On Treading Lightly

Having discussed somewhat unsympathetically defenses of Andrew Sullivan from quasi-charges of anti-Semitism from Leon Wieseltier, I feel it is only fair to link to Sullivan's response. I'd also recommend Jon Chait and Jeffrey Goldberg. But I think Ta-Nehisi Coates is the one who really gets at the heart of the matter:

I've found Andrew to be, at times, infuriating. But I don't think that has to do with a particular animus, as much as it has to do with an attraction to what he believes to be going unsaid. The more it strikes him as something that people won't say, the more he's attracted. For the better and the worse. I'm not saying that his critique of Israel is literally the same as investigating race and IQ. But I suspect that the stridency of his rhetoric comes from a similar place. (Ditto with Palin and Trig, btw.)

I agree that Sullivan is probably not motivated by animus. My observation about him is that he tends to write quite passionately, and can shift focus (if not positions) with staggering speed. He himself admits that one of these dramatic shifts came with the onset of Cast Lead. And it tends to occur in an all or nothing way: it's not that Sullivan no longer believes that anti-Semitism in the Arab World is dangerous and detestable, it just fades the background against his new focus on being a bold truthsayer about Israel. It'd be one thing if he was writing the posts in equal measure (though there is no way to mitigate the discomfort and, yes, threat, that occurs when one senses rage coming at you from an (along this axis) empowered class). But the torrent that flows towards one side, then the other -- according to which side Sullivan's contrarianism thinks is getting off light -- is going to raise alarms. There's no way around that.

I also have to say that I think Sullivan tends to subscribe to a pretty shallow version of contrarianism. What he "believes to be going unsaid" is rarely, actually, unsaid. The powerful voices that, in his mind, squelch all dissent rarely do so. That's not just an assessment of his current stance; this was evident when he was hyper-hawkish in the wake of 9/11. Then it was fashionable to believe that the world was insufficiently attuned to the threat of Islamic radicalism, that it was "uncomfortable" to speak in bold strokes about the need to kill off the evildoers. That was, and is, patently absurd. Now Sullivan thinks that the powerful Israel Lobby stifles debate and prevents all but a brave few from being heard. It's a fashionable belief, but that doesn't make it an accurate one.

But there is a more fundamental issue. I think there is a parable here to the racial neo-conservative movement that arose in the late 60s and early 70s. The scions of that movement were not evolved members of the Jim Crow set. Many were on the front lines of the civil rights struggle. The policy positions they advanced were not done out of malice towards African-American. Much the opposite -- if anything, they were borne out of frustration at the seeming intractable nature of the problem, its apparent immunity to the standard tactics, presumptions, and operating procedures of the civil rights movement. So they began offering new ideas.

These ideas infuriated many members of the Black community. And the neo-conservatives, who knew their intentions were pure, responded angrily -- demanding the space for free-wheeling, open debate, decrying a new orthodoxy which tolerates no dissent from the civil rights mantras. There, as here, the ability of the marginalized group to truly set the agenda was wildly overstated.

I think that's a lot of what is going on here. Sullivan clearly is motivated by frustration that his unwavering support for a particular iteration of the pro-Israel position had yielded nothing but more war, more hatred, more destruction, and more stasis. I understand that sentiment; I've felt it too. And a big part of Sullivan's defense is bold statements about political correctness and the need to speak freely and air all grievances, etc. etc..

And this is where things begin to fall apart. I understand Sullivan's frustration with the status quo; I share it. New ideas are always welcome, so long as they come from a position of respect. But the people whose lives are on the line here -- Jews and Muslims, Israelis and Palestinians -- are actively endangered by this sort of vitriolic lashing out. It's not what's needed. We perpetually stand near the precipice; these winds can blow us over the edge. As Goldberg writes:

The question of whether Andrew is or is not personally anti-Semitic isn't entirely relevant. What is relevant is that he sometimes uses his blog to disseminate calumnies that can cause hatred of Jews, and of Israel. I know this from personal experience, because the anti-Semites who e-mail him copy me. Andrew's posts on Israel and on Jewish political power in America have lately given comfort to some very repulsive people. This doesn't mean, of course, that the role of AIPAC shouldn't be debated openly, but it should be done without prejudice; without the axiomatic assumption that American Jews who love Israel are disloyal to America; and without the Judeocentrism of the neo-Lindbergh set.

The point is that, as Sullivan flails about in rage -- rage built upon the best of intentions -- he doesn't have to deal with the consequences. It's hard enough to keep an even-keeled perspective when one does have to deal with the consequences -- but if we can do it, he can do it. When he provides succor to or reifies -- unintentionally, to be sure -- the Jews-control-DC canard, he doesn't have to deal with the fallout. I do. When he hammers away at the ability of Jews to advocate in the public sphere without being questioned as to the legitimacy of that basic political act being, I'm justified in being pissed off, and I'm justified in being somewhat indifferent towards pleas of good intentions.

Does this all rest uncomfortably with the desire for open debate? Yes. I admit that, though I maintain that an open debate can be had if we mind our p's and q's. But there is a fundamental asymmetry of power here that prevents the free-for-all that Sullivan wants; that he needs in order to rationalize his passion. The White neo-conservatives, whatever they said about battling the all-powerful civil rights orthodoxy, had power and influence that dwarfed their interlocutors. The moral righteousness of the wild blue discursive yonder begins to pale once we remember that for some of us, the wrong words can bring about real pain and death. When your misstep causes me to fall, I can ask you to tread lighter than you might otherwise be inclined.

My Own Lyin' Eyes

There's a new controversy* brewing about a Goldstone report contributor, this one being Irish Col. (ret.) Desmond Travers.

Travers rejects the idea that Israel launched the offensive in Gaza on December 27, 2008, as an act of self-defense in response to Hamas rockets.

The Jerusalem center report says he bases this idea on a "fact" that he presents that in the month prior to start of the war, only "something like two" rockets that fell on Israel.

The report quotes an extensive interview with Travers in the Middle East Monitor, in which he also says that Hamas had sought "a continuation of the cease-fire" prior to Israel's offensive in Gaza.

Travers also rejects Israel Defense Forces photographs as proof that Hamas hid weapons in mosques during the conflict.

"I do not believe the photographs," Travers said, describing the IDF evidence as "spurious."

Now I'm going to confess something here. Whenever I'm shown intelligence photos demonstrating, for example, that the Cubans have Russian missiles, they don't look like anything to me. But I imagine that with intelligence training, what looks like grainy blocks is actually meaningful data, since the analysts draw conclusions pretty confidently from them (and the reveal of the photos is always considered quite the dramatic trump card). So I assume that unless Travers is alleging the photos are doctored, he's simply deciding that he doesn't like evidence that contradicts his pre-existing conclusions. It's a tough world when the facts are established by those who aren't interested in one side's iteration of them.

You might recall that, when pressed about the alleged bias in another panel member (Christine Chinkin), Judge Goldstone's response was that since the panel was a "fact-finding" commission, not a judicial inquiry, recusal was unnecessary. I noted at the time that Judge Goldstone seems to be the only person on the planet who continues to blithely assert that his panel wasn't making any assertions regarding guilt and innocence. As he put it, "if this was a court of law, there would have been nothing proven." Alas, it seems that Col. Travers is with the majority interpretation of what the panel did:

Travers also criticized Israel's past presence in Southern Lebanon, asserting that Israeli soldiers had "taken out and deliberately shot" Irish peacekeeping forces in the area.

He accused "Jewish lobbyists" of influencing British foreign policy in the Middle East and said that efforts to block the Goldstone reports findings have failed.

"The court of world opinion seems determined to see the report prevail," he said.

We'll skate on by yet another instance of "Zionist" slipping back into "Jewish" (I hate when Jews influence things. So much better when they're under the dominion of their superiors). A fact-finding probe, of course, does not "prevail" or not, particularly when it (in theory) is meant to begin, not end, the process. Once again, Judge Goldstone takes the lonely dissenting view, saying that if the allegations in his report are disproven, "I will rejoice."

And here we return to the problem. Judge Goldstone is a true believer in the system, surrounded by cynics. He didn't mind that his compatriots on the panel were "biased", because, he thought, the was nothing judicial going on. Everything he did was predicated off of taking the system at face value. His panel members are impartial and will evaluate evidence fairly. The world will take the report exactly as far as its technical mandate (fact-finding, not judicial), no further. Testimony received is without question truthful and unimpeachable. Refusal to give evidence means there is no countervailing evidence to be had.

His colleagues were wiser, or at least more attuned to reality. Col. Travers knew he wasn't participating in a "fact-finding commission". He knew that the report would be taken as a definitive pronouncement on guilt and innocence, and he knew that given the subjectivity of conflicting evidence and legitimate fears of bias leading to non-cooperation, he could write a report saying virtually anything he wanted while staying within the boundaries of the process. And so long as he colored inside the (infinitely malleable) lines, Judge Goldstone, he of great faith, would have no thought to protest.

* There is another allegation Col. Travers urged Hamas to demand more for the release of Cpl. Gilad Shalit. The passage cited for this is as follows:

Travers claims that the Palestinians should really demand that more prisoners be released for Shalit: “When the Palestinians sign up to, say, the release of Shalit for 2000 Palestinians, they degrade their own value system. They ought not to do that. But then no civilized country ought to detain 8000, is it 8000 Palestinians? Very nearly 9000.”

I'm not entirely sure what Travers is trying to say here, but it's not at all clear he means that Hamas should have demanded more for Shalit. If anything, I think he's arguing the opposite -- that the 2000:1 ratio implies that Palestinian prisoners are worth 1/2000 of an Israeli one. Then, of course, he pivots to attacking Israel for detaining the prisoners in the first place. In any event, since I don't think it is clear that Col. Travers made the claim alleged, I don't think its appropriate to attack him for it.

Dusty

Oh, Visa. Emotionally manipulate me -- you know I love it.



Great ad.

The Magic of Intent: Matt Yglesias Edition

So Matt Yglesias is angry at Leon Wieseltier for being mean to Andrew Sullivan. The argument is that Wieseltier is throwing around "baseless" charges of anti-Semitism, for the sole purpose of instilling fear in the "innocent" so they dare not critique Israel. He then compares Wieseltier to a Bolshevik show-trial ringleader (really).

The problem is that Wieseltier's argument is not "baseless", at least in the sense that it isn't supported by clearly-stated warrants. He's making pretty specific claims about what demands Sullivan makes of Jews, and how they fit into a broader history and structure of power that Christians possess over Jews (and majorities tend to possess over minorities). One could disagree with those claims on the substance, but what Yglesias is relying on is a particular definition of when something is legitimately labeled anti-Semitism:

If you call anti-semites anti-semites, then people who aren’t motivated by anti-Jewish racism will figure “hey, since my political opinions aren’t motivated by anti-Jewish racism, then I’m safe.” The idea is to put everyone on notice that mere innocence will be no defense.

And y'all know what my objection here is. Intent is not a magical ward guarding its wielders from doing racist or bigoted things. You can mean perfectly well, consider oneself to be a totally fair and egalitarian person, and still hold positions or beliefs that are marginalizing or discriminatory towards particular groups. Being "motivated by anti-Jewish racism" is not the totality of what makes something potentially anti-Semitic, and if the threshold for non-abusive discussion of anti-Semitism is getting the defendant to admit "I'm an evil bigot who hates Jews", then we're just trying to suppress any critical discussion of anti-Semitism under the guise of preventing its "baseless" deployment. It is not a good thing when everyone who isn't a Klan member gets to claim immunity from grappling with ingrained racism and anti-Semitism. It simply allows people to say that nothing is ever anti-Semitic.

What does Sullivan feel about Jews? Like Wieseltier, who writes "it is impossible to know what is in a man’s heart", I have no way of knowing. But I suspect that he considers himself a friend of the Jewish people, committed to them flourishing and living in peace and security. That's great. It's also entirely consistent with holding policy prescriptions, stereotypes, prejudices, and other attitudes that act to keep Jews in an unequal status and deny them the ability to flourish, live as equals, and enjoy peace and security. The measure of a true friend and ally isn't what's in their heart, because racism isn't fundamentally "in the heart".* It's whether they are willing to go beyond that bare assertion of friendship and dig deep when they are told "you're hurting me".

* See Tommie Shelby, "Is Racism in the 'Heart'?" 33 Journal of Social Philosophy 411 (2002).

UPDATE: I think there is a fair tactical review of the upshot of Wieseltier's piece. I still maintain, though, that restricting the scope of anti-Semitism to evil Klansman cackling in their robes is wrong on essentially every level, and buying into that framework guarantees an increasingly impoverished discourse on the subject that will continue to marginalize Jewish lives.

Star of David Keffiyeh

The NYR Lede Blog reports on an Jewish music agency's creation of a "Star of David" Keffiyeh (traditional Arab head scarf), which is raising hackles in some circles as a potential appropriation of Arab culture. However, the creator of the product retorts that the garment is as much a part of his tradition as anyone else:

My family originates from Yemen, where my ancestors had lived for close to 2,000 years. Nearly 100 years ago, my grandmother’s side of the family decided to move to Addis Ababa, Ethiopia and then to Israel, in 1933 (Southern Syria/Mandate Palestine at the time). On my grandfather’s side, our family emigrated to Israel in 1924. Jews indigenous to the Middle East, such as my family is, have worn some variation of the kefyah (cap/kippah) and keffiyeh (head/neck scarves) for thousands of years.

Chalk another one up for remembering the Sephardic/Mizrachi community (but what will Malkin say?)!

Via.

Monday Quick Hits

So how about the big game this weekend, eh?

* * *

Exonerated accused rapist forms a bond with the woman whose erroneous accusation put him in prison.

I assumed this was a tasteless Onion piece, but it wasn't: soldier waterboards four-year old daughter because she couldn't recite the alphabet. But let's be careful -- we wouldn't want to say something radical and uncivil like calling it "torture" (every little thing the Spanish Inquisitors and Khmer Rouge did....).

The University of Oregon campus and administration reacted with appropriate outrage when the offices of its LGBTQA offices were defaced with swastikas. However, as a gay Jewish-Israeli student noted, there was somewhat more serenity -- and appeals to "free speech" -- when certain other groups were targeted with swastikas.

The judge deciding the Proposition 8 challenge is a gay man. Both sides are being very careful not to make hay over it -- for now (my thoughts on the matter can be accurately deduced from this post).

... Well, some folks are doing their best to tip-toe up to the issue.

It looks like some form of talks between Israel and Palestine are going to restart.

Meanwhile, a Likud minister bluntly told a right-wing caucus that they need to give up their dreams of Greater Israel.

Justice Thomas talks a bit about his clerk-hiring practices (Thomas is known for being the Justice most prone to hiring outside the traditional Ivy strongholds): "I have a preference actually for non-Ivy league law clerks, simply because I think clerks should come from a wide range of backgrounds."

$6 million dollars is but a small price to pay to bring about the likely extinction of the human race.

Where Which Boys Are

Mark Perry (via) of the American Enterprise Institute trumpets a Bureau of Labor Statistics report on continued gender disparities in higher education, less to forward any sensible solutions on sending more men to college than to attack "gender activists" who will presumably ignore the results.

1. This huge gender gap will receive almost no media attention, and will be largely ignored by the gender activists.

2. There will be no calls for government studies, or increased government funding to address the “problem,” and nobody will refer to this gender degree gap as a “national crisis,” the way former astronaut Sally Ride described the gender disparity for jobs in engineering, technology, and science (women hold only 25 percent of those jobs).

3. President Obama will not address the gender degree gap by signing an executive order creating the “White House Council on Men and Boys,” like he did last year for women and girls.

4. Neither Obama, Congress, nor the gender activists in academia will address the gender degree gap by invoking Title IX gender-equity law, like they have proposed using for the gender gap in some math and science programs (see here and here).

5. Nobody will blame the gender degree gap on structural barriers from grades K–12 that discourage men from attending or graduating from college, like they do for explaining the gender gap for women in math and science.

In other words, the standard “disparity-proves-discrimination” dogma, followed by calls for government intervention, will not be applied in this case of a huge gender imbalance in college completion by age 22, because the disparity favors women, not men.

Well, not quite. Because there is are two variables that Mr. Perry is, quite predictably, missing: Race, and class.

Let's be clear -- there is a gender gap in higher education among all races (except Asians -- they're essentially even). A study from the American Council on Education found that in 2007-08, 46% of all undergraduates under age 24 are men (an 8 point gap). For White men, that figure is 47% (so a 6 point gap). For Hispanic men, it's 42% -- a 16 point gap. And for African-American men, it's 41% -- a whopping 18 percentage point gap. (There's also evidence that a college degree is worth less for people of color due to post-graduation discrimination, but that's a separate matter).

As for class, the data shows that the gender gap is intricately connected to income. Again in 2007-08, for the highest income quartile there is no true gender gap at all: 51% of White undergraduates, 52% of Asian undergraduates, and 48% of Hispanic and Black undergraduates are men. For the bottom quartile, by contrast, only 45% of Asian, 44% of White, and 42% of Black and Hispanic undergraduates are men.

The problem, in other words, isn't really with "men" as a class. White men comprise 47% of White college attendees, which isn't bad, given that men are around 49% of the population. Where things get hairy is when we focus in on men of color, and poorer men of all races. I have no trouble asserting that these classes of people are badly failed by our educational system; and that we should be more aggressive in finding tailored solutions for helping them (and there are groups working to address the problem).

But to frame the problem in such a way so as to assert that the men who went to, say, my alma mater (Walt Whitman HS in Bethesda, Maryland) are in a serious way disadvantaged, much less a "second sex", vis-a-vis our female peers borders on delusional -- it obscures far more than it illuminates. The men who are facing discrimination are members of the usual suspects in American society: the poor, and racial minorities. And in general, it is the progressive movement of which those maligned gender-activists are a part that have taken the lead in trying to advocate for these classes.

This is Why We Think You're Dumb

There's a piece coming out in the WaPo complaing that liberals are so condescending to conservative ideas.

American liberals, to a degree far surpassing conservatives, appear committed to the proposition that their views are correct, self-evident, and based on fact and reason, while conservative positions are not just wrong but illegitimate, ideological and unworthy of serious consideration.

I think the real split here is that liberals think conservative ideas are moronic and bigoted, whereas conservatives think liberal ideas are traitorous and immoral. But I digress. Matt Yglesias notes that it's not really a bad thing to try and link your own ideas to "fact and reason":

If I thought my views weren’t correct and based on fact and reason, I would adopt different views—correct fact-and-reason based ones. Does Alexander really think that conservatives don’t think their views are correct? Does Alexander not think his own views are correct? Not based on fact? Not based on reason? I’m not sure it’s possible to be condescending enough to this op-ed.

Meanwhile, the Virginia GOP is using the DC snowmaggedon to demonstrate once more that Republicans don't understand the difference between weather and climate. Is there any other way to respond to such an ad other than "you people are morons"?

This is My Generation

I hate to humiliate a friend, but this tweet personifies my peer group:

[W]e prepared for #snowpocalypse by getting dvds, food, alcohol, and hot cocoa. we did not get candles or flashlights. #snowfail

That is exactly what I would have done, too.

Ayalon Puts Saudi Prince on the Spot

Israeli Deputy Foreign Minister Danny Ayalon, last seen nearly destroying Israel's relationship with Turkey, turned his aggression to a perhaps more positive development, securing a handshake with a member of the Saudi royal family. It's the lead up that's interesting:

In a rare occurrence, Deputy Foreign Minister Danny Ayalon shook the hand of Saudi Arabia's Prince Turki al-Faisal during the annual security conference in Munich on Saturday. The handshake was preceded by the prince's attempts at avoiding participation in a panel alongside Ayalon, a consequent uproar and a sharp American condemnation of the Saudi behavior.
[...]
However, when Ayalon arrived at the conference on Friday, he discovered that the panel in which he was set to participate had been split into two separate panels. The first panel was to include the Saudi prince and other Saudi officials, as well as officials from Egypt and Turkey, followed by a separate panel to include himself, Lieberman and the American and Russia representatives.

According to Israeli diplomats, the split was a Saudi request. Prince al-Faisal refused to sit on the same stage as Ayalon and the organizers heeded his request and split the panel. Ayalon, who was surprised by the move, addressed the incident at the very start of the panel, saying that "this is micro cosmos of the Middle East conflict. The Arabs refuse to sit with us, recognize us or talk to us."
[...]
The Saudi prince, who was sitting in the audience at the time, rose from his seat and rushed to deny the allegation that he had requested the split. Ayalon quickly responded "if that is so, come and shake my hand." The prince refused to get on the stage, but Ayalon did not lose his stride, announcing that he would be willing to get off the stage. He then walked toward the prince and shook his hand. "Israel is committed to peace," he told the prince.

I'm constantly amazed at how even a handshake can be seen as a grave concession by Israel's neighbors.

Authenticity!

Ta-Nehisi Coates raises a good point (I know, I know, duh). John Judis is arguing that President Obama has trouble connecting to the White working class because his parents were professionals and he is associated with elite educational institutions (Columbia, Harvard, Chicago). Mr. Coates points out:

If we were talking about a group of black voters who refused to vote for someone because they aspired to be a lawyer or politician, we would be knee-deep in "black pathology" diatribes and Bill Cosby call-outs. Mo-fos would think it was the second Maafa. T

I get that Obama is a politician, and thus it's his job to make people vote for him. But I don't understand why anti-intellectualism among black people is pathological, and among white people is taken as evidence of working class roots.

Yeah, that annoys me too. Good call.

DADT Pushers

In the annals of those who support the continued exclusion of gays from the military, we've already talked about Senator John McCain's stunning reversal of his "listen to the leaders" position. Now that top military officials are onboard with repealing DADT, he no longer cares what they think! Now that's mavericky!*

But Senator McCain is hardly the only offender here. Let's look at some of the other top movers on the issue. There's Elaine Donnelly, whose professional responsibility is keeping gays out of the military, mostly by trafficking in obscene stereotyping. I enjoyed watching veteran Rep. Patrick Murphy eviscerate her in 2008 on the issue. Duncan Hunter is currently getting attention for his fear of a hermaphrodite wave, but I still recall fondly his belief that Israelis aren't "Judeo-Christian" enough to have problems with gay people.

Senator Saxby Chambliss (R-GA), beloved in the military community for savaging the patriotism of war hero Max Cleland, is worried that homosexuality is incompatible with the military's "high standards". Not an expression of hostility towards gay people at all! He also, in perhaps the most bizarre charge ever, fretted that gayness would lead to soldiers with (brace yourself) TATTOOS!

Given all that, it's almost refreshing to here some true straight talk from FRC bigwig Peter Sprigg, who flatly wants to overturn Lawrence and ban homosexuality outright. Tony Perkins, the chief of the FRC, is a military veteran himself. But he seriously indicated that he would not have chosen to serve if it meant serving next to gay and lesbian peers. Put him next to the gay and lesbian servicemembers who risk their lives for country that still sanctions official discrimination against them along several axis. I know who best represents our military traditions.

* "Mavericky" is a registered trademark of John McCain, meaning "principle-less support of whatever position is most politically expedient or ego-enhancing at the present moment." In this case, opposing DADT-repeal both helps him in a primary challenge from far-right ex-Rep. J.D. Hayworth, and sticks it to President Obama. So it's a bit of a gimme.

We Went Through This Once With Marmaduke

It's not that I can see an interpretation of today's Non Sequitur that's really filthy and inappropriate. It's that I can't see any other conceivable punchline.

Iterative Roundup

What is this, three in a row?

* * *

American Jews signal their worries about decreasing pluralism in Israel, warn that their support isn't unconditional.

OneVoice sends its representatives into the heart of refugee camp and an illegal settlement for town hall meetings.

Tom Campbell: demonic sheep.

Scott Fujita steps up to the plate on gay rights.

If corporations are persons, why can't they run for Congress? Well, one corporation is testing the waters, announcing it is entering into the Republican primary for the 8th District of Maryland (my congressional district). The company is a liberal PR firm, so this is more akin to the California petition to end divorce than anything else (via).

Two possible SCOTUS vacancies for the Obama administration to grapple with. My money is on Kagan snagging at least one of them.

Quick Eats Roundup

The law school threw a dinner party downtown for us 2Ls, to celebrate us reaching the midway (if you know Hyde Park, you'll laugh at the pun) of our law school career. The dinner felt rushed though: arrive, 10 minutes later seated and eating, courses come out rapid fire, speech by Professor Masur, buses arrive, we go home. It was impressive.

* * *

The bullet-proof tailor of Bogota. This is really, really cool. Involves a reporter getting shot in the gut.

Egyptian journalist union punishes two members for contacts with Israel. One of the writers is "editor in chief of the state-run weekly Democratiya, or Democracy", the title of which I find unbelievably ironic.

Anti-Semitic acts soared in France last year.

Radical rabbi blames gays for natural disasters, warns against eliminating DADT. For the record, Israel has let gays and lesbians serve openly for over 25 years (and it's still kicking!).

Appeals court reverses trial court decision which had thrown out genocide charges against Sudanese President Bashir; Kevin Jon Heller defends the reversal against critics.

Sen. Blanche Lincoln (D-AR) wants it all ways: the joy of controlling the legislative agenda, and the joy of attacking mythical "liberal extremists" for controlling the legislative agenda.

Justice Department issues a recruitment call for mentally retarded lawyers. Sarah Palin is presumably thrilled.

Tomorrow's Another Day Roundup

Busy busy day tomorrow -- may not have much time for blogging. Better clear the browser now.

* * *

If Nancy Grace could take on Nancy Grace.

North Korea seems to have ditched the communism facade completely, and now is embracing full on classic racist fascism.

Top defense officials are onboard with repealing DADT.

Relatedly, Senator John McCain (R-AZ), who previously indicated that support from the top brass was what he needed to reconsider his support for DADT, has let anti-gay animus trump prior statements of principle. Stunning.

Why we should be especially thankful for our gay and lesbian servicemembers. Their sacrifice for a nation that fundamentally still rejects their equal citizenship is heart-rending.

Michael Klarman pops the myth that courts have been historical friends of racial minorities.

It's so scary when Jews have opinions and try to convince others to share them.

What's the trajectory of the California gay marriage litigation?

This Sachs

Albie Sachs, formerly of the South African Constitutional Court and living legend (he was an anti-apartheid activism whose arm was blown off in a car bomb) came to speak at the law school today. The theme was on "humor", specifically, on humor as a tool for the marginalized to bring down the powerful. Justice Sachs wished to distinguish this useful and important act from the cruel and impermissible use of humor by the already powerful to denigrate and put down the powerless (recall that South Africa is not absolutist about free speech, and explicitly bars hate speech).

Using the example of the recent tensions between COSATU and parts of the South African Jewish community, I asked if this standard didn't just shift the debate into a question of who counted as "powerful" and who counted as "powerless". This seemed to be what is going on with regards to the COSATU controversy: the Jews note that they number around 70,000 to COSATU's 1.9 million (and key role in the governing coalition), as well as the historical discrimination faced by Jews worldwide. COSATU and its allies respond that it is not attacking a beleaguered minority at all, but rather a powerful Zionist coalition whose tendrils control much of the West, and that it is in fact speaking out on behalf of the powerless third world and Palestinians. Both sides claim the mantle of the powerless. Was this sort of controversy, I asked, intractable under the framework he was putting forward?

Alas, trying to provide the context, I somewhat butchered the question, and Justice Sachs demurred from answering. He thought I was referring to the Fatima Hajaig case, which never reached a court of law (it was resolved by apology ... eventually), and thus it was not an issue of "law". The more recent Bongani Masuku case, by contrast, resulted in a hate speech ruling by the SAHRC and does appear to be court-bound (of course, the examples I gave was just to contextualize -- I think the question is still valid and comprehensible even if in particular instances the dispute doesn't reach the courtroom. But I can understand how the way I framed it made it sound as if I was looking for comment on the specific controversy, not the broader principle).

Anyway, that's how I blew my chance at getting an answer from an iconic South African figure about a question that's been vexing me for months. Oops.

Ladies and Gentlemen, Your Republican Party

In handy chart form:



Embarrassing.

UN Riposte

After Israel published a response to the Goldstone report differing with several of the key allegations, the UN is now claiming evidence of its own casting doubt on the Israeli explanation of a key point of controversy. I'm not making claims as to which side is right or wrong, just reporting the story.

The (specific) controversy is over the destruction of a flour mill, which Goldstone claimed could have been done to deprive the civilian population of sustenance. The report claims the mill was specifically targeted in an airstrike. Israel released photos claiming the damage was more consistent with tank shells, which had opened fire after engaging Hamas militants -- the mill, in other words, was not a pre-planned target. Apparently, though, UN investigators found the remains of airborne bombs at the site, putting the possibility of a pre-planned airstrike on the table (of course, the mill being destroyed by a bomb rather than a tank is entirely consistent with the mill being targeted due to Hamas fighters in the vicinity).

Madison Avenue is Blessed

In a massive upset victory for common sense, Will Saletan takes down the logic of the "choose life" Tebow ad:

Pam's story certainly is moving. But as a guide to making abortion decisions, it's misleading. Doctors are right to worry about continuing pregnancies like hers. Placental abruption has killed thousands of women and fetuses. No doubt some of these women trusted in God and said no to abortion, as she did. But they didn't end up with Heisman-winning sons. They ended up dead.

Being dead is just the first problem with dying in pregnancy. Another problem is that the fetus you were trying to save dies with you. A third problem is that your existing kids lose their mother. A fourth problem is that if you had aborted the pregnancy, you might have gotten pregnant again and brought a new baby into the world, but now you can't. And now the Tebows have exposed a fifth problem: You can't make a TV ad.

We should note here that it is, of course, Ms. Tebow's choice if she wants to risk her life for the chance at birthing a live son. The emphasis, however, is on the word choice. "Women should be forced to risk their lives -- and I'm proof that some of you will beat the odds" is not a particularly catchy slogan.

H/T.

Recasting Avatar

The VC has already brought attention to one property rights interpretation of a tale generally thought to be left-leaning (The Lorax). Today, Ilya Somin points to another example of the genre: David Boaz on Avatar:

Conservatives have been very critical of the Golden Globe-winning film “Avatar” for its mystical melange of trite leftist themes. But what they have missed is that the essential conflict in the story is a battle over property rights....

But conservative critics are missing the conflict at the heart of the movie. It’s quite possible that [director] Cameron missed it too.

The earthlings have come to Pandora to obtain unobtainium. In theory, it’s not a military mission, it’s just the RDA Corp. with a military bigger than most countries. The Na’vi call them the Sky People.

To get the unobtainium, RDA is willing to relocate the natives, who live on top of the richest deposit. But alas, that land is sacred to the Na’vi, who worship the goddess Eywa, so they’re not moving. When the visitors realize that, they move in with tanks, bulldozers and giant military robots, laying waste to a sacred tree and any Na’vi who don’t move fast enough.

Conservatives see this as anti-American, anti-military and anti-corporate or anti-capitalist. But they’re just reacting to the leftist ethos of the film.

They fail to see what’s really happening. People have traveled to Pandora to take something that belongs to the Na’vi: their land and the minerals under it. That’s a stark violation of property rights, the foundation of the free market and indeed of civilization.

I think that's a perfectly tenable interpretation of the movie. I'd question, though, how strong the dissonance is with the "face" (leftist) message.

It is certainly true that the sort of leftist thought that Boaz is identifying Avatar with hardly identifies as capitalist. But that hardly means they can't speak in term of property rights. Indeed, while the anti-colonialist theory being drawn from here would likely not cast things in terms of individual plot ownership, they certainly are quite willing to assert cultural "ownership" of certain plots of land, territories, or resources. Indeed, the Na'vi seem to view these territories as collectively owned by "the people" (there is no indication that any one person in the community owns the land or the unobtanium). This raises a harder question for capitalist theorists than Boaz cares to admit, as capitalist entities have always had trouble figuring out how to handle (read: have felt comfortable ignoring completely) notions of property ownership that were not sufficiently individualistic. The doctrine of terra nullius was applied to claim that places such as Australia weren't actually "owned" by anyone, since the land wasn't titled in a manner that was comprehensible according to contemporary proto-capitalist norms.

But anyway. I think contemporary leftists are more anti-corporate than they are anti-capitalist. The argument in Avatar is that given sufficient power, corporations would be quite willing to ignore such capitalist niceties as property rights and freedom of contract (at least when it suits them). Put differently, the same priors that suggest a corporation would be indifferent to good liberal values like "don't slaughter the natives" would equally suggest that the corporation would be indifferent to good libertarian values like "contract with the natives". The corporation is going to take the least expensive path, whatever that may be, and unless some entity is their to raise the cost of the "killing the natives and taking their property", there's no reason to believe that market economics of all things will act as a restraining force.

So Avatar is an indictment of anarcho-capitalism, to a point, but the twist is it making the further claim that the necessary condition for an anarcho-capitalist hell is not absence of government, but simply corporations more powerful than government. The Ecuador example* I've sometimes cited would seem to be most directly on point.

There, the state had given the Texaco Oil virtually free reign in the country's outland regions. The company responded by engaging in massive environmental degredation at the expense of the nation’s Amazon community. Affected citizens were told that there was no redress available from the company because Texaco was a private corporation and thus not party to relevant treaty law, they would have to go to the state for aid. However, since Texaco’s revenues were 4x the entire GNP of country, and in any event the company was actively backed by the US government, few believed that the nation could stop the environmental destruction even if it were so inclined.

Obviously, there's two problems going on here. The first is the Ecuadorian government's willingness to enable Texaco's predations at the expense of the property rights of the locals. The second is Texaco's willingness to completely circumvent normal legal protections and remedies for the local populace, simply by virtue of the fact that it was actually "bigger" than the state itself.

It is quite easy to see why a country like China would dislike Avatar -- it threatens their exploitative ideology just as much as it would Texaco's. But the moral of the story isn't "yay for market power" so much as it is illustrative of the need to a) establish governmental norms that strongly protect personal rights, particularly of marginalized groups and then b) make sure corporations don't gain so much power that they're able to out-muscle the government.

* Chris Jochnick, "Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights." Human Rights Quarterly 21.1 (1999) 56-79

A Fine Anti-Semitism Talk

Robert Fine's contribution to the UCU's anti-Semitism lecture series is absolutely magnificent. I particularly appreciate the dismantling of the "anti-Semitism card card" dodge that is so popular amongst "progressives" who don't want to take seriously allegations that their behavior is anti-Jewish in effect or intent (some were less enthused).

One gets the sense that, for some on the left, any conceptualization of anti-Semitism that doesn't immediately exonerate them from any possible wrongdoing is per se abusive. There's very little we can do to stop such sentiments from proliferating, but Fine does do an excellent job of showing their bankruptcy.

KBR Trashes Jamie Leigh Jones

You may remember the story of Jamie Leigh Jones, a KBR employee who alleges she was drugged and raped by colleagues of hers while working in Iraq, then locked in a shipping container with no food, water, or outside contact for 24 hours when she reported the crime. KBR then tried to prevent Ms. Jones from getting her day in court by asserting that her allegation was "employment-related" and thus fell under a mandatory arbitration agreement (y'all know my thoughts on those in general). The story sparked the passage of a law written by Al Franken which would prevent such arbitration clauses from being enforced by defense contractors in cases concerning rape, sexual assault, or discrimination (Republicans were stunned when their opposition to the law turned into a political disaster).

But KBR is still fighting. Pilloried in the press, stung by hostile legislation, and losing its case before the 5th Circuit, KBR has petitioned the Supreme Court to grant cert in its case in a last ditch effort to keep Ms. Jones out of court. And its primary strategy is to try and trash the reputation of Ms. Jones:

But having lost at the trial court, again at the appeals court and then in the Senate as the Franken amendment was signed into law, KBR/Halliburton, in its petition to the Supreme Court last week, wasted no time at all in trashing her. While advancing its legal theory that Jones's claim is unquestionably "related to" her employment, it also promises, in a footnote, that "The KBR Defendants intend to vigorously contest Jones's allegations and show that her claims against the KBR Defendants are factually and legally untenable." Er, where do they plan to show all that? In the secret underground arbitration lair of KBR?

In addition to going after her truthfulness in its court pleadings, KBR has mounted a zealous public campaign to "correct the facts" about the Jones litigation—urging, for instance, that "Ms. Jones' allegation of rape remains unsubstantiated" and that she wasn't locked in a shipping container but rather "provided with a secure living trailer." Apparently KBR fails to appreciate the irony of demanding that all of its counter-facts come to light despite its love for secret arbitration.

KBR is now claiming that Ms. Jones has "sensationalize[d] her allegations against the KBR Defendants in the media, before the courts, and before Congress," apparently to experience the joy of being known in public as the victim of rape.

As Senator Franken noted when asked:

"You know where a great place to try arguments is? In court. But they've spent five years fighting against her attempts to have her day there. It seems odd that they wouldn't want to explain their side in the courtroom, since they're willing to in the media."

In any event, one suspects that this will not end well for KBR. Ms. Jones has proven herself to be tough, resilient, and unwilling to back down regardless of the pressure put on her. I fully expect her to beat back this last challenge -- and then cream KBR for their egregious abuses with the full force of the law.

Israel's Goldstone Response

You can read the 52 page response here. It's not intended to be a comprehensive response to the Goldstone report, though it does address several allegations made in detail. More useful, I think, is its overview of the investigation procedures Israel takes in response to criminal allegations. If these procedures are sound, there is not grounds for international appeal even if a judge reviewing de novo might have reached different conclusions.

Justice

Scott Roeder has been convicted of first-degree murder in the slaying of Dr. George Tiller.

Abandoned

The fact that I tend to anthropomorphize everything makes today's xkcd the saddest thing ever.

Non-SOTU Roundup

'Cause that would be cliched.

* * *

Pennsylvania Superior Court overturns a slew of anti-gay child custody decisions from the 1980s.

Indian roads create new opportunities.

The impact of Obama's school speech, one year later.

People are casting this post as Ta-Nehisi Coates pasting Chris Matthews, but I think the important points are far broader than anything Matthews-specific. That said, it's a fabulous post.

A U.Chicago study finds that female math teachers who are anxious about their own skills transmute that anxiety onto female pupils, resulting in reduced performance.

Bill Clinton hails Israeli mission to Haiti.

A touching post by Al Brophy on a friend of his who recently passed away.

As a pinball fan, I actually knew of the "call the shot" story which got pinball legalized in New York -- but that doesn't mean I won't share it.

Taking on the SCOTUS

I wasn't as affected as most by the events surrounding Obama's slapdown of the Supreme Court's Citizen United decision last night. To be sure, I thought it took some stones to attack a recent Supreme Court decision right in the face of the justices -- particularly one which isn't obviously unpopular (I think it likely is unpopular, but it isn't the sort of pitchforks and torches decision that, for example, a ruling striking down "under God" from the Pledge would have been). At the same time, Justice Alito mouthing to himself "that's not true", which I didn't notice live, didn't really bother me that much either -- I don't think he meant it as a "you lie" moment, and my instinct was to not make a big deal about it.

But apparently others are. Glenn Greenwald's argument is that Alito has made himself into a political figure: a political hero to the right, and a political enemy of the left, and that's inconsistent with his role as a judge. It's a fair point, although it's easy to overstate the impact -- it's just a more explicit exclamation point on something the general public already is well aware of: there are liberal judges who like and are liked by liberals, and conservative judges who like and are liked by conservatives.

Meanwhile, Jeffrey Rosen sees this as an opening gambit for Obama to attack "conservative activism" by the Supreme Court. Rosen claims that historically, it hasn't taken much explicit executive pushback to see a court labeled as "activist". One thing I like about it is that it helps balance out years of Republican claims that conservative judging is about common sense and rule of law (there's a paradox there, but no time to discuss it), whereas liberal judges are just making stuff up because they spend too much time reading deconstructionists (or something). This is a chance for liberals to strike back a little bit and cast the conservative wing of the court as the one that is out of step with history, precedent, and the American people.

SOTU Live Blog

In for a penny, in for a pound. I'll be live-blogging the speech at this post (refresh for updates).

* * *

9:25: Alright, I'm out for the night (I have no interest in hearing McDonnell's response). I might have a broader reaction post up later, or I might not. Anyway, thanks for hanging with me, and have a nice night!

9:20: "We don't quit. I don't quit." Great finish, to a good but not great speech. B/B+.

9:18: The recurring theme of this speech is about pressing forward, and not being timid. Yet in terms of what is actually being proposed, there aren't any blockbusters. It's a weird contrast. You can't do "Give 'em hell, Barack" without some hellraising to give.

9:13: Repeal of Don't Ask Don't Tell comes in the civil rights section of the speech. I expected it to be in the national security section, but I prefer it here.

9:12: "America must always stand on the side of human freedom and dignity. Always." Always.

9:08: The defense stuff is pretty good, but it's nothing new. Bring the troops home, torture is bad, security and liberty aren't at odds. Veteran care would be a wedge issue if Democrats were more ruthless.

9:02: "Democrats, we have the largest majority in decades," is the civil way of saying "pass the damn bill".

9:00: I agree with the sentiment behind Obama's plea for civility, but I can't help but wonder if it makes him look weak. The oblique attack against Senate holds is appreciated, but perhaps too quiet.

8:57: Here comes the smackdown of the Supreme Court. I was wondering if he'd go there. They sit stony face (it would have been cool if the dissenters had given a hearty "hell yeah", but oh well).

8:55: Obama's dig on Republicans ("that's what we did for 8 years") is not exactly accurate. The problem was that Republicans never were serious (and still aren't serious) about deficit reduction -- so of course deficits would rise on their watch.

8:52: The spending freeze is a promise he's simply not going to keep, particularly given the exemption for defense spending.

8:51: And here comes the neo-Hooverist portion of the speech.

8:46: Obama has always been a fan of this format -- he loves having a free rein to give out laundry lists, and explain policies, and clear up misconceptions. It brings out his inner wonk. And the good thing about Democratic policies is that the policies themselves tend to be popular, which is why they're so rarely attacked based on their actual content.

8:44: "I didn't take on health care because it's good politics." With all due respect, Mr. President, it's only a strike if you watch it as it sails by.

8:43: Health insurance reform finally comes up. This ought to be good.

8:41: Education focus is good, focus on community college is better. I approve. And student loan reform! Fabulous -- if it ever gets through Congress.

8:36: I wonder who Joe Biden just looked at with a shit-eating grin when Obama passive-aggressively mocked climate change deniers. I'm banking on James Inhofe.

8:35: Nuclear power! I'm surprised and pleased.

8:31: Finally, some aggression. This speech was feeling pretty conservative for awhile. Now Obama is bringing out the big guns against the persistent calls for delays, and that's a good thing. Anything that takes some wind out of the sails of spineless centrists who are afraid of their own footsteps.

8:30: Attacking the record of the Bush administration (even indirectly) is a weird thing. It's perfectly accurate, but is there anything left in the well?

8:28: Infrastructure! And it's the high-speed rail project in Florida that I've heard good things about! Excellent.

8:27: Rep. Eric Cantor (R-VA) doesn't like helping community banks, I guess. Or using the big bank's money to pay for it.

8:24: New jobs bill is the first concrete policy proposal. Doubling down on the stimulus, I guess -- at least he got that passed.

8:22: That little jab at congressional Republicans -- "I thought I'd get some applause there" -- I think was subtly quite effective. If Republicans won't applaud tax cuts, doesn't that show they just dislike anything Obama does?

8:21: Obama's starting out with straight out populism -- attacking the banks, bonuses, and the bailout. Anything that puts a wedge between Republicans' thrall to big businesses, and popular rage against the hyper-rich, is an effective strategy.

8:17: First applause comes six minutes in. That was a long intro. I'm bored already.

8:14: "The worst of the storm has passed, but the devastation remains" is good framing, I think; it balances between forward-looking optimism and recognition of current hurt.

8:11: Obama opens by telling us he's here only because the constitution tells him so. And history is looking over his shoulder.

8:10: Here we go! (I love the way Biden cheers).

8:05: I'll be curious how the spending freeze will be played in speech, particularly since Republicans have taken everything off the table.

8:00: You know what would be awesome? If Michael Buffer was hired as the sergeant-at-arms, just for tonight.

7:56: Will Obama announce that the best days of America are ahead? I'm banking on the upset: "The best days of America are behind us. I have formed a death panel to ensure that we handle our decline with grace and dignity."

7:53: Haitian ambassador is apparently getting a prime position in the audience.

7:49: Here's a shocking development (CNN calls it a "remarkable contrast"): Republicans think Obama has been too liberal, Obama doesn't think so. Whoa.

7:47: CNN reports Republicans are planning on being their best behavior. No more "you lies" this year ... assuming they can contain themselves.

SOTU!!!

Every year I promise not to watch the State of the Union. Some years I keep the promise, some years I don't. This year, I got curious about the reported call to overturn DADT. If you want to drink, here are your rules.

Also, CNN's focus group looks like they were kidnapped off the street and are being locked in the studio.

Hamas Finds No Wrongdoing By Hamas

We already discussed the likely shortcomings of any Israeli probe into IDF operations during the Gaza war. Now, Hamas has released the results of its "investigation" into its own conduct, finding that (surprise!), despite all appearances to the contrary, it was aiming at military targets. All those rockets raining down on Sderot (which has no military bases)? Just misfires, due to the fact that their rockets are unguided (if only they had better rockets!).

When the probe was announced, I differed with Matt Yglesias in that I thought Hamas' superficial participation in such "inquiries" was more harmful than good. Neither of us buys into the "transparent nonsense" (Matt's words) that Hamas was aiming for military targets. However, he thought that it signaled that Hamas saw its legitimacy as being tied at least to the perception that it was in adherence to human right standards. I argue that Hamas' participation was part of a larger strategy aimed at blurring human rights categories altogether, transforming them from legal principles into ambiguous tools suitable for a "lawfare" assault on Israel. Getting Hamas to superficially participate in human rights discourse is like getting Soviet-bloc states to sign human rights treaties they had no intention of upholding: a superficial, unaccountable move aimed at muddying the waters. The only way it could be seen as a positive step is if the international community holds their feet to the fire, Helsinki Watch style.

In other words, it does nobody any good (in fact, does much harm) if Hamas can simply say it is adhering to human rights standards, alongside patently ridiculous "reports" affirming the same. We will see if this report is taken by the relevant bodies with the derisive laughter it deserves, but I'm skeptical. And insofar as this dissipates pressure to hold Hamas account for its criminal acts, or serves as prop for disingenuous commentators to pretend Hamas is something it isn't, it is a qualitatively bad thing for the cause of human rights and the cause of peace.

Where Angels Fear

Jeffrey Goldberg takes aim at yet another Andrew Sullivan post extolling the bravery of those bold critics of Israel:

How true! How brave it is to stand athwart the Jews and yell "Stop!" We are a dangerous group of people. Just look at what has happened to other critics who have gone where angels fear to tread and criticized Israel. Take, for example, Stephen Walt and John Mearsheimer, the authors of "The Israel Lobby." Walt, as many of you know, is in hiding in Holland, under round-the-clock protection of the Dutch police, after the chief rabbi of Wellesley, Mass., issued a fatwa calling for his assassination. Mearsheimer, of course, lost his job at the University of Chicago and was physically assaulted by a group of Hadassah ladies in what became known as the "Grapefruit Spoon Attack of 2009." Now he teaches political science at a community college in Hayden Lake, Idaho, under police guard. And Michael Scheuer, the former CIA man who argues that American Jews are traitors to their country, was recently burned in effigy during a riot led by a cell of Reconstructionist rabbis. All across this country, assaults by Jews on their critics are on the rise. It's gotten so bad you can't even publish a mildly anti-Semitic cartoon without having your office sacked by gangs of extremists from the North American Federation of Temple Youth. It's tough out there for brave truth-tellers these days.

Presumably, Walt and Mearsheimer still teach at the sufferance of the Jewish overlords, who wish to give the appearance of freedom the our doomed world. Crafty folk, we are.

Interesting Case of the Day

Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964).

Why? Two reasons:

1) In 1964, it was a U.S. Supreme Court ruling that held in favor of the Cuban government in a case concerning that government's compensation-less expropriation of American property. The case turned on the application of the "state action doctrine", which holds, essentially, that the acts of foreign government's inside their own territory will be considered valid and legitimate.

2) In addressing the question of whether expropriation of property violates customary international law, the opinion notes and gives authority to the opinions of both communist and newly independent countries which argued that such a position was unfair and in service of "imperialist" interests:

There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state's power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them and it is argued that the traditionally articulated standards governing expropriation of property reflect "imperialist" interests and are inappropriate to the circumstances of emergent states.

The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. (428-30)

I'm not expressing an opinion as to either existence or normative desirability of a customary international legal norm against expropriation without compensation. Rather, I thought it noteworthy both that Cuba won a case like this in American courts, and more broadly, that an American court openly considered the implications of certain perspectives normally considered quite radical and out of bounds in our public discourse.

Generally, this is how one is supposed to approach questions of customary international law, and of course, this is the double-edged sword of that institution: since it represents the customs of the entire world, and there is much disagreement in the world over a variety of customs which we often take to be touchstones of modern human rights standards, generally international law will always be tied to the behavior of its most regressive members. Canvassing the international community in order to determine international custom doesn't mean just looking at countries generally in line with American interests or values, and I thought this case illustrated that in uncommonly vivid fashion.

Higginbotham's Recusal Opinion and the Politically-Active Jew

I dropped a rather cryptic cite in my last post to Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155 (E.D. Pa. 1974). The opinion deals with a recusal motion filed against famed Black Judge A. Leon Higginbotham in the midst of an employment discrimination suit.

The allegations were that Judge Higginbotham was Black and identifies with Blacks, specifically, he was a leader of the Black civil rights movement, with an "emotional attachment to the advancement of black civil rights" and a belief in rectifying racism in America, and that he had demonstrated the preceding in a speech before "a group composed of black historians" (the Association for the Study of Afro-American Life and History) (157-58). These demonstrated an appearance of partiality towards the Black plaintiffs, which warranted recusal. In the course of his now-famous opinion, Judge Higginbotham carefully eviscerated this argument, showing how it was predicated off essentially racist notions, effectuated a double-standard for both Black litigants and Black judges, and wrongfully conflates opposition towards racism with opposition towards Whites.

In support of his refusal to recuse, Judge Higginbotham mustered an impressive array of judges who had commented on matters of public concern and/or engaged in scholarship and inquiry on cutting edge, controversial legal topics, without feeling the need or pressure to recuse themselves. One of these examples includes the following:

I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. (180)

The opinion is a tour de force, and I highly recommend it top to bottom. But I am reminded of it most often in all the cases where it is asserted, explicitly or implicitly, that all but a bare handful of good Jews are too provincial, too partisan, or too biased to be worth listening to (much less be given any decision-making authority) on matters connected to Jewish life or experience.

While the motion did not, in fact, require that all Blacks refrain from judging cases involving Whites or civil rights, it did demand that only a very narrow range of "acceptable" Black persons, ones who had meticulously refrained from taking a stance on or discussing matters of racism, be permitted. And such a stance, Judge Higginbotham accurately noted, was functionally no different from a blanket rule of racialized exclusion. What motivated the motion, the Judge suspected, was that anxiety that Whites no longer were in a position where they could be assured that they'd never be forced to submit to the judgment of a Black man or woman.*

If, for the reasons previously discussed, defendants' motions are meritless, and since the motions are presumably filed in good faith, what other rationale could explain why defendants so vehemently assert their claim that I be disqualified in the instant case? Perhaps, among some whites, there is an inherent disquietude when they see that occasionally blacks are adjudicating matters pertaining to race relations, and perhaps that anxiety can be eliminated only by having no black judges sit on such matters or, if one cannot escape a black judge, then by having the latter bend over backwards to the detriment of black litigants and black citizens and thus assure that brand of "impartiality" which some whites think they deserve.

Since 1844, when Macon B. Allen became the first black lawyer to be admitted to the bar of any state, and since John S. Rock was admitted to the bar of the United States Supreme Court on February 1, 1865, black lawyers have litigated in the federal courts almost exclusively before white judges, yet they have not urged that white judges should be disqualified on matters of race relations. In fact, in the "good old days" before William H. Hastie was appointed in 1949 to the United States Court of Appeals for the Third Circuit, white litigants throughout America were able to argue before a judiciary from the United States District Courts to the Courts of Appeals to the United States Supreme Court without encountering a single black judge along the entire judicial route; for until Judge Hastie's appointment there were no black Article III judges. In fact, until 1961, white litigants in the United States District Courts never had to ponder the subtle issue which defendants now raise, because no President had ever appointed a black as a United States District Judge. If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations. (177)

And so it is today -- for Jews as well as Blacks. There are people who are furious that modern Jews won't accept their proper place as powerless and dispossessed, and display an "unholy glee" at the thought of forcibly returning them to that position. I cannot say descriptively whether they will succeed, but I do know the moral argument is dead wrong.** Non-Jews are going to have to accept the fact that Jews will sometimes be in positions of authority, and sometimes will be tasked with making decisions that others are bound to accept.

* This, more than anything else, represents the diminution of the unjust power Whites held over Blacks; as power, Carol Gilligan once wrote, means "you can opt not to listen. And you can do so with impunity." 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).

** This is distinct from conspiratorial accounts by which the Jews (or "Zionists") control the world and are responsible for all (evil) global decisions. Persons who hold such views are delusional, anti-Semitic and dangerous, but one thing you can say for them is that they are only factually challenged -- were all the things they believed actually true (that Jews are poisoning vaccines or abducting Haitian children for organs or whatever it is we're up to today), they would be, in fact, bad things.

The people I am talking about would rarely stoop so low as to believe in any global Zionist conspiracies (unfortunately, sometimes they do flirt with such beliefs when their talk about The Israel Lobby stretches too far into hyperbole). But in some ways, their beliefs are more pernicious. They are not upset that the Jews control the world; they are upset at the prospect that Jews control anything; a slice of land, an organization, a political movement, a lobbying committee -- whatever. Any body that they cannot not ignore with impunity -- any body that they don't have power over (to use Gilligan's framing) -- is a body that cannot justly be in the hands of Jews. Because that would mean Jews are no longer purely in a position of subservience. And that is unacceptable.

A Storm is Brewing

Israel is considering forming a panel to examine the quality of its investigations into alleged wrongdoing stemming out of last year's Gaza conduct.

Under Barak's proposal, which is acceptable to Netanyahu and to [IDF Chief of Staff Gabi] Ashkenazi, the committee would focus on two main issues: the quality of the investigations conducted by the IDF of incidents and of the decisions taken by the cabinet, the security cabinet and the IDF General Staff regarding the policy of the use of force in the operation. The committee will have to determine whether the internal investigations met the relevant international standards. On the civilian side it will ask whether there is a basis to the Goldstone report's claims - which are categorically rejected by Israeli officials - that the operation was planned in advance as a punitive campaign against the civilian population in the Gaza Strip.

Hmm. Note that the panel is not meant to replace the aforementioned IDF probes, but to review them -- it does not have the authority to call operational commanders into testify. The problem I see is that all the questions being asked are the sorts that Israel can only give one answer to. Perhaps the committee might indict the decisions of the cabinet (anything to spite Tzipi Livni, after all). It also could revise doctrines regarding the use of force, which would be an interesting development. The IDF probes will likely be exonerated, as in all likelihood they did meet formal thresholds of fairness -- the question is whether they actually were dispassionate inquiries, or whether they had the trappings of neutral procedures but were really predetermined, and that's the sort of accusation I doubt a panel like this will make (possibly because it isn't true -- I don't mean to prejudge). The final question -- whether the operation was planned as a punitive campaign against the civilian population of Gaza -- will assuredly be answered "no".

The intention is to include on the panel Israeli jurists with international standing and perhaps also an international jurist. One name that has been mentioned in discussions is Prof. Alan M. Dershowitz.

Oh, now wouldn't that be a trip? I am conflicted about the selection of Professor Dershowitz, though not for the reasons one might expect. I don't think that a reputation for being pro-Israel is a disqualifier for impartial service on a judicial inquiry (see Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155 (1974) (Higginbotham, J., rejecting motion to recuse)). Professor Dershowitz has on plenty of occasions saw fit to criticize Israeli government policy; the objection to him is not his inability to admit critique of Israel, but his refusal to do so on the terms of the state's most harsh opponents. And while I suspect that Professor Dershowitz's presence on the panel would be used to discredit it as biased, I am willing to put my foot down in rejecting the notion that either "non-Jewish" or "anti-Israel" is a prerequisite (if not the definition) of non-biased. We all come from a perspective, Jewish or not, pro-Israel or not, and to label some perspectives "biased" and others invisible is just a replication of (in this case) anti-Semitic hierarchy.

No, my worry with Professor Dershowitz on this panel is that given the particular contours of the panel's mandate, I'm not sure he has the right outlook to insure fairness and justice are done. Dershowitz is primarily a defense attorney, and in effect the panel's review is to determine whether the IDF probes were too deferential to the defendants (Israeli soldiers, commanders, etc.). Even putting Israel out of the picture, this is an area where Dershowitz would likely begin from a position sympathetic to the status quo. Now, as per above, I don't think that being a defense attorney is disqualifying for service on such a panel -- it is important that someone concerned for the rights of the accused and attuned to both the possibility of rushing to judgment or using grunts as scapegoats to ward off international pressure be represented on such a panel. I just don't necessarily think that's the role that the international jurist needs to play; I suspect someone who fits that mold can be found from within Israel's own legal ranks.

Perhaps a better fit -- someone less polarizing, Jewish, notably non-hostile to Israel but with an unimpeachable commitment to human rights everywhere -- would be Irwin Cotler?

Just Another Holocaust Survivor/Turkish Rap Group Collab

Oh for cute. But also inspiring.

Shift Without Pause

It looks like the key strategy for defending Proposition 8 is to say that gays possess plenty of political power.

Andre Bauer Apologizes ... To Animals?

In my roundup yesterday, I noted comments by South Carolina Lt. Gov. Andre Bauer which compared poor people to stray animals (both apparently will breed if you feed them). Today, he issued an apology ... of sorts:

"I never intended to tie people to animals," he said, before opting for a kinder animal metaphor: "If you have a cat, if you take it in your house and feed it and love it, what happens when you go out of town?"

Noting that he has raised money for a group that protects animals, Bauer also said he is "not against animals."

Okay, what? First, note that he apologizes for an animal comparison by proceeding to make the comparison again, with stray cats. But then, in the coup de grace, he makes it clear that he has nothing against animals. And you have to feel bad for the poor animals -- subjected to the indignity of being compared to poor people! It's rather horrible. And rather sociopathic of Lt. Gov. Bauer.*

* Okay, that was out of line. I'd like to apologize to the sociopath community; they don't deserve to be grouped with Bauer (see what I did there?).

The Seventh Degree

Ross Douthat tries to square the circle between the dueling positions of "abortion is murder" and "but I don't want anyone to go to jail."

Nobody involved would go to jail, he said, as "it is possible to believe that abortion is murder and also believe it is a completely unique form of murder. Abortion would be, you know, if you have first-degree murder, second and third degree...it's like seventh-degree murder or something."

Kevin Drum calls this "about as good an excuse for not jailing abortionists as I've heard." Maybe, but that still doesn't make it very good.

First of all, it's worth noting that once you get beyond second-degree murder, for the most part (not everywhere), we stop calling the act "murder" and begin giving it other names. Like "voluntary" or "involuntary manslaughter". Below that, there's "negligent homicide". And all of these ever-lower degrees of "murder" still carry with them prison sentences.

Second, it's worth exploring why we have various degrees of homicide charges at all. Generally, it has to do with the state of mind of the perpetrator. We punish people who intend to kill more than those whose act was unintentional but reckless, which in turn carries more punishment than the person whose state of mind was merely negligent. We also provide some diminution when the actor's consciousness is blurred, due to some sort of provocation or temporary insanity, as well as outright acquittal where the action was justified (self-defense) or excusable (insanity).

What is unclear is why, if abortion is a species of murder, it falls under any of the exceptions that typically counsel even a reduced sentence (let alone an outright excuse). It's clearly premeditated. There is no immediate provocation. There isn't a self-defense claim (Douthat grants a life-exemption for abortion). The best argument I've heard, and I use the descriptor loosely, is one based off the idea that women are being per se irrational when they seek an abortion -- in other words, flat misogyny. We could say that abortion is entirely of its own kind, but that raises the question of why, if abortion rests so uncomfortably with our widely established and agreed upon intuitions of what murder means, it be considered a relative of murder at all? Either you buy into the framework or you don't -- you don't get to borrow the normative punch of the term "murder" without actually having to live with the consequences of labeling something that way.

Stomp the Floor

Ta-Nehisi Coates has a devastating piece up comparing ex-Rep. Harold Ford (D-TN), now considering a run for Senate in New York, to those figures in Southern politics who knew segregation was wrong, but said what they had to say to get elected. George Wallace (and I did not know this) had a reputation as a particularly unbiased and fair-minded judge for Blacks in the south, and indeed at one point ran for office with the NAACP's backing. It failed miserably. And so, Wallace said:

You know, I tried to talk about good roads and good schools and all these things that have been part of my career, and nobody listened. And then I began talking about niggers, and they stomped the floor.

Ford's political ambitions have caused him to take a variety of socially conservative positions that he is now racing to disavow. The most morally pernicious of these was his effort to position himself as the most anti-gay of the anti-gay politicians that infect the American political system. It's probable that Ford really didn't have a problem with gay marriage. But, as Coates writes:

In the 1950s and 1960s, Alabama had in its midst men who knew segregation was a reeking abomination, but embraced it because it allowed them to fix a road in their hometown, build a clinic in the underserved backwoods, or just hook a friend up for a job. Or maybe it was just power--who can tell?

From my perspective, motive is irrelevant. (There's usually a good reason to do evil. That's the nature of evil.) It takes a particular kind of cowardice to throw people's lives aside and bow to the mutually destructive curse of discrimination. I can believe Harold Ford was never actually against gay marriage, and was more concerned with good schools and good roads. But then when he said "constitutional amendment," they stomped the floor.

Amen.

Cool Interviews with Cool People

It's a month old, but I just stumbled across this interview with Israeli MK Yuli Tamir (Labor). Dr. Tamir was one of the founders of Peace Now and holds a doctorate in Political Philosophy from Oxford (where she studied under Isaiah Berlin) with a specialty in the intersection between liberalism and national identity. Currently, she is the dissident minority faction of Labor which is refusing to join the coalition government formed by Likud PM Bibi Netanyahu.

It's a really fascinating interview with a really fascinating person. Highly recommended.

The Great Debate

I watched the first 10 minutes of this debate between Harvard Law Professor Alan Dershowitz and J Street's Jeremy Ben Ami (moderated by Eliot Spitzer), but got bored relatively quickly. Why? Because, try as they might, they don't disagree about much. What disputes they have are nearly invariable about either focus or degree, rarely about substance. So both support two-states, both oppose the settlements, both support some division of Jerusalem.

In a sense, this is why I am very surprised by the amount of controversy J Street has managed to gin up. It's quite apparent here that Professor Dershowitz really wants to accentuate the differences between his positions and those of Mr. Ben Ami; it is equally clear that they really just aren't that far apart. The dissonance, I think, comes from popular misunderstandings both of J Street and the broader pro-Israel community: the former is often portrayed as much further to left than it is, the latter, much further to the right. And this debate helps illustrate just how facile those assumptions are. Professor Dershowitz is often used as a bogey-man for the broke-no-criticism-of-Israel wing, but as he notes he is a longstanding critic of several key Israeli policies (like the settlements). And if J Street can't be considered mainstream after essentially being in cheerful agreement with most of Alan Dershowitz's positions, what would establish it?

Ultimately, J Street isn't out of the mainstream of Jewish policy positions on Israel because there remains a relatively robust center-left consensus amongst American Jews regarding Israel, one that's been well represented amongst all the fixtures of American Israel-commentators. This debate simply dramatized the effect.

Sunday Roundup: Landlord/Tenant Edition

Busy weekend. Our landlord is trying to sell our house, which isn't directly a problem for us -- our lease is unaffected -- except that the real estate agent wants the four of us to live in full "sell the house" mode (every room sparkling clean, willing to vacate at anytime for showings, etc.) for the indefinite future. We're quite willing to be helpful up to a point, perhaps a few days of glittering cleanliness, but we can't effectively vacate the house as law students on any random night (where exactly are we supposed to go in Hyde Park?). I assume they can't force us to do anything, so I think we're in a solid bargaining position -- but the idea of a conflict is stressful to me.

Okay, that was a longer introduction than I intended. Roundup!

* * *

Should we keep "negro" as a census option?

South Carolina likens free lunch programs for impoverished children to feeding stray animals. Why? "Because they breed. You’re facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don’t think too much further than that."

Anti-Semitic incidents way up in 2009.

Israeli right-wing extremists call Rahm Emanuel a traitor to the Jewish people in response to his upcoming visit to the country.

Cuban and American doctors are cooperating to relieve the Haiti crisis.

Italian gay couple hunger strikes for marriage rights.

Hussein Ibish warns of the perils of certainty regarding the outcome of the Israeli/Palestinian conflict.

Pittsburgh police officers nearly beat a student to death for aggravated possession of Mountain Dew (now they're charging him with resisting arrest).

A judge charged with investigating Judge Sharon Keller's conduct in preventing the filing of a last-minute death penalty appeal has decided that fault mostly fell on the defense team, not the judge. He did find several instances of poor judgment on Keller's part, but recommended she receive no punishment. The report will be delivered to the Commission on Judicial Conduct, which can decide whether to accept, reject, or modify the recommendations.