The Openness of the Presbyterian Church

The Presbyterian Church has released an open letter to its "American Jewish Interfaith Partners." It contains a lovely series of platitudes, but not much else. Seriously, please tell me if you see anything in there that is remotely substantive. I've read it three times and I've got nothing. "Nor does this [resolution] indicate any desire for the PC(USA) to walk away from our deeply held, multilateral Jewish-Christian relationships." I have no doubt that's true, but that does not tell us whether these "deeply held" relationships will yield any productive fruit. "The assembly's action came about through much prayer and discernment." I don't know what "discernment" means in this context, but suffice to say deep thoughts can still be wrong thoughts. I'd wager that much of the Church's history has been spent taking action regarding Jews that is the product of "much prayer and discernment"; the products of said action have an exceptionally ugly history.

For me, at least, what is missing here is any sense of introspection by the Church -- any sense that the products of continued interfaith engagement with the Jewish community may require the Church to act differently than it would like to if left to its own devices. The Church, to borrow from a Christian theologian, desires "cheap grace" -- it wants absolution from Jews without having to give up anything in return. But why should I give them such dispensation? As best I can tell, the offer on the table is that the Church wants to communicate with Jews, so long as the results of that communication do not require the Church to take any action it would not have otherwise done in the absence of the Jewish voice. That means nothing to me. It does address the root of the harm and it does not acknowledge the nature of the sin.

I've thought quite a bit about what it would take to bring the Church "back into Communion", if you will, assuming that they don't rescind the resolution (which they won't). The answer for me has actually been rather straightforward: Condemn "Zionism Unsettled" as an anti-Semitic document. Don't just "disavow" it as not an "official" Church document -- "Hop on Pop" is not an official Church document. "Zionism Unsettled" is representative of a particular Christian worldview vis-a-vis Jews that is deeply oppressive and problematic, and one that (though not always expressed so starkly) has a deep influence on how Christians understand the Jewish experience. The critical question is whether Christians acknowledge that the Jewish vantage point may require painful reassessments of some deeply held commitments. There is no reason that Christians should expect or are entitled to a reconciliation with Jews that is "self-bestowed":

Costly grace is the treasure hidden in the field; for the sake of it a man’ will gladly go and self all that he has. It is the pearl of great price to buy which the merchant will sell all his goods. It is the kingly rule of Christ, for whose sake a man will pluck out the eye which causes him to stumble, it is the call of Jesus Christ at which the disciple leaves his nets and follows him.

Christian reckoning with "Zionism Unsettled" requires that they acknowledge the reality of anti-Semitism in their own community and how that inevitably colors their instincts when they elect to speak on Jewish affairs. Recall that the divestment resolution passed by 7 votes. The resolution disavowing (which is to say, stating that the document "does not represent the views" of the PCUSA) "Zionism Unsettled" received eight negative votes in Committee. In a very real sense, it is the people who do believe in the validity of "Zionism Unsettled" and do believe it should reflect Church policy, that gave this resolution its margin of victory. Will they "pluck out the eye which causes [them] to stumble"? Plucking out eyes hurts, or so I imagine. It is not fun, to be sure. It is costly. Grace, in contexts such as the historical oppression of Jews by Christian, should be costly.

As noted in my last post, a (if not the) key question regarding the entire Presbyterian participation in this debate is why anyone -- Jewish or Christian -- should believe that the voice of institutional Christianity is a credible contributor on questions of normative values in general and Jewish experience in particular. Historically speaking, there is no reason to believe they are and will continue to be anything but terrible at this, in large part because the warp and woof of institutional Christianity thought and practice has been suffused with anti-Semitic ideology from top to bottom. Deconstructing (unsettling?) those foundations is a critical step in demonstrating that the Church recognizes there may be something internal to themselves that requires a change. In order for me, at least, to find talking to the PCUSA valuable, I need to know that they recognize these basic facts about themselves, their history, and their relationship to the Jewish people -- a legacy of prejudice and oppression that renders them deeply suspect (to say the least) as partners.

The Church wants cheap grace. It will not get it. If it wants to speak to Jews, it needs to first reckon with itself.

UPDATE: This op-ed by Rabbi Gary M. Bretton-Granatoor of the World Union for Progressive Judaism really puts an exclamation point on the above. I'm not exactly one to put a ton of stock in musty position papers sitting in a drawer, but I admit I assumed the PCUSA had one somewhere. That it, apparently alone amongst major Christian denominations, has never undertaken a formalized inquiry into their relationship with Judaism and how their own ideologies may be implicated by historical and theological Christian anti-Semitism is amazing. That really should have been Step 0 before undertaking a move like this.

Not The Historical Problem

Spotted amongst the arguments for Presbyterian divestment:

At the General Assembly itself, a shocked Presbyterian blogger reported that during prayers, Virginia Sheets, the vice moderator of the Middle East issues committee, “suggested that Jesus wasn’t afraid to tell the Jews when they were wrong.”

My first instinct, upon reading this, was to vomit.

But after the initial wave of nausea passed, I had two different thoughts. The first was to observe that, among the many characteristics one might use to describe institutional Christianity across history, "unwillingness to tell Jews how they ought behave" is not really on the chalkboard. One might even say it is the unifying feature of the Christian tradition -- starting with Jesus, perhaps, but continuing all the way down. Exhorting Christians to be less passive about criticizing Jews is like telling Mississippi to stop bending to the NAACP, or France to let the Germans win for once. And one might further add that this particular Christian fetish might be not just the single thing they're worst at, but (at least in terms of duration) the single most-worst thing ever. It is quite possible that no single entity has ever been as consistently bad at something over a longer period of time than Christians have been at making normative judgments about Jews -- a multi-millennia run of failure, often punctuated by violence, invariably associated with oppression, that characterized Christians never-ending self-assurance that they understand the Jewish situation better than Jews do. But be not afraid, Presbyterians! This time, it will be different I'm sure.

Thought number two goes to this idea of fear. Rev. Sheets' fellow Christians should not be "afraid" to tell them Jews what's what. One hears this refrain a lot -- how deeply frightening it is to stand up to the dreaded Jewish Lobby. Christians, of course, have rarely been particularly "afraid" to take Jews down a peg -- mostly because the scariest thing about criticizing Jews is the prospect that the Jews will say something that makes you feel temporarily bad about yourself (before reminding yourself that They're Just Playing the Anti-Semitism Card -- always a quick pick-me-up). Jews, on the other hand, have historically had to be genuinely fearful of telling Christians they're wrong, or refusing to heed Christian "criticisms" of Jewish behavior. To do so often quite literally was to render one's life forfeit. At best, it runs the risk of a massive backlash that threatens hard-won and precariously-preserved political and social rights. And so Jews have historically stepped quite lightly around Christian sensibilities; mouthing meek assertions about how maybe tones could be tempered and aren't we all brothers here and I know you mean well, but ....

It is a unique feature of the past 60 or so years that this situation has changed a little bit. Not that Christians now have to fear Jews, though there appears to be no power on earth that could convince the most powerful social organization the earth has ever seen that it is not being victimized by The Other. But it is the case that sometimes, in some contexts, Jews can criticize Christians without the automatic specter of a massacre looming. Or -- and this I suspect is worse than Jewish criticism -- Jews can sometimes ignore Christian criticism without immediate and obvious consequence. For people who view their power over Jews as an entitlement, this I think is what really rankles: there is an entity, that is Jewish, that Christians criticize, that sometimes does not listen.

Power, as Carol Gilligan once wrote, means you can "opt not to listen. And you can do so with impunity." Like most things, this is a double-edged sword. Of course being in position where can "opt not to listen" means one can safely ignore voices at the margins, and thus comfortably maintain a privileged state. But being able to not listen is also a predicate to autonomy. For historically marginalized groups, such as Jews, having the option not to listen is a break from thousands of years of imperial domination where our fates, our rights, and our lives were governed by the whims of others whose words we were bound to respect. Part of liberationist politics is respecting the reality that the formerly dominated group will make its own decisions and, sometimes, stand by those decisions even when their former rulers passionately disagree.

It's a lesson Virginia Sheets, and the Presbyterian Church, might want to learn.

Oh Give Me a Home

Colorado Presbyterian Reverand Larry Grimm has a plea for Israeli Jews.

America is the Promised Land. We all know this. Come to the land of opportunity. Quit feeling guilt about what you are doing in Palestine, Jewish friends. Stop it. Come home to America!

To borrow from another commentator, maybe they should "come home" to America as soon as Grimm returns to Scotland.

But in all seriousness: is there any metric -- any metric at all -- under which a Jew living in Colorado is not further implicated in colonialism than a Jew living in Tel Aviv? Because I can tell you that Jews (and Presbyterians, for that matter) do not have a multi-millennium connection to Fort Collins. But leave it to a Christian minister to use a speck to urge Jews to jam a log through their own eye sockets.

Year Ten

Today is the 10th anniversary of the beginning of this blog! Pretty incredible, when you think about it.

I know it's been slow going over the past few years, but I'm hopeful that certain soon-to-be-announced developments may help rectify that. Stay tuned ... and whether you've been here only a few weeks, or been reading since day one, thank you.

A Voter's Saga

Did you know the Virginia congressional primaries were today? I didn't -- at least, not until this morning. But I think it's important to vote. America is a democracy, and voting is how we preserve it. It's hardly some big imposition on my life to do my civic duty, is it?

This is my story:

6:20 PM: Step off the metro at courthouse and walk to the Arlington County building, where I cast my ballot for the gubernatorial race this past fall. Realizing that I have no idea what races are being contested, let alone who is running, I check my phone for information.

6:30 PM: I've discovered I'm in Virginia's 8th district, where Rep. Jim Moran (D) is retiring. Never liked him anyway. A whole slew of Democrats are running to replace him, but the Washington Post indicates that there is a pretty clear frontrunner in Don Beyer who seems decent enough. Also discover that the polls close at 7 PM. This does not seem to be a big deal -- I'm already here, after all.

6:35 PM Ask for directions to the polling place. Am told that the government building only handles in-person absentee balloting, but if I go to third floor they can direct me to my polling place.

6:40 PM: Am informed my polling place is at the local elementary school. It's a short walk from the government building, and I know exactly where it is. Plenty of time.

6:48 PM: Reach the polling place. Do I have a Virginia ID? No, I do not -- I actually tried to get a Virginia driver's license, but was stymied due to my mistaken belief that my social security card would establish my identity. Since I never drive, I never tried again. Utility bill? Voter registration card? Alas, I do not carry any with me while at work. Remember kids -- if voter ID requirements can stop an upper-class white man from voting, it can happen to anyone.

6:51 PM: Walking back to my apartment. Remind myself that I've always opposed voter ID requirements, so fulminating over my current predicament is not opportunistic. The circa 553% humidity is not helping my mood, and I'm soaking my dress shirt.

6:54 PM: Reach my apartment. Decide that if I can find my voter registration card on the first pass, I can make it back in time to vote.

6:56 PM: Miraculously, I find my voter registration card right away (miraculous both because I'm incredibly disorganized, and because my guess of "buried under a pile of papers in my second desk drawer" was right on target). Now the race is on. Literally -- I'll have to run back to the elementary school if I want to make it.

6:59 PM: After running the half-mile to the elementary school, I burst through the doors waving my registration card. Poll workers recognize me and give me a round of applause.

7:00 PM: Cast my vote for Beyer. Get sticker. Walk home drenched but satisfied.

10:49 PM: Write this post. Check results, Beyer won the race by 27 points. Totally worth it.

So Far The Count Remains One

The Forward has this article up about an anti-Semitic mural put up by a Cleveland gas station:

The mural appears on the side wall of Biggie's Foodmart and gas station in Cleveland. Written above the graphic image of are the words: "Talmudic Priests in Church: Sex With Minors Permited [sic]."

It apparently depicts the metzitzah b’peh ritual, the controversial practice in which a mohel sucks the blood from an infant’s penis after circumcision.

The local Jewish community is of course quite upset. But the article continues to say that the "gas station doesn't just take aim at Jews.

On the adjacent wall is another, similarly drawn image with the title “The Faces Of.... Jesus.” Having alluded to Jesus' importance in Christianity and Islam, the first line of the graphic reads: "To Jews he's a bastard, who's in hell." Curiously, underneath the image’s third depiction of Jesus are the words “Palestinian Born,” in smaller letters.

Perhaps they're explaining poorly (or perhaps I'm bad at reading), but that to me sounds like he's still taking aim at Jews.

The Roberts Court Votes on Brown

Norm Ornstein, writing in The Atlantic, argues that had it been the Roberts Court sitting in 1954

[t]he decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard.

Ilys Somin cries foul. And I think Somin has the better of the argument, but it's a more interesting question than he lets on.

Somin observes, quite correctly, that the "colorblind constitution" advocated by Chief Justice Roberts and others makes easy work of the de jure racial classification at issue in Brown. But I don't think the point of the hypothetical is to transport the doctrines and particular legal and policy beliefs of the Roberts Court back to 1954. After all, these doctrines and policies derive from particular historical roots, of which Brown of course looms large. But in 1954, the "colorblind constitution" was hardly so entrenched -- its jurisprudential provenance was a solo dissent in an 1896 decision that the Court had, to that point, been extremely careful not to disturb. And the "separate but equal" doctrine that prevailed instead was, on face, perfectly egalitarian. It has "equal" right in the name!

Somin contends, though, that irrespective of this superficial equality "a Supreme Court justice who believes that the government should “stop discriminating on the basis of race” would have no trouble striking down school segregation laws, regardless of whether the separate schools were 'equal' or not. Jim Crow segregation laws were nothing if not blatantly obvious examples of discrimination on the basis of race."

But was it so "blatantly obvious" back then? Of course, in many cases there were material differences between the separate accommodations, and that is indeed an easy case. The Court had begun tackling these facial violations of "separate but equal" in cases like Sweatt v. Painter and McLaurin v. Oklahoma Board of Regents, and I have no doubt that Roberts and company would have followed those precedents. But making the jump to the colorblind constitution requires more -- it requires a theory for why formal equality isn't enough. It is notable that this debate played on Plessy, and the terms of the debate were the social meaning of racial separation. The majority adamantly ignored these social conventions:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

But does anyone seriously have confidence in the Roberts Court to develop a new rule on race based on the social effects of a formally equal legal rule? This, to put it mildly, is not their standard operating procedure.

Nonetheless. maybe these cultural conventions really were so "blatantly obvious" that the Roberts Court would craft a brightline rule addressing them. This is buttressed, ironically, by the fact that in my estimation the Roberts Court's identification with a "colorblind constitution" doesn't derive from any cognizable legal foundation (originalism, textualism, etc.), but really represents a deeply-felt policy preference. And while that normally is not praiseworthy, it does mean that the conservative Justices would be more inclined to craft this rule even where it did not have a clear link to prior precedent or a prevailing legal theory.

The really interesting question, though, is how the Roberts Court would have decided Brown II (and the subsequent "remedial" jurisprudence line). Ornstein did not raise this issue, so I don't fault Somin for not responding to it. But recall the context: after Brown the District of South Carolina on remand took away from the cases the following principle:

The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.

To the extent Brown II allowed or even required the use of affirmative race-conscious steps to integrate schools, would the Roberts Court have followed along? Or would it have endorsed the position of the District of South Carolina that the start and end of "desegregation" was erasing government statutes mandating racial separation?

To be sure, the Roberts Court today recognizes (barely) that the use of race to remedy de jure racial discrimination is constitutional. But their acceptance of this principle is much more tenuous than that of the colorblind constitution, and derives almost entirely for the legal and emotional precedential force of the Court's civil rights era desegregation jurisprudence. Starting from scratch, would they have announced a similar rule? I think not.

In short, I think Chief Justice Roberts would have signed onto Brown. But I think that's as far as he would have gone. When it comes to remedies, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The judgment of the District of South Carolina on remand would be affirmed.

Easy Does It

A.J. Delgado in the National Review (2014):

Now, the term “rape” or “sexual assault” is thrown around almost effortlessly, accusations easily made and lives easily ruined.

And Sir Matthew Hale, Pleas of the Crown (1680):

[Rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.

In conclusion, that Delgado's thesis is identical to how rape was viewed in the late 17th century in no way implies that her assessment likely derives from a similar view of women and female autonomy.

See also my 2011 post On Bad Critiques of Rape Prevelance Studies (Part II). The idea that "crying rape" (that's literally the title of Delgado's article) is some sort of pervasive phenomenon, as if going through a rape investigation is the epitome of a fun girl's night out, continues to astonish me.

To The Students of SJP Vassar

SJP Vassar has replied to my Innocent Until Proven Nazi post. It reads as follows:

To be clear, we definitely did back down. Our responses have been slowed up due to finals week, but we definitely do not condone the publications!

Your point on the reactions and whether the content would get the same reaction without the inflammatory source is interesting, and something we talked about as well. I think it would not have gotten the same response, as we have posted much more radical things than a description of Zionist trolls and a cartoon about the UN ignoring the ongoing genocide within Palestine. I’m wondering if you've looked at any of our other content tho, because I want to ask if you see the content of which we post as anti-semitic?

Are you the kind of zionist defender who equates critiques of zionism with antisemitism? and if not what about our content is anti-semitic?

The issue here is not, and never really was, whether you "condone" white supremacist publications. The key takeaway from my post should not be "Would the reaction have been the same [had the source not been a bunch of white supremacists]?" The key takeaway should be this:

If you call yourself an anti-racist but find yourself nodding along with neo-nazis, maybe that's a sign that your anti-racist bona fides aren't quite what you think they are. Clearly they don't view themselves as anti-Semitic, but one wonders what exactly would be evidence to these students that this self-appraisal isn't reliable? In large part, this discussion is about Jews who are describing their oppression and gentiles who call us crazy for doing so.

This is not to say you should not be more careful -- and I note that, "apology" notwithstanding you currently have a Nazi (no "neo-"; this dates from 1944) poster gracing your front page. But the issue is not about sourcing. In many ways it isn't even about content. It's about epistemics. How do you know what you think you know? You think you're anti-racist. You think you're not anti-Semitic. But you're well aware that most Jews disagree. What do you derive from that?

You make a statement. Jews say they believe it is anti-Semitic. Now you have a decision to make. If your response is "it's probably just Jews being pathological liars and/or delusional, as usual", you can hardly claim in the next breath to not be anti-Semitic. To borrow from George Yancy, people "admit[] of no ignorance vis-à-vis the [Jew]. Hence, there is no need for ... silence, a moment of quietude that encourages listening to the [Jew]." Instead, "the louder we speak, the crazier we are."

And this was the true problem with the "Zionist trolls" post, and your flippant question about whether I am "the kind of zionist defender who equates critiques of zionism with antisemitism." All of this starts from the exact opposite presumption -- that what the mainstream Jewish community says is inherently suspect and probably done in bad faith. It's "race card" politics. When we're talking about the critical institutions that mediate Jewish lives (and the gentile responses thereto) the issue of anti-Semitism properly should be at the foreground. It would be strange if such a discussion did not substantially implicate issues of anti-Semitism, and if you're talking about such institutions without talking about anti-Semitism, you're talking about it poorly. But it's not a conversation that can be had on egalitarian footing if Jews aren't accepted as valid exponents about Jewish history, Jewish experience, and Jewish lives. It is what we need In Order To Begin this conversation.

This is why anti-racism politics is hard. If you're serious about it, it requires sacrifices, sometimes of things we hold very dear:

if one isn't willing to consider as even potentially legitimate Jewish criticisms that one's statements are or engender anti-Semitism, one can't act surprised if they don't give your own criticisms much weight or attribute them to hostility. After all, it seems quite likely that a person whose immediate response to Jewish objections is "as usual, Jews are lying/suppressing free inquiry/insane" is someone who in fact does harbor inegalitarian views towards Jews. Privilege -- gentile or otherwise -- means that one can always choose to maintain the primacy of one's own perspective on matters affecting the marginalized group. A very large part of anti-oppression analysis is about convincing the privileged to at least suspend that outlook and recognize that it is possible -- maybe even likely -- that the marginalized person is epistemically more credible on the subject, and that our own view -- even if honestly arrived at, even if fervently held -- may be suspect after all. Persons consistently unwilling to engage in that "quietude" towards Jewish voices cannot claim any presumption of egalitarian views vis-a-vis Jews.

I have on many occasions said what I take to be the heart of counter-anti-Semitic method, borrowing from Christine Littleton's description of the heart of the feminist method: it begins "with the very radical act of taking [Jews] seriously, believing that what we say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us."

And that's the central point. We shouldn't need the smoking gun of neo-Nazis. We deserve to be treated as credible witnesses regarding our own condition. It might require you to reassess some core beliefs. But if your "anti-racism" never causes you to alter anything of value to you, it's not much of anti-racism at all.

Innocent Until Proven Nazi

I've been reading with interest the saga of Vassar College's Students for Justice in Palestine branch, which recently has posted a series of material from various White supremacist websites. Rebecca Lesses, a professor at a fellow New York liberal arts college, initially posted about it here and has since written several follow-up posts.

Suffice to say, Vassar SJP is not backing down. They concede that their source (Occidental Quarterly) "is a white nationalist publication, that doesn't mean everything they say is invalid though!" "If the idea is alright, who cares where they come from?" (The idea here, in case you're curious, is that the intertubes are infested with "Zionist internet trolls" -- the electronic cohorts of "fifth columns in foreign governments who subvert national policies to serve Israel"). They contend that linking to OQ "does not mean we support white nationalist ideology; rather, we found this particular article’s description of those behind zionist propaganda campaigns and how they operate to be a helpful articulation of problems many organizations like us face." In short, "we're not white supremacists, but they sure do have it right about the Jews!"

In a sense this is almost too easy. If you call yourself an anti-racist but find yourself nodding along with neo-nazis, maybe that's a sign that your anti-racist bona fides aren't quite what you think they are. Clearly they don't view themselves as anti-Semitic, but one wonders what exactly would be evidence to these students that this self-appraisal isn't reliable? In large part, this discussion is about Jews who are describing their oppression and gentiles who call us crazy for doing so. Once you're far enough down the rabbit hole, there is no threshold of evidence that makes the Jewish claim credible. The louder we speak, the crazier we are. But most people are not so far gone as to be unable to understand what it means when one starts unapologetically parroting white supremacist slogans. Demonstrating the overlap between "left-wing" anti-Semitism, which clothes itself in anti-racism discourse, and its "right-wing" counterparts is a way of validating the claim -- we can feel confident that these students are anti-Semitic because they're essentially waving its flag. "You shall know them by their fruits" indeed.

But in another sense I find this very frustrating (aside from the obvious reasons, of course). Suppose Vassar SJP had posted the exact same material, only it wasn't attributable to an avowedly white nationalist website? Would the reaction have been the same? For some of us, sure: we know anti-Semitism when we see it. But for others, it seems that the Nazi link is a crutch -- without it they find it very difficult to even raise the prospect of anti-Semitism. Anti-Semitism has symbology but no content. Ideas, policies, statements, actions, and motives are not anti-Semitic -- only associations are. We saw this with Jenna Delich too -- it wasn't what was said, it was that David Duke was saying it, that was the smoking gun. You are anti-Semitic to the extent you can be tied to Nazis. If you can't, you're in the clear.

The Natural Interpretation

As Clive Bundy has made clear, there is no limit to how racist one's words can be while still being able to claim -- apparently with a straight face -- that it is entirely unreasonable to claim the words are racist. Over in the Netherlands, we have possibly the platonic ideal of that formulation as applied to Jews:

The rapper Ismo, whose real name is Ismael Houllich, included the text in his first single. The official video clip for the song titled “Eenmans” (or “One Man’s”) shows Ismo singing: “I hate those fucking Jews more than the Nazis,” “don’t shake hands with faggots” and “don’t believe in anything but the Koran.”

The clip, which was filmed in the southern border city of Breda, had received 125,000 viewers on YouTube before a 19-year-old homosexual resident of the city, Lars Hobma, filed a complaint with police against Ismo for alleged incitement to hatred, the news site of the Algemeen Dagblad daily reported Friday.

Hobma has received death threats on Facebook after filing the complaint, the daily reported.
In an interview for Omroep Brabant, a regional radio station, Ismo denied Hobma’s allegations.

“They are trying to twist my words against me,” he said. “I don’t hate all Jews. I hate only Zionist Jews that made Palestine smaller than my neighborhood.”

He added: “It all depends on how you interpret the song. By ‘faggots’ I didn’t mean homosexuals and by ‘Jews’ I didn’t mean all Jews. My fans realize that.”

One can't help but feel for Ismo. It's getting to the point where one can't even say "I hate those fucking Jews" without someone calling you an anti-Semite. What a ludicrous world we live in.

Bitty Tent

This is disgraceful. Certainly, I don't agree with J Street on every issue. I have a lot of problems with them. But if the Conference of Presidents of Major Jewish Organizations was only comprised of groups I agreed with in their entirety, it'd only have one member -- myself. And while that would be pretty cool, actually, it's no way to run a communal "big tent." There is nothing about J Street that puts it outside the mainstream of Jewish politics -- indeed, it is in many ways far more in tune with the American Jewish populace than, for example, ZOA is.

Honestly, it's an open question whether Jewish organizations can continue, in good faith, to remain members of the Conference. With this rejection, it is entirely unclear what purpose the Conference serves other than to calcify the power of an increasingly-irrelevant branch of Jewish society.

Update: Apparently Rabbi Rick Jacobs (head of the Union of Reform Judaism) reads this blog:

[M]any of us argued before and at the meeting, yesterday's debate was actually a referendum not on J Street but on the Conference of Presidents itself. As of yesterday, it is clear that the Conference of Presidents, as currently constituted and governed, no longer serves its vital purpose of providing a collective voice for the entire American Jewish pro-Israel community.

In the days ahead, Reform Movement leaders will be consulting with our partners within the Conference of Presidents to decide what our next steps will be. We may choose to advocate for a significant overhaul of the Conference of Presidents' processes. We may choose to simply leave the Conference of Presidents. But this much is certain: We will no longer acquiesce to simply maintaining the facade that the Conference of Presidents represents or reflects the views of all of American Jewry.

When I wrote my post I wasn't actually expecting any major group to seriously threaten to leave the Conference. In other words, this is much ballsier than I expected. But now that this possibility is seriously on the table, I'm not backing off from it. The Conference's main function is to serve as a meeting ground wherein the totality of the organized institutional Jewish community can meet. Having voluntarily ceded that role with yesterday's vote, it's unclear what utility the Conference retains.

How To Write a Brief, By Paul Clement

This amicus brief by Paul Clement on behalf of the American Beverage Association (the other, other ABA) in POM Wonderful v. Coca-Cola is a masterpiece. The formal legal question -- on which I express no opinion -- is whether a party can bring a suit under the Lanham Act (which governs false advertising) regarding a label of a product regulated under the Food, Drug, and Cosmetic Act. POM's lawsuit accuses Coca-Cola of mislabeling a drink as "Pomegranate Blueberry" juice when it contains just .3% pomegranate juice and .2% blueberry juice (it is 99% apple and grape juice).

And when you put it that way, it sounds really bad! There's an old saying amongst lawyers that when the law is on your side, pound on the law, and when the facts are on your side, pound on the facts (and when neither is on your side, pound on the table). These facts sound very bad for Coca-Cola (99% juices other than the two prominently displayed on the label), so the conventional wisdom would be to bang on the law and downplay the facts.

My theory of advocacy, however, has always been the opposite -- go on offense where your opponent thinks they're strongest. "Offense" is important -- the strategy only works if you argue that the point they think is their ace really, truly, obviously favors your own side. Even if you don't persuade the audience, it has a neutralizing effect -- it makes it seem like the issue is at best a single or a double for the other side rather than they're home run.

I digress. The point I want to make is that Clement starts with what seem to be awful facts, and deftly explains why labeling juices from the perspective of volume may not make a lot of sense. It is clear, lucid, and intuitive -- no small feat given how incongruous the position seems at first glance.

If one is looking for a model of how to write a brief, this is one to do it. It is a masterclass of the art.

JK, Seattle

Some selected passages from Parents Involved v. Seattle School District No. 1:

The present cases are before us, however, because the Seattle school district was never segregated by law. . . . The justification for race-conscious remedies in McDaniel[v. Baressi, 402 U.S. 39 (1971)] is therefore not applicable here. The dissent's persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome a history of segregated public schools," post, at 2825-2826—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.

127 S. Ct. 2733, 2761 (2007) (plurality).

Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.

Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at 2839-2841, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at 2803-2805, 2812. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary.

127 S. Ct. 2738, 2771 & n.7 (2007) (Thomas, J., concurring).

As it happens, the history of Seattle schools vis-a-vis segregation also made an appearance in today's Schuette opinion:

Although there hadbeen no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that“permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically,the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.

If I were Justice Breyer I'd be inclined to lob a molotov cocktail through the window, but sure, concur in the judgment instead. At least Justice Sotomayor identifies the contradiction in footnote 9 of her dissent (and Justice Scalia does so as well in footnote 2 of his concurrence).

As for me, it's amazing how the much more trusting we are of democratic decision-making on racial issues when the ultimate decision seems to favor White people. The contrast between Schuette, on the one hand, and Parents Involved and Shelby County is so stark as to be blinding. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character. Once again, we can credit Scalia for his honesty -- he puts Carolene Products squarely in his cross-hairs -- possibly the first truly negative citation that venerable footnote has seen since its 1938 inception.

What's Reasonable About Reasonable Doubts?

Suppose you are on a criminal jury. After the case closes, you retire to determine whether the defendant is "guilty beyond a reasonable doubt". It's one of the most famous elements of American law -- probably the only part of the jury instructions that jurors know of in advance. But what does it mean?

"Guilty beyond a reasonable doubt" means, on the one hand, something more than just thinking the defendant probably did it; and on the other hand, something less than being absolutely certain that he did it. It allows for doubts, but only "reasonable" ones.

So you come into the jury room believing that the defendant is guilty and that, whatever doubts you may have about that conclusion, those doubts are not "reasonable" ones. A fellow juror disagrees. He has doubts sufficient to cause him to vote "not guilty". You listen to his argument, but your mind isn't changed. You still vote "guilty". What, exactly, does that vote mean in the context of your assessment of the other juror? They raised doubts, and yet you're voting "guilty beyond a reasonable doubt." At first blush, there seem to be two possibilities:

(1) By voting "guilty beyond a reasonable doubt", you are implicitly saying that their doubts are unreasonable. If they were reasonable, then you'd be obligated to vote "not guilty".

(2) By voting "guilty beyond a reasonable doubt", you are making no statement about the reasonableness of anyone else's doubts. In effect, you are stating that it is possible for some people to have "reasonable" doubts and others to have no such doubts.

To me, the former makes much intuitive sense in terms of the actual concept of "reasonable doubt". Typically in law "reasonableness" is an objective standard. It is meant to transcend individual idiosyncrasies and provide a uniform standard based on the prototypical "reasonable person". And at a very basic level, I'm not sure what it means to say that while someone else's doubts may be reasonable, this person is nonetheless "guilty beyond a reasonable doubt". Once you've made the concession that someone could reasonably have doubts, then by definition the defendant cannot be guilty beyond a reasonable doubt.

Yet it is absolutely clear that we do not view reasonable doubt this way. First of all, I suspect that if we did -- if the standard really was "is someone with a contrary view objectively unreasonable?" -- we would almost never convict anyone. But it also is implicit in the structure of appellate review of criminal convictions.

When I was an appellate clerk, we'd of course have a great many cases where defendants challenged their criminal convictions. It was pretty rare that I came across a case where I thought the defendant was "actually innocent", in the sense that I thought it was more likely than not that they didn't commit the accused crime (I can think of one potential candidate -- Paulson v. Newton Correctional Facility, 703 F.3d 416 (8th Cir. 2013)). But there were quite a few where I thought there might be reasonable doubt. I'd read the defendant's account of what happened, and I'd think "that's a live possibility." And of course I don't think I'm unreasonable. So, it seemed to me, reasonable doubt existed. If lack of such doubt is supposedly a prerequisite of a guilty verdict, how do such convictions stand?

The answer is the standard of review, which is quite strict in such cases.

We "reverse only if no reasonable jury could have found [Va] guilty beyond a reasonable doubt." United States v. Morales, 445 F.3d 1081, 1084 (8th Cir.2006) (quoting United States v. Howard, 413 F.3d 861, 864 (8th Cir.2005)). We "view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence." United States v. Milk, 447 F.3d 593, 598 (8th Cir.2006). "The standard for reviewing a claim of insufficient evidence is strict, and a jury's guilty verdict should not be overturned lightly." United States v. Pizano, 421 F.3d 707, 719 (8th Cir.2005).

United States v. Van Nguyen, 602 F. 3d 886, 897 (8th Cir. 2010).

This seems to (and in effect does) shift the burden of proof sharply in favor of upholding convictions. But it suffers from a conceptual problem, since it is effectively smashing two standards of persuasion together. The question for the reviewing court, to paraphrase the Morales decision quoted above, it whether it is unreasonable for a jury to conclude that any doubts raised are unreasonable. Those two "unreasonables" don't play nicely with one another, because again, isn't reasonability supposed to be an objective test? Clearly not, because if so we could just restate the original instructions: are there reasonable doubts or not? The only reason this deferential level of review could possibly be necessary is to uphold verdicts where reasonable doubts do seem to exist. Even granting some allowances for the fact-finders' supposedly superior ability to assess evidence and credibility, the width of the gap between how hard it (supposedly) is to convict ("beyond a reasonable doubt?") and how easy it is to uphold a verdict ("was the jury made up of unreasonable lunatics?") indicates that the test must be subjective.

The end result is that criminal convictions occur -- and probably often occur -- when a reasonable person could have reasonable doubts about the defendant's guilt. That conclusion, to me, seems deeply inconsistent with what we believe as a society tell ourselves about the criminal justice system -- though it seems quite consistent with how it operates in practice. I'm not even necessarily being critical of this result -- the alternative implied by "reasonable doubt" being an objective standard is functional de novo review of jury verdicts, which would mostly obviate the point of having a jury at all. But what it does mean is that "beyond a reasonable doubt" likely is little different from "preponderance of the evidence" -- 12 people (or fewer, depending on the circumstances) subjectively deciding the defendant was probably guilty.

UPDATE: Incidentally, the key case rejecting the claim that a proper "reasonable doubt" instruction must demand that the evidence "exclude every reasonable hypothesis other than that of guilt" is Holland v. United States, 348 U.S. 121, 139-40 (1954).

Spawn A

Chelsea Clinton is one of the highest-profile members of an interfaith marriage. Now that she's pregnant, let's see how various interested parties are reacting. Some are very positive:

Interfaithfamily.com quickly seized the pregnancy as an “opportunity to share with ALL expecting parents” its various resources for new interfaith parents, including a booklet called “To Circumcise or Not: That is the Question.”

Others are less thrilled:

Meanwhile, at the other end of the spectrum, The Jewish Press chose this headline: “Chelsea Clinton Pregnant With Non-Jewish Child.” Calling the former first daughter “America’s poster child for intermarriage,” the Brooklyn-based Orthodox newspaper noted that in marrying four years ago the pair was “effectively pruning away that 3,300 year old Jewish branch of the Mezinsky family.” (And apparently also pruning away the “v” from the groom’s name.)

And then there are the neo-Nazis:

Not surprisingly, Stormfront, the anti-Semitic website, does recognize the child as a Jew, as evidenced by its charming headline: “Chelsea Clinton pregnant with jew spawn.”

That about covers the range, I think!

DePaul Center for Jewish Law and Judaic Studies

DePaul Law School's Center for Jewish Law and Judaic Studies had an interesting conference recently where several prominent Jewish law professors talked about how their Jewishness affected their outlook on law and legal scholarship. It sounded like a fascinating program -- I wish I had still been in the neighborhood and was able to attend (I lived very close to DePaul Law my 3L year).

Unfortunately, Randy Barnett reports that the center is close to shutting down due to a lack of funding. This would be a true shame. If you're in a position to donate and help keep them going, it would do the world -- Jewish and otherwise -- a great deal of good.

Motivational Speaking

I like Jonathan Chait. He's smart and he's funny. It is no accident that my last post stemmed from one of his. But in this post, about racism and the "presumption of innocence" is badly misguided.

Chait's basic argument almost completely abstracts racism aways from any concrete, measurable effects it might have on the world. Instead, racism is almost solely a question of personal moral character. Consequently, it is extremely important to ensure that good non-racists are not unfairly lumped in with bad racists. Chait takes particular issue with persons, such as Melissa Harris-Perry, who suggest that there shouldn't be a default presumption of White non-racism. "Just how a person so accused could overcome the presumption of racism, Harris-Perry did not explain."

On the topic of trusting White people, I refer back to W.E.B. Du Bois' perspective. Surely Chait does not believe that Du Bois had to presume non-racism in 1920. A Black man in 1920 who assumed that any and all White people he met viewed him as an equal was a Black man who would be lynched sooner rather than later. So really we're talking about when the ledger tilted. 1950? 1970? 2004? When was it that a presumption of White non-racism shifted from being a suicide pact to a moral obligation?

What's particularly bizarre is that Chait proffers no evidence that racism is sufficiently rare amongst White people so as to justify a presumption of non-racism. Perhaps that's the benefit of presuming it -- it negates the obligation to actually offer supporting evidence. This is a problem, given the extensive evidence regarding the prevalence of subconscious racism amongst Americans, including amongst those who have conscious and genuine commitments to racial egalitarianism. And this sort of racism continues to exhibit meaningful, tangible impacts on minority lives. But Chait almost seems to view this more as a question of civility than of sociology. We should be careful about saying people are racist because that's a mean thing to say about another person. There is simply no justification for this approach. At the very least, how we approach the subject of racism in American life should remain connected to the actual presence and impact of racism. If racism remains a serious and widespread problem, then we should treat it as one regardless of whether it hurts people's feelings.

But the deeper problem is the focus on personal motivations at all. As Alan David Freeman observed over three decades ago, this is not largely why minorities care about racism. Racism matters because of the tangible effects it has on the lives of those it victimizes. Were racism solely a matter of "the heart" and never translated into material impacts, it wouldn't be that big a deal.

Chait seems to disagree. Consider his response to Ed Kilgore and the disparate impact many conservative policies have on people of color.

The Washington Monthly’s Ed Kilgore, in a trio of posts, objects that it is perfectly fair to impute racism to conservative policies that have a “disparate impact” on African-Americans, citing Republican opposition to things like health-care reform. “I’m willing to stop 'playing' the 'race card,' accurate as it often is,” he writes, “if conservatives are willing to reflect more on a fundamental inability to accept the equality — not of some abstract quantity called 'opportunity,' but of access to the basic necessities of life in this rich society.” If Republicans want Kilgore not to assume they are racist, all they need to do is agree to the liberal policy agenda, or perhaps something close to it.

And Kilgore is right, of course, that Republican policies tend to enrich a disproportionately white constituency and harm a disproportionately nonwhite one. He thus deems the question of motive irrelevant. But suppose we lived in a world where Democrats wanted to redistribute even more resources from the (disproportionately white) rich to the (disproportionately nonwhite) working-class and poor. At some point, the level of redistribution could be high enough that Kilgore himself would object — say, a federal government consuming one third, or one half, or two thirds, of the economy. Would it be fair to describe his agenda as objectively racist? Would that free Kilgore’s left-wing critics from taking his stated objections at face value?

Frustratingly, Chait does not actually make clear his views on "disparate impact" as a consequence. He knocks down the straw-man that infinitely biasing policy in favor of the less-well-off should not be viewed as racist on "disparate impact" grounds. This is of course true, but not actually contested. Disparate impact matters for two reasons. First, because it offers a hint as to motives that are hidden or (as aforementioned) subconscious. Second, because it focuses on what racial minorities actually receive and whether that receipt is compatible with what they are due as a matter of justice. Not to repeat myself, but racial minorities not receiving what they are justly owed as members of a liberal democratic society is bad regardless of what actually motivates the deficiency. Indeed, historically speaking it is quite rare for any such deprivations to be solely motivated by "racism" as Chait understands the term -- a pure and unmoderated desire to harm racial minorities for its own sake.

But in reality, the distinction between motive and consequence is less relevant than one would think. Chait thinks it is extremely important to distinguish between someone who advocates policy X because it hurts Black people, versus someone who advocates it for some other reason (and simply does not realize -- or care -- that it hurts Black people). But when formulating policy, we all have an obligation to think about whether our preferences are compatible with what is justly owed to our fellows. Failing in that responsibility may not be as bad as conscious antipathy towards racial minorities, but it's still something we can fairly condemn. And -- returning to Du Bois -- would Chait really defend the claim that White people have earned a presumption that they have thought deeply and critically about whether their policy choices are fair to Black people?

This dovetails with one of Chait's stranger arguments:

The most problematic part of Kilgore's argument is his recurrent phrase "objectively racist." It consciously or unconsciously harkens back to a chilling Cold War-era line used by conservatives, who described their domestic opponents as "objectively pro-Communist." Their underlying logic, like the phrase itself, mirrored Kilgore's: if you opposed the conservative foreign policy agenda, the "objective" thrust of your beliefs aided communism. This line of reasoning conveniently enabled conservatives to rhetorically lump together all their domestic opponents under the broad rubric of "pro-communist," insinuating a poisonous motive while freeing themselves from having to demonstrate it.

Chait couples this claim with another one that liberals don't care about a standard of "fairness" in assessing racism. But these positions aren't consistent. One way to "fairly" allocate claims of racism is to tie it to certain objective metrics, like, for example, the standard of living enjoyed by racial minorities vis-a-vis the majority. Viewing racism through this lens -- as a question of concrete and tangible things -- has the advantage of linking racism to the reason we care about racism (not to mention linking it to measurable entities). To be sure, there are still plenty of debates to be had even on that "objective" turf. But it is far easier to assess the trying to peer into someone's soul ala Bush and Putin.

The important thing to stress, and the point Chait keeps sliding past, is that the important question regarding racism is not "are White people bad"? The important question is whether our society is, along racial lines, treating all of its citizens in an equitable and egalitarian manner consistent with principles of justice. If the answer is no, that's a big problem regardless of whether the explanation why not ends up being conscious racial antipathy, subconscious prejudice, apathy, or something else entirely.

...and the Maps?

Former Senator (now Heritage Foundation chief) Jim DeMint on how the slaves were freed (via Jon Chait):

Well, the reason that the slaves were eventually freed was the Constitution, it was like the conscience of the American people. Unfortunately there were some court decisions like Dred Scott and others that defined some people as property, but the Constitution kept calling us back to "all men are created equal and we have inalienable rights" in the minds of God. But a lot of the move to free the slaves came from the people, it did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves.

To be fair, his answer may have been ghost-written by another South Carolinian.

The God Market

I'm not exactly an anti-trust specialist, but I found this hilarious (via Will Baude):

Judge Orders God To Break Up Into Smaller Deities

WASHINGTON, DC—Calling the theological giant’s stranglehold on the religion industry “blatantly anti-competitive,” a U.S. district judge ruled Monday that God is in violation of anti-monopoly laws and ordered Him to be broken up into several less powerful deities.

“The evidence introduced in this trial has convinced me that the deity known as God has willfully and actively thwarted competition from other deities and demigods, promoting His worship with such unfair scare tactics as threatening non-believers with eternal damnation,” wrote District Judge Charles Elliot Schofield in his decision. “In the process, He has carved out for Himself an illegal monotheopoly.”

[. . .]

To comply with federal antitrust statutes, God will be required to divide Himself into a pantheon of specialized gods, each representing a force of nature or a specific human custom, occupation, or state of mind.”There will most likely be a sun god, a moon god, sea god, and rain god,” said religion-industry watcher Catherine Bailey. “Then there will be some second-tier deities, like a god of wine, a goddess of the harvest, and perhaps a few who symbolize human love and/or blacksmithing.”
Leading theologians are applauding the God breakup, saying that it will usher in a new era of greater worshipping options, increased efficiency, and more personalized service.

“God’s prayer-response system has been plagued by massive, chronic backlogs, and many prayers have gone unanswered in the process,” said Gene Suozzi, a Phoenix-area Wiccan. “With polytheism, you pray to the deity specifically devoted to your concern. If you wish to have children, you pray to the fertility goddess. If you want to do well on an exam, you pray to the god of wisdom, and so on. This decentralization will result in more individualized service and swifter response times.”

It's an oldie -- I think this is actually playing off the Microsoft break-up decision -- but still hilarious.

March on Washington

Governor O'Malley announces that Maryland will take back what's rightfully ours. Next stop, Delaware.

The Sun Never Sets on the Jewish Empire

The KKK went recruiting in Rhome, Texas. Their message is the usual mix of paranoid, racist, anti-Semitic conspiracy-mongering. I found it depressing -- but not for the reason you'd think:

The message informs callers that the United States government “is just like Al Qaeda,” and that it’s using “taxpayer money to fund terrorist acts in the Ukraine” so the U.S. can put in “a puppet government so it can protect the Satanic state of Israel.”

The new “main battles,” it continues, “will take place in Iran and Syria,” and “the Jew bitch behind this scheme is Victoria Nuland,” the Assistant Secretary of State for European and Eurasian Affairs at the United States Department of State.

Now, as a Jew, one thing that comes with the territory is the conspiracy theories. We're blamed for literally everything. It's a simple formula: take a social problem, identify a Jew in a position of power, and voila! Obviously it's their secret Jewish plan! And think of the cast of characters they had to draw on! Paul Wolfowitz. Richard Perle. Donald Rumsfield (not Jewish, but that never seemed to stop anyone). It was a list of Devilish World-Controlling Jews we could all be proud of.

And where are we today? The Assistant Secretary of State for European and Eurasian Affairs? That's who we're relying on now? What happened to us? What happened to the ZOG?

Thanks a lot, Obama.

Distractions Roundup

A German restaurant in Minneapolis hosts German-themed WWII days! Oh, why did I move away (other than the SS officer down the block)?

Facebook advertising algorithm fail.

Ameinu's Third Narrative announces its Academic Advisory Council.

Cary Nelson has a truly superb review of Judith Butler's latest book promoting BDS and the dissolution of Israel. Though all of it is great, what resonates most with me is the observation that the abstract and ahistorical conception of justice Butler draws is not just unattainable, it's a model that the progressive left has rejected for decades -- led by people like Butler. She knows better, she just doesn't know better when it comes to Jews.

I thought this would kill my productivity. I was wrong. It was this that did me in.

The Innocence of Youth

A very interesting study published in the Journal of Personality and Social Psychology systematically overestimate the ages of children of color, particularly Black children, who are accused of crimes. The result is that they view them as less innocent and more culpable, and treat them more harshly.

Rate That Apology!

Minnesota State Rep. Pat Garofalo (R) posted the following tweet a few days ago:

"Let's be honest, 70% of teams in NBA could fold tomorrow + nobody would notice a difference w/ possible exception of increase in streetcrime."

Booo! But that's old news. Garofalo has now, after initially playing defense, apologized:

"I sincerely apologize to those who I unfairly categorized," said Garofalo, who's seeking a sixth term in the fall. "The NBA has many examples of players and owners who are role models for our communities and for our country. Those individuals did not deserve that criticism and I apologize."

I find apologizes interesting, because there are some standard tropes which people typically use and which they are always criticized for. The most prominent is "I apologize if you were offended," which denies personal responsibility and foists the problem onto the (bizarrely) offended party. People always use this construction and it always goes over poorly, which makes me wonder when they're going to update whatever PR manual recommended it in the first place.

So off the bat, I give points to Garofalo for not saying that, and for specifically identifying the "criticism" itself as what was problematic, not the offense taken to it. If I was being uncharitably I could quibble with "those who I unfairly categorized" (arguably implying that there are a not-trivial number of persons fairly characterized as street criminals), but I'm feeling generous.

Garofalo proceeded to say:

"I don't have a racist bone in my body. I pride myself on the fact I've tutored in inner-city Minneapolis," Garofalo said, adding there are "no excuses. I apologize. I'm responsible for my actions."

Many people would say that the first part of that passage contradicts the second, but the instinct to try and contextualize is so strong that I don't think it's fair to automatically equate it with an "excuse". That being said, the "I don't have a racist bone in my body" is annoying defensive and not something Garofalo is necessarily in a position to verify -- certainly, his tutoring gig doesn't verify it. What would be ideal -- though it would never happen -- is for someone to acknowledge the possibility of latent racial prejudice and then commit to working to overcome it.

Anyway, all in all -- 6.5/10. Not bad, could be better, but still an improvement over the norm.

2014 Will Be The Year

Michele Bachmann accuses Jews of "selling out" Israel.

“What has been shocking has been seeing and observing Jewish organizations who, it appears, have made it their priority to support the political priority and the political ambitions of the president over the best interests of Israel. They sold out Israel,” Bachmann said.

She said this in reference to a Feb. 27 letter by major Democratic donors, many of them Jewish, to party congressional leaders urging them not to advance new Iran sanctions legislation. “This is clearly against Israel’s best interest,” she said.

Oh we're doing this dance again? Let's review the steps:

1) (Non-Jewish) Republicans say they want to be Jews' best friends, particularly with respect to Israel.

2) Jews express policy positions with respect to Israel that differ from those advocated by Republicans.

3) Republicans, cognizant of the greater stakes Jews have in this issue and respectful of Jewish opinions generally, rethink their positions. Republicans accuse Jews of being delusional and/or betraying their own people.

4) Republicans express bafflement that Jews continue to vote Democratic.

Bizarrely, Jews don't react positively when non-Jews lecture them about what terrible Jews they are. It's the strangest thing -- it's almost like building a campaign strategy entirely around negging doesn't work.

It Is What It Is

New poll data indicates that 50% of Americans believe that the Constitution protects the right to gay marriage (41% disagree). This is of course good news for supporters of gay marriage. I am curious exactly what this figure means, though. Specifically, when non-lawyers hear the question, do they hear "what is the current state of the law with respect to gay marriage being a right under the equal protection clause?" or do they hear "if you were a judge, how would you decide a case arguing that gay marriage is a right under the equal protection clause?"

The question text reads:

Do you think that part of the Constitution providing Americans with equal protection under the law does or does not give gays and lesbians the equal right to marry?

That seems to at least lean toward the latter interpretation (how would you rule as a judge). But of course, that raises the question of how non-legally trained Americans come to a conclusion on that sort of question -- at least assuming that respondents at least profess to believe that there is a difference between one's moral intuitions and legally correct answers. Whether such a distinction actually exists or not, my understanding is there is substantial poll data which indicates that Americans believe this to be true and believe it to be important, so then the question is how they reconcile that belief with coming to legal conclusions when they know they don't have the requisite legal knowledge to "properly" make them.

Spiting Faces

There's some chatter about a few restaurants in Florida who, to show their dissatisfaction with the Affordable Care Act, have started tacking on an "Obamacare surcharge". What most people are focusing on is the incredibly limited nature of the "fee". Even assuming it accurately reflects costs, we're talking 20 cents on a dinner for one. The horrors! Truly, this massive government overreach will be the death of us all.

But from my vantage point there's another angle to consider. I don't see how this turns out well for the protesting restaurateurs. The number of customers who don't come in because of the extra 20 cents seems scant. The number who don't return due to the political message being sent, though, may not be trivial. If I saw an "Obamacare surcharge" on my bill, I probably wouldn't return to an establishment simply because I'd be deeply annoyed at that sort of hyper-partisan grandstanding. And presumably, the conservative anti-ACA folks can't show up either, lest they demonstrate that the cost of the ACA isn't a big deal. Economic consequences are a self-fulfilling prophecy. And if they're not, then that just demonstrates that we can in fact afford universal healthcare. Either way, not a happy day for someone trying to send a message about the evils of Obamacare.

Let Me Explain

I read this opinion piece by Ryan Goodman, which complains about Chipotle's "food with integrity" marketing strategy. Goodman thinks Chipotle is providing a misleading and unfair depiction of actual farm production. In reality, farming is actually like ....

Insert argument here.

Goodman doesn't say. He never says how actual farming differs from Chipotle's presentation. And obviously it is different -- Chipotle's viral videos are deliberately hyperbolic and dystopian, which contra Goodman is not itself a marker of dishonesty -- but we hear absolutely zero substance on the subject from Goodman. "Go talk with the farmers and ranchers," he says, but without giving the slightest hint as to what they'll say. I couldn't help but think of this:

Does an Originalist Constitution Need a Standing Doctrine?

One of originalism's self-reported strengths is that it fixes constitutional meaning in a time and manner distant from immediate social controversies. The trouble with a constitution that adopts to the times is that constitutional rights are vulnerable to prevailing political winds. You may have robust freedom of speech protections now, because legal elites think it wise, but if tides change those rights disappear as the document "evolves" in another direction. And such politicized interpretations are more likely under a living constitutionalist model, because making constitutional law "in the moment" means that the enactors (i.e., the judges) will necessarily be more prone to self-interested or partisan motivations. They'll have skin in the game (even if it is only ideological) slanting their interpretations; the framers, who crafted their rules distant from today's particular social controversies, are more likely to be objective. And indeed, this is a large part of the reason why we want constitutional entrenchments in the first place: we make decisions today, when passions are cool, precisely because we cannot guarantee how we'll respond in the fires of a particular heated social controversy.

Now compare the above to modern constitutional standing doctrine. Courts can only hear actual "cases or controversies", defined as situations where the plaintiff has suffered a concrete and particular (not conjectural or hypothetical) "injury-in-fact", caused by the defendant, and redressable by a favorable ruling. The rationale is that "concrete adverseness . . . sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Deciding cases only once they've become a case ensures that courts have access to the full range of circumstances and consequences of adopting a particular constitutional rule. By contrast, "advisory opinions" passing hypothetical judgment on legal challenges which have not yet risen to a true adversarial controversy are unreliable because they lack this immediacy -- they operate in an unreal and speculative atmosphere not conducive to accurate decision-making.

These theories of decisional efficacy are in tension. The former (originalism) values distance as a means of securing objectivity, the latter (standing doctrine) favors proximity in order to achieve clarity. If we adopt an originalist methodological approach to constitutional interpretation, it is unclear why we would need or even want to preserve modern standing doctrine (at least in constitutional cases). The whole point, after all, is to decide cases without being mired inside the pressures and obscuring tendency of a genuine social controversy. The latter by definition cannot aid in ascertaining the meaning of the relevant constitutional clause (which was fixed long before); it can only distract adjudicators by drawing out the proximate and partisan consequences of a particular holding.

It is true one can craft a very instrumentalized version of the value of standing doctrine which would still apply even under "originalist" values. Under this rendition, standing doctrine assists courts because the presence of an actual controversy ensures that the relevant legal issues will be argued robustly by legal counsel with a strong incentive to press their case to the fullest. Basically, constitutional standing is valuable because it produces good briefs.

This justification for standing is oft-repeated, but I wonder if anyone believes it. Anyone who has ever observed a courtroom is well aware that standing is not actually any bar to very poorly argued cases, or worse (from the perspective of trying to come to a legally accurate decision), cases with complete mismatches between the skill sets of the attorneys. One often thinks about how one does not want a given set of facts to be the ones which set a particular legal precedent, but as a clerk I was more often worried about the precedent-setting effect of cases where important issues were being inadequately lawyered -- making potential valid arguments sound off-the-wall and foreclosing them for everyone. And even if we could be assured of competent and evenly-matched counsel, it just isn't true that concrete adverseness always promotes a full airing of legal arguments. An actual controversy means that litigation positions are chained to the idiosyncratic interests of the litigants, who may have ample reason to not promote certain outcomes or ways of looking at the case (particularly when we're talking about rules which will govern many future cases -- the problem of "playing for rules").

Once the value of the proximate social circumstances is taken out of the occasion, it is possible that advisory opinions would promote better advocacy precisely because only persons and groups who are highly invested in the issue in the abstract, not just because of how it happens to affect them immediately, would bother to argue for it.

So that's the question for the floor: Is there a tension between the decision-making values of modern standing doctrine and constitutional originalism?

Return on Investment

Tom Perkins (whom you may remember for suggesting that the rich were at risk of being victims of Nazi-style genocide) suggests that we apportion votes to tax dollars:

"The Tom Perkins system is: You don't get to vote unless you pay a dollar of taxes," Perkins said.

"But what I really think is, it should be like a corporation. You pay a million dollars in taxes, you get a million votes. How's that?"

Just like a corporation! Because the idea behind government is that you should get a cut of the proceeds in proportion to your investment! No, wait, in the public sphere that's known as "corruption". My bad.

Also, if I were more of a mathematician, I'd be (even more) offended by this too:

Pressed for examples of how the rich were being demonized, Perkins said that he feared higher taxes.

"The fear is wealth tax, higher taxes, higher death taxes -- just more taxes until there is no more 1%. And that that will creep down to the 5% and then the 10%," he said.

Yeah, not really sure that's how percentages work.

Distractions

For my money, Donté Stallworth has the best response to the idea that a gay player in the NFL would be a "distraction" for his team. To wit: an NFL season will always have distractions. If you can't handle one that is as clearly anticipated and broadcasted in advance as this one, you're doomed on the field anyway. That being said, Scott Lemiuex's contribution on the history of the "distraction" argument and other like claims which play the "it's not me, it's everyone else" game, is very good too.

The Ruthless Suppression of All Dissent Continues

Bills have been introduced in Congress, as well as several state legislators, which would cut or strip funding to organizations (such as the American Studies Association) engaged in an academic boycott of Israel (the bills often have somewhat broader language than that, but nobody denies academic boycotts of Israel are the target. Though, to be fair, no other country is being targeted for an academic boycott). In any event, "merits" of the boycott aside (and I am of course on the record as viewing the BDS movement as fundamentally anti-Semitic in character -- David Hirsh makes the points far more eloquently), one can still view such bills as a serious threats to academic freedom -- a freedom which includes the freedom to take wrong, or even racist, positions.

But undoubtedly, I'm an exception, right? Those dreaded Jewish organizations who are ever-eager to crush the slightest dissonant voices on Israel -- why, they must be leading the charge for these laws? Or not:

Two of the major Jewish groups are not planning to back a new bill that seeks to pull federal funding from universities that boycott Israel, according to a source familiar with the situation.
“The legislation is almost certainly unconstitutional, it’s a bad law, and it reinforces stereotypes about Jewish influence,” said one pro-Israel Democratic strategist familiar with the groups’ thinking. “It’s so bad that AIPAC and ADL oppose it.”
“There’s no way they’ll say they support it,” the strategist said.
[...]
“We welcome any effort to challenge or fight the boycott, divestment and sanctions in colleges and universities,” said Abe Foxman, director of the ADL. “However well-intentioned, we are not sure that this bill would be the most effective means of recourse.”

AIPAC and Abe Foxman -- those are the typical bogeymen, aren't they? And while they aren't mentioned in the context of the proposed federal legislation, the AJC has come out against a similar bill proposed in New York. Together, AIPAC, the ADL, and the AJC comprise a fairly hefty chunk of the Jewish center, center-left, and center-right.

I predict this development to have precisely zero influence on how people speak about the contribution of Jewish groups to this debate.

Can't Stop the Censorship Train

Two more entries on my recent fascination with free speech and the private sphere. Unfortunately, these are not exactly of the highest quality.

The first is an atypically bad post from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.

Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.

Meanwhile, Jenny Jarvie has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.

Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.

What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.

Lessons in Hyphenation

Jon Chait on treating college athletics like a market:

the vast majority of college athletes have negative market value. A reform based on letting them capture their true market value is going to fail to protect the interests of the vast majority of college athletes. This includes not only every athlete in a sport other than football or men’s basketball (which of course includes all-female athletes), but also many of the players who participate in the most competitive football and basketball programs.

I'm no grammar maven, but I'm pretty sure that hyphen is misplaced.

This is How I Vacation

I'm taking my first vacation from work next week (week of February 10). I'm taking vacation now in part because its my birthday on February 11 (and who wants to celebrate in the office), and in part because I didn't take vacation over the holidays because I had volunteered to work on a bunch of cases with filings on or close to New Year's Day. In the immediate term, this means that I have a ton of work to do this week, since I'm trying to get it in under the wire. But nonetheless, it is very exciting -- I'm looking forward to having the week off.

People have asked me "where [I am] going" for my vacation, to which I have answered "my bed." I don't like traveling much to begin with, and in the context of a vacation I view it as basically sacrificing at least a half day if not more for no discernable benefit. I can sleep in and read books in my apartment just fine. Which leads to the second primary way I've prepared for my vacation: buying five books on deliberative democracy, which I will use to help write a new law review article I'm working on.

I haven't mentioned that part of the vacation plan at the office yet, but if I did I'm sure they'd look at me like I'm crazy. "You're taking a vacation from being a lawyer by doing a bunch of legal (or law-related) reading and writing?" This response makes superficial sense, but I honestly can't parse it. I understand why someone might not be interested in doing academic research and writing for fun, but they of all people should know that such work is a far cry from our day-to-day legal work. This is not a postman going for a walk on his day off.

I'm reminded of a story from when I was a summer associate at the firm. I was at some after-work event (I think it was basketball), and I had brought a book to read during the downtime -- a retrospective honoring the career of Iris Marion Young. A well-meaning associate saw me reading the book and said, concerned, "I hope you're not working tonight!" Now, of course, he was absolutely right that a summer associate should not have to be working through a Friday night after-work firm event -- that's the whole point of being a summer! And I told him no, this book was just for pleasure. But I wanted to say "buddy, if there's a practice group here where I might plausibly be reading books on contemporary feminist theory and democratic practice for work, by all means direct me to them right now because I need to get on that train."

In any event, writing is how I relax. Reading is how I relax. Firm life gives a lot of opportunities to read and write, of course, but not always in the forms and topics one might like. So for my vacation, I'm going to read what I want to read and write what I want to write, and I assure you I will enjoy the break thoroughly.