Unmasking a Social Collapse

The image of masked federal agents seizing Rumeysa Ozturk on the street for the "offense" of writing a disfavored op-ed on Gaza is chilling enough. But surely there is an extra dose of irony in the masks themselves, seeing how the MAGA right has specifically identified banning masks as one of its main demands in its ongoing assault on academia in general and protests in particular.

Of course, wearing a mask has also become a progressive marker of good citizenship in recent years. There's always irony enough to go around.

In so many ways, masks are a microcosm of everything that's gone wrong in our politics over the last five years. First, we saw the histrionic conservative protests over mask mandates, where wearing a scrap of fabric over one's face in the middle of a lethal pandemic was portrayed as the greatest civil rights violation in living memory. Soon, not content with not wearing their own masks, the right extended outward to try to actively curtail voluntarily masking by others, using spurious comparisons to the KKK as flimsy justification for what was obviously kulturkampf.

A few years later, though, as masks became de rigueur in the protester scene, we saw a few too many progressives get a little too cute in merging the medical justification for masking with an obvious desire to shield people from accountability for criminal activity or violation of campus rules. The idea that the protesters who stormed an Israel history class at Columbia wore masks out of respect for avoiding contagious disease is ludicrous.

But it wasn't long afterwards that the progressives' legitimate concerns were validated once again, as unmasked individuals associated with campus protests found themselves easy marks for Trump's authoritarian predations. It was Mahmoud Khalil's decision not to wear a mask, after all, that made him a prime target to inaugurate Trump's censorial crackdown on international students. Here masking isn't about evading legitimate consequences for unlawful acts, it's about protecting oneself from out-of-control abuses of power.

And of course, the masked officers making sure to conceal their identity while abducting a student off the street for WrongThink makes for the full circle: a terrifying encroachment on civil liberties that brings to mind the secret police of history's most repressive regimes.

The reality is that the ethics surrounding masks seem uniquely resistant to being formalized into rules, and instead demand a modicum of virtue and common sense. Anyone should be able to tell the moral difference between masking as a prophylactic health measure, versus masking to shield oneself from public accountability. Yet any malicious actor can easily say, without being easily refuted, that they are wearing their mask for medical reasons. How would one refute that?

A healthy society resolves these problems simply by being healthy. We accept frankly trivial burdens like mask mandates if its necessary to stop a pandemic. We recognize that masked hooligans trashing a classroom are not the same as EMTs in an ambulance. We expect our police to conduct their operations in a manner that permits review and accountability, so that we can all be confident the law will be followed.

Our society is not healthy. And so choices that should be taken for granted, no longer can be.

What Will Go Wrong Hardest, Fastest?

It's hard to keep track of the firehose of sewage the Trump administration has already started pumping out in its first few days. From civil rights to cybersecurity, the administration has been taking a wrecking ball to the American governmental project, with consequences that will likely reverberate for years, if not decades.

But I don't want to wait that long. I'm curious: which of Trump's endeavors are likely to blow up hardest, fastest, in a way that is noticeable to the broader public?

For example, take the cancellation of scheduled funding meetings at the National Institute of Health. This is a terrible thing, that will needlessly obstruct critical medical research. But while it's certainly noticeable to the doctors and scientists on the inside, the public impact of it won't be felt for a long time. It's not like there's a cancer cure that was scheduled to come out tomorrow that now is being shelved.

Ditto Pete Hegseth likely getting confirmed as Secretary of Defense. It is very bad that an alcoholic sexual predator is overseeing America's military, but we're not going to lose Buffalo to a Canadian invasion in the short-term. The fallout -- in terms of military readiness, efficiency, professionalism, and so on -- will occur over a longer timescale.

By contrast, the myriad governmental hiring freezes Trump has announced do seem to be breaking out of containment, insofar as they are kneecapping many people who in many cases were all set to move long distances to start a new job, only to have it abruptly pulled out from under them. I'm already seeing a few "leopards ate my face" posts by Trump supporters who are sure that Trump couldn't possibly have meant to do exactly what he said he was going to do.

Tariffs are another good candidate for something that will immediately, dramatically, and noticeably impact American pocketbooks -- especially if they set off another bout of inflation.

But maybe there's something else that will explode harder, faster, and stronger than I anticipate. I would say I can't wait to find out, but I suspect my preferences will have little to say on the matter.

This Is Your Grandpa's Democratic Party(?)

"Democrats abandoned ordinary Americans."

It's not true. But it's stuck, like a craw in the mouth of the American voter (and the American pundit). And the big question amongst Democratic strategists is how to dislodge it.

My latest idea, in my ongoing quest to become the Democratic Party's Francis Coppola, is to explicitly run with a narrative that says "yes, this is your Grandfather's Democratic Party" -- directly tying oneself to JFK and the New Deal and the civil rights era and that whole period where (supposedly) the Democratic Party was the party of ordinary Americans. Cut to lines about:

• Defending labor unions.
• Bringing back honest, well-paying jobs that can support your family.
• Taking on the billionaires robbing our democracy.
• Protecting civil rights.
• Restoring a women's right to choose.

All intercut with images of modern workers interspersed with older imagery (the March on Selma, men on girders building skyscrapers, etc.) that evokes the good old days.

What's the point of the ad? Basically, it's to create a permission structure for people who have -- for whatever reason -- internalized the narrative of "the party left me" to tell themselves things have changed again. They're not voting for the modern Democratic Party that Fox News has created for them in their minds over the past few years (latte-sipping coastal elites blah blah blah), they're voting for the mythologized Democratic Party of yesteryear that the Fox News caricature is tacitly juxtaposed against -- the party of the New Deal and of JFK, the party that was a working-class party, the party that built things and fought for everyday Americans.

"Mythologized" is important. Obviously, in reality the Democratic Party of that era (or any era) was not some clarion beacon of the worker's voice; nor was it some uncomplicated bastion of civil rights and women's rights advocacy. I know that, you know that. I also know that "ordinary Americans" is a loaded term, that the past wasn't actually that great for a whole lot of people, and so on.

But we're not writing a history paper here, we're dealing with a mood, and that mood is not especially connected to historical reality. How many times have you heard someone say that the current Democratic Party "just keeps moving to the right" (when it is beyond obvious that the Biden administration is the most progressive Democratic administration in my lifetime)? Objectively, it is impossible to defend the notion that the Democratic Party leadership is more conservative now than it was during the Clinton administration. In reality, making a show of affirming people who think "well, back then Democrats were fighting for me" is worth playing a bit of make-believe. Nostalgia is a hell of a drug, and just the gesture of "this is a change in a direction that makes you feel fuzzy" can have an outsized impact. The past wasn't actually that great, and modern changes are good actually. But if you can make people feel as if the things we're pulling for now are simply a restoration of the hazy memories they have when things were inchoately "better" (or "less complicated" or "less divided" or whatever), you're in a very good position.

I'm not saying the idea is perfect. In particular, even as a subversion of the "not your grandpa's ..." frame, the tagline still is a rough one at a time when many people are aggrieved at the "gerontocracy" in American politics. So workshop the hell out of this. I'm not prideful about it. But I think there's something here. The great insight of the contemporary conservative movement is in how they manage to fuse their present-day reactionary values as if there were simply a restoration of the greatness of the founders (I read one constitutional commentator describe originalism as "ventriloquizing the present through the past"). Democrats can do it too -- and as the Republican Party falls deeper and deeper into the grip of billionaire oligarchs and weird paranoid extremists, there's an opening here we can and should exploit.

Eighth Circuit Absolves Another Minnesota Police Killing

On Friday, the United States Court of Appeals for the Eighth Circuit handed down its opinion in Kong v. City of Burnsville, a case regarding the killing by Burnsville police of an Asian-American man in the midst of a mental health crisis (Burnsville is a suburb of Minneapolis). The district court had denied qualified immunity to the officers, allowing the case to go to trial. On appeal, however, the Eighth Circuit (by 2-1 vote) reversed, holding that the officers' conduct did not violate clearly established law.

The facts of the case are complicated. Early one morning, Burnsville police received a report of suspicious activity in a McDonald's parking lot. A man (Kong) had been spotted sitting in his car for thirty minutes, waving a knife and jumping around. Officers arrived and at first passively monitored the situation. Then they asked the man to put down the knife; he was unresponsive. It was pretty evident that he was undergoing a mental health crisis, but he had not committed any felonies and did not appear to be an immediate threat to anyone.

Eventually, police broke the windows of his car and tased Kong twice. Kong did not drop the knife; he stumbled out of the car and broke out running towards the street where traffic was still driving by. At that point, police officers opened fire, striking and killing him (one bullet lodged in the bumper of a passing vehicle).

The majority held that it was not clearly established that the police could not open fire in this scenario. They contended instead that the officers reasonably perceived Kong as posing an imminent safety threat to the civilians driving by. Judge Kelly, in dissent, pointed out that it was obvious that Kong was undergoing a mental health crisis and he had never threatened anyone, and that in any event people in cars would not be in especial danger from someone holding a knife. A jury could therefore conclude that the decision to open fire on Kong was excessive.

I personally think this is legally a close case -- though close cases I think are generally best left to juries rather than plucked out by judges. But given the current circumstances in the Twin Cities and around the country, I thought it was noteworthy that this case was handed down this Friday, and wanted to give out the facts.

Qualified Immunity and Criminal Law

Normally, we think of civil cases as being easier to win than their criminal counterparts. The standard of proof is lower ("preponderance of the evidence" versus "beyond a reasonable doubt"), and many activities which are not subject to criminal penalties might nonetheless carry civil liability. There's a reason why O.J. Simpson was acquitted of murder but nonetheless lost the civil suit against him for wrongful death.

But, at least in the context of police brutality cases, there is one hurdle present in civil litigation that is not found in criminal law: qualified immunity.

Qualified immunity is a judicially-made doctrine that shields officers of the state (not just police officers, though they're the most common subjects of litigation) from civil liability for constitutional violations unless they violate "clearly established" law. In other words, it's not enough for the police officer to have violated the law, it has to have been obvious in advance that they violated the law. The judiciary has interpreted this in an exceptionally stingy fashion, insisting on extremely granular inquiries into whether the precise fact pattern alleged by the plaintiff had been specifically demarcated as unlawful in a prior case. The question isn't something like "has it been 'clearly established' that a police officer can't physical strike an non-resisting suspect?", it's instead more like "has it been 'clearly established' that a police officer can't specifically tackle a non-violent, non-resisting, non-threatening suspect who weighed 130 lbs?" If one doesn't find a case that mirrors those facts, the law isn't "clearly established" and the case fails. The Supreme Court itself has accordingly characterized qualified immunity as a shield for all except "the plainly incompetent or those who knowingly violate the law." And the Eighth Circuit (which includes Minnesota) -- well, it's insulated some pretty wretched behavior under qualified immunity's guise (and some of its judges think it hasn't gone far enough!).

By its nature, qualified immunity means that many actions which are concededly unlawful violations of Americans' civil rights are nonetheless protected from civil suit. But there is no qualified immunity in the criminal law: one cannot escape criminal punishment by arguing that there has not been prior case law "clearly establishing" that the conduct you're accused of is unlawful. I'm dubious about the ultimate viability of criminal law to serve as a systemic brake on police brutality -- I'm not sure that is a task it is well-suited for (though it is certainly appropriate in particular cases -- the George Floyd case appearing to be an obvious). But a criminal prosecution -- as much as it is (properly!) hamstrung by heightened burdens of proof compared to a civil suit -- does evade the strictures of qualified immunity. And given how aggressively the judiciary has interpreted qualified immunity to shield bad actors in the American policing system, that's a virtue which cannot be discounted.

Technically, Any Number of Seconds Can Be Split Any Number of Times

Yesterday, in Chestnut v. Wallace,* the Eighth Circuit denied an officer qualified immunity. That itself is arguably worthy of noting, since the Eighth Circuit is not exactly predisposed to denying qualified immunity.

The case itself is straightforward: a man (Chestnut) quietly observed a St. Louis police officer perform a traffic stop from about 30 - 40 feet away, while leaning against a tree. The officer viewed this as suspicious, and called for backup. A new officer asked for Chestnut's name, birthday, and social security number; he refused to provide the last of these. The officer then frisked Chestnut for weapons, found none, and then proceeded to have Chestnut handcuffed. After about twenty minutes and a conversation with the officer's supervisor, Chestnut was released. Since observing the police does not provide reasonable suspicion of criminal activity, and since people are allowed to not answer questions from the police (such as providing their social security number), no reasonable officer could have had suspicion of criminal activity, and so there is no qualified immunity.

Judge Gruender dissented. This is considerably less noteworthy, since an officer could probably shove a handcuffed detainee off a six-story building and Judge Gruender would conclude he has qualified immunity.

I do want to flag one thing though, from the end of Judge Gruender's opinion. He writes that "police officers are not—and should not be—expected to parse fine distinctions between statutory and constitutional law in split-second decisions." This rhetoric of "split-second decisions" is increasingly common in judicial opinions that seek to insulate police officers from accountability, particularly in use-of-force cases. Maybe we have sympathy for it in that context, maybe we don't.

But it is interesting to see this rhetoric make a near-reflexive showing in this case, as nothing about the police's interaction with Chestnut involved anything like a "split-second decision". There were no sudden movements, no unpredictable reversals or unexpected flinches. Chestnut was far away from the action and was not an imminent threat to anyone. By the time he was placed in handcuffs, the police already knew he was unarmed. That Judge Gruender nonetheless characterizes this case as involving a "split-second" decision suggests that anything the police do deserves that label. But it's just not true. Not every decision a police officer makes in the field is a "split-second" one; the decision to detain Chestnut certainly was not. It was a decision taken after many seconds, under no particular pressures and with ample time to deliberate.

In that same paragraph, Judge Gruender hoarily remarks that police officers in the field are not "participating in a law school seminar." Indeed, they are not. They are taking real actions which have real consequences for real people. Kevin Chestnut was placed in handcuffs for having the temerity to look at the police in public. That's a terrible thing to have experienced; obscured though it might be behind rhetoric of "reasonable suspicion" and the fuzzy line between "detention" and "arrest". We should step out from the legalese fictions that justify qualified immunity, and start taking the reality of what the police do -- and who they are doing it to -- a lot more seriously.

* The opinion was authored by Judge Arnold, joined by Judge Grasz -- and I'll reiterate again what a pleasant surprise Judge Grasz has been on qualified immunity issues.

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.

Fraud Squad! Roundup

In a meeting, I got a phone call from my bank about potentially fraudulent transactions on my credit card. Had I recently ordered $50 worth of fast food pizza? No, I hadn't -- and so the account is frozen, and presumably the charges will be reversed.

An hour later, upon returning to my desk, I had the bizarre joy of seeing a confirmation from Domino's promising me that my "pizza is on the way [to Houston, Texas]!"

Anyway, long story short: I'm getting pizza for dinner tonight.

* * *

Jenny Singer of the Forward interviews Young Gravy, a Black Jewish rapper (and GW student). It's a really interesting and worth your time (I'm saying that not just because I think I played a role in putting the interview together!).

I think I missed this when it came out, but a Texas court struck down the Indian Child Welfare Act's adoption rules this past fall, saying that act's preferences for Indian children to stay with Indian families was racially discriminatory against non-Indians. The Judge, incidentally, was Reed O'Connor -- the same guy who just struck down Obamacare. He's certainly setting himself up as the go-to-guy for tip-of-the-spear conservative judicial activism.

Alabama was all set to execute a Muslim inmate -- but refused to allow a Muslim chaplain to be present with him during the execution (they did offer a Christian chaplain, which unsurprisingly the inmate did not consider to be a satisfactory substitute). 11th Circuit stays the execution due to the "powerful Establishment Clause claim" (and plausible RLUIPA claim). Alabama is appealing to the Supreme Court.

A new poll finds that over half of Israeli Jews agree that the controversial "nation-state" law must be either abandoned outright or fixed to confirm the state's commitment to democratic equality for all citizens.

A Cameroonian official has apologized for threatening an ethnic minority group by comparing them to Jews in pre-WWII Germany, namely: "In Germany, there was a very rich community who wielded all economic power .... They (the Jews) were so arrogant that the German people were frustrated. Then one day, a certain Hitler came to power and put them in the gas chambers."

I have no takeaways from the Likud primaries except celebrating Oren Hazan's imminent departure from the Knesset. Goooood riddance.

Iraqi Jews commemorate family members who were "disappeared" by state secret police.

Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:

Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 

While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.

The manager then escorted the white woman to her car, Pruitt said.

While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.

Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.

Anyone Can Be "Not Racist" To Someone (With Bonus Right/Libertarian Intercession!)

After viciously beating an African-American man in an Iowa bar,  Randy Joe Metcalf was convicted of a federal hate crime and sentenced to 10 years in prison. In relevant part, the federal statute says that "[w]hoever . . . willfully causes bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person . . . shall be imprisoned not more than 10 years, fined in accordance with this title, or both[.]"

The evidence surrounding the "because of" race element of the crime against Metcalf was substantial (and -- fair warning -- quite graphic). During the night of the attack (and into the following day), witnesses heard or saw Metcalf:

• Brag about burning crosses in front of an African-American family's home.
• Tell the bar owner "I hate fucking niggers."
• Show off a tattoo of a swastika to said bar owner and another bar patron while saying "that's what I'm about."
• Call the friends of the African-American man whom he'd later attack "nigger lovers" and "nigger loving cunts."
• Exclaim, in the course of attacking the man, "fucking nigger!" and "die nigger!"
• Tell a friend the following day that "the nigger got what he had coming to him."

What was Metcalf's main factual defense at trial?

That he wasn't racist. And indeed, the man with the swastika tattoo who savagely beat a man while hurtling racial slurs called seven witnesses who were prepared to testify that he was in no way a racist.

Un(?)surprisingly, the jury didn't buy it, and voted to convict. And the Eighth Circuit just affirmed that conviction, so it looks like Metcalf will spending quite some time in prison.

That was all I initially planned to write. But while rereading the case for this post, I came across another interesting tidbit: Metcalf had some powerful right-wing/libertarian allies filing amicus briefs on his behalf. The Cato Institute, the Reason Institute, The Individual Rights Foundation (an arm of the David Horowitz Freedom Center), the Center for Equal Opportunity, and two right-wing appointees to the United States Civil Rights Commission (Gail Heriot and Peter Kirsanow) all interceded to argue that the relevant provision of the federal hate crimes statute is unconstitutional as in excess of Congress' enforcement power under the 13th Amendment (I've read all the briefs, though it seems only the Cato Institute's is publicly available).

Now to be clear, even repulsive White supremacists have rights, and I don't think it's an endorsement of White supremacy to file an amicus brief in a White supremacist's criminal case. But it is worth tracing the precise argument these groups felt so passionately about that they'd intercede on behalf of a guy like Randy Joe Metcalf. 

Part of their argument is that the 13th Amendment only permits barring so-called "badges and incidents" of slavery (such as being targeted for physical assault on basis on one's race) when it is necessary to prevent the literal reimposition of slavery. Since, amici argue, there is no realistic change of literal slavery reemerging, it is no longer (if it ever was?) necessary for the federal government to ban racially-motivated assaults in order to pursue the constitutional ends of abolishing slavery (if you think they've been emboldened by Shelby County, you're right).

The other half of the argument is that hate crimes prosecutions, in particular, are a dangerous tool to give to the federal government because they're more susceptible to public outrage and thus "double jeopardy" prosecutions. This is a highly revealing argument. The double jeopardy clause doesn't apply when the federal government prosecutes its own criminal law (even after a completed state prosecution covering the same incident). The amici argue that the federal law here exceeds Congress' constitutional authority; but if that's the case the double jeopardy complaint is superfluous -- the law's just unconstitutional in its own right. So what's the point of bringing up double jeopardy?

The point is one of policy, or more accurately, of worldview. The argument is that "hate crimes" are particularly likely to arouse public anger and legal response, and that therefore we're more likely to see zealous prosecution (up to and including using these federal laws to get a "second bite at the apple" in the event an initial state prosecution fails). In doing so, the Cato Institute and its cohort wish to evoke a particular vision of civil rights laws -- wherein they're mainly a tool of oppression and governmental overreach and so must be highly limited and closely watched. They present a world where the government can hardly resist the pleas of minority communities for justice in the case of racist crimes; where the main problem when it comes to race in our society is too much zealousness in protecting outgroups. Who will think of the poor White supremacist, reviled by all and protected by none (except, of course, a President who thinks some among his number are "good people")?

It was difficult to swallow this logic in 2013, when Shelby County was decided. In 2018, it would be laughable save for the fact that it appears to be virtually indestructible. Just as for some people there's no amount of evidence that could establish someone to be racist, for some organizations there's no amount of evidence that could establish racism as an actual, non-trivial problem in American society.

"Like Giving Zizek To a First-Year" Roundup

Next week is the first substantive meeting of the "Intro to Political Theory" class I'm GSIing. It's mostly made up of first- and second-year students. The professor's initial reading assignment includes excerpts from Zizek and Gramsci. I'm prepared to be absolutely despised.

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An LSU professor fired (against the advice of a faculty committee who reviewed her case) for using profanity in the classroom has lost a First Amendment suit against the university. I can't comment on the legal issues involved, but I can say that I fully agree with the AAUP's decision to censure LSU (in part) over the termination (the ruling does not effect the AAUP censuring decision).

The best piece I've read on liberal opposition to Ken Marcus taking up a civil rights position at the Department of Education. Tl;dr: It's not about BDS, it's about him being a conservative who isn't trusted to enforce the priorities of the civil rights community.

Why do Republicans need 60 votes to pass a budget? Because they used reconciliation to slam through a giant tax cut for the rich. Priorities, priorities.

RIP, Julius Lester.

Jewish convert discovers that her conversion means her old leftist buddies assume she's now all-in for apartheid. Welcome to the club!

A bank executive actually will go to prison for fraud (relating to the collapse of Nebraska bank TierOne).

Today in Academic Freedom

Yesterday, I published a column in Ha'aretz on Berkeley's response to the Ben Shapiro speech. I noted that, since the Berkeley administration actually did exactly what it should have done in ensuring that Shapiro's juridical right to speak was protected, and since the Berkeley community largely followed through and responded to his speech through perfectly legitimate means (counterspeech, non-violent protest, flyers, questioning), perhaps we could now move on the substantive merits of what signal it sends when Ben Shapiro is invited at all.

It's been a banner couple of days for academic freedom, after all. For example:

* Harvard administrators overruled its own History Department's decision to admit Michelle Jones, a woman who rose to prominence for conducting top-level historical research while incarcerated in Indiana, to their graduate school. Reportedly, the decision was motivated in part by what conservative media outlets would say if Harvard admitted "a child murderer, who also happened to be a minority."

* Harvard also withdrew a fellowship offer previously extended to Chelsea Manning, this time in response to furious objections from conservatives in the intelligence community who deem Manning a "traitor." Manning was convicted of leaking classified information, and had her sentence commuted after serving seven years in prison. Corey Lewandowski, who assaulted a reporter, and Sean Spicer, who epitomized the "post-truth" ethos of the Trump administration, remain fellows in good standing.

* The University of Maryland is investigating the termination of a Jewish professor, Melissa Landa, from the College of Education. Landa contends that her relationship with her colleagues soured after she began organizing against antisemitic comments by (now-former) Oberlin Professor Joy Karega (Karega was eventually terminated after spreading several antisemitic conspiracy theories on social media; Landa is an Oberlin alum). Several of Landa's students have released an open letter criticizing her termination, describing her as an "ally" and "one of the few professors who is an expert in helping students examine their own biases."

* A lecturer at the John Jay College of Criminal Justice was suspended after tweeting that he enjoys teaching "future dead cops." The New York City Police Union wants him fired, but New York Times columnist Bari Weiss wrote a lengthy essay explaining that, while the lecturer's views were offensive and reprehensible, it is important both for CUNY students and police officers to be exposed to ideas that discomfort them and respond via counterspeech rather than demand censorship [error: column not found].

* The University of North Carolina's board of governors shut down a civil rights center at UNC Law School which ruffled conservative feathers by litigating desegregation and environmental impact suits. I had already written about this controversy here, noting the incredibly ad hoc justifications given for what was obviously a political power play ("we just think law schools should focus less on practical training and more on esoteric, Ivory Tower theorizing!").

So that's where we stand. One suspects that some of these cases will gain great notoriety within certain political factions while others will be wholly ignored; switch the factions and you no doubt switch the cases that matter. As we've long since learned, academic freedom has a lot of fair weather friends. But as these examples indicate, the assault on academic freedom does emanate from a single source. You either defend the norms which let a university function, or you don't. 

I Have Some Terrible News About What Law Schools Do

A prominent clinic at the University of North Carolina law school looks likely to be functionally shuttered after a committee of the UNC Board of Governors voted to bar it from representing any future clients. The Center for Civil Rights, which enjoyed the strong backing of campus leaders, had drawn the ire of conservative forces in the state when it took cases in contentious environmental, land use, and racial segregation controversies.

This is a huge blow to academic freedom, as it is beyond evident that the center is being attacked because of its perceived politics. But the attempts to justify the decision in neutral or even pedagogical terms is, if anything, even more pathetic. Here's how one official justified his vote:

[Marty] Kotis, a real-estate developer and UNC-CH alumnus, indicated that he thinks lawsuits in general are a waste of money and that people should look for other ways to resolve conflicts. Putting the center out of the business of representing clients is “simply about reducing the amount of litigation out there,” he said.

Marty, I have some terrible news for you regarding what law schools train aspiring lawyers to do.

Another official -- this one a lawyer -- took almost the precise opposite stance of every boomer-complaint about impractical law schools and their Ivory  Tower cloud-headedness to say that law schools should offer no clinical practice whatsoever. "A law school is one thing; a law firm is another thing," he said, and then suggested that the only role of the former is to aid students in coming "to a deeper understanding of the philosophical roots behind each case and the cultural implications they have." Speaking as someone very much on the theory side of the theory/practice legal spectrum, I nonetheless am stunned to see such a full-throated dismissal of the practice side of legal training from a practitioner.

While there remains another vote to be taken, most observers expect that the end of the Center for Civil Rights' days representing clients is nigh. That's a major blow to UNC's law school -- not just because it is losing a well-regarded clinical center, but because it emphasizes the entire school's vulnerability to political piques from well-connected outsiders. A law school -- a university -- cannot function as it is meant to in such a case.

Free Speech and Discriminatory Motive

One of the more nettlesome problems in anti-discrimination law is how it intersects with free speech rules. Laws against harassment, for example, often target speech -- usually terrible, crass, bigoted speech, but speech all the same. Laws against discrimination likewise interfere with freedom of association -- grotesque, biased preferences regarding who to associate with, but association all the same. As a society, we've at least implicitly decided that anti-discrimination norms can -- at least in some circumstances -- trump free speech norms, and I'm totally okay with that. But our implicit agreement hasn't really cashed out into explicit acknowledgement of the tension, and that means that we don't always have a fully-thought-through sense of how speech and discrimination intersect.

These problems have come to a head with Congress considering the Anti-Semitism Awareness Act, just recently (and swiftly) passed in the Senate and now moving to the House. The Act basically expands the definition of "anti-Semitism" under Title VI of the Civil Rights Act (encompassing educational equality -- for our purposes, laying out the duties educational institutions have with respect to preserving an environment free of anti-Semitic harassment) to codify the definition "set forth by the Special Envoy to Monitor and Combat Anti-Semitism of the Department of State in the Fact Sheet issued on June 8, 2010, as adapted from the Working Definition of Anti-Semitism of the European Monitoring Center on Racism and Xenophobia." The significance of that definition is that it explicitly seeks to consider when and in what circumstances anti-Israel sentiment qualifies as anti-Semitism.

Several commentators, including ones I respect like Jesse Singal and the ACLU, have raised First Amendment alarm bells (the bill contains a savings clause  stating that "[n]othing in this Act, or an amendment made by this Act, shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States", but critics worry those are empty words). After all, statements critical of Israel -- including statements vitriolically so -- are protected by the First Amendment. Even the original drafter of the definition the ASAA incorporates opposes encoding it into US law, arguing that its purposes was to serve as a monitoring device for tracking anti-Semitic incidents, and thus is by design broader than what can be validly proscribed by law.

I don't dismiss the validity of these concerns. But I think they're in many ways oddly situated. They either frame the problem incorrectly, or take a genuine problem that's endemic to anti-discrimination rules and act as if it's uniquely presented by the anti-Semitism case.

To see why, let's divide discrimination cases into two groups: "speech + conduct" and "pure speech." We'll start with the former.

Suppose you declare "I hate Jews!" That's protected speech. Suppose you punch a Jew in the face. That's battery, but it's not a hate crime or an incident of discrimination under Title VI unless its done because they're Jewish (if you punched a Jew in the face because they were a Dodgers fan, it would still be a crime, but it would not be a case of anti-Semitism).  Finally, suppose you punch a Jew in the face while declaring "I hate Jews!" That is very likely to be deemed an incident of anti-Semitism under Title VI, as the speech establishes the requisite motive (that your punch was thrown because the target was Jewish). Presumably, this manner of intersecting "speech" with discrimination law isn't controversial. Obviously, discrimination law looks into one's viewpoint in this respect -- it is entirely about differentiating conduct motivated by particular viewpoints (hating Jews, Blacks, women, Muslims, whomever) from conduct motivated by other concerns (sports fandom, parking disputes, general belligerency, etc.).

The most straightforward way of viewing what the Anti-Semitism Awareness Act does, given its First Amendment language, is to clarify what sorts of statements can establish an anti-Semitic motive when coupled with otherwise actionable conduct. The person who punches a Jew while stating "I hate Jews" is clearly anti-Semitic in a way a person who punches a Jew while stating "that was my parking space" may not be. But what of the person who punches a Jew while stating "Zionists are Nazis!"? Surely still a case of battery, but is it a case of anti-Semitism? The puncher will likely say no -- their actions were motivated by political hostility towards Israel, distinct from anti-Semitism. The victim will usually argue yes -- stating "Zionists are Nazis" is a form of anti-Semitism; if that was the motive for the punch, it was an anti-Semitic punch.

Consider the case of Paul Donnachie,* a student at St. Andrew's University who was convicted of grabbing a dormmate's Israeli flag, rubbing it against his pubic hair, while declaring that the student was a "terrorist", Israel was a "terrorist state", and the flag was a "terrorist symbol." Donnachie of course agreed that his actions were not "dignified", but contended that it was an act of "political expression" rather than anti-Semitism; the Scottish Palestine Solidarity Campaign likewise complained that Donnachie's conviction and expulsion "conflate[d] legitimate political criticism of the State of Israel with racism."

In cases like these, the issue isn't whether the challenged action is "speech" or "conduct". Everyone agrees that defacing another person's property is the sort of thing that can be regulated. The question is whether the motive for that conduct falls within the set of malign motives covered by anti-discrimination law. Had Donnachie done what he did while saying "stupid Jew", there'd be no complaints that his free speech rights were violated (despite "stupid Jew" also being a protected viewpoint). In these cases, the ASAA is simply clarifying that statements which meet the State Department definition do establish the necessary motive. One can disagree with that decision, but it's hard to characterize it as a free speech objection without entirely dismantling the whole of anti-discrimination law. After all, if the problem is that our Jew-puncher is being punished in part for his viewpoint, that problem is equally manifest regardless of whether his views were "Zionists are Nazis" or "I hate Jews." Both are protected speech; both are treated differently from the view "Dodgers suck!"

I don't think that most of the free speech critics of the ASAA are worried about this set of cases. Rather, they're worried about a situation where "pure speech" -- simply saying "Zionists are Nazis", without any accompanying conduct -- could be investigated as a form of harassment.

Note again that this problem is not distinct from a policy saying "Jews are scum" can represent a form of harassment. Again, "Zionists are Nazis" and "Jews are scum" both are equally protected under the First Amendment. So as a free speech objection, this argument only works if one is willing to say that speech alone can never create a discrimination violation. That is a theoretically cogent position. It is not the status quo in civil rights law. Even absent any conduct acts -- touches, obstructions, vandalism, etc. -- "pure speech" can result in a harassment finding in the right circumstances, e.g., if it is severe and pervasive enough to materially interfere with a student's ability to access their educational institution's resources. Constant sexual harassment that never leaves the realm of words would be a classic example of such a case.

So to the extent the ASAA would apply in a "pure speech" case, it would presumably apply on the same terms as any other scenario where speech alone is alleged to create a hostile environment. In general, isolated acts of verbal harassment are rarely sufficient to support a Title VI claim; simply being exposed, occasionally, to persons yelling out racist or sexist or anti-Semitic things does not create legal liability. The case would have to be something like a Jewish student who everyday encounters picketers telling him he's "Zionist Nazi scum." Should a student have a remedy in such case? Maybe, maybe not, but the "Zionist" part of the equation doesn't strike me as relevant from a free speech perspective -- the same analysis would apply if it was a Muslim student perpetually being told she's "ISIS terrorist scum" or a female student told she's "a babymaker who should stay in the kitchen," or for that matter, a Jewish student simply being told she's "a greedy JAP." In all the cases, we are taking something that is -- in the broadest sense -- (terrible) political expression, and using it as the basis of a discrimination investigation. In all the cases, our limiting principle is not that these outlooks are "protected speech" (they all are), but rather requirements of severity and pervasiveness which are supposed to guard the line between protected speech and unlawful harassment.

Again, none of this is to say that there aren't valid free speech concerns here. There are! The point of this analysis is to show that those concerns are pervasive in our discrimination law; this bill doesn't raise novel problems so much as it illuminates the difficulties which already exist.

Hence, for those persons who are generally content with the discrimination law doctrine we have, the "free speech" objection to the ASAA is a masquerade for a more straightforward substantive objection: They don't think that calling Zionists Nazis should be deemed anti-Semitic at all. A defensible position, perhaps, but not one that has anything to do with free speech if the proponent is not willing to level a similar objection to the myriad other ways that discrimination law supervenes on one's political outlooks. It's simply an on-the-merits dispute over what counts as anti-Semitic discrimination.

Meanwhile, there is a perfectly valid argument to be made that discrimination law is not sufficiently attuned to the ways in which it can chill valid political speech. Perhaps the ASAA makes those perils especially clear. But if we're going to go down that route we should actually go down it, not deceive ourselves into believing it can be restricted into a Jew-only one-off. The structure of the free speech objection to the ASAA cannot restrict itself solely to that case.**

* I'm pretending for sake of argument that Scottish law and American law are identical in this arena. They're not, of course, but I don't think that alters the usefulness of the example.

** The reverse is true as well: persons who airily dismiss the free speech worries in the anti-Semitism case cannot throw hysterical fits over how harassment law "makes it impossible" to say the things they want to say in the race or gender arenas.

At Least Get Your Stupid Slavery Analogies Right

Scott Walker's newest appointee to the Wisconsin Supreme Court, Daniel Kelly, had the following to say about affirmative action:

"Affirmative action and slavery differ, obviously, in significant ways," Kelly wrote. "But it's more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same."

First, let's clarify that this passage wasn't something Kelly wrote as a drunk sophomore in his university's "alternative" political magazine. He wrote it in 2014, and he included it in his Supreme Court application packet. This is an argument he is proud of.

And that aggravates me. For the obvious reasons, sure, but more because this isn't even the right way of making an idiotic analogy between affirmative action and slavery. The right way of doing that is something to the effect of "both involve the distribution of social benefits and burdens on the basis of skin color." That wouldn't make the conclusion that "Morally, and as a matter of law, they are the same" any less appalling, but at least it would have an internal consistency to it.

But Kelly can't even get that right. Affirmative action very rarely "force[s] someone into an unwanted economic relationship." Much the opposite -- typically affirmative action programs are voluntarily adopted by given institutions (e.g., the University of Wisconsin), and then challenged by external actors who want them instead to use a colorblind admissions/hiring process -- or, to put it another way, want the judiciary to force them into an economic transaction that differs from the one that the university or business would want to enter into if left to its own devices.

This is why I find it so baffling when libertarians say they oppose affirmative action. It takes either a private or quasi-private (where a governmental actor is behaving as a "market-participant") decision, and strips it from the normal decisionmaker in favor of a blanket command-and-control rule imposed by governmental fiat. Libertarians should hate that!

Actually, it seems evident that Kelly simply got his issues confused. The argument he's making has been applied to cherished elements of the civil rights project before -- but it's the Civil Rights Act of 1964 that's been the target (Rand Paul made precisely the argument that this law, by prohibiting racial discrimination in various economic transactions, "force[s] someone into an unwanted economic relationship."). So really Kelly should be arguing that its the Civil Rights Act that is "[m]orally, and as a matter of law" the same as slavery.

In conclusion, Kelly probably won't choke anybody, so he'll still likely be a net boon on the Wisconsin Supreme Court compared to the guy he's replacing.

Compare me to Jesus or GTFO

Rep. Steve King (R-IA): Kentucky county clerk Kim Davis is a latter-day Rosa Parks.

Kim Davis: Don't compare me to that layabout. She "had it easy."

[Note that I'm having trouble verifying whether the latter letter is genuine. Steve King, though, is absolutely being his usual self].

NAACP v. Alabama Comes to Brazil

Citing a freedom of information request by local pro-Palestinian groups, a Brazilian dean is seeking to compile a list of all Israelis on his campus. His distributed flyer seeks "urgent dispatch of information on the possible presence of Israeli students or teachers". Jewish groups on campus have condemned the request as "a clearly discriminatory measure, done by a high-ranking official in the federal education system, and it should be dealt with the severity it merits." They contend it was incitement to illegal racial, ethnic, and/or national origin discrimination. My immediate thought was that, if the Dean gets in his list, will he wave it dramatically while declaring how "he has in his hand ...."?

That said, I have, obviously, no knowledge regarding the scope of Brazil's freedom of information rules or its relevant understanding of anti-discrimination law. I am struck nonetheless by its similarity to the landmark American case of NAACP v. Alabama, 357 U.S. 449 (1958). That case involved the state of Alabama, in the course of a legal dispute with the NAACP, seeking to compel the latter to produce its membership lists inside the state. The NAACP refused, claiming that the request would hamper its freedom of association rights.

NAACP was a scenario where abstract principles foundered on the reef of a concrete case. In the abstract, disclosure of information doesn't seem to be particularly scary (for example, much of campaign finance reform centers around requiring various groups and candidates to disclose their donors). But everyone knows why Alabama in 1958 wanted a list of local NAACP members, and those reasons were not salutary. The disclosure demand was part and parcel of a larger campaign of intimidation and suppression, and often violence, directed against civil rights activists in the state. And so the Court wrote:

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds: "A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature." Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

The Court also addressed the counterargument that any violence or intimidation that ensued from its order would not be on their heads, but rather on the "private" citizens whose behavior obviously could not be attributed to the state:

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner's members may have upon participation by Alabama citizens in petitioner's activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.

This is essentially the same case wherein public and private action intersect in pursuit of intimidation. "Freedom of information" is a laudable goal, but in this context it is incompatible with associational rights of marginalized minorities at significant risk of public and private harassment -- which, like in NAACP, everybody knows is the real goal of the request.

Pre-Doctoral Roundup

Berkeley, California has been the fifth city I've lived in over the past five years (in order: Chicago, Champaign, Minneapolis, Washington, Berkeley). That city per year streak comes to a close, as Jill and I are sticking around in Berkeley for at least a few more years yet. I'm enrolling in Berkeley's Political Science Ph.D. program. Moreover, the law school is extending my fellowship (and funding) for at least one more year -- which (in addition to making graduate school considerably less impoverishing than it would otherwise be) means that I can keep my connection to the law community even as I embark on this new adventure.

It will be a bit odd to move over to the demand-side of the education marketplace. But I'm excited to get started, and excited to continue my involvement in the Berkeley community.

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Why "Ashkenormativity" Isn't a Thing. I did not expect this post to be good, and was pleasantly surprised. Not sure I'm ultimately persuaded, but very thought-provoking.

I get the technical objection Justin McBrayer is raising here, but I think "facts are things subject to proof, opinions are matters of pure belief" works as a rough-and-ready distinction suitable for elementary school students. And as one of those darned millennial skeptics of the existence of moral facts, I am obviously dubious that such a belief is responsibility for all the ills of Kids These Days.

My former colleague (and longtime electricity market expert) Bud Earley lays out two views on how distributed generation will effect electric utilities.

Interesting article on how various civil rights centered groups view the ongoing debates over standardized testing. This is, as the article notes, one of the few areas where the mainstream left really is pretty fractured.

Did Hillary Clinton steal Hadassah's logo? Spoiler: No! "H" with a red and blue color scheme is not as original as one might think.

A prominent activist on behalf of undocumented immigrants who warned he would be killed if deported back to Mexico, was killed after being deported back to Mexico. This sort of scenario was, by far, the worst part about clerking. There were many circumstances where I felt pretty confident that a regular person -- not always a saint, but not a monster either -- would be killed if sent back to their home country. But under the laws of the United States and the precedents of the 8th Circuit, their asylum claims were doomed to fail. And so I issued recommendations that I basically knew meant that regular people would be violently killed. It is something that everyone who touches our immigration system has to deal with.

With Friends Like These....

A Facebook friend, with the ever-so-wry "just sayin'", just posted a quote attributed to a certain Father John Sheehan, S.J.:

“Every time anyone says that Israel is our only friend in the Middle East, I can’t help but think that before Israel, we had no enemies in the Middle East.”

As a pure statement of history, this is of course false. The U.S. has had its share of pre-1948 enemies in the Middle East (the Barbary Pirates, the Ottoman Empire in WWI, various Arab factions which sided with the Nazis in WWII, etc.).

But pushing beyond that, I think this statement needs to be unpacked a bit even if we took it at face value. The argument being made by our friendly Jesuit priest is that prior to Israel's establishment, we were all buddy-buddy with the dominant powers in the Middle East, but that all went to hell once the Jews had the temerity to establish their own state. Damn Jews.

This, of course, is an interesting view over how we should think about "friendship," to wit, that the most important consideration is whether it allows us to maintain and preserve preexisting relationships of power. Which ... okay, so that's one way of looking at it. Charles De Gaulle did say that "nations do not have friends, only interests." But I'd hope that's not the only way that we would think about how we select our friends.

Consider the following statement as a parallel:

"Every time anyone says that Blacks are Democrats' only friends in the South, I can't help but think that before Blacks were allowed to vote Democrats had all the votes in the South."

As a historical matter, this is at least as true (and probably more so) than Sheehan's statement. And some people do seem to resent Blacks for that, and essentially blame them for the Democratic Party's misfortunes in the American South. But most of us, one hopes, would recognize that supporting civil rights was the right thing to do regardless of whether it ultimately helped or hindered Democratic electoral fortunes. And if we're looking for someone to blame, it should be the White voters who decided that supporting civil rights was a dealbreaker, not the African-Americans who had the temerity to want to be treated as equals.

How much of the current strain between America and the countries of the Middle East can be attributed to the existence of Israel is debatable, but it is fair to say that most of these countries are less than keen on the friendship or the existence of an Israel at all. And they expressed that antipathy quite cogently, in the form of a series of wars and ethnically cleansing 99% of the Jewish population from the Arab World. Such actions don't always result in American opposition, particularly when (as noted) such opposition places us in conflict with the local elites. But where it does, it seems weird to object on the grounds that we weren't sufficiently solicitous of the preexisting hierarchy.

After doing all this work, I got interested in the provenance of the quote itself and who this "Father John Sheehan" is. And that is a surprisingly difficult proposition. The quote shows up a lot on Google, but it is almost invariably unsourced except to say "John Sheehan, S.J." The closest thing I've found to a source is a citation to Volume 21, No. 2, p. 34 (2002) of the Journal of Historical Review. The problem being that the Journal of Historical Review is the house journal of Holocaust-deniers -- it's a conspiracy website with footnotes. Meanwhile "John Sheehan" might as well be "John Doe" if you're thinking of generic name for a Jesuit Priest -- while that could just explain why it's so hard to find the particular "John Sheehan" who said it, it also might explain why there seemingly is no information of the "John Sheehan" who supposedly said it.

The bottom line is that I think the quote is a hoax -- it flies around various anti-Zionist and anti-Semitic circles, but I don't think it's real.

This story does come with a happy ending though: I posted all of this (including my sense that the quote was fake) on my friend's Facebook wall, and you know what she said? She thanked me for my sleuthing, admitted she had probably taken in, and resolved to be more careful next time (and affirmed that the quote did not express her views on the American/Israeli alliance, which she says should be preserved).

My Problem With Podhoertz's "Negro Problem"

Norman Podhoertz has a retrospective commemorating the 50th anniversary of his famous essay "My Negro Problem-and Ours". The original essay I may have read and forgotten -- I've certainly heard of it. This reflection is certainly interesting as a historical artifact -- it's always interesting to know more about the circumstances around which such a piece is written. But at least judging by how Podhoertz talks now, it's difficult to think he's really got a good insight into the "negro problem." I'm dubious, for example, that there exists a single Black person (well -- I take that back -- if I've learned anything from Jewish politics, there's always one) that really thinks racial relations have actually deteriorated since 1963. And whether or not the rise of out-of-wedlock births in the black family is having some antisocial effects, to declare it "the root cause of all the ills that plague the black community" smacks of someone who really doesn't want to think hard about this question anymore.

I've never quite understood why the nonracist wing of the conservative movement didn't embrace the black power agenda, and reading this essay just deepens the dilemma. Podhoertz gives their actual ideology the short shrift -- the black power movement thought that whites were incorrigibly racist, but their solution was simply to be left alone. Blacks get to run their own schools, blacks get to run their own communities. White racism was only a problem insofar as it was coupled with whites dominating blacks. This is easily compatible with conservative views of federalism, individual liberty, and community control. It is not easily compatible with conservative views of racial supremacy, the need to civilize the savage man, and the sense that white freedom included the freedom to dictate terms to blacks. In that respect, Podhoertz's protests to the contrary notwithstanding, the modern GOP really did take on a healthy dose of John Calhoun.

Of course, this "dilemma" is easily resolved in the descriptive sense: Nonracist Republicans didn't promote the ideology of black power because they preferrred to make a successful run at the votes of Southern racists. That's what the southern strategy was all about. But it's still a bit surprising that there wasn't at least a little more pushback. One gets the since from reading Podhoertz that even the Republicans who friends with Black intellectuals at the time weren't really invested in the struggle, and today they're so alienated that they just don't care about it at all.