Quote of the Evening

From today's criminal law reading. Not sure I agree whole-sale, but it is probably true enough to throw an important wrench in how we think of deterrence and crime:

I have yet to see a serious act of violence that was not provoked by the experience of feeling shamed and humiliated, disrespected, and ridiculed, and that did not represent the attempt to prevent or undo this "loss of face" -- no matter how severe the punishment, even if it includes death.... [T]hese men mean it literally when they say they would rather kill or mutilate others, be killed or mutilated themselves, than live without pride, dignity, and self-respect.... The emotion of shame is the primary or ultimate cause of all violence.

JAMES GILLIGAN, VIOLENCE 110-111 (1996).

Excerpts on Clarence Thomas

My moderately famous (for me, anyway) posts on Black Conservatism have been reprinted on Racialicious: Black Conservatism Revisited today, and Black Conservatives in Large and Small Caps yesterday. These posts, however, were not the end of my examination of this topic. Far from it -- they actually inspired me to do an independent study my senior year at Carleton to delve further into what I took to be Black Conservative ideology and practice.

Many of the commenters on Racialicious (all of whom I want to thank for their feedback) were hesitant to apply my argument to Supreme Court Justice Clarence Thomas. So I thought I might post an excerpt from the essay I wrote for the above-mentioned research project, where I discuss Justice Thomas and his connections to my rendition of Black Conservatism. Remember that this is from a larger work in progress, so it might reference other sections not reproduced here. Also note that the original version has footnotes, which I had to delete to put this in blog form (I'll list the sources cited at the end, however).

***

Far and away the most prominent and influential figure in contemporary Black Conservatism is Supreme Court Justice Clarence Thomas. Born in tiny Pin Point, Georgia, Thomas quickly moved with his mother to Savannah, Georgia, where he attended Catholic school. After two years at the local St. Pius X High School, Thomas began preparing to enter the clergy, transferring to a boarding school six miles away. St. Pius, an all-Black school, was closed down after integration – something that left a lasting mark on the future Justice. He enrolled in Conception Seminary, but never graduated, leaving after just one year due to persistent racism by his fellow classmates.

When Thomas spoke of his experience with racism at Conception, many of his former classmates were stunned. Since high school, Thomas had become adept at hiding his anger at racial slights – apparently so adept that his colleagues did not realize he was being affected at all. A similar occurrence characterized his experience at Holy Cross, where he enrolled after leaving Conception. Though it had just begun a proactive effort to attract Black students when Thomas arrived, Holy Cross was still predominantly White, and Thomas reported feeling excluded and alienated – a memory that, like at Conception, clashed with former classmates who remembered him as quite warm and open. This misunderstanding is replayed again and again in Justice Thomas’ life – because he does not respond to racism the way we have been conditioned to expect Black people to respond to racism (either through overt support of civil rights action or more confrontational Black nationalism), it is assumed that Thomas believes that racism is not an operating factor in America. Nothing could be further from the truth, and nothing could be further from Thomas’ own experience as Black man. From his time at the Seminary, to his experience after graduating from Yale Law School (and not receiving offers from elite law firms), to his famous description of the Anita Hill controversy as a “high-tech lynching”, Thomas certainly conceived himself to be a man who had faced and overcome significant amounts of racism in his life.

Thomas’ experience at the Seminary made him deeply suspicious about the entire project of integration. In religion, Thomas expected to find “brotherhood and understand, but instead he found racism and hypocrisy at nearly every turn.” During his time at Holy Cross, he entered a distinctly nationalist phase, helping found the Black Student Union, dressing in army fatigues, and immersing himself in Malcolm X. His relationship with Whites and White society at the time was complex. He advocated engagement with the White community, but only because, as one friend put it, “In order to compete in our society, you’ve got to compete with them,” them being White folks. On the other hand, he led the Black students in a daring walk-out – threatening to abandon Holy Cross entirely – in response to overly harsh and disproportionate punishment meted out to Black students protesting General Electric job recruiters. His logic was simple: “[I]f someone is treating me unfairly, they are demonstrating to me that I am simply not welcome.” The gambit was successful, and the administration backed down. By the end of his time at Holy Cross, however, Thomas reported that his radical spirit was fading. After a particularly violent event in Cambridge, Massachusetts, he began to question his participation in protests for the likes of the Black Panthers, and felt he was becoming “drunk with anger.” From that point forward, Thomas claimed, his path was reset.

But, at least on questions of race, Thomas may not have strayed as far from his radical roots as it might seem. As a public figure, Thomas does not detach his opinion of how his public image had been manipulated from the question of race. He described the “controversy” over his tenure as head of the Equal Employment Opportunity Commission as stemming from his “refus[al] to bow to the superior wisdom of the white liberals who thought they knew what was better for blacks….” Reflecting back on his bumpy confirmation hearings, Thomas did not back off from his “lynching” description – indeed, titling the pertinent chapter of his autobiography “Invitation to a Lynching.” In his autobiography, Thomas mentions at several points the risk of self-consuming rage; a “beast” which threatened to overtake him and his soul. It was a “battle” he “lost” in 1968, and a sentiment he would continue to fight against for the rest of his life. This same rage appears to have returned during the confirmation fight: Thomas describes himself as having “lost [his] grip,” “spewing rambling questions” at his allies, and under attack by “a vast army of political operatives, left-wing academics, public-relations firms, and cynical reporters….” He analogized himself to Tom Robinson, the Black defendant in To Kill a Mockingbird. The racial injustice he had grown up with was back – albeit this time coming from those Whites who purported to support Black liberation. And Thomas concluded: “Twenty years earlier I’d prayed to God to purge my heart of anger, and since then I had managed to hold the beast of rage at bay. Now it had slipped its leash….”

His policy outlook likewise drew strongly from distinctively Black roots. He recalled reading Invisible Man and realizing that Blacks would never be free if they were forced to act in a particular way – and he turned away from his earlier politics of rage because he believed that was the outlook that White society expected of Black people. His skepticism towards government intervention grew out of the observation that giving more power to a majoritarian government, when the majority is in an oppressive relationship with the minority, will not likely further the interests of the oppressed. If freedom is what Black people want, only they can get it for themselves. Relying on a (White-dominated) government is a sucker’s move. And on the Supreme Court, Justice Thomas has battled back against the public sentiment that he is a “clone” of Justice Antonin Scalia: “Because I am black, it is said automatically that Justice Scalia has to do my work for me. That goes with the turf. I understand that deal.” And prior to joining the Court (but still well after his conservative turn), Thomas has emphasized Malcolm X’s place in the conservative camp, against the paradigm of the mainstream integrationist movement he loathes, and has spoken favorably of the nationalist commitment to Blacks building, nurturing, and patronizing their own institutions: “I don't see how the civil-rights people today can claim Malcolm X as one of their own. Where does he say black people should go begging to the Labor Department for jobs? He was hell on integrationists. Where does he say you should sacrifice your institutions to be next to white people?”

Even in terms of the law, Thomas’ jurisprudence echoes strongly of his past affiliations. His skepticism towards integration, and the reasons he gives to justify it, reverberates quite clearly of arguments made by his former Black nationalist allies. In Missouri v. Jenkins, the Supreme Court was faced with the question of how far the judiciary could go in ordering remedies to school segregation. Concurring in the Court’s ruling restricting these remedies, Thomas launched a broadside against the integration mentality writ large. “It never ceases to amaze me,” he thundered, “that the courts are so willing to assume that anything that is predominantly black must be inferior.” Later on in the same opinion, he insisted that “there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.” Compare this rhetoric to that of Carmichael and Hamilton, on the same subject. They lambasted integration as “based on the assumption that there is nothing of value in the black community and that little of value could be created among black people.” They continued:

“Integration” as a goal today speaks to the problem of blackness not only in an unrealistic way but also in a despicable way. It is based on complete acceptance of the fact that in order to have a decent house or education, black people must move into a white neighborhood or send their children to a white school. This reinforces, among both black and white, the idea that ‘white’ is automatically superior and ‘black’ is by definition inferior. For this reason, ‘integration’ is a subterfuge for the maintenance of white supremacy.

The parallels are unmistakable. On cases involving segregation, Justice Thomas has persistently limited his endorsement of governmental intervention only in cases of clear governmental action. If the segregation is de facto, then any remedy – whether judicial or legislative – is immediately suspect. Thomas does not believe that integration is a goal that sanctions government use of race, because he doesn’t view integration as an unadulterated good. As Angela Onwuachi-Willig argues, though Thomas is clearly a conservative jurist, his thinking is “distinct from that of his white conservative counterparts and is intrinsically linked to his identity as a Southern black man.”

Could it be argued that Thomas’ opinions in these cases are merely an outgrowth of his broad conservative legal philosophy, not his particularistic concerns about race? Perhaps, but to limited effect. Most obviously, the appeal to philosophy does not explain his passionate rhetoric on the issue, virtually accusing his liberal peers of racism in their purported belief that “anything that is predominantly black must be inferior.” But the larger problem is that Thomas’ jurisprudence on race does not mesh well with his broader originalist project. The reasoning that he uses in most constitutional cases before the Supreme Court does not seem to extend to racial questions. In the former, he looks solely at the intent and language of the framers, while in the latter, he engages in a far more abstract examination of the principles that underlie the constitution and declaration of independence. A significant amount of evidence exists that the framers of the 14th amendment were quite comfortable with color-conscious policymaking as within the legislative scope of the United States. When forced to account for this in the recently decided case of Parents Involved in Community Schools v. Seattle School District No. 1 (due to a pointedly worded dissent by Justice Breyer), Justice Thomas had little to say, airily dismissing his fellow justice’s argument as “half-hearted” while only observing that the race-conscious remedies around the time of the framing were part of program to remedy explicit governmental discrimination (in the form of slavery). But of course, this does not in any way show what, if any, limitations the framer’s intended to place on race-conscious policies in the future, and Thomas doesn’t provide any, making it difficult for him to elevate the principle of color-blindness to a constitutional mandate (under his prevailing originalist philosophy). When it comes to reconciling his originalism and his desire for a “color-blind” constitution, Thomas appears to have a blind spot of his own. His jurisprudence on questions of race are thus better explained by his personal experience as a Black man who has grappled with racism, than they are by appeals to an abstract and extrinsic judicial philosophy.

Indeed, once one replaces the roster of the standard racist bad guys from Southerner Klan members to patronizing White liberals, the difference between Thomas and old-school Black Power disintegrates nearly entirely. Thomas himself stated that he found the latter far more dangerous, for “at least southerners were up front about their bigotry: you knew exactly where they were coming from …. Not so the paternalistic big-city whites who offered you a helping hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place.” Accepting the belief that White-sponsored affirmative action, and other government programs, are actually detrimental to Blacks (and may be simply instruments to serve White interests) means that there is actually very little space between their respective critiques: in both situations, a White dominated regime – even granting its possible good intentions – will not establish the sorts of policies that are in the interests of Black Americans. Even the element of trust was absent. Like the Garvey, the Black Power advocates, and the Black Liberation Theologians, Thomas assumed that “nothing I could say, however eloquent or sincere, was capable of overcoming the evil assumptions” upon which his accusers during the Anita Hill controversy relied. As a child, he recalled, he had been warned that he “could be picked up off the streets of Savannah and hauled off to jail or the chain gang for no other reason other than I was black.” The mob he saw attacking him, though not carrying ropes, had the same goal in mind: to instill fear in the Black population, and insure that Black men did not deviate from their “place”.

[...]

Though White Conservatives may count (some) Black Conservatives as friends or allies, by and large they do not acknowledge the significant divergences in their respective outlooks on race and racism in the United States. White Conservatives are prone to believe that racism in the United States is primarily a problem of the past. While this is a belief shared with some Black Neoconservatives, it is not a positioned adhered to by Black Conservatives writ large. Rather, “unlike their white conservative counterparts, many black conservatives do not believe that a colorblind society is, practically speaking, attainable.” This, to reiterate, is not a position only held by left-wing Black Conservatives: Clarence Thomas has been quoted as saying “I don’t care how educated you are, how good you are at what you do—you’ll never have the same contacts or opportunities, you'll never be seen as equal to whites.”

The gap between what White Conservatives want Black Conservatives to believe, and what they actually believe, is a point of serious tension. According to Professor Angela Onwuachi-Willig, Justice Thomas has been used (against his will) as a “tool” of conservative administrations, who exploit his race for political purposes, while simultaneously opposing affirmative action or race consciousness. Thomas has resisted this to some degree, particularly the efforts by some White Conservatives to create a new politics of White victimology. Speaking at the University of Mississippi, Thomas critiqued elements of the “angry white male” backlash against affirmative action. While Justice Thomas is an outspoken critic of affirmative action, and thus shares the sentiment by many White Conservatives that it is an unjust policy, he observed that “something far more insidious is afoot. For some white men, preoccupation with oppression has become the defining feature of their existence. They have fallen prey to the very aspects of the modern ideology of victimology that they deplore.” Thomas deviation from the conservative political line echoes a broader – normally submerged – facet of modern Black Conservatism: “a certain ‘distrust’ of Whites – even the conservative Whites with whom black conservatives work.”

For obvious reasons, the problem becomes more acute when the focus shifts to left-wing Black Conservatives. Though I noted that there have been some surprising links between Black Nationalists and White Conservatives, in general the mainstream White establishment has remained harsh critics of those groups. But it may be that this hostility is due more to familiarity than difference. Barry Goldwater claimed that defining point of (White) Conservatives was that they are “not too proud to learn from the great minds of the past.” Conservatives draw from the collective past, history, and experience of the people in order to develop their current beliefs. Black Conservatives are the same – except they are drawing from the collective Black past, Black history, and Black experience in order to construct and sustain contemporary political action. Black Nationalists, who were far more aggressive in urging Blacks to jettison White historical figures and arguments in favor of allowing their own traditions to blossom, simultaneously echo and repudiate the White Conservative mindset. They echo it insofar as the argument is essentially the same: political action should be based on the collective historical knowledge of the group, not idealized theories and fantasies about future utopias, and not the lectures and treatises of outsiders whose experiences, ties, and culture are remote from the group. But because that very argument leads them to draw on thinkers and experiences quite foreign to White Conservatives, the practical upshot is repudiation. For Black Nationalists, Whites are among the “outsiders.” Their theories of how to think about race relations, insofar as they are not grounded in Black lived experience, are to be dismissed. For American White Conservatives, used to thinking of the wisdom of past (White) generations as sacrosanct, this is a difficult pill to swallow.

An example of this disjuncture might be found, oddly enough, in the treatment of Justices Scalia and Thomas regarding citations to “foreign” law and legal theory. In Roper v. Simmons, which ruled unconstitutional imposing the death penalty on juvenile defendants, Justice Scalia (joined by Justice Thomas and Chief Justice Rehnquist) a blistering dissent attacking the majority’s reliance on foreign law and legal norms as a basis for its ruling. The contemporary laws of foreign countries (unlike pre-revolutionary English common law, upon which Scalia relies extensively in his opinions) played no bearing in determining the text or original meaning of the constitutional clauses the Court is called upon to interpret. Rather, it is being “cited to set aside … centuries-old American practice.” By stripping the decision away from those who actually deliberated and ratified the constitution (and the sources they used to rationalize and contextualize their decision), the Court is engaging in intolerably undemocratic behavior.

But in Justice Thomas’ rulings on race cases, something peculiar emerges. In his opinion in Grutter v. Bollinger, which upheld the University of Michigan Law School’s use of race-based affirmative action, Thomas opens by quoting Frederick Douglass’ famous admonition of what Black people want from Whites:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us …. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... Your interference is doing him positive injury.

This quote by Douglass thus serves as Thomas’ earliest antecedent for his “color-blind” position. The argument itself is not peculiar – it is, to the contrary, quite standard fare from Justice Thomas. But, from a principled conservative perspective (as mediated through the lens of originalism), quoting Frederick Douglass to support a legal proposition is problematic. In 1865 (when this speech was delivered), Thomas was not a member of America’s voting community. Indeed, he was not even yet a citizen. The Reconstruction Amendments, which (nominally) extended these privileges to Blacks would not be passed for several more years (and would not be enforced with anything approaching a substantive protection for many more years after that). Douglass cannot fairly be included as part of the political deliberations among White Americans that created the original public meaning of the Reconstruction Amendments, and there is no proof that his voice or perspective on the matter was included by proxy. But Douglass is undoubtedly a key element of the Black political history and the Black experience with regards to how Black equality was envisioned after the Civil War. So for Thomas, whose conservatism is rooted in personal (and thus Black) experience, Douglass remains very relevant even though, for all practical purposes, he was “foreigner” during the drafting of the Reconstruction Amendments.

Most of the time, however, this tension remains beneath the surface. Even in Grutter, the problem did not truly manifest itself, for two reasons: first, because the Douglass quote was primarily a rhetorical flourish, not as substantively relevant to the merits as the citation to foreign law in Roper, and second, because the legal/political result Thomas was advocating for was in line with that favored by his fellow Conservatives. Consequently, the White Conservative political and legal establishment did not have to engage with the underlying outlook which made Thomas cite to Douglass. But ignoring the problem does not make it go away; in the words of Naito Jenga, it “may reduce consciousness of a problem, but…does not change the underlying reality.” If White Conservatives solely think of their Black fellows as friends of convenience, useful not for their ideas but for the simple manpower and political influence they can bring to bear on favored right-wing agenda items, this is a tolerable response. But assuming that they view their nominal collaborators as more than just expedient political allies, respectful engagement means looking past the similar end-results and truly accounting for the Black Conservative worldview.

Reckoning with Black Conservatism means, first, reading their arguments and hearing their stories. Too often, as George Yancy argues, “whiteness admits of no ignorance vis-à-vis the black. Hence, there is no need for white silence, a moment of quietude that encourages listening to the black.” The assumption on the part of many White Conservatives that they do understand their Black brethren (by which they mean they understand themselves, and do not perceive any difference worth exploring) flows out of this lack of “quietude.” White Conservatives cannot read Black Conservatives parasitically – for only what immediate sustenance they provide to their political ambitions. Clarence Thomas’ opposition to affirmative action may line up with White Conservative political aims, but the why matters. Thomas may believe the constitution is color-blind, but he has no illusion that society is. His strong support for all- or predominantly-Black schools, for example, does not mesh well with how Conservatives conceptualize “color-blindness.” If White Conservatives truly were concerned with learning from Justice Thomas, they would need to vocalize their support for these sorts of academies and offer them as a definitive counter-argument to the Liberal orthodoxy. As it stands, their criticism of affirmative action comes with no alternative, and thus looks to Blacks suspiciously like abandonment.

More concretely, White Conservatives who seek to engage with their Black peers must grapple with the latter’s belief that racism continues to exist and acts as a salient force in American life. Whenever an “official” report documents the truth of this observation, White Conservatives are shocked. This is new information – but only if ignored the words of generations of Black writers making the same claim. Such ignorance comes off as arrogant and patronizing. Black Conservatives do not see racism as the only influence on Black Americans, but they do see it as very significant one. Shelby Steele went as far to say that “no explanation of black difficulties would be remotely accurate were it to ignore racial victimization.” As the Black Conservatives have persuasively argued, accepting this fact does not mean accepting all the stock liberal remedies to it. But it does mean offering up some remedy. Particularly given Black Conservative aversion to White attempts to “help” Blacks, it seems most fruitful for Whites to turn inward and direct their anti-racism efforts towards their own community.

One way to conceptualize this is with reference to the belief held by (some) Black Conservatives and (some) White Conservatives in favor of “limited government.” For many Whites, this belief stems from abstract theorizing by libertarian-influenced writers and philosophers (Hayak, Nozick, Friedman) who argue that too much governmental power is inefficient or a priori immoral. For other Whites, mistrust of government might come from a more concrete and experiential basis. In the early days of American democracy, the experience of British colonialism gave advocates of small-government much of their argumentative force. Today, a White immigrant from the former USSR might also have solid experiential basis to be mistrustful about the wisdom of big government.

Black Conservatives could, too, base their support for limited government on abstract moral reasoning (and often times this is the logical underpinning of the Black Neoconservative position). But when it is experientially based, it is comes from experience with governmental abuse not from a foreign power or society, but from the American government and American society. Thomas recalled an argument he had while at Yale Law School (prior to his identification as a Republican – he voted for McGovern later that year) over the new requirement for cars to have seat belts. His interlocutor asked him: “Clarence, as a member of a group that has been treated shabbily by the majority in this country, why would you want to give the government more power over your personal life?” The question, Thomas recalled, “stopped me cold.” Black Conservative mistrust of governmental authority is motivated by mistrust of abusive foreign authority, just as White mistrust often is. The difference is that, for Black Conservatives, White America is part of – indeed, represents – the foreign.

***

Bibliography

Book Note, Justice Thomas’s Inconsistent Originalism, 121 HARV. L. REV. 1431 (2008)

CHRISTOPHER ALAN BRACEY, SAVIORS OR SELLOUTS: THE PROMISE AND PERIL OF BLACK CONSERVATISM FROM BOOKER T. WASHINGTON TO CONDOLEEZZA RICE (2008)

STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA (1967)

Richard Delgado, Affirmative Action as a Majoritarian Device: Or, Do You Really Want to Be a Role Model, 89 MICH. L. REV. 1222 (1991)

Frederick Douglass, What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 THE FREDERICK DOUGLASS PAPERS 59, 68 (J. Blassingame & J. McKivigan eds. 1991)

Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 BUFF. L. REV. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants)

BARRY GOLDWATER, THE CONSCIENCE OF A CONSERVATIVE (1960) (Princeton UP 2007).

Natsu Saito Jenga, Unconscious: The “Just Say No” Response to Racism, 81 IOWA L. REV. 1503 (1996).

Tony Mauro, Clerks: Minority Ranks Rise, LEGAL TIMES, Oct. 16, 2000, at 10

KEVIN MERIDA & MICHAEL A. FLETCHER, SUPREME DISCOMFORT: THE DIVIDED SOUL OF CLARENCE THOMAS (2007)

Angela Onwuachi-Willig, Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 IOWA L. REV. 931 (2005)

Angela Onwuachi-Willig, Using The Master’s “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, 47 ARIZ. L. REV. 113 (2005)

Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985)

Christopher E. Smith, Clarence Thomas: A Distinctive Justice, 28 SETON HALL L. REV. 1 (1997)

SHELBY STEELE, THE CONTENT OF OUR CHARACTER: A NEW VISION OF RACE IN AMERICA (1990)

CLARENCE THOMAS, CONFRONTING THE FUTURE: SELECTIONS FROM THE SENATE CONFIRMATION HEARINGS AND PRIOR SPEECHES (1992)

Clarence Thomas, The James McClure Memorial Lecture in Law, (October 19, 1995), in 65 MISS. L.J. 463 (1996).

CLARENCE THOMAS, MY GRANDFATHER’S SON (2007)

Elwood Watson, Guess What Came to American Politics?—Contemporary Black Conservatism, 29 J. BLACK STUD. 73 (1998)

Juan Williams, A Question of Fairness, ATLANTIC MONTHLY, Feb. 1987, at 73

George Yancy, Introduction: Fragments of a Social Ontology of Whiteness, in WHAT WHITE LOOKS LIKE (George Yancy, ed. 2004)

Cases

Grutter v. Bollinger, 539 U.S. 306 (2003)

Missouri v. Jenkins, 515 U.S. 70 (1994)

Roper v. Simmons, 543 U.S. 551 (2005)

Parents Involved in Community Schools v. Seattle School District No. 1, 127 Sup. Ct. 2738 (2007)

Has the Bell Tolled on the Ding-a-Ling Man?

Darnell Wilson is one of my favorite fighters active today. How could he not be? He's funny, well-spoken, self-effacing, and confident. Plus he lives about 30 minutes away from me in suburban Maryland. And, oh yeah, he has some of the most concussive power available right now in the sport of boxing. When he was announced as a participant on this season of the Contender, he was easily the most accomplished fighter on the show.

Yet many people predicted an early exit for "The Ding-a-Ling Man". And, unfortunately, I found it hard to argue with them. Wilson has huge power. But his boxing ability is suspect at best. And the format of the show, in which the early bouts are only five rounds, seriously cuts to Wilson's disadvantage. It's much easier to avoid that one big shot for five rounds than ten.

That wasn't all Wilson had to deal with. Wilson was struggling with his weight throughout the show, leaving the already rather slow fighter even more drained. And the fighter who called him out was Ehinomen "Hino" Ehikhamenor -- not the most feared fighter on the show, but certainly someone with a tested chin: in his last fight prior to the contender, he went 12 rounds with former titleholder Herbie Hide, becoming only the second person in Hide's (to that point) 42 wins to make it to the final bell. Not the fighter Wilson wanted to see.

Sure enough, Wilson was clearly out-boxed for five rounds, losing a lop-sided decision to the now 13-3 (7 KO) Ehikhamenor. Wilson dropped to 23-8-3 (20 KOs).

And now, Wilson has a problem. The template for beating Darnell has been well-established by now. After four straight losses to elite competition, Wilson bounced back into the title hunt (and into The Ring Magazine's top 10) with four straight KOs over Daniel Judah, Dale Brown, Kelvin Davis, and Emmanuel Nwodo (the last of which was rated ESPN's KO of the decade). That set him up for a title eliminator against undefeated BJ Flores. I watched that fight, and while I believe Wilson narrowly won, it was in a fashion akin to Valuev/Holyfield where neither man looked good. The only reason that Wilson won on my card (the judges handed the decision to Flores) was because his opponent didn't throw any punches. But what he did do -- quite effectively -- was make Wilson miss. A lot. And make Wilson lose his balance. A lot. Wilson's main (really only) offensive weapon is his wide, looping hooks. A boxer smart enough not to try and brawl with Wilson can easily avoid them, and pick Wilson apart in the meantime. That's apparently what happened in Wilson's next fight: a title shot against Firat Aslan. Wilson swung wildly, Aslan hung back, and cruised to the decision victory.

After his loss on the Contender, Wilson seemed determined to go back to the drawing board and make another run. He noted he had at one point been on a four fight losing strike, and managed to crawl back to a title shot "the old fashioned way" (by which I assume he meant, taking the head off of everyone who got in his way). But he seemed to think that the main problem in this fight was that he came in "unprepared", by which I assume he was referring to his weight problems.

Let's cast aside Hino's performance, which from what I could tell seemed quite good (this clearly was the biggest win of his career). Wilson's problems do not end with his weight. He needs to dramatically improve at least four facets of his game if he is to be competitive with anyone who won't slug with him.

First, his jab. This is a key for all fighters, and Wilson doesn't really pay enough attention to it. When the other guy isn't willing to stick his neck out and ask to be clubbed, you can't get a KO without a jab to set it up. See how Edison Miranda knocked out David Banks for a demonstration.

Second, ring generalship. No matter what we do to round out the edges, Wilson is never going to be a boxer's boxer in the ring. He'll always be better off in a brawl. Fine. But ring generalship is how you get an opponent to fight your fight. Wilson needs to learn how to box in his man, get him trapped in a corner or on the ropes, so he can unload. Right now, he just sort of follows people around, and fighters (like Flores or Hino) who aren't afraid to put on the track shoes can just pot shot him to death.

Third, develop an uppercut. This is short-hand for "diversify your offensive arsenal", but at least in this last fight an effective uppercut would have done wonders. How do you avoid a sweeping hook? You weave it. What happens when you weave? You duck down and lean forward. Where does this put your chin? Sticking way out, begging for an uppercut. Wilson knows this is going to be the reaction of the smart opponent to his money punch. So why not make him pay for it?

Fourth, work on your balance. Darnell Wilson has an excellent chin. Yet, in two of the fights I've seen him in (this last one, and his KO victory over Kelvin Davis), he's been on the canvas. It's not because he's been seriously hurt. It's because those sweeping hooks leave him badly off balance and vulnerable to counters. Not only does this put Wilson in a hole (bad for any fighter), but it makes him even less likely to try and settle in and box, and more prone to look for one shot KOs. Also, the lack of balance makes it harder for Wilson to put together combinations -- problematic when your opponent has learned to avoid option A (the sweeping hook).

Can he do all of this? I don't know. Wilson's been fighting for a long time. I don't think the Contender trainer is a good fit for him (though Wilson himself had very nice words). He needs someone who will sit him down and rebuild him as a fighter, and I don't know if that can be done to a fighter like Wilson at this stage in his career.

Wilson will always have a place on TV sets simply because he carries with him the potential for brutal, devastating knockouts. But against a fighter who can box and move? I'm not sure he has an answer. And that's a shame. Because as I said, I really like The Ding-a-Ling man, and I'd like nothing more than to see him make another run at the top.

Social Messages

Sarah Palin felt she was "exploited" by Katie Couric and Tina Fey:

“I did see that Tina Fey was named entertainer of the year and Katie Couric’s ratings have risen," Palin said in the interview. "I know that a lot of people are capitalizing on, oh I don’t know, perhaps some exploiting that was done via me, my family, my administration — that’s a little bit perplexing, but it also says a great deal about our society.”

Indeed, it does say something about our society.

We like accountability.

Maybe you're not accustomed to that in Alaska, where you need to be convicted of a felony to get knocked out of office (a high-profile criminal investigation isn't good enough, as Don Young found to his relief), but the rest of America expects our politicians to at least be able to go through the motions of walking the walk.

Maryland Schools = PS Excellence

The Maryland public school system has been rated #1 in the country by two separate reports. Score one for big spendin' liberalism.

Way to represent, MD!

Cited Senators

Already in my criminal law textbook (Kadish, Schulhofer, & Steiker, 8th Edition), there have been two citations to articles authored (or co-authored) by sitting US Senators. This is shocking, since I always sort of assumed that when US Senators wrote articles, they never said anything worthwhile. Yet here they are, apparently key elements of the criminal law.

The one I saw today was written by Jon Kyl (R-AZ), along with Steven J. Twist & Stephen Higgins, On the Wings of Their Angels, 9 Lewis & Clark L. Rev. 581 (2005) [pg. 1015 in the book]. At this point, Kyl had already been Senator for 10 years.

But the one I spotted yesterday was, if anything, even more amazing. Found on page 13, it was an excerpt from a book review written by one Arlen Specter (R-PA), cited at 76 Yale L.J. 604 (1967). In 1967, Specter was still a mere district attorney in Philadelphia, embarking on a failed run for mayor of that lovely city. He would proceed to lose re-election for his DA position, lose in a Republican primary for Senate, and lose in a Republican primary for Governor, before finally breaking through to the US Senate in 1980, where he has remained ever since.

Justice as Fairness? Boxing Edition

ESPN reports that Jr. Middleweight contender Joe Greene (20-0, 14 KOs) is out of his title fight with Sergio Martinez (44-1-1, 24 KOs) due to kidney stones. Bad luck for him, and bad luck for us: Greene is an exciting young fighter who deserves the shot and the exposure on HBO.

But still, the date needs to be filled, and HBO is shopping for a replacement. One of the names on the list is Anthony Thompson (23-3, 17 KOs).

This is where my strong sense of fair play clashes, deeply, with my desire to enjoy my life as a boxing fan. Unfairness really bothers me, and I define "unfair" broadly, as basically being deprived of opportunity and/or recognition for reasons outside one's talent or ability. I find it unfair, in a cosmic sense, when a fighter loses a decision they should have won (due to poor judging or referring or whatever), or suffers an injury during a fight causing them to lose a fight they were winning, or even just loses a really close fight and then gets discredited as a pretender in the eyes of the boxing public.

Anthony Thompson, for example, lost a very close decision to Yuri Foreman two fights back. It was "controversial", but in the acceptable way -- it genuinely could have gone either way, and Thompson had the bad luck for it to go against him. In his next fight, Thompson got genuinely screwed: in the course of pummelling a journeyman, Thompson suffered a cut over his eye, and the fight was stopped. The cut was clearly caused by a headbutt, but the referee screwed up, said it was from a punch, and suddenly Thompson's on the wrong end of a TKO loss. All of which makes me want him to get a shot at the title. Karmic justice, chance to prove himself, etc. etc..

But all that gets weighed against the fact that Thompson is dreadfully boring. He is the furthest thing from Joe Greene. It would be painful to watch him fight. Admittedly, perhaps fighting Yuri Foreman (another, shall we say, technician) doesn't bring out the best in him. But Thompson is, to say the least, not known as an action star.

This comes up surprisingly often in boxing. On fairness grounds, I think that both Fres Oquendo and Evander Holyfield deserve rematches for the fights they recently "lost" to James Toney and Nikulay Valuev, respectively. But as a fight fan, both of those bouts were hideously boring and would undoubtedly improve not a whit in the recast (Holyfield/Valuev was worse than boring, it's very creation was an embarrassment to the sport of boxing).

I really don't know what to do about this. Justice and fairness are all well and good. But they can be mighty dull affairs when attached to the sweet science.

It's All Too Much

Emily Yoffe snaps at her colleague, Christopher Hitchens, for going off the rails and saying it would have been better off if Israel did not exist and that it should not exist now:

For most who wish to see the elimination of the state of Israel, it is not sympathy for the Palestinians that drives them (Where were the voices asking Hamas to stop its daily rockets into Israel so that this incursion could have been prevented?)—but a lust for the end of the tiny Jewish state. Pakistan, which was founded just about the same time as Israel, can hardly be called a success. It is a corrupt nuclear state with regions run by terrorists. But I have yet to hear anyone suggest the founding of Pakistan was a mistake and it should be wiped off the world map. Somalia became independent in 1959. It is now an anarchic terrorist redoubt whose main export is pirates. Again, no one is saying Somalia was just a mistake and let's get rid of it. For some reason, Israel seems to be the only country whose very existence can be casually dismissed.

Phoebe Maltz continues on the same vein:

It's amazing how many commentators, not just Christopher Hitchens, have used the latest Middle East conflict as a reason for why Israel ought not to have existed in the first place. This always makes me think of all the other countries founded on someone else's land (I'm sitting in one such country as we speak). What, other than our forebearers' successful all-but-elimination of the Native Americans, gives the US the right to exist? It makes me think of how Europe could kill off the Ashkenazi civilization, then say 'Oops, our bad,' and can now claim the moral high ground in international debates. So basically, had Israel just wiped out or expelled the Palestinians, then said, 'Oh, we're so sorry for the genocide, we'll never do it again, we promise,' the Jewish state would be in the clear. That this didn't happen, it seems, is why Israel's existence can still be questioned.

This is a point that can easily slide (both in the minds of its proponents and in the interpretation of its readers) into the appalling "Israel should have wiped out/expelled the Palestinians, so we wouldn't have this problem now." That is not what Ms. Yoffe or Ms. Maltz are arguing. What they are saying is that the bar for forming a country in a way such that it continues to deserve existence is not particularly difficult to leap. America crosses it, Pakistan crosses it, Somalia crosses it, European states cross it. All of these countries were formed by and/or continue their existence through a constant shroud of pain and death. This includes expulsions, genocide, terrorism, and warfare far beyond anything Israel can reasonably be said to have done. None of these countries, though, seem to be existentially indicted by it.

In all the places Jews have historically lived -- Israel, North Africa, the Middle East -- there seems to be very little recognition that, to a large extent, the current state of affairs was built over and on top of the backs of (among others) Jews. It's not like we weren't there. We're obviously aware of the brutality latent in the history of these places, because often times we were the victims of it. For these people to turn around after their own experiments with genocide and accuse us of being uniquely and paradigmatically demonic, and expect to be seen as credible, is unbelievable.

It's not that Israel can't be criticized. But history has told us what crimes deserve the punishment of state-destruction, and it's beyond apparent that Israel's actions don't fit. The speakers don't have credibility, and have ulterior motives besides. So when the criticism branches off into that territory, it's facial evidence that we're no longer in the realm of fair-minded moral critique. We're now in the business of bashing the Jews. Because if there are two things that stand out in the history of the Gentile view of the Jew, it's (a) they can't stop us from having our way with them, and (b) they deserve whatever we mete out.

The Second to Last Laugh

As shown by this post, it really is rather amazing the way in which Gov. Rod Blagojevich (D-IL) managed to completely out-maneuver Senate Democrats even while in the depths of career-destroying scandal. The vote by the CBC urging that Roland Burris be seated will be the final nail in the coffin. And the upshot is that this process became about as embarrassing, drawn out, and politically damaging to national Democrats as possible.

Blagojevich won't have the last laugh, because while the Democratic Party will recover, he'll be spending some quality time in prison. But still -- well played, soon-to-be-ex-governor.

One More Football Followup

After this post and this post, a friend of mine sent me this article from ESPN, reporting that being in an interracial marriage is a barrier to Black coaches seeking top jobs in college football:

- Florida Gators defensive coordinator Charlie Strong believes race is a reason he hasn't been offered a head-coaching job during his 25 years in college football, a newspaper reported Tuesday.

Strong, a 48-year-old black man, shook his head affirmatively when an Orlando Sentinel reporter asked him if his interracial marriage was a factor in getting passed over for jobs, including one at a Southern school a few years ago. Strong, whose wife is white, said he heard that too many times for it to be rumor.

"Everybody always said I didn't get that job because my wife is white," Strong said at media day Monday, as the Gators prepare to face Oklahoma in the FedEx BCS National Championship Game. "If you think about it, a coach is standing up there representing the university. If you're not strong enough to look through that [interracial marriage], then you have an issue."

The same article reports that Turner Gill, the Buffalo coach who was the primary subject of my last few posts, also is married to a White woman.

Boycotts Hop the Pond

Readers might recall my post last month on Ottawa-PIRG's (a campus-based progressive activism group) refusal to associate with the campus organization of Hillel, on the grounds that Hillel is too close to "apartheid Israel" and "Zionist Ideology does not fit within OPIRG's mandate of human right's (sic), social justice." Now it looks like OPIRG was just the tip of the Ontario iceberg engaging in wild, hyperbolic condemnations of the Jewish state. The Ontario arm of the Canadian Union of Public Employees has announced it will propose "a ban on Israeli academics doing speaking, teaching or research work at Ontario universities," unless they specifically condemn Israel's activities in Gaza (via).

The precipitating event was Israel's attack on Islamic University in Gaza, which Israel claims is Hamas-linked. Personally, that wouldn't be enough on its own in my view to make it a legitimate target, though if the university was being used to store weapons or was a sanctuary for terrorists (neither of which is particularly unlikely), that would be a different matter. As is per usual, the lack of knowledge of the relevant facts isn't stopping anyone from going insane:

"Attacking an institution of learning is just beyond the pale," CUPE Ontario president Sid Ryan said last night. "They deliberately targeted an institution of learning. That's what the Nazis did."

Now, I'm no history major, but I'm pretty sure the Nazis did a few other things that are the primary basis of their historical condemnation -- though it wouldn't surprise me if Mr. Ryan found those activities to be a lot less worthy of his attention (UPDATE: Fair is fair: Mr. Ryan has apologized for the Nazi comparison, though he has not backed down his original demand for the boycott).

In any event, the academic boycott movement had previously been waged primarily in the UK -- it is not a positive sign that it has hopped the pond to Canada. This "ban", particularly", is especially repugnant to academic freedom, as it prohibits Israeli professors from doing any work in Ontario unless they agree to espouse a particular position -- for many, on a topic that is far outside their area of expertise (what does a Chemistry Professor know about the complex array of military, humanitarian, moral, and legal considerations that should all form a part of our individual judgment of the Gaza operation?).

Why Quiet on the Northern Front?

An interesting non-development Matt Yglesias points out today is that things are quiet on Israel's northern front -- that is, Hezbollah hasn't decided to take advantage of the Gaza chaos to open up a new war front against Israel. Abu Muqawama speculates on some reasons why that might be:

1. Like Hamas (and unlike, say, al-Qaeda), Hizballah has a constituency for which it is responsible. Were Hizballah to attack Israel, it would not want to do so as the result of a hasty decision-making process. Although Hizballah indeed attacked Israel in 2006 at the same time Israel was active in Gaza, that was an operation that had been planned (and attempted, unsuccessfully) for some time. Were Hizballah to attack Israel now, the IDF -- with its ground forces still engaged in Gaza -- could still make life miserable for the Shia population of Lebanon. Keep in mind that in 1993 and 1996, Israel was able to displace well over 100,000 Lebanese from the south on each occassion solely through the application of air power and artillery. In 1993, over 6,000 homes were destroyed. In 1996, more homes than that were leveled -- along with four civilian power plants. So were Hizballah to attack Israel, that would probably be the result of a very deliberate and calculated decision. Because it would be understood that the Israeli response could be devastating.

2. It is possible that Hizballah would very much like to attack but has been counseled by either Iran or its Lebanese political allies not to do so. Again, why this would be the case remains a mystery to me -- and would to all but a handful of Iranian and Hizballah decision-makers.

3. Although the IDF is busy in Gaza, I am quite sure their defenses along the Blue Line are on full alert and expecting an attack of some sort. Could Hizballah launch a few rockets south? Of course. But I think they might have more difficulty pulling off a more spectacular operation like the one on 12 July 2006.

Of course, contra Matt, reason #2 is consistent with Hamas* and Hezbollah being closely tied to Iran and being at least in part extensions of Iran's regional policy towards Israel (admittedly, it does disprove some of the more zombie-like arguments wherein Iran single-mindedly pursues Israel's destruction and Hamas and Hezbollah have no independent agency). Fortunately, reason #1 strikes me as the most likely option. Reason #3 is undoubtedly true as far it is goes, but there is no question in my mind that Hezbollah -- if it set its mind to it and didn't care about the inevitable Israeli response -- could wreak some serious havoc right now even without something as ambitious as its 2006 operation.

* Do people view Hamas as an arm of Iran? I would have thought that the Sunni/Shi'ite split would make that rather difficult. I have no doubt that Hamas and Iran have contacts and connections, but I can't imagine Hamas going so far as to render itself an Iranian client organization.

It's Optimific All Over Again

I used the word "piker" today in Contracts class, to denote a person who was below-average or mediocre at their avocation. The professor had never heard of it -- she asked if it was football term. After class I asked around: most people hadn't heard the term; one person who had defined it as someone who was a cheapskate or who gambles only for small amounts of money. Wiktionary verifies their definition, as well as my own through the third definition, an "amateur".

Is this word very uncommon? It didn't occur to me when I said it I was saying anything regional or obscure, but I gather than it's not a well known term.

Property Class Win

"I, O, do hereby brynde Blackacre to A & A's heirs."

This statement was up on the board at the beginning of our Property class today, and our professor immediately asked for volunteers to tell the class what it meant.

Five people raised their hands and failed before someone had the good sense to ask "what does 'brynde' mean?" Which, of course, gets to the real point: "brynde" is a made-up word, and thus it (and the sentence) mean nothing. But five law students attempting to skirt that and pretend like they "knew" the word and thus the sentence.

I shouldn't be too harsh. Not only is there a lot of pressure in law school not to admit you don't know something, but this particular professor "speaks middle ages" as he would say (he has a Ph.D. in medieval history) and thus might very well have dropped in some obscure old English phrase on our unaware heads.

Even still: Professor 1, pompous law students, -5.

Cute Cute Cute

Since nothing bad happened and the kids were quickly returned to their parents, I can say that this is totally adorable.

"Robinson Rule" Followup

Apropos my post a few weeks ago on the dearth of Black coaches in NCAA football, the Sports Law Blog has a fascinating post delving into even more detail and giving some excellent context to the situation (via).

One interesting factoid was that, of the seven Black coaches in the NFL (out of 32 total positions), four of them were listed by players as among the top five coaches they'd like to play under (Tony Dungy (1st place); Lovie Smith (2nd place); Herm Edwards (4th place); and Mike Tomlin (5th place)). There are several ways to interpret this data, but my intuition would simply be that -- even in the NFL, which has made strides at diversifying its coaching ranks -- if Black coaches want to get and keep a position, they better rock peoples socks off. There is no room for average when you're African-American.

Bizarre Headline of the Day

CNN: "Study: Teens on MySpace mention sex, violence".

*GASP*

The article seems to be saying that teens mention their own (often false or exaggerated) exploits with sex, drugs, or violence, which I guess is problematic. Though the Orwellian measures the researchers recommend to parents as a response are more than a bit creepy as well.

Hearing Voices

The somewhat infamous Stephen Walt (of, with John J. Mearsheimer, "The Israel Lobby" fame) has a blog on the Foreign Policy website. I don't have a problem with this per se. Walt is an important thinker, albeit one I disagree with rather stridently on a few choice issues (fun fact: posts like this really reduce the credibility of posts like this). And, as Matt Yglesias says, it's probably a good thing to get a few more neo-realist voices into our foreign policy discussion.

But -- always a but -- let's not get too excited. Yes, "The sort of 'realist' perspective that Walt comes from (and helps define) is definitely one that looks better in light of the past eight years worth of events." But recall why realism spent some time in the IR doghouse in the first place (not much -- it is and always has been the dominant player in international relations theory): Because it was massively, dramatically, and embarrassingly wrong in predicting the 15 years prior to that: both missing the collapse of the Soviet Union, and then not really knowing how to handle either the rise of multilateralism in the Clinton administration or the emergence of non-state actors as serious players in the international sphere (Cf.).

That isn't to say it deserves permanent exile: it remains the dominant player, and with the utter collapse of neo-conservatism and with neo-liberalism remaining on shaky territory, it has done a nice job stepping into the gap. I'm just trying to keep folks from jumping on the neo-realist bandwagon too quickly. It deserves attention -- not blind obedience (not that I think Matt is doing that, but I just wanted to give his post a little bit of historical perspective).

Kagan and Johnsen to DC

Elena Kagan, one of the hottest young stars in the legal profession, will be leaving her position as Dean of Harvard Law School in order to become Barack Obama's Solicitor General, where she will be the first permanent female appointee to that position. Congratulations! Joining her in DC will be Dawn Johnsen as head of the Office of Legal Counsel. Johnsen was a part of the Clinton administration, and also was the former legal director for NARAL. She currently teaches at the University of Indiana-Bloomington Law School.

Congratulations to both!

The Best Posts of 2008

I really should toss a link to Jon Swift's "Best Blog Posts of 2008 (Chosen By The Bloggers Themselves)", which is a really cool idea which he's decided to now make an annual occurrence. Head on over, and see what looks cool.

Sunday Clearinghouse

Getting some tabs off my girlfriend's computer before I leave for Chicago tomorrow.

Reversing its previous stance, AirTran has apologized to a Muslim family kicked off a plane for discussing where the "safest" place was to sit. The family was cleared to fly by the FBI, but AirTran still refused to rebook them.

There are a bevy of international law analyses floating out there of Israel's Gaza operation: An overview written prior to the attack by Avi Bell and Justus Weiner, Eric Posner, Kevin Jon Heller, and Marko Milanovic. The most important things you can draw from them, collectively, are:

(1) The legality/morality of Hamas' attacks on Israel have little bearing on the legality of Israel's response, and vice versa;

(2) Most lay commentators don't know what "proportionality" means in the context of international law; and

(3) Determination of whether Israel is, in fact, violating international law in the current operation depends on a lot of facts that most of us simply do not possess. Speculation on either side of the question tends to simply mirror pre-existing political commitments and works to obscure more than it illuminates.

Norm Coleman is not thrilled with how the recount is progressing.

The Worst Americans of 2008.

Massachusetts police are balking at enforcing the state's newly relaxed laws on marijuana, which make it only a civil offense. The reason appears to be less a belief that pursuing marijuana users is a waste of police time, and more a protest against the new lenient law, which they view as fatally flawed.

No Space for Apostates

I read this article by Jeffrey Goldberg, about the most extreme, fanatical wing of the Israeli settler population. Though published in 2004, I have no doubt many of these people are still alive today and have not moderated their views in the slightest. As I read it, I found myself disturbed, quite a bit more so than I expected, and I tried to put my finger on why that was.

Obviously, a big part (and the part that was quite "expected") was the simple fact that these people are, in the name of Judaism, advocating policies that are sick, brutal, inhumane, and -- flatly -- evil. Let's be blunt: by the time you get to this end of the settler movement, these people are just as bad as Hamas. I don't make that statement glibly. Why is Hamas bad? Because they see it as their religious obligation to murder all the Jews, whom they see as sub-human scum. And the settlers? They say the same thing about the Arabs -- calling them "Amalekites". That's a statement fraught with implication: Biblically, Jews are commanded to exterminate the Amalekites, wiping them clean from the face of the earth. The near-universal rabbinical rule for centuries has been that there are no more Amalekites, and thus the commandment is moot. But several settler leaders have tried to argue that the Palestinian people are Amalekites, and are explicitly urging Israel to commit genocide (the only thing they're pulling back from is outright extermination, but genocide, definitionally, includes efforts to eliminate a group "in part").

Beyond that particular statement, there is plenty else to detest about the settler movement: the harassment of Arab children, the violence and property damage put out against Palestinian homes and farms (in direct violation of Jewish law), the anti-democratic desire to impose a Biblical theocracy, the honoring and praising of Jewish terrorists like Baruch Goldstein, the cavalier way they are willing to martyr their children in pursuit of their agenda -- it'd be easy to go on. The point being this: Read the words of these settlers, and there is nothing distinguishing them from a group like Hamas. They are equally theocratic, equally colonial, and equally genocidal. As Jews, we need to be willing to say that forthrightly, or else we have no moral credibility to criticize Hamas or anyone else.

Now obviously, that should be distressing for anyone to read. But to note the existence of these people isn't to say they're mainstream. Goldberg's article focuses on the most radical fringe, but he also points out that just how much of a minority they are. 75% of Jewish settlers, Goldberg claims, have primarily economic motivations: they liked the open space and the tax breaks they got from the Israeli government (arguably the #1 all-time bone-headed Israeli government decision). Though generally solid conservative voters, they are not fanatics and their attachment to the West Bank and Gaza (this was prior to the pullout from the latter) is not ideological. By contrast, 25% of the settlers (about 50,000 people) are where they are for religious reasons. And of these, only a medium amount are "fanatics" in the sense that they subscribe to the above views. Given that the Israeli settler population is itself only a small fraction of Israel's Jewish population, which in turn is only a portion of the overall global Jewish population, and you get some perspective back. These groups do have outsized influence in Israeli politics, true, but that's more a function of them being very well organized and mobilized, and the coalition nature of Israel's parliamentary system which benefits small, cohesive interest groups.

So, if these folks are really just a tiny minority, what accounts for that extra dose of distress I felt upon reading the article? It's not that I'm under the delusion that their views are shared by the majority of Jews (inside or out of Israel) -- I know they're not. Rather, it's because I'm not convinced that these radical men and women would be wholly without a place in the American Jewry. They wouldn't be agreed with, most wouldn't even sympathize with them -- but they wouldn't be kicked out. They could still make it in the front door. And that alone is intolerable.

These radical settlers -- for all their Bible thumping and theological fury -- are insults to the Jewish religion. They spit upon holiness and make a mockery of Jewish tenets. They are heretics. And the Jewish community needs to treat them as such.

Obviously, there is very little I can do to affect this. I'm not even sure how the Jewish practice of excommunication works, and I'm reasonably confident that it's not a lay endeavor anyway. Plus, I'm a Conservative Jew -- a "Hellenizer" as they would say -- I don't carry any theological credibility. Indeed, I doubt that Jews -- excuse me, pseudo-Jews -- of this caliber would even pay much attention to the modern Orthodox movement in America.

Even still, the symbolism would matter. At this point, it's not about convincing these fanatics that they are "wrong". As I've been told so many times and in so many words, it's impossible to negotiate with terrorists such as these. The goal isn't even to make them question whether or not they are acting "Jewishly". They are sure they are, I am equally sure they're not, and neither of us are likely to budge.

The objective is to make a clean break. These people are not part of my community. They can't be, if we're to make any claims of being a community worth associating with. Part of belonging to any community group is defining who you're not. There's a reason Jews are so vigorous in asserting that "Jews for Jesus" are not Jewish. As far as we're concerned, definitionally you can't be Jewish and believe that Christ is the Messiah. It doesn't matter that only a few people believe that, and they won't be convinced by our protestation. The symbolism matters.

I think that, likewise, we need to assert that definitionally, you can't be Jewish and believe that it is justified to slaughter the Palestinians wholesale, or keep them in a perpetual state of colonial subjugation where they can't vote or even move freely. It doesn't matter that only a few people believe that. The symbolism matters.

I suggested that he try to imagine himself in the place of a Palestinian. “You’re a Palestinian, you’re here, you have your farm, your grandparents are from here, and-“

But Moshe interrupted me. “Stop being Jewish!” he yelled. “Stop being Jewish! Only a Jew would say, ‘Imagine yourself as a Palestinian.’ Could you imagine a Palestinian imagining himself as a Jew?”

With due pardon, I have no intention to stop being Jewish. He, on the other hand, is free to leave any time he desires.

***

Some selected excerpts from the article:

Two Arab girls, their heads covered by scarves, books clutched to their chests, left the Cordoba School, and were walking toward the yeshiva boys.

“Cunts!” one of the boys yelled, in Arabic.

“Do you let your brothers fuck you?” another one yelled. I stopped one of the students and asked why he was cursing the girls. He was red-faced, and his black hair was covered with a blue knit skullcap.

“What are you, a goy?” he asked.

[...]

I asked her how she could let her son play amid the barbed wire and soldiers and barricades, and with snipers in the hills above.

“Hebron is ours,” she said. “Why shouldn’t he play?”

“Because he could get killed,” I said.

“There’s a bullet out there for each one of us,” she said. “But you can always die. At least his death here would sanctify God’s name.”

[...]

Cohen brought up the story, from the Second Book of the Maccabees, of a God-loving mother of seven boys, partisans in the Jewish revolt against Hellenistic rule twenty-two hundred years ago. The boys were called before King Antiochus, who ordered them to eat swine, as a loyalty test. The sons refused.

“Do you know what the Greeks did to these boys?” Cohen asked. “They ripped out their tongues and boiled them alive.”

Just before the last son was martyred, the mother gave him a message to deliver in Heaven: “Go and say to your father Abraham, ‘Thou didst bind one son to the altar, but I have bound seven altars.’ “

After the seventh son was killed, the mother threw herself off a roof. The Talmud says that, on her death, a voice was heard from Heaven, singing, “A happy mother of children.”

[...]

In 1988, Levinger killed a Palestinian shoe-store owner in Hebron. Levinger told the police that he was defending himself from a group of stone throwers. He served thirteen weeks in an Israeli jail for the killing. He told me once, “I’m not happy when any living creature dies-an Arab, a fly, a donkey.”

In the Israel he envisaged, Levinger said, Arabs would be allowed to stay only so long as they “behave themselves. Foreign residents”-Levinger’s designation for Arabs-“will be allowed to stay in Israel if they follow our laws and don’t demand privileges.” He added that they might vote “for mayors and such” but not for Prime Minister. He did not believe that the Arabs would acquiesce to such an arrangement, and that is why he advocated “transfer”-a euphemism for mass expulsion. “Whoever hurts Jews will be expelled,” he said.

[...]

Moshe Feiglin, a Likud activist who lives in a West Bank settlement and heads the Jewish Leadership bloc within the Party-he controls nearly a hundred and fifty of the Likud central committee’s three thousand members-believes that the Bible, interpreted literally, should form the basis of Israel’s legal system. “Why should non-Jews have a say in the policy of a Jewish state?” Feiglin said to me. “For two thousand years, Jews dreamed of a Jewish state, not a democratic state. Democracy should serve the values of the state, not destroy them.” In any case, Feiglin said, “You can’t teach a monkey to speak and you can’t teach an Arab to be democratic. You’re dealing with a culture of thieves and robbers. Muhammad, their prophet, was a robber and a killer and a liar. The Arab destroys everything he touches.”

[...]

I asked who was destroying the olive trees. The destruction of fruit-giving trees, even those belonging to an enemy, is considered a grave sin in Judaism. But the only subject that concerned Liebman was Joseph’s Tomb.

“What is an olive tree compared to the burial place of Joseph, the son of Jacob?” he said.

To the farmer who supports his family with the tree, I said, the tree is important.

“But the farmer is an Arab,” Liebman replied. “He shouldn’t be here at all. All this land is Jewish land. It is meant for the Jews by God Himself.”

[...]

In “War and Peace,” a book about the senior Rabbi Kook’s beliefs, Rabbi Samson wrote:

When the day comes for Israel to radiate its full power, there will be no room for usurpers who try to push the Jewish people aside… . All of the masqueraders who claimed to possess a monopoly on truth, whether Christianity, Islam, Buddhism, communism, capitalism, and all of the rest, will be exposed as empty flasks. When Judaism reaches its historical maturity with the return of the Kingdom of Israel, its holy culture will dominate the entire world psyche.

[...]

We sat for a while on the rocks. Orange-winged starlings flew above us. “God won’t allow a Palestinian state to come into creation. And, if it does, He’ll destroy it. God has placed the Arabs in the way of the Jews to test our resolve.”

Israel’s problem today, Rabbi Samson said, is that its Army refuses to fight in the manner of the ancient Jewish generals. “The Torah doesn’t see a difference between civilians and the military. Until the Jewish people realize that we are fighting a nation that has vowed to destroy us, our mission won’t be completed. If we were willing to kill their civilians, this war would be over in a week.

“I don’t think mercy is playing its correct role here,” he went on. “If the military operated without consideration for civilian deaths, think about how many lives would have been saved! In any case, their children are born with Molotov cocktails in their hands. These are a people as unfeeling as jackals.”

[...]

Some settler leaders see in the Palestinians the modern-day incarnation of the Amalekites, a mysterious Canaanite tribe that the Bible calls Israel’s eternal enemy. In the Book of Exodus, the Amalekites attacked the Children of Israel on their journey to the land of Israel. For this sin, God damned the Amalekites, commanding the Jews to wage a holy war to exterminate them. This is perhaps the most widely ignored command in the Bible. The rabbis who shaped Judaism could barely bring themselves to endorse the death penalty for murder, much less endorse genocide, and they ruled that the Amalekites no longer existed. But Moshe Feiglin, the Likud activist, told me, “The Arabs engage in typical Amalek behavior. I can’t prove this genetically, but this is the behavior of Amalek.” When I asked Benzi Lieberman, the chairman of the council of settlements-the umbrella group of all settlements in the West Bank and Gaza-if he thought the Amalekites existed today, he said, “The Palestinians are Amalek!” Lieberman went on, “We will destroy them. We won’t kill them all. But we will destroy their ability to think as a nation. We will destroy Palestinian nationalism.”

I heard similar talk from Effie Eitam, a hard-edged former general who leads the National Religious Party, a coalition partner in Sharon’s government. Eitam, who is Sharon’s housing minister, said, “I don’t call these people animals. These are creatures who came out of the depths of darkness. It is not by chance that the State of Israel got the mission to pave the way for the rest of the world, to militarily get rid of these dark forces.” Eitam told me that he believes there are innocent men among the Palestinians, but that they are collectively guilty. “We will have to kill them all,” he said. “I know it’s not very diplomatic. I don’t mean all the Palestinians, but the ones with evil in their heads. Not only blood on their hands but evil in their heads. They are contaminating the hearts and minds of the next generation of Palestinians.”

[...]

“The situation of Hanukkah is with us,” Haetzni said. Hanukkah, it should be remembered, commemorates not only the Jewish defeat of Israel’s Greek overlords but the defeat of Hellenized Jews by the Maccabees. “Now the clash is very, very near,” Haetzni said. “The battle is about Jewish identity. The battle is about Judaism.”

We're Coming For Ya'

The Washington Post has an article up detailing the "concern" conservative activists have over Barack Obama's advisers. You see, they're liberal. And that's scary. To conservatives, anyway.

"It is disturbing," said Roger Clegg, a conservative opponent of Lee's appointment who is now watching the Obama advisers at the Justice Department. "The transition team as described to me was made up of nothing but people on the far left. Though Obama is more moderate, that makes you wonder what kind of advice the president is given, and what range of choices he'll be given when it comes time to make appointments."

Steve Benen complains, saying that the real story is "Barack Obama is actually going to have liberal advisers", not the mundane point that Roger Clegg finds them "disturbing". I dunno -- from a liberal perspective, it'd be tougher to get a better endorsement of Obama's picks than "they make Roger Clegg unhappy".

Who Knew?

One of the more appalling anti-gay memes put out by "pro-family" (gag) groups is the idea that homosexuality causes mental health problems. Of course, many of these groups refuse to accept that being gay isn't itself a mental illness. And they try and buttress this point by noting that gay teenagers have a significantly higher risk of, among other things, drug addiction and suicide.

Now, those of us with pulses could guess that an alternative hypothesis might explain this correlation: teenagers whom society says it is okay to hate are probably more likely to be depressed or suicidal. You treat people like second-class citizens, subject them to daily harassment, make their very name a synonym for something stupid or worthy of scorn, and, yeah, that's going to play tricks with a kid's head.

And lo and behold if a new study in the journal Pediatrics found that suicidal tendencies in gay, lesbian, and bisexual teenagers and young adults are strongly correlated to high levels of rejection by family members. Tolerance, it shockingly appears, is the best antidote to the mental health problems associated with being young and gay:

"A little bit of change in rejecting behavior, being a little bit more accepting," says lead researcher Caitlin Ryan, "can make a significant difference in the child's health and mental health."

Of course, the obvious corollary appears as well. The message groups like the FRC put out daily is a message that kills young men and women. I merely emphasize that to explain the searing antipathy I feel towards groups like this. They wield "morality" as a weapon, and they don't seem to care how many bodies they leave behind. It's sickening.

Via AAB

Claiborne Pell (1918-2009)

Former Rhode Island Senator Claiborne Pell (D), author of the famous college loan program that bears his name, died last night at age 90. A scion of one of New England's most prominent political families, Pell was nevertheless one of America's great advocates for persons of all backgrounds, classes, races, and orientations. He was a model for the best kind of Senator, and he will be missed.

Updates Ahoy

Hey all. Blogging probably will continue to be sporadic until at least Monday, when I'm settled back in at Chicago. But good news! I may have some exciting blogging information to share with y'all soon. So stay tuned, and have a happy new year!

New Year's Resolutions: Take 2009

First, let's see how I did last year:

Met: 1, 3, 4, 5, 9, 11

Failed: 2 (but I have one that's nearly ready to go), 7, 8, 10

Pick 'em: 6

And now for next year's resolutions!

1) Put last year's "6" definitively in the "met" category (Met)

2) Make law review (Met)

3) Succeed academically in law school (Met)

4) Apply to graduate school (Missed -- but that was the right call)

5) Be more attentive to Jill (Met)

6) See Jill more often (Met)

7) Make peace with Hyde Park (Pick 'em)

8) Get the hell out of Hyde Park (Missed)

9) Learn to cook something new (Missed)

10) Write a publication-worthy paper (Met)

11) Have at least one major success with the blog (Pick 'em)

12) Find gainful summer employment (Met)

13) Don't ever again accidently start loudly singing in the middle of the law library because you have your headphones on (to add to the humiliation, it was Jay-Z and Beyonce's "Crazy in Love") (Met)

14) Score more converts to Firefly (Met)

15) Get at least one comment mentioned in the Comics Curmudgeon's "Comment of the Week" post (as either winner or runner-up) (Met).

Be safe, have fun, and hope everybody has a happy New Year!

Blago's Choice

Rod Blagojevich has announced his appointment for Barack Obama's vacant Senate seat: former Illinois AG Roland Burris. Kagro X has a good run-down of the various issues in play here, including Senate Majority Leader Harry Reid's insinuation that he might not be seated. Burris, as far as I can tell, is a clean politician (both generally and specifically with regards to this controversy), but of course, he's tainted by the mere fact that he's associated with Blagojevich. The appointment also puts Democrats in a tight spot, as they may be faced with trying to deny seating to the man who would be the sole Black Senator in the entire body (for some reason, I imagine Republicans will find this significantly less awkward).

The Foolish and the Evil

Though my own posts haven't been bad, I think the folks over at Lawyers, Guns, and Money have probably the best package of coverage regarding Israel's latest operation in Gaza. One of the things I think they've done effectively is avoid some of the easy traps that obscure efforts to actually evaluate what Israel's doing.

Trap #1, emanating from the left, is the "disproportionality" argument. In international law, disproportionality is a term of art: It does not instill an obligation to match your foe only rocket for rocket. Proportionality is not measured against the precipitating action of the enemy which sparked the conflict, it's measured against the military objective the state is attempting to achieve.

In the current situation, Israel responded to steady rocket fire from Gaza with a punishing air assault aimed at destroying the political and military leadership and manpower of Hamas. This is a legitimate military objective, albeit one clearly more far-reaching than Hamas' rocket fire. Nonetheless, so long as long as the military strikes are proportionate to the goal of the operation, proportionality is not breached. Most sources I've read indicate that Israel has done a stellar job in this instance minimizing civilian casualties -- most of the Gazans killed have been Hamas soldiers, policemen, or leaders. The attack was wide-ranging, but so was the mission. This is not a failure of proportionality, as the term is understood in international law. Of course, the technical legal definition of "proportionality" has nothing whatsoever to do with whether, all things considered, Israel's behavior is wise here. But the proportionality argument is mostly being deployed not as a strategic argument but a moral one -- attempting to allege Israel is a lawbreaker here. And that just isn't right.

Trap #2, flowing out of the right, is the "what does everyone else do?" argument. Most nations facing a persistent mid- to high-grade insurgency react with far more bloodlust than Israel is showing right now (Russia in Chechnya is the typical example). The story often is cast more personally -- how would the US respond to Mexican rockets falling on El Paso?

This obscures for the same reason the first trap does: it argues along the axis of why Israel shouldn't be seen as an evildoer, by comparing to other nation's facing the same dilemma. But this misses the point. The proper frame for looking at Israel's response isn't whether, in some cosmic sense, it is "justified" in attacking Gaza this way. The proper frame is asking "is this attack going to accomplish anything?" LGM's own military expert, Robert Farley, gives four reasons to be skeptical that anything good will come out of Israel's operation, while nonetheless noting that the operation itself has been quite discriminating and has done a good job minimizing civilian casualties. His arguments -- particularly the problems with "sending a message" -- make sense to me. We might still understand why the government is behaving "as expected", and we might affirm that, in terms of moral judgment, we shouldn't hold Israel morally liable for a super-obligation where other countries are given relatively free passes. But none of that requires us to answer in the affirmative the remaining (and to my mind, far more important question): Is Israel's response a smart one?

Unfortunately, for a variety of reasons the contemporary discourse surrounding Israel/Palestine seems stuck on debating "right and wrong", instead "smart or stupid". Anti-Israel speakers are unsatisfied with the idea that the state is merely behaving unwisely -- they are insistent that it is a qualitatively evil regime that must be treated as such, even when such demands make it concretely less likely for the Palestinian people to receive their just due. Pro-Israel writers, responding to such rhetoric, devote their time to defending the moral appropriateness of any Israeli action, to the exclusion of any long-term considerations about whether it ends up helping or harming Israeli interests (not to mention the interests of a lasting peace and liberation of the Palestinian people from occupation). This is why I'm such a fan of J Street: They call for Israel to ceasefire, not because Kadima is now the Middle East's version of the Nazi Party -- but because, based on their considered judgment, they don't think that the operation actually gives Israel anything of substantial, long-term value, and instead simply entrenches the never-ending cycle of tit-for-tat that hasn't gotten anywhere for decades.

As I mentioned previously, the question of whether Israel is behaving unwisely wisely in this particular case is one that I am not qualified to answer (though Farley is, and he answers "no"). But the point is that restricting the field to merely "who is in the right", rather than stepping up to the plate and saying "what actions should Israel, Palestine, and every other relevant party take to the current situation that best advances its security interests, the prospects of permanent peace, and justice for the Israeli and Palestinian actors", is a discourse that doesn't actually help anyone. So what I'd like to see -- from America and from everyone else -- is a commitment to cool it with the moral hyperbolics which don't accomplish anything, and focus on what matters: the reasonable, concrete policy moves both sides can do to advance the cause of peace and justice.

Cross-posted to The Moderate Voice

I Remember This Trip

I'm leaving for Minnesota tomorrow. No more Carleton for me (though I plan to visit), but something even better: New Year's with the girlfriend!

Excitement city.

Top 10 African-American Political Thinkers

Because I like lists. Obviously, this is wholly subjective, and is my own special blend of "influential" and "correct". It also was created in the space of about five minutes:

Honorable mentions: Alain Locke, George Schuyler, Derrick Bell, James Cone, Kimberle Crenshaw

10) James Cone Huey P. Newton
9) Huey P. Newton Thomas Sowell
8) Thomas Sowell bell hooks
7) Marcus Garvey
6) Stokely Carmichael
5) Booker T. Washington
4) Malcolm X
3) Frederick Douglass
2) Martin Luther King, Jr.
1) W.E.B. Du Bois

A very diverse list, I think. You have liberals (King and Du Bois and hooks), conservatives (Washington and Sowell), nationalists (Garvey and Malcolm), Black Power enthusiasts (Cone and Carmichael), a communist (Newton), and the uncategorizable Frederick Douglass. Nice set.

UPDATE: This is why I need commenters -- to point out ridiculous oversights like bell hooks.

Needing a True Friend in the White House

So I think most of us are still trying to digest Israel's recent attack into Gaza -- one of the heaviest operations it's launched in quite awhile. Palestinian casualties are estimated around 200. Most bloggers I've read seem to be assuming that figure is primarily civilian, but I've yet to see a breakdown and the Washington Post claims that most of the dead are members of Hamas' security apparatus -- the legitimate military target of the assault. So that would be a good sign.

Anyway. Cara notes in her post that whereas the UN, Russia, and many Western European nations are calling on Israel to cease its attack, the US is limiting itself to pleas for Israel to limit civilian casualties.

This is one of those situations where I think it'll be really good for Israel to have a true friend in the White House. I trust Obama on Israel, because I think he really "gets it" in a way that few non-Jews do. On the other hand, I think it's also clear that Obama has a greater understanding of the plight of the Palestinians and more of an ear to their needs than any President we've had in a long while.

Part of being a good ally means knowing when to take your friend aside and tell them to chill. Israel has very good reasons to be wary of "advice" coming out of Europe, Russia, or the UN. The US, on the other hand, has a quite solid relationship with the Jewish state and can provide the external impetus needed to push beyond the "default to hawkishness".

Is this attack a time when a good friend would tell Israel to cool it? I dunno. If the Post is to be believed Israel has actually done a good job tailoring its attacks to minimize civilian casualties, which is good. But as my last post indicated, it's far from clear Israel is actually accomplishing anything here. I really don't have a firm enough grasp on the particulars of the situation -- who Israel is managing to kill, what the expected upshot of the operation is, how much Hamas' operational capacity will be depleted -- to evaluate that. Presumably American intelligence sources do have that information and can judge accordingly. The point is that Obama is the type of person who knows that, sometimes, you got to lean a bit even on your friends.

What Do You Do When Nothing Changes?

With the shaky cease fire between Israel and Hamas now expired, Israel has commenced a pounding air assault into Gaza, targeting a wide range of Hamas targets and facilities and killing nearly 200 people (no word on the civilian/militant breakdown). Israel launched the attack in response to continued rocket attacks across the border into Israeli townships.

The problem is that I'm not sure how much these reprisals do to deter Hamas' terrorism. Even in the midst of this latest operation, Hamas managed to fire off a rocket which killed an Israeli woman in Netivot. And of course, Hamas has promised to step up its "retaliation" against Israel in the wake of the attack.

But it's not like a more lenient policy changes things either. When Israel withdrew from Gaza -- a major concession to Palestinian authorities -- they were met with more rocket attacks. When they relax border checkpoints and allow more humanitarian aid into Gaza, the result is ... more rocket attacks. Very little the Israelis do seems to have much of an effect on the constant stream of rockets falling into their territory. This makes it difficult to formulate effective policy.

UPDATE: Here's Eamonn McDonaugh defending the operation on the grounds that peace will never flow out of Gaza until Hamas is convinced it does not have a military option available that will succeed in bringing down Israel. Two points: First, there is a lot of shaky psychoanalyzing going on here of the Hamas and Iranian leadership. I'm not really sure that they were convinced that Israel was on the brink of collapse, and even if they did believe that, an operation such as this could easily be seen as a last gasp stand. Second, McDonaugh talks at the very end of Israel's obligation to let in food and medicine to the Gazan population. To my knowledge, this is not a duty that Israel is even trying to meet, and that has to be noted as a serious human rights violation wholly aside from how one evaluates the rest of their operation.

American Hard Power

Chica-chica-bow-bow.