The ruling will not go into effect for seven days to give the government time to appeal.

U.S. District Judge Matthew J. Kacsmaryk, a nominee of President Donald Trump with long-held antiabortion views, agreed with the conservative groups seeking to reverse the FDA’s approval of mifepristone as safe and effective, including in states where abortion rights are protected.

On the one hand, Republicans need to find a way out of the abortion trap. On the other hand, unaccountable hack judges in Texas are banning abortion medication nationwide based on completely spurious, results-oriented reasoning, guaranteeing that the GOP's forced labor agenda stays front and center in all of its extreme, uncompromising splendor indefinitely.

The Texas injunction now is paired with a dueling injunction from a district court in Washington, which forbids any alteration by the FDA to the status quo (at least in the plaintiff states in that litigation; the judge declined to make his injunction nationwide). This means the case almost certainly is headed to the Supreme Court sooner rather than later. Will the Court actually follow the law for once, or will we get another (to borrow from Josh Blackman) "epicycle" as rule of law bends itself to satisfy the whims of anti-abortion extremists cloaked in Article III garb? Stay tuned.

Rate That Apology, Part 12: Dan White

On April 5, at the onset of Passover, Labour Party leader Keir Starmer sent a message of welcome to the Jewish community: "Today I am sending my warmest wishes to members of the Jewish community as you prepare to celebrate the festival of Pesach. Chag Sameach."

Perfectly lovely, perfectly anodyne.

Replying to that tweet, Dan White, a journalist who claims to be a member of ITV's "diversity board", wrote to Starmer:

Did you see what happened at Al-Aqsa mosque while Palestinian worshippers are celebrating the holy month of Ramadan? Your silence is disgusting.

And now he's apologized:

Asked to explain his comments, White, told Jewish News: "I can only apologise for the ill timing of my tweet."

"I am not and never have been antisemitic."

"My response was not aimed at the community, but at the silence from all political parties around the conflict which is happening."

"I accept my response was badly timed, I can only apologise profoundly for it. My mental health sometimes makes snap decisions. As I said I am believer in peace, worldwide. I am sorry again for the ill timing and any offence."

Four paragraphs, all terrible. The pro forma "I am not antisemitic" is the usual level of eye rolling. Placing the blame on his "mental health" is accountability dodging (and for what it's worth, "mental health" doesn't make decisions. Dan White makes decisions, for which Dan White should learn to accept responsibility for).

However, I want to focus mostly on this framing of the problem as one of "timing". The tweet's problem was not "timing". If White had on April 5 just written a general message to the effect that Starmer or other British politicians are not paying sufficient attention to violence against Palestinian worshippers, and someone said "how dare you say something like this on the eve of Passover", that would be an objection about timing -- and an ill-taken one, since the fact that we're near the onset of Passover does not make it inappropriate to level commentary on violence occurring in Jerusalem right now.

But again, that's not the problem here. The problem is not when White wrote the tweet. It's where he did it -- in reply to an unrelated message of support for the British Jewish community in celebration of one of our holidays, having absolutely nothing to do with Israel whatsoever. The practice where anytime anyone talks about Jews in any context folks come swinging in with "what about Palestine?", is antisemitic per se, as much so as the Texas Republican who opposed a resolution honoring Muslims celebrating Ramadan because there are Muslim terrorists in Iraq.

If there's any saving grace for White, it's that the replies to Starmer's tweet are positively crawling with trolls saying much the same thing. Some consolation.

Grade: 2/10

The Tennessee Three: Whataboutism as Fascism Apologia

You've no doubt heard at this point about "the Tennessee Three", three Democratic members of the Tennessee State House facing an expulsion vote for their role in a protest against gun violence that occurred on the state legislative floor. Expulsion is a rarely-invoked procedure in Tennessee, typically reserved for obvious cases of criminality of misconduct (e.g., a bribery scandal) in cases that garner bipartisan support. To use it to kick out minority party members for a raucous protest the majority found embarrassing is a huge overreach, an exploitation of the GOP's supermajority status to further undermine basic democratic principles.

I wanted to flag a particular comparison Tennessee Republicans are using to justify their conduct -- comparing the protest to the attempted insurrection on January 6:

House Speaker Cameron Sexton compared the incident to Jan. 6: "What they did today was equivalent, at least equivalent, maybe worse depending on how you look at it, to doing an insurrection in the State Capitol," he said.

Sexton also noted that Jones and Johnson had previously been "very vocal about Jan. 6 and Washington, D.C., about what that was."

There was, of course, no insurrection here: the protest had no ambitions of overthrowing the government. But there's something revealing about this rhetorical move that I think typifies the way conservatives are normalizing and justifying fascist behavior.

Even now, many Republicans are kind of willing to concede that there was something ... untoward about January 6, and the broader campaign of election denial that spawned it. "Kind of" because they face tremendous pressure to outright endorse it, as Sexton's "maybe worse" aside makes clear. But to the extent they to recognize that there's something wrong with what happened on January 6, what they want to do is present things like January 6 as an ordinary sort of ugliness, the sort of foul or misconduct one can see from all parts of the political spectrum. Yes, maybe the January 6 thing went a bit too far. But it's not distinctive; this is a problem one can see across the aisle too. Look at Black Lives Matter protests -- why aren't they being treated like the insurrectionists? Maybe Trump shouldn't have denied the election, but is it really any different from Al Gore demanding a recount in 2000? Trump stole classified documents; well, what about her emails? Whatabout, whatabout, whatabout.

By transferring these egregious examples of anti-democratic thuggery into the realm of "normal" politics, Republicans justify treating them via the "normal" (partisan) political process. Sure it might be a bit distasteful, and more than a little opportunistic, but hey, that's politics. There's nothing exceptional here that demands standing on a broader principle. Everything blurs into an indistinguishable mush of "sometimes politics gets ugly." And in that universe, well, it's just realistic that Republicans probably won't pay much attention to their "normal" nips that might cross the line. Cynicism styles itself as realism, but it's really just cowardice.

None of this is to say that straightforward political thuggery isn't sufficient explanation for why Tennessee Republicans are acting the way they are. But there is a broader justificatory narrative being crafted here. The Tennessee Three isn't just about state and national Republicans being contemptuous of democratic norms (though it's certainly about that too). It's yet another effort to pull the extreme conservative threats to basic rule of law principles out of the realm of "extreme" and blur them into the normal hurly-burly of every day politics. Exploiting the media's instinct to "both sides" everything, the GOP will just troll all the way down

Wisconsin Man's Upward Fall Arrested

Democracy may finally be coming to Wisconsin, as Janet Protasiewicz defeated arch-conservative Daniel Kelly to flip a key seat on the state supreme court.

The Wisconsin Supreme Court has been a national embarrassment for years. This was the court where a justice tried to choke out one of his colleagues, after all. More recently, it was by far the court that came closest to endorsing Donald Trump's authoritarian campaign to overturn the 2020 election. Members of the conservative faction have since openly questioned the validity of President Biden's victory, putting them far outside even the conservative judicial mainstream and marking them as little more than partisan thugs.

Can you imagine the sort of totalitarian hellscape where the votes of the majority play essentially no role in determining who wins elections? pic.twitter.com/VScxrZV5CR

— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) July 8, 2022

And yet, even among this sorry bunch, Daniel Kelly would have stood out.

I first wrote about Daniel Kelly when he was initially appointed to the Wisconsin Supreme Court by then-Governor Scott Walker. He had made an argument comparing affirmative action to slavery, something that -- even restricted to the "civil rights programs are the new slavery!" field -- was jaw-dropping in its stupidity (and "civil rights programs are the new slavery!" is already a field saturated with stupidity).

Over the course of his career, and over the course of this campaign, Kelly has proven himself to be the definition of a mediocrity who's managed to fall upward via the beneficent hand of the right-wing gravy train. His academic pedigree is undistinguished. He had no judicial experience when he was appointed to the court by Walker in the first place, and after his (first) defeat he stayed plugged into Wisconsin GOP politics by providing legal advice to the effort to steal the state for Trump after Joe Biden's 2020 victory. And of course, all have now witnessed his petulant response to being defeated by Protasiewicz:

"I wish that in a circumstance like this, I would be able to concede to a worthy opponent," he said at an event held at the Heidel House Hotel in Green Lake. "But I do not have a worthy opponent to which I can concede."

Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable and despicable." "My opponent is a serial liar. She's disregarded judicial ethics; she's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin."

Adding: "I wish Wisconsin the best of luck, because I think it’s going to need it."

[...]

"The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," he said. "I respect the decision that the people of Wisconsin have made, but I think it does not end well."

If ever there was a definition of "lacking in judicial temperament," he personifies it.

Yet beyond that, Kelly is a familiar, if not archetypical figure. He is suffused with entitlement for that which he has not earned, and consumed by rage when he doesn't get it. There are thousands -- millions -- of men (almost always men) just like him. Most don't go on to become state supreme court judges, though many do bully themselves into positions far beyond their talents or capacities by a mixture of being useful to the right people and being an impossible menace when they don't get what they want. When they do, finally, see their upward fall arrested, they are incredulous and infuriated at the injustice of it all. Hell hath no fury like a mediocre White man scorned.

Indeed, perhaps Kelly's only mistake was being appointed to the Wisconsin Supreme Court instead of the Seventh Circuit Court of Appeals -- a position from which he could never be dislodged no matter how apparent it became that he was ill-suited for the position. On the federal bench, with life tenure, he could have prowled and fulminated and lashed out with impunity, forever; secure in the knowledge that it would be constitutionally impossible to ever hold him accountable. One can only imagine the law school classes he would have baited and berated.

But alas, Daniel Kelly is a creature of the state bench, and in Wisconsin, supreme court justices must meet the approval of the voters. Twice now, the voters have resoundingly rejected Daniel Kelly as unsuited for the role of state supreme court justice. Kudos to them. And while Democrats are celebrating Protasiewicz's win, the bigger winner is the small-d democracy that has been under siege in Wisconsin for far too long.

Post-Conference Roundup

Last week, approximately 35 speakers (and dozens more guests) came to Lewis & Clark Law School for the 2nd Annual Law vs. Antisemitism conference. It was an event I'd been planning for over a year, and I'm pleased to report it was a rousing success. The panels were scintillating, the conversations crackling, and the two keynotes (by the ADL's Steve Freeman and civil rights activist Eric Ward) blew the doors off the joint. I could not be prouder.

Unfortunately, as the conference approached I could feel myself getting a cold, and so I did that deal-with-the-devil bit where I just willed myself to not be sick for the conference, and my body was like "okay, but you're going to pay for that come Tuesday." So the day after the conference I was sick as a dog. But now I'm mostly better -- just some residual congestation.

Anyway, here's a roundup:

***

Haven't seen the clip, but apparently a protester held up a "Jews control the USA" sign on the CNN segment reporting on Trump's indictment today. So that's fun.

Iowa school hit with bomb threats over LGBT book after "LibsOfTikTok" sics her goons on them.

In other "is killing students in school controversial?" news, Nashville students walk out of class to protest for gun reform following the Covenant School shooting.

Also in Tennessee: a federal judge has enjoined the state's new draconian "anti-drag" law as likely violating the First Amendment.

As a now-certified Caitlin Clark fan, it's beyond evident that folks calling Angel Reese "classless" for doing the same mugging that Clark had done all season are, well, they're not hiding the ball. And for what it's worth, there's zero evidence that Clark in any way needs or supports y'all white knighting on her behalf -- I guarantee she can take what she dishes out. (Surely, we can all agree that the only thug on the court yesterday was Kim Mulkey).

Israel looks set to give its resident fascist his own personal state-backed paramilitary squad. What could go wrong? Nothing, because "wrong" implies that the the utterly predictable consequences aren't intended.

A beautiful story of a transwoman recounting "coming out" to her 100 year old grandpa. His memory clearly already is a blessing.

Oh, and I published a new article! "Microaggressions as Negligence" is now out in the Journal of Social Philosophy.