Judge Ho's Politics of Collectivist Grievance

Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.

I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.

Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."

At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.

But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.

Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."

All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.

This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).

Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.

"I Decide Who Is a Jew", Redux

Leo Terrell just reposted a prominent White supremacist's claim, in reference to Donald Trump declaring that Chuck Schumer is not a Jew but a "Palestinian", that "Trump has the ability to revoke someone’s Jew card."

Who is Leo Terrell, you may ask? Why, he's Donald Trump's "antisemitism czar". Can't make this up.*

But in reality, the claimed entitlement by (non-Jewish) conservatives to decide who does and does not count as Jewish has been waxing for some time now. In my "Liberal Jews and Religious Liberty" article, I made an observation about the contemporary salience of Vienna Mayor Kari Lueger's famous declaration "I decide who is a Jew":

Lueger made this statement in response to criticisms that there was an inconsistency between his publicly professed antisemitism and his private friendships with certain Viennese Jews; a contradiction resolved by Lueger simply declaring that the Jews he liked were not actually Jews at all. In the spirit of the old saw “a philosemite is an antisemite who loves Jews,” the modern iteration—where the hated Jews are denied to be Jews and the few acceptable Jews deemed the only actual Jews—flips Lueger’s pattern but fundamentally replicates it.

In that article, I grouped this practice into what I termed the "new supersessionism": "the ability of non-Jews to possess, as against actual Jews, a superior entitlement to declare what Jewishness is." The original supersessionism was theological: Christianity simply declares itself to be the true and proper evolution of Judaism; the Jews themselves got Jewishness wrong. Today's supersessionism is more often political: Christians informing Jews that holding Jewish positions on issues like abortion or gay rights mean they are not real Jews at all. And having declared that these Jews -- which is to say, most Jews -- are not "real Jews", there of course can be no antisemitism in hating them. 

In this way, contemporary conservatives can square the otherwise impossible circle: their self-identity of loving (their self-constructed image of) "Jews", and their actual practice of hating (real-life, flesh-and-blood) Jews. It is the natural terminus of that mode of thinking that a nominal leader of a taskforce against antisemitism would promote antisemitism of the most despicable kind -- we are not the Jews he ever intended to protect, we are the Jews he seeks justification to hate.

* In fairness, we all know how committed today's conservatives are to originalism, and originally speaking a "czar" absolutely refers to someone who promotes antisemitism, not one who combats it. Let it never be said that Donald Trump isn't taking conservatism back to its roots.

Roberts to Trump: The Bottle is in the Warmer

It's taken less than two months for Donald Trump to start demanding impeachments of judges who issue rulings he doesn't like. This remarkably fast turnaround prompted Chief Justice Roberts to rebuke the president, stating that the proper mechanism for expressing disagreement with a lower court decision is an appeal, not an impeachment threat.

People are reading Roberts' statement as him recognizing Trump's increasingly lawless posturing and pushing back (albeit in a sort of "Dr. Frankenstein realizes his monster is a problem" sort of way). I must confess, I read it more like me trying to calm my screaming baby while his bottle is in the warmer: "If you could just wait five minutes I promise I'll give you what you want."

I guess we'll see who's right.

The Israeli Government's Rapidly Imploding Antisemitism Conference

The JTA headline says it all: "After welcoming far-right politicians, Israel’s antisemitism conference is hemorrhaging speakers."

The Israeli government, spearheaded by Diaspora Affairs Minister Amichai Chikli, decided to use this conference as a high profile inauguration of Israel reversing its longstanding boycott of far-right political parties in Europe. Title notwithstanding, Chikli has always evinced pure contempt for diaspora Jews, so it is unsurprising that he'd raise this particular middle finger to Jewish safety around the world.

I first learned about folks pulling out of the conference from David Hirsh's announcement that he was doing so. Hirsh is one of the world's leading scholars on Contemporary Left Antisemitism and an incisive critic of the global BDS movement, so his departure is no small thing. He has been joined by figures including German antisemitism czar Felix Klein, French Jewish philosopher Bernard-Henri Levy, and British Chief Rabbi Ephraim Mirvis.

As of right now, ADL chieftain Jonathan Greenblatt is still on the speakers list, which certainly checks out (the decision to platform the European far-right was harshly criticized by Greenblatt's predecessor, Abe Foxman).

I consider the decision by Hirsh and his colleagues to be a brave and inspired one. The only thing I'll add is that I know Hirsh does not consider this to be an example of "boycotting Israel" and it does a disservice to his record and his choices to present it as such (whether as praise or condemnation). Much like with Natalie Portman, we should respect Hirsh's own understanding of what he's doing -- and what he's doing is not claiming that the mere presence of Israelis or an Israeli connection makes a conference tainted beyond salvation, but rather saying that the particular choices of this particular conference and its particular roster of speakers mean he cannot take the stage. Of course, it's possible to make "particular" choices that are so expansive in who they lock out that they are tantamount to a nationality-based sweep. But that's not what's happening here. 

There is no reason for diaspora Jews to endorse the Israeli government's clear decision that it cares more about allying with Europe's far-right than actually standing with the world's Jewish community, and as immiserating as that choice by Israel is for someone like me, I'm glad people like Hirsh are recognizing it for what it is and are responding accordingly.

UPDATE: Greenblatt has backed out too. Good on him.

What's the Point of a Senate Minority Leader?

Senator Sheldon Whitehouse (D-RI) had an interesting thread trying to explain the logic of why Chuck Schumer and several other Senate Democrats voted in favor of cloture on the GOP spending bill and averted a government shutdown. Whitehouse voted against cloture, but his object is to explain why some of his colleagues went the other way in good faith (i.e., not just because they're spineless capitulators). The short version is that a shutdown gives Trump greater power to accelerate the program closures and evisceration of disfavored government entities, and would even give him a veneer of legality that isn't present now. For Whitehouse, that risk is outweighed by the need to plant one's feet and take a stand now -- crystallizing the crisis the Trump administration has created and clearly fighting back against it -- but Whitehouse doesn't think it's impossible for someone in good faith to think the other way.

The Whitehouse thread is obviously meant to be a counterbalance to the growing anger being directed at Schumer from the Democratic base, who see him as an ineffectual leader incapable of mounting the resistance necessary against the Trump administration. How fair is the latter charge? To some extent, I think it depends on whether you think the role of the Senate Minority Leader is outward or inward facing.

If the role is outward facing, then Chuck Schumer's job is to be an exponent of the Democratic Party's message to the public, galvanizing the base and convincing others to rally against the Trump regime. Arguably, with Democrats out of the White House, he and Hakeem Jefferies are the two most powerful Democrats in the country and de facto co-leaders. People look to them to see what the alternative to Trump would be.

It is hard, I think, to dispute that if that is the job of the Senate Minority Leader, then Chuck Schumer has been bad at it. He has not been an effective messenger for the Democratic Party. He does not inspire the base. Nobody in the public looks to him for leadership.

However, there's a solid case to be made that the job of the Senate Minority Leader is not supposed to be outward facing. We are not a parliamentary system; the legislative head of the opposition party is not the prime minister waiting in the wings. When you think of the next generation of Democratic Party leaders -- the potential presidential candidates -- Chuck Schumer is not on that list, nor has he indicated any interest in being on that list. The folks who we should be looking at in terms of outward, public-facing Democratic messaging are folks like Tim Walz, Josh Shapiro, AOC -- people we can imagine running a presidential campaign. The role of Senate Minority Leader is inward-facing -- it is about governing a legislative caucus and figuring out how to orient that caucus towards a cohesive and effective legislative strategy.

Under this telling of the Schumer's role, I think the report card has to be considered more mixed. I am astounded by how many people had unreasonably high expectations of what Schumer could accomplish with a zero-seat majority anchored by at least two extremely mercurial actors; I think objectively speaking he did an incredible job. In his last stint in the minority, there likewise were simply absurd expectations over what he could plausibly accomplish (people thinking he just "let" the Senate confirm Brett Kavanaugh, for instance). And particularly in an inward-facing role, there's a solid case that part of Schumer's job is to take bullets for the rest of his caucus -- doing tactically necessary but unpopular things so that the public-facing leaders can keep a clean record. Even if Schumer is right about the relative demerits of letting the government shutdown, it was clear that any ambitious Democrat who acceded to the cloture vote has probably kneecapped their future prospects. In that case, Schumer's job is to take the righteous fire from the base so that other Democrats -- ones who are viable presidential contenders or who are outward-facing messengers -- remain pure. The willingness to do that, more than anything, is as far as I can tell the reason why Schumer has retained the support of his caucus even in the face of widespread external discontent.

All that said, it is entirely plausible to believe that right now Schumer hasn't figured out a good legislative strategy for his caucus either -- that he's failing in the inward-facing role. Some of that debate also returns us to Whitehouse's description of the split in the caucus  -- is now the time to plant one's feet and do pitched battle; or is it still better to try to maneuver for position? This, I think, is a more reasonable way of framing the current divide amongst Democrats that is sometimes presented as "fighters" versus "appeasers"; but I say that with a lot of sympathy towards team "fight". After all, saying one "has a plan", delaying action yet again to "maneuver" into a better position -- these can rapidly simply become excuses for inaction and quiescence. Once you cut away the paranoid underbrush where Schumer is deliberately selling out his party because he's closet-MAGA, this is far and away the strongest argument against Schumer as Senate Minority Leader from the inward-facing perspective -- that he's making serious tactical misjudgments by an unwillingness to commit to a pitched battle when Democrats need to show they're standing firm.

Where do I land on this? As alluded to above, Schumer has caught to my mind unreasonable fire for a long time; I've been far more forgiving of him in his leadership role than many of my peers. But one of my lodestone political beliefs (this was my take on the vice presidential nomination too) is that nobody "deserves" a role like Senate Minority Leader. There's no fairness here, no deserts. Maybe it's silly for people to look at the Senate Minority Leader as an outward facing role, but it seems like they are, and in that capacity Schumer has completely lost the trust of the base and doesn't have any particular cachet with "moderates" or "independents" to make up for it. And on the inward-facing side, again, even painting Schumer's strategy in the best light and giving him the benefit of the doubt, I'm inclined to credit Whitehouse's belief that Democrats needed to pick this fight and do it clearly. Perhaps that's me having blinders on and just desperately wanting someone to punch back at Trump; Schumer almost certainly would say I'm not looking at the long game. But my strong instinct is that Democrats need to  be punchier, and Schumer is not fitting the bill.

Who would fit that bill -- and do so, importantly, while filling the less visible inward-facing needs of caucus wrangling and legislative strategizing -- isn't totally clear to me. Nominations welcome.