The End of Grading Conservatives on a Curve

The controversy over noted climate change denialist Bret Stephens' hiring by the New York Times appears to have taken the Grey Lady by surprise. They've quickly fallen into a stock set of responses regarding the need to hear "alternative points of view" and the importance of providing a range of conservative voices to match the liberals on their editorial page. Under this framework, persons protesting Stephens' appointment are symbolic of liberal intolerance; the inability to even stand in the same (virtual) room as persons who don't agree with them on every issue.

I do think we are seeing the end of a sort of liberal tolerance here. But it's not the tolerance that the NYT editorial board has in mind. It's the end of an era where liberals tolerate grading conservatives on a curve.

For the last several decades -- really as long as I've been politically aware -- liberals have been required to simply accept mediocrity out of conservatives. Mediocrity in science -- as when Stephens spitballs at widely accepted data, not for scientific reasons, but simply because it doesn't match his politics. Mediocrity in argument -- as when a prominent writer at one of the top "intellectual" conservative outlets excreted Liberal Fascism and then had the gall to promote it as "a very serious, thoughtful, argument that has never been made  in such detail or with such care." Mediocrity in temperament -- as when conservative temper tantrums are accepted as simply a fact of political life; the responsibility of Democrats to dissipate by playing better babysitter.

There's no sin in mediocrity, of course. The problem is that it's coupled with a pervasive sense of entitlement. This mediocrity is supposed to earn them respected academic posts, earn them prominent editorial positions, earn them airtime on prestigious networks, earn them attention and thorough consideration. The problem isn't that liberals are asked to engage with good conservative arguments -- they should (although they in fact rarely are). The problem is that liberals are supposed to just close their eyes and agree for the sake of the camera that a terrible conservative argument is a good one; a thoughtful one; a demands-deep-consideration-and-serious-inquiry one. It's the political equivalent of social promotion. It's participation badges for Boomers and Gen-Xers.

And if you challenge that entitlement? Well, suddenly the right finds its post-modern streak. Can we really can know what a "good" argument is? Who's to say what is or isn't "true"? It's no accident that the straw that seemed to break the camel's back was Kellyanne Conway's blithe assertion that the White House was simply providing "alternative facts", and that a fair and just media shouldn't adjudicate the matter. It represented the explicit articulation from the right that merit no longer mattered -- and liberals were obligated to accept it as the apogee of liberality. "Reality has a well-known liberal bias" indeed.

We're finally seeing a revolt. A world where one of the two major parties can simply claim an exemption from standards of argument and deliberation is what gave us a birther as president. It's not about intolerance towards different opinions. Those objecting to Stephens have been rather clear that they don't object to alternative opinions, but they absolutely object to alternative facts. An alternative opinion may be good or bad -- it depends on how well-reasoned and supported it is, the degree to which it engages with the best possible arguments on the other side, and other such considerations. Good alternative opinions are a great virtue in political society. An alternative fact -- when it comes from a politician or writer -- should never be thought of as anything more than being bad at your job. If enforcing that standard lands harder on contemporary conservatives, that should be a sign of their weakness, not of the injustice of meritocracy.

The New York Times is not an open-mic night. Being employed there -- whether as a journalist or as an opinion-writer -- should be a mark of outstanding talent. Their editorial team should consist of those rare souls -- of any political persuasion -- who can make solid, lucid, provocative, compelling, well-warranted arguments in an accessible form. We can obviously argue amongst ourselves about which NYT columnists do or don't meet that criteria. But what's distinctive about Stephens is that his place at the Times is explicitly justified and defended on the grounds that his mediocrity of scientific thought is actually the virtue of political disagreement. That degrades science and, in a better world, would degrade conservatism as well.

To be crystal clear -- no governmental or quasi-administrative entity (like a university) should ever ban any speech (good, mediocre, bad, controversial, racist, or otherwise). Those on the left (and they tend to be more left than liberal) who support censorship, disruption, or violent retaliation against persons for their speech deserve naught but scorn. And beyond legal entitlements, liberals should be exposed to and consider good conservative arguments, and vice versa. I've learned a ton from reading, e.g., Clarence Thomas and Robert Nozick; among my earliest blog sources were the right-leaning Volokh Conspiracy and Daniel Drezner. I'd be worse off if I wasn't exposed to them, because they are all outstanding thinkers even when I disagree with them. Anyone who can't conceive of an ideological adversary who is nonetheless capable of making great "alternative" arguments isn't thinking hard enough.

But the reaction to Stephens and his ilk isn't about juridical rights or some sort of blind antipathy to foreign points of view. It's a much more simple and straightforward matter of deliberative virtue. The only persons suggesting that the attack on Stephens represents an attack on all conservatives are those who think denial of basic scientific consensus is inherent to contemporary conservatism. It's their culture! How dare you impose your "truth" on the Other? Again, who is patronizing who here?

Enough is enough. Conservatives are not infants and it is no mark of respect to treat them such. They are perfectly capable of elevating their game. Maybe it will sting for a while. But both the right and the left, and America, will be better for it.

UPDATE: Just to gather up some sources to confirm my sense that this is a trend:

New Yorker fact checker Sean Lavery on how he'd handle Bret Stephens: "By all means publish Bret Stephens. But edit and factcheck him too. If his argument can't pass muster or the piece can't be fixed: goodbye!"

Jon Chait on how conservatives are shocked and angry that the media is finally accurately reporting that the Republican proposal for regressive tax cuts which primarily benefit the rich is a regressive tax cut which primarily benefits the rich.

Philosophy professor Jonathan Stokes on no longer letting people conflate the right to express an opinion with the right to have it taken seriously.

And finally, Matt Yglesias on Sebastian Gorka reportedly leaving the White House:

America getting to be so intolerant that a wildly unqualified guy can't even work in the White House if he's maybe a Nazi. https://t.co/elzbxkJY5H

— Matthew Yglesias (@mattyglesias) May 1, 2017

Did Ann Coulter Really Want To Speak at Berkeley?

A few weeks ago, when Berkeley was slated to have back-to-back appearances by David Horowitz and Ann Coulter, I asked my students if they knew who either one of them was.

For Horowitz, the answer was a universal "no".

For Coulter, the mode answer was also "no", though one student offered that she was "like an older Tomi Lahren?"

My how the mighty have fallen. But of course, even long-since faded stars are entitled to attempt a comeback. So what better way to do so than through a high-profile act of martyrdom? Fortunately, despite their unknown status to the average Berkeley student, the Bay Area has an active "black bloc" community happy to oblige them. And so threats are made, and talks canceled, and somber reflections on illiberal universities published, and Horowitz and Coulter get to bask -- if briefly -- in the glow of being the bold truthsayers too raw for Berkeley snowflakes to handle. A return to the glory days, if you will.

But what if things didn't go according to that script?

Neither Ann Coulter, nor David Horowitz, were prohibited from speaking on campus. In both cases, they were offered a time and a place to speak at Berkeley; in both cases, it was they who declined that invitation. The statement from Chancellor Dirks -- who in my estimation has done a great job navigating very choppy waters on this issue -- provides a useful corrective to the prevailing media narrative and is worth reading in full. But an excerpt helps set the tone:

The strategies necessary to address these evolving threats [to free speech] are also evolving, but the simplistic view of some – that our police department can simply step in and stop violent confrontations whenever they occur – ignores reality.  Protecting public safety in these circumstances requires a multifaceted approach.  This approach must take into account the use of “time, place, and manner” guidelines, devised according to the specific threats presented.  Because threats or strategic concerns may differ, so must our approach.  In all cases, however, we only seek to ensure the successful staging of free speech rights; we make no effort to control or restrict the content of expression, regardless of differing political views. 

This is a University, not a battlefield. We must make every effort to hold events at a time and location that maximizes the chances that First Amendment rights can be successfully exercised and that community members can be protected. While our commitment to freedom of speech and expression remains absolute, we have an obligation to heed our police department’s assessment of how best to hold safe and successful events.

[...]

If UCPD believes there is a significant security threat attendant to a particular event, we cannot allow it to be held in a venue with a limited number of exits; in a hall that cannot be cordoned off; in an auditorium with floor to ceiling glass; in any space that does not meet basic safety criteria established by UCPD.  This is the sole reason we could not accommodate Ms. Coulter on April 27^th, and the very reason we offered her alternative dates in early May and September, when venues that satisfy safety requirements are available.

Contrary to some press reports and circulating narratives, the UC Berkeley administration did not cancel the Coulter event and has never prohibited Ms. Coulter from coming on campus.  Instead, we received a request to provide a venue on one single day, chosen unilaterally by a student group without any prior consultation with campus administration or law enforcement.  After substantial evaluation and planning by our law enforcement professionals, we were forced to inform the group that, in light of specific and serious security threats that UCPD’s intelligence had identified, there was no campus venue available at a time on that date where the event could be held safely and without disruption.  We offered an alternative date for the event (which was rejected) and offered to work with the group to find dates in the future when the event could occur. Throughout this process our effort has been to support our students’ desire to hold their event safely and successfully. 

Now to be 100%, crystal clear: Violence or disruption, or threats thereof, to prevent Ann Coulter's speech is wrong and unjustifiable (and was unjustifiable when used against Milo). Ditto had Berkeley sought to cancel Coulter's speech outright (which again, it did not do). The people who engage in such violence are engaging in a wrong -- a serious wrong, a wrong that is antithetical to norms of free speech and free inquiry -- even when the subject is someone like Ann Coulter. One can believe that while simultaneously believing that Ann Coulter is a repulsive White supremacist who deserves naught but our scorn. And so the threats that Chancellor Dirks refers to are threats that cut to the heart of a free academic community. They should be investigated, and they should be dealt with.

But UC-Berkeley did not make those threats. UC-Berkeley did not engage in that censorship. And the way Berkeley, as an institution, treated Coulter seems eminently reasonable. Clearly, Berkeley has an interest in ensuring the event goes off safely. Clearly, and as an institution committed to free speech, it has an interest in creating conditions where her speech occurs without incident, obstruction, or unlawful disruption. Clearly, it can impose reasonable time, place, and manner restrictions to try to limit the damage and obstruction that might be caused by those persons making unjustified threats and promising unlawful riots. Surely this is them taking the responsible course of action, yes?

Placing Ann Coulter "in a venue with a limited number of exits; in a hall that cannot be cordoned off; in an auditorium with floor to ceiling glass" is a recipe for free speech disaster (not to mention the budgetary disaster for Berkeley when the -- quite literal -- damage has been done). And while there are limits to what sorts of venue-restrictions one could impose without violating free speech -- obviously they couldn't stick her in a broom closet and "allow" the speech to proceed freely -- that's not what happened here. Berkeley made a reasonable effort to reasonably accommodate Coulter's speech while reasonably insisting that the speech occur in a time, place, and manner that didn't cause chaos. That's entirely consistent with our free speech tradition. That's Berkeley behaving responsibly in the face of community members who were threatening to behave irresponsibly, even criminally. That's Berkeley seeking to facilitate, not censor, Coulter's speech.

So why is it being interpreted otherwise? The argument seems to be that when Berkeley institutes any sort of specific procedures or guidelines to facilitate the free speech of controversial speakers likely to face illegitimate obstruction, it's "giving in" to threats -- or worse, tacitly endorsing them. To quote my old college buddy Jim Kiner: "This is America. Someone giving a speech shouldn't have to worry about the size of the windows." (Of course, it's not Coulter who has to worry about the windows -- they aren't hers to worry about. Ann Coulter can be blissfully indifferent regarding their fate. It's Berkeley -- the property-owner -- who's concerned, and it seems clearly reasonable for them to take limited steps to ensure that their property isn't destroyed in the wake of their indifferent houseguest's visit).

Can we say that, in a good world, Berkeley wouldn't need to have these procedures for managing threats to outside speakers because everyone would respect everyone else's right to speak unmolested? Yes (though in such a good world nobody would be inviting repulsive trolls like Coulter to speak in the first place). But the Berkeley-blame for all this is strange, bordering on bizarre. In a good world nobody would try to hijack an airplane. Sadly, we don't live in that world, and so the TSA has certain procedures designed to manage the threat of terrorist hijackings while allowing us to travel freely -- procedures we only need because some people behave unlawfully, wrongfully, terroristically. Those procedures can be debated as too lenient or too harsh, but I've yet to hear anyone say that by having them the TSA was tacitly endorsing or normalizing terrorism. Responding to the reality of an unjustified threat is not the same thing as justifying or legitimizing that threat. Berkeley has to live in the world that exists, not the world of its dreams, and when it does so it doesn't endorse our fallen state. Rioters are wrong for rioting, but Berkeley is not wrong for taking reasonable steps to account for living in a world where rioting happens.

Which brings us back to the question in the title: Did Ann Coulter really want to speak at Berkeley? Does she really want Berkeley to succeed in creating a space for her to speak without obstruction, disruption, or incident? I'm dubious. She came to Berkeley because she wanted to be a martyr -- either canceled outright or censorially disrupted. For Berkeley to succeed in offering her a space where none of that would happen thwarts her goals. After all, accepting Berkeley's terms would mean that her speech would likely not be shut down, or disrupted, or even been particularly noteworthy. It would have to attract attention solely by the merits of her ideas. No wonder she found it unacceptable.

This, in fact, is what happened with Horowitz. He too was offered a different venue -- one which promised that his speech would be able to occur freely, without incident or disruption, and receiving only so much attention as was warranted by his fame, merit, and talent. And once that became the deal, his booking agent decided (I know this from first-hand sources) that the new offer to speak -- one which was unlikely to spark massive protests or demonstrations, but would simply allow his talk to occur in peace -- was unworthy of his time. What's the point of coming to Berkeley if you're not going to get run out of town?

And so here were see the horns of the dilemma Berkeley finds itself in. On the one hand, it is facing a community (often not primarily comprised of students) which behaves in ways which are censorial and intolerable towards particular viewpoints (that these viewpoints are fairly characterized as racist ones does not justify said censorship). And so it takes steps to counteract these violent tendencies and ensure that its doors nonetheless remain open to speakers of all sorts, even the most repulsive ones, without incident. But then it discovers that actually, many of these speakers desire nothing more than to be "censored", to be "shut down", to be the proof of the intolerant liberal campus and the censorial lefties who can't handle their ideas. The worst thing that could happen to them is a Berkeley which successfully manages to enable their speech without incident. The whole point is for there to be an "incident". The whole point is to become a martyr.

And so if they're not "censored," they'll just drop out and say they were anyway. And their gullible followers will eat it up.

Radical Feminism Takes Over Zionist Sharia!!!!!!

In a story that has something in it for everyone, the Israeli government just appointed the first Muslim woman, Hana Khatib, to one of its official Sharia law courts. Yes, that's right: Israel has Sharia law courts. And, as it happens, Jewish women still are prohibited from serving on Israel's official Jewish Rabbinical courts, so this is an area where Israeli Muslim women are actually more equal than their Jewish counterparts.

Female judges on official Muslim courts are rare worldwide, but not unheard of. According to the Arab News, for example, the Palestinian Authority has two women on its religious judiciary roster.

In any event, congratulations to Ms. Khatib, and condolences to the various medical professionals worldwide who are no doubt dealing with misogynists, anti-Zionists, and Islamophobes simultaneously having their heads explode.

The Bank Robber Turned Georgetown Law Prof is a Bad Example of White Privilege

Shon Hopwood robbed a bank, and served 11 years in prison. While incarcerated, he studied in the prison law library and -- incredibly -- authored two cert petitions that were ultimately granted by the Supreme Court. This caught the attention of former Solicitor General Seth Waxman, who collaborated with Hopwood once the first of these cases was accepted for argument. Upon release from prison in 2009, Hopwood attended the University of Washington Law School and later clerked on the prestigious United States Court of Appeals for  the D.C. Circuit.

His story is already familiar to many lawyers -- his sentencing judge, Judge Richard Kopf of the District of Nebraska, publicly ate crow after admitting that he thought Hopwood was a low-life who'd never make anything of himself -- and for my part I distinctly recall reading his clerkship application when I worked for Judge Diana E. Murphy on the United States Court of Appeals for the Eighth Circuit. His was a remarkable tale, the sort of once-in-a-lifetime story one doesn't soon forget.

Now Hopwood is back in the news after he was hired to teach at Georgetown Law School. And a few people, including my good friend Joel Sati, have reacted by labeling his case one of "white privilege". I checked in with another friend and official privilege expert/skeptic Phoebe Maltz Bovy, and she was okay with the usage in this case. But -- despite generally being more comfortable with "privilege" discourse than Bovy -- I found it's deployment here to be off-base, and I thought I might explain why.

The obvious angle of attack, of course, would be to say that to talk of "white privilege" in Hopwood's case obscures his incredible accomplishments, talent, hard work, and so on. The retort to this would be that "privilege"-speak actually denies none of these things, but rather is the observation that a similarly-situated Black man would never be given the same opportunity Hopwood had for redemption. And so the crux of my hesitation is that I'm actually not convinced that this is true. I actually think academia would respond quite positively to a Black man whom, while in prison for bank robbery, authored two cert petitions that were ultimately accepted by the Supreme Court. That's an incredible (in the literal sense -- it defies credibility) accomplishment, and one that I think would be difficult to overlook no matter the race of the inmate. Of course, it is so incredible because it is breathtakingly rare -- there almost certainly isn't another inmate of any race who has managed to walk that particular path, and so the counterfactual remains wholly hypothetical.

However.

Let's say I'm right, and our hypothetical black male inmate did author two successful cert petitions and then was upon his release accepted into law school, allowed to take the bar, hired for a prestigious clerkship, and ultimately employed as an elite law professor. And suppose someone pointed to that man and said "Aha! There's no 'racism' in our prison system! Look at [Black Shon Hopwood]: He worked hard and made something of himself, and see how successful he is now. Instead of complaining so much about 'racism', why don't people try following his example?"

Such an argument would not be remotely compelling. Why not? Because the fact that a truly extraordinary individual can transcend the barriers of the incarceration system tells us virtually nothing about how that system operates on average men and women. To say to a regular prison serving out a prison term "your destiny is in your hands now: all you have to do is teach yourself law while incarcerated and become so proficient at it that you can write two briefs that will be accepted for hearing by the Supreme Court, and you can successfully reenter society" is a ridiculous joke. It is the beyond-parody version of thinking of civil rights in terms of the "talented tenth" (or tenth of a tenth of a tenth) instead of the "normal ninethieth." We would, in the case of "Black Shon Hopwood", rightly reject the notion that his story tells us anything useful about racial inequality or injustice as it pertains to persons convicted of crimes generally. But the argument that Black Shon Hopwood is abnormal and aberrational is inconsistent with the argument that White Shon Hopwood is illustrative and representative. The latter argument is alluring because such cases stick in the public eye. But the former argument is the right one.

In The New Jim Crow, Michelle Alexander speaks of the propensity to take the life stories of exceptional Black men and women -- the Barack Obamas and Oprah Winfreys -- and use them as baselines for the typical Black experience. These are not typical stories, and so they have little to tell us about what equality or fair opportunity means for the typical Black man or woman. The problem with our prison system, or our educational system, or our political system, is not that it makes it impossible for the ludicrously talented to succeed. As Bella Abzug famously put it, "Our struggle today is not to have a female Einstein get appointed as an assistant professor; it is for a woman schlemiel to get as quickly promoted as a male schlemiel." So too, we might say, the struggle for racial justice for the incarcerated is not to get a Black Shon Hopwood hired as a paralegal. It's to ensure that the typical Black inmate has the same opportunities on release as the typical White inmate* -- neither of whom is likely to resemble Shon Hopwood in any meaningful respect.

That White privilege interacts with our prison system is undeniable. And in particular, it is clear that White ex-felons have a far better chance of being hired or given other opportunities than the Black colleagues upon release (indeed, the former's chance is equivalent to that of a Black man with no criminal record at all). That's White privilege not in an exceptional case, but in an appallingly ordinary form -- not tied to an extraordinary, nearly sui generis case like Hopwood, but as applied to regular people who are not going and should not be expected to write multiple successful Supreme Court cert petitions. Focusing on Hopwood's case is not just wrong analytically, it perpetuates the destructive frame whereby we focus anti-racism discourse on exceptional cases and then blame everyday people for not living up to near-unattainable ideal.

Most people -- Black or White -- aren't exceptional. They're normal. And for anti-racist politics to help them, it must break the habit of relying on the high-profile and high-octane cases to establish the circumstances faced by the normal, the unremarkable, the banal, and the everyday.

* And that both have opportunities that substantively offer them a real chance to integrate back into society as equal members.

I'd Do Anything for France, But I Won't Do That

The first round of the 2017 French presidential elections has concluded, and center-to-center-left Emmanuel Macron (23.8%) will face far-right firebrand Marine Le Pen (21.7%) in the runoff. Center-right candidate Francois Fillon came in third with 20%, while Communist-backed lefitst Jean-Luc Melenchon placed fourth at 19.4%. Benoit Hamon of the incumbent Socialist Party came in a distant fifth with 6.3%.

Le Pen's National Front Party has roots that are fairly described as fascist, and she is a fierce opponent of the EU. Unsurprisingly, Donald Trump and Vladimir Putin both are fans of Le Pen. And with Macron advancing to the run-off, he quickly earned the endorsements of erstwhile opponents Fillon and Hamon, as well from the French and Belgian Prime Ministers and German Chancellor Angela Merkel.

As for Melenchon: he won't endorse anyone in round two. Like Corbynistas in the UK, for all its "by any means necessary" pretensions the French far-left actually isn't willing to do what it takes to stop the far-right from winning. It turns out that it's one thing to oppose fascism by calling for the radical overthrow of the capitalist state and the seizure of the means of production, and it's quite another to do something truly radical like ... vote for a more centrist candidate.

The fact that Melenchon basically has the same view as Le Pen when it comes to the EU (compared to the definitively pro-EU Macron) probably isn't helping matters either -- and the far-left/far-right convergence around Euro-skepticism also buttresses the Corbyn comparison.

Fortunately, polls have Macron smashing Le Pen in a head-to-head race. But still, we've been deceived by polls before. And the decision by Melenchon to, in effect, join Trump and Putin in propping up Le Pen is recklessly irresponsible and deserves nothing but our scorn.

My How the Pendulum Swings

A professor at Arizona State permitted his students to hold a protest on an issue of their choice as their final project. Students elect to do so. Conservative commenters view this as inappropriate. Said commenters then demanded that the university take official action against the students. Awaiting soul-searching think pieces from other conservative intellectuals about growing illiberalism in their community, how, even if one disagrees with the decision of the professor or the students, it clearly falls within the parameters of academic freedom and First Amendment protected activity, and how the way to respond to speech one dislikes is with more speech etc. etc. in 3 ... 2 ... forever ....

The thing is, conservative discourse about American academia swings, pendulum like, between "college is a cesspool of leftists indoctrination which must be stamped out" and "college is about encountering difficult ideas and if you don't like it, you hate freedom." Some people have the courage of their convictions. Most people are rather fair-weather.

Put Up or Shut Up

There are about a million and one things I dislike about Homeland Security Secretary John Kelly's recent speech on immigration policy. But there's one part that has a grain of truth to it:

[F]or members of Congress who don’t like the laws, Kelly said they “should have the courage and skill to change the laws. Otherwise they should shut up and support the men and women on the front lines.”

Even this passage is mostly wrong. But I will say this: I'm sick and tired of members of Congress who somberly say that they don't necessarily support this or that Trump immigration policy, that we need to be humane, that we shouldn't be tearing apart families, that we should protect DREAMers and DACA recipients -- and then proceed to do nothing tangible about it. If you're in Congress, your value-added isn't what you say on a talk show. It's the bills you write, the hearings you hold, and the votes you cast. And while talk can matter as a means of rallying and crystallizing public support, ultimately, if your chatter isn't backed up along those metrics (bills/hearings/votes), it's meaningless to me.

The Epidemiology of Antisemitism

The New York Times has hired conservative columnist Bret Stephens, lately of the Wall Street Journal, to provide an additional conservative perspective to the Grey Lady. Controversy immediately erupted, first over Stephens status as a climate-change denier, and then more recently over a 2016 column that characterized antisemitism as "the disease of  the Arab mind" (it came in the context of an Egyptian Olympian who refused to shake the hand of his Israeli competitor).

NYT Cairo Bureau chief kicked off the discussion with this tweet:

Not cool: new NYT columnist @BretStephensNYT once wrote about the "disease of the Arab mind". https://t.co/duylYvCQSd (h/t @hahellyer)

— Declan Walsh (@declanwalsh) April 15, 2017

And his colleague Max Fisher succinctly articulating what I think is our legitimate squeamishness at hearing an entire group of people characterized as possessing a "disease of the mind."

@declanwalsh @BretStephensNYT I guess we just all have to agree to disagree as to whether it is acceptable or correct to call racial groups pathologically "diseased."

— Max Fisher (@Max_Fisher) April 16, 2017

Now, I've responded to a Bret Stephens column once, and it was not one I was impressed by -- a tiresome bit of neocolonialist claptrap seeking to establish which peoples are sufficiently civilized to deserve self-determination. So I don't have any particular interest in defending Stephens per se.

That said, this controversy did interest me because of an angle I don't think I've yet seen explored: the widespread literature on the "epidemiological" approach to racism. I first came across this view in an article by prominent Critical Race Theorist Charles Lawrence III, but it is hardly restricted to him. It is a perspective that is at least familiar to anyone who spends significant time in the literature on contemporary racism and prejudice.

The epidemiological view treats racism as, well, a disease -- a public health crisis that demands intervention. Among the motivations for articulating racism in this way is the belief that an epidemiological approach steps away from the focus on conscious choices (we don't choose to be infected) and with it, the politics of blame (we don't view cancer patients as being morally inferior because they have a disease). Rather, thinking of racism as a disease channels our focus onto (a) the devastating social consequences that can occur when racism is widespread and unchecked, and (b) what we can do to check the spread and, eventually, find a cure.

As it turns out, the use of the epidemiological approach for antisemitism has deep roots -- deeper, perhaps, than its use to analyze racism. Re-reading Lawrence's article while writing this post, I discovered that it actually contains a significant discussion of antisemitism as disease, as an epidemic -- and one that he investigates through the specific case of Black antisemitism right alongside the parallel case of Jewish racism.  Even more interestingly, a 1949 book by Carey McWilliams on "Anti-Semitism in America" claims to have found "hundreds" of examples of antisemitism being defined in epidemiological terms -- a "theme" that runs through descriptions of what antisemitism is. Among the statements he found was the claim that antisemitism is, simply, "a disease of Gentile peoples."

Under this view, then, the rhetoric of epidemiology and disease is meant to be gentler -- not stigmatizing to those it labels, not concerned with separating out the bad people from the good. But as Fisher observes, there is at the very least another set of tropes associated with "disease" rhetoric that is not so benign. Under the latter usage, "disease" connotes those groups which are dirty and mutated; those who need to be isolated, sequestered, or purged. Rhetoric of various outgroups -- including Jews, Arabs, immigrants of all backgrounds -- being "diseased" and therefore dangerous has a been a staple of racist fearmongering for generations. Again, it is not for nothing that we squirm when we hear talk of a group being "diseased".

I don't think that Stephens was intentionally referring to the literature on the epidemiology of racism. But leaving his particular case aside, here's my question: Do the concerns of Fisher et al mean that the epidemiological approach is inherently tainted and must be abandoned? If not, what interventions are necessary so as to use the method (and its necessarily attendant rhetoric of disease, infection, and so on) without triggering these problematic associations?

My familiarity with the epidemiological approach gives me some sympathy towards it -- I think it is at least a useful way of thinking through how racism and antisemitism operate, how they spread, and how they should be combatted. Yet at the same time, my familiarity with how rhetoric of disease is used to degrade and dehumanize means I am sympathetic to the concerns that it would do so here. The questions in the previous paragraph are those made entirely in earnest, and I in turn invite earnest replies.

The New Charles Murray, For Those Who Don't Know Him

A group of researchers decided to circulate a copy of Charles Murray's Middlebury College speech -- without saying who it was by -- in order to measure how readers gauged its political valence (did they think it was a liberal speech, a conservative speech, or a centrist speech?). They found that, without knowing who it was by, their sample of college professors viewed it as rather middle-of-the-road (5.05 on a 1-9 scale, where 1 is very conservative and 9 is very liberal). They also sent different portions of the speech to a random online sample group; averaging their responses together the speech got a 5.22 rating. Finally, they sent the speech to another group of college professors -- this time telling them Murray was the author. With that knowledge they rated the speech at 5.77 -- still basically "middle-of-the-road", albeit apparently more conservative by a statistically significant amount.

I'm actually not too surprised by this: my understanding is that Murray's recent work on American class divisions is not particularly conservative and certainly not as inflammatory as The Bell Curve's musings on race/IQ linkages. I would genuinely be curious about how readers would label the controversial portions of The Bell Curve under this methodology, mostly because I'm curious how most of us would "code" arguments of that sort given contemporary political dynamics.

I do think there was some obscurantism -- sometimes deliberate -- regarding what Murray was going to be talking about at Middlebury and in other lectures. His challenged lectures were not going to be about The Bell Curve, which is widely discredited in the academic literature, but about this new class-related research, which has not been the subject of such scholarly disdain and which seems on face to fall well within the normal range of academic discourse. My initial instinct is that there's something off-putting about protesting a speaker not for what they will say, but for what they had said years ago that they will not be talking about in this lecture.

That said, I suspect part of what's going on is the idea that for a certain type of white conservative intellectual, it is impossible to discredit yourself such that you're no longer deemed a worthy entrant into public conversation; whereas for many outgroups there's a "one strike and you're out" standard where they are forever haunted by bad speeches, books, or ideas they propagated years ago (witness the treatment of Keith Ellison). The protests are an expression of the frustration that -- as Matt Yglesias put it -- "Charles Murray ... manages to be a best-selling author, in-demand speaker, have a think tank gig and be a free speech martyr."

None of this excuses illiberal modes of shutting down speech (see my endorsement of Jill Filopovic's column following the Middlebury event). But I think we can hold multiple thoughts at the same time:

1. That Charles Murray's Bell Curve work is widely discredited and generally thought of as racist claptrap;
2. That Charles Murray's present work -- what he currently lectures on -- is not particularly politically polarizing (and -- perhaps this is the more controversial point -- that someone who produces racist claptrap can also produce interesting arguments which fall entirely into the accepted range of ongoing political controversies);
3. That many people are not like Charles Murray in that we have no interest in ever looking past their bad statements, and it is not shall we say random who gets to make comebacks and who is permanently haunted by their past; and
4. That, however we choose to manage the tensions elucidated by observations 1 through 3, certain types of remedies (like governmental censorship or censorial disruptions) are off the table as violations of free academic inquiry.

Goys Tell Jews How To Fix Passover

When I first started reading this story about a "Passover Against Apartheid" event at Canada's Concordia University, I figured it was about an anti-Zionist Jewish group doing an alternative seder that emphasized various left/liberatory themes and de-emphasizes/degrades Jewish connections to Israel (my understanding is that Jewish Voice for Peace publishes a haggadah for precisely this purpose). And while I'm obviously no fan of such activity on the substance, procedurally speaking I'd have no objection. Jews-not-me are allowed to practice Jewishness in ways I don't like or approve of; the fact that they take a message from Passover that I find distasteful is their prerogative.

But it turns out that the folks reinterpreting Passover as a critique of "Israel's apartheid state" and suggesting alternatives to "Next Year in Jerusalem" were not exactly who I thought:

“Passover Against Apartheid” - put together by the Concordia Student Union, the Fine Arts Student Alliance and Solidarity for Palestinian Human Rights groups - included sponsorship from no Jewish organizations.

So basically, this was a bunch of non-Jews coming in to explain Jews how to do Passover right. Indeed, the manner in which the flyers were distributed suggests that they wanted to avoid substantive Jewish presence at all.  And that I think I am justified in finding extra-special gross.

The term that's being used in a lot of the stuff I'm reading on this is "cultural appropriation", and while for me that concept has quite a bit of baggage (see here for a bit on why) I wouldn't necessarily object to its deployment here. That said, I'd rather just talk of it as part of a perceived entitlement by non-Jews to dictate to Jews the contours of our identity, culture, practices and beliefs. We saw similar behavior out of the Church of Scotland a few years ago, and from the UK's Methodist Church a few years before that. It is among the most central elements of what might be called global antisemitic patrimony: the authority, indeed the right, held by non-Jews to define the Jew. This entitlement, borne initially out of Christian and Muslim domination of Jewish bodies, is deeply embedded into modernity -- hence why it is seen as an entitlement, something non-Jews are simply owed, something that counts as an outrageous loss when it is challenged or stripped.

For thousands of years, for much of the world, part of the cultural patrimony enjoyed by all non-Jews—spiritual and secular, Church and Mosque, enlightenment and romantic, European and Middle Eastern—was the unquestionable right to stand superior over Jews. It was that right which the Holocaust took away, or at least called into question: the unthinking faith of knowing you were the more enlightened one, the spiritually purer one, the more rational one, the dispenser of morality rather than the object of it. To be sure, some people were better positioned to enjoy this right than others. And some people arrived onto the scene late in the game, only to discover that part of the bounty they were promised may no longer be on the table. Of course they’re aggrieved! The European immigrant who never owned a slave but was at least promised racial superiority is quite resentful when the wages of Whiteness stop being what they once were. Similarly, persons who lived far from the centers of Christian or Muslim power where Jewish subordination was forged are nonetheless well aware of what was supposed to be included in modernity’s gift basket. They recognize what they’ve “lost” as acutely as anyone else.

“The Germans,” the old saying goes, “will never forgive the Jews for Auschwitz.” And not just the Germans. Many people deeply resent the Jews for what Auschwitz took away from them—the easy knowledge that their vantage point was elevated over and superior to that of the Jews, the entitlement to be able to talk about Jews without having to listen to Jews.

This is what is happening at Concordia. It is yet another manifestation of  the "willful refusal on the part of the global left to adopt any other position other than teacher/master to Jewish servant/children. To borrow from George Yancy, they '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].'" It is a practice and behavior that is pervasive, is systemic, and is antisemitic root-to-branch. It needs to be rooted out.

Good Shoes Might Save You This Time

This is a very interesting article by McMillan Cottom explaining why poor people seem to "waste" money buying certain luxury goods (especially clothes). Cottom, whose family experienced multigenerational poverty, explains that such purchases can serve important signaling functions that -- sometimes -- facilitate successful navigation of institutions which might allow for upward mobility. The parent who "looks" middle-class (and therefore looks like she knows how to raise a stink) might be more successful at insuring her school doesn't overlook the needs of her child. The job applicant who "looks" professional (and how often have we all gotten the advice of how important professional appearances are!) might be more likely to be picked out for a higher-status job with greater benefits. Even the supplicant seeking public benefits who "looks" like she knows how to navigate the bureaucratic maze may be more likely to get favorable attention from the various officials and functionaries whose discretionary judgment can make or break a case.

The essay is a useful corrective to the instinct of many to assume the irrationality of the poor -- particularly when they make choices that at first blush make no sense to us (the infamous "If I Were a Poor Black Kid"  essay is a classic of the genre). Very frequently, choices that seem "bad" from the outside have a logic to them -- albeit often a logic born out of coercion and impossible choices -- that makes them quite sensible to persons actually living in the relevant circumstances. It's easy to say "joining a gang is a bad choice." It's harder to say that if not joining a gang means that the gang will gang-rape your sister, or beat you bloody every day before school. It's easy to say "the quick money from dealing drugs isn't worth the long-term consequences of ruining your future." It's harder to say that if your discounted utility is such that you can say "I might not live to be grown up. My life wasn't promised to me."

Put another way, if people aren't making what we deem to be good, pro-social choices, we can conclude either:

1. They have malsocial preferences (they're "bad people" who don't have a good set of ends);
2. They're irrational (their choices don't lead to their desired ends); or
3. The incentive structures are wrong (their rational choices, in pursuit of reasonable ends, nonetheless don't yield pro-social results).

Frequently, we rush to explanations #1 and #2 -- ones which pathologize the poor (and other outgroups). But explanation #3 will frequently be more plausible (not to mention less degrading). And essays like this, which disturb the idea that poor people are simply stupid or diseased, can help point us towards other interventions that view the poor as we view ourselves -- as generally good, rational people who want a basically decent life and are trying as best they can, within the limits of their resources, to secure those ends.

Tomorrow's Predictable Punditry, Today

In a surprise announcement, former Iranian President Mahmoud Ahmadinejad has thrown his hat in the ring to try and secure his old job. He will likely be running against incumbent President Hassan Rouhani, who brokered the Iran Deal with the US and is perceived as a moderate in comparison to the hardline Ahmadinejad.

Just to save everyone time, allow me to give you an advance copy of the various partisan pundits' takes on the outcome of this election:

If Ahmadinejad loses:

Republicans: "Now that America has gotten tough under Trump, hostile nations like Iran know better than to cross the US!"

Democrats: "Turns out that when you negotiate with a country rather than insist on it being an eternal international pariah, you decrease the appeal of the nation's extremist faction. Fancy that."

If Ahmadinejad wins:

Republicans: "I thought the Iran Deal was supposed to moderate Iran? Thanks Obama!"

Democrats: "Wow, you mean aggressive Islamophobia and saber-rattling by Donald Trump ends up emboldening radical forces in the Middle East? Who could have known?"

Syrian Kids Are Good Enough To Kill For, Not Good Enough To Save

On Syria, I have for the last several years stuck to the position that (a) it's an incredibly complicated and delicate situation with many moving parts that (b) doesn't admit to easy or obvious answers. During the Obama administration, I observed that many Republicans seemed to deal with this difficulty by waiting for Obama to tip his hand as to what he would do, so they could immediately and fervently advocate the opposite. This being a bad way to come to one's policy beliefs, I decided I would refrain from making sweeping pronouncements favoring or denouncing either interventionist or non-interventionist activities.

That logic continues to hold with respect to the recent airstrike launched by the Trump administration, done in response to a horrifying chemical weapon attack perpetuated by the Assad regime that yielded some ghastly images of dead or wounded Syrian men, women, and children. I don't think it is something that should evoke strong feelings -- if for no other reason than it was virtually entirely symbolic (the targeted airfield quickly was restored to operational status). In terms of actual, tangible policy towards Syria, the main differences between Trump and Obama can expressed succinctly as follows:

Trump would rather Syrian children die in Syria than survive in the US.

That's all. I suppose you could also say that Trump's wildly oscillating views on whether Assad should stay or go count as a "difference", and it doesn't strike me as implausible that the Trump administration publicly declaring that we no longer wanted Assad out is what emboldened the dictator to launch his chemical strike.

But really, this is the main difference. Syria is a complex, difficult situation, but what's incontestable is that it is producing a refugee population which wants nothing more than to escape the horrifying violence in Syria. The Obama administration wanted to rescue those civilians. The Trump administration insists that they stay in Syria and die. That's the function of the refugee ban. That's Trump's signature policy vis-a-vis Syria. Not a few rockets from a Navy destroyer.

Anyone who is chest-puffing about the toughness of Trump re: Syria who isn't appalled by the refugee ban gets a first-class ticket to my list of people whom I have no interest in listening to on Syria.

That was the main point I wanted to make, but briefly I also want to discuss concerns over the lack of explicit congressional authorization for the strike. The lack of congressional authorization is what deterred Obama from attacking Assad directly, though he did launch airstrikes targeting ISIS in Syria on a regular basis, and in any event Obama previously had attacked Libya without authorization (misgivings over the results of that action no doubt acted to stay Obama's hands when Syria proceeded to flare up). While I'm not opposed to congressional authorization requirements per se, the fact is that Congress virtually never presses the issue and it's therefore been a non-issue for every presidential administration in my lifetime -- used almost exclusively as one-off partisan attacks. Congress, indeed, seems very much to prefer not having the responsibility for authorizing military force rest on its shoulders -- the same voices crowing about how Trump is strong and Obama is weak seemed utterly uninterested in actually getting the Republican Congress to actually commit to voting to endorse such actions.

So I can't bring myself to care about the lack of congressional authorization either way. Presidents of all parties and stripes take actions like this regularly, it is not worse nor better when President Trump does it. Ditto international law issues, where (as Julien Ku wryly observes) everyone thinks the attack on Syria was illegal except for virtually all the governments in the world.

Is This a Bit?

Reza Aslan says he's "worried about Israel's future" because of the growing numbers of Haredi Jews. The article (which apparently is a version of a segment he's presenting on CNN's "Believer"), notes the high birth rates of ultra-Orthodox Jews in Israel and suggests that they will do unto Israel what political Islamists did to Iran in the late 1970s.

I have to say, though, I don't think the objective of this piece is to express deep concerns about Israel. I don't even think it's to make genuine observations about Haredi Jewry. Rather, this pieces reads to me like Aslan wanted to do something of a bit: taking well-worn tropes about how people talk about Muslims, Islam, and Islamism, and applying them to Jews.

I'm not a huge fan of this sort of writing, particularly when (as here) it isn't clearly satirical. Indeed, if anything the problem is that it's too earnest -- it speaks in a way that seems to be less about showing the absurdity of certain ways we talk about Muslims, and more in a way that seeks to (further) legitimate talking that way of talking about Jews. Overall, the presentation is done in such a way as to otherize and (dare I say) orientalize religious Jewry. Take the following passage:

[A]ccording to the Pew Research Center, a staggering 86% of ultra-Orthodox Jews want Israel to be a theocratic state governed by Jewish law, known as "halakha."

If the way he's talking about "halakha" sounds exactly like how countless articles talk about "sharia law", it should, because it does. If it makes you cringe to hear halakha presented as simply a force of backwards inegalitarian theocracy then every article which talks about sharia in the same way should make you cringe; and if you cringe at articles which portray sharia as univocally representing the most reactionary and anti-modernist forms of Islam then you should cringe at this piece as well.

To be clear: there are things to be worried about regarding growing Haredi influence in Israel. Their politics aren't mine, and they openly discriminate and subordinate Jews like myself and my partner. Judaism, like Islam, is as it does, and so we as Jews have an obligation to act out Jewishness in ways that are consistent with ethical commitments and to resist those wings of Judaism that are inconsistent with modern, egalitarian forms of life. At the same time, in a world beset by horrible stereotypes of what it means to be Jewish (or Muslim), it should not offend us that these are delicate conversations that need to be handled with considerable grace and care. Broad-brush strokes which seek to delegitimize huge swaths of the faith community en masse are inappropriate, do more harm than good, and often seem more motivated by exclusionary impulses than genuine efforts to facilitate inclusion.

British Bipartisanship

Both the Labour and the Conservative candidates in a Birmingham (UK) ward councilor's election have been deselected by their parties for posting antisemitic abuse on social media. The Labour candidate, Alison Gove-Humphries, was replaced by Liz Clements, but the Conservative candidate's (Obaid Khan) antisemitism was discovered too late and so they withdrew altogether. The Conservatives also announced that Khan had been expelled from the Party (it is unknown if Labour has taken any action, other than deselection, against Gove-Humphries)

The election was called after Labour councilor Sam Burden resigned. Labour has held a majority on the city council since 2012.

Things People Blame the Jews For, Part XXXIV: Syria

Following reports of a horrific chemical weapons attack by Syrian governmental forces, the United States has retaliated by launching missiles on Syrian air bases and other military targets. This raises a pressing question: Are Jews secretly responsible for the chemical weapons attack? Or are they responsible for America electing to retaliate?

Silly reader: The answer is obviously both.

InfoWars -- the fringe-conspiracy website highly touted by Donald Trump -- declared that the attack was actually done by a "Soros-linked group",  because what isn't being done at George Soros' behest these days? Meanwhile, David Duke bitterly complained that Trump had bowed to the Zionists in responding to the attack with military force. And that doesn't go into the false claim (spread by Rania Khalek, among others) that the Israeli government was "toasting" the chemical weapons attack.

Peer Review Stinks Roundup

Well, I've just had my ritual instance of early-academic peer review hazing. Grouch grouch grouch etc.. A roundup of things on my browser.

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Foreign Policy has an interesting story about how affirmative action programs work in Brazil. The story is primarily about the concept of "fraudulent" claims of blackness in a country where, on the one hand, most people identify as mixed-race, but on the other hand discrimination is less about "one-drop" ancestry and more focused on phenotype.

Israel appoints its first female Muslim diplomat. She will serve in Turkey.

The Atlanta Jewish Times writes on the racialized Jewish experience of Jews of color.

Lots of interesting data in this new ADL poll, including the perhaps surprising finding that a majority of American Muslims have positive views about Israel. Most Americans also think Donald Trump harbors racist, anti-Latino, and anti-Muslim views (only a minority think he holds antisemitic views), and while a bare majority of Americans are currently concerned about violence in the U.S. against Jews, over three-quarters of Americans are concerned about violence in the U.S. against Muslims.

The Trump administration's Syria policy has been pinballing wildly over the past few days. As I've stressed before, Syria is a complicated issue -- there is no obvious right move. But the fact that the Trump administration seems to just be lurching to and fro virtually at random is not reassuring.

Will Nukes Save the World?

David Roberts has a good beginner's rundown on what it will take to decarbonize the economy (and, accordingly, avoid the catastrophic global warming scenarios that are likely if we stay on our current path). As we've discussed on this blog, decarbonization is inextricably linked to electrification -- we want more of our energy needs met by electricity, and specifically carbon-emission free electricity.

The big challenge is that the most obvious renewable resources -- wind and solar -- have massive scalability issues because they are not dispatchable power resources. They don't generate power on an as-needed basis, they generate when the wind is blowing or the sun is shining. And because electricity supply must meet demand on an instantaneous basis, the inability to control when wind and solar resources generate power is a huge problem that makes it virtually impossible for them to meet 100% of power load requirements without massive overbuilding.

What we need, then, is a dispatchable resource that can lower our carbon emissions. Natural gas is a possibility -- kind of. It is much cleaner than coal, but still emits carbon. Roberts estimates that switching primarily to natural gas could get us to roughly 60% decarbonization. That sounds pretty good, even if the target we need to hit is actually 80% - 100%. But there's a big problem:

Natural gas is cleaner than coal (by roughly half, depending on how you measure methane leakage), but it’s still a fossil fuel. At least without CCS [Carbon Capture Sequestration], it is incompatible with decarbonization beyond 60 percent or so.

If you build out a bunch of natural gas plants to get to 60 percent, then you’re stuck shutting them down to get past 60 percent.

It would be very difficult to strand all those assets. There would be a lot of resistance. It’s just one example of path dependence in energy — choices, once made, tend to perpetuate themselves through inertia. Leaning too heavily into natural gas in the next 20 years will make it more difficult to pull away in the subsequent 20.

Enter nuclear power, the new darling of (some) environmentalists. Nuclear power has a high capacity (it can generate a lot of power), zero-emission (no carbon), and dispatchable -- a holy trinity if your only goal is to decarbonize. It isn't renewable (though I don't think there's any immediate risk to our nuclear fuel reserves), and of course nuclear power has other risks and associations which make it politically controversial. But it strikes me as the most straight-forward, feasible, and immediately accessible method for taking big chunks out of our carbon footprint right now.

What are the alternatives? The best one is high-capacity energy storage (which can convert a variable resource like wind into a dispatchable one like nuclear). But the technology to have such storage on the scale and flexibility necessary is just not there yet, and while it's more than an eye-twinkle, it's also not particularly close at hand. After that, we could simply engage in massive, massive overbuilding of wind and solar. But even then we'd need to also basically globalize our transmission network (and massively upgrade that too), so that we could be confident that the wind is blowing/sun is shining somewhere.

Roberts indicates that there is a debate between those who think we can go 100% renewable (no nuclear, no CCS) versus those who want those options on the table. Count me decisively in the latter camp. It might theoretically be possible to design a grid system available today that is zero-emission and entirely renewable. But the political, economic, and technological obstacles to putting it together are more than formidable, they are towering. Nuclear power is a technology we have now, that checks all of the key decarbonization boxes.

What We Now Know About Sex Discrimination

In a landmark decision, the 7th Circuit Court of Appeals has concluded that discrimination on basis of sexual orientation is a form of sex discrimination, prohibited by Title VII of the Civil Rights Act. Judge Diane Wood (my former civil procedure professor) wrote the lead opinion -- and it looks very shrewd.

I've long been convinced that sexual orientation discrimination simply is sex stereotyping -- namely, the stereotype that men should date women and women should date men. This opinion lays that argument out in meticulous detail and, importantly, situates it within Supreme Court precedents which have clearly demonstrated the importance of sex stereotyping to the statutory sex discrimination inquiry and how it can be applied to same-sex interactions.

One further thing I'd add is this: It is almost certainly true that the drafters of the Civil Rights Act did not have discrimination against gay and lesbian persons in mind when they drafted the law. Judge Posner's concurrence -- wholly unnecessary and unhelpful, in my view -- takes from this that what judges are doing when they interpret the law to encompass sexual orientation is "updating" the law for the modern era.

But -- whether or not that's a legitimate judicial practice -- such a view is wholly unnecessary in this case. We pass anti-discrimination laws because there is significant discrimination in society, and discriminatory impulses exist -- in greater and lesser degrees -- across the whole of society. So it shouldn't surprise us that even the drafters of the prohibition against sex discrimination might not recognize certain ways that they behaved in a sexist manner or supported sexist discrimination. Indeed, it might not even surprise the authors themselves. When one commits to saying "I oppose sex discrimination" or "I oppose race discrimination," one need not be implicitly saying "and nothing I do or believe right now qualifies as such discrimination." To the contrary, we might pass these laws precisely because we suspect that we as much as anyone else sometimes behave in such a manner, and are fully willing to submit to legal correction when we do so.

Uniters and Dividers

A BDS resolution failed at Columbia this week. Commentary, of all places, went out of its way to note that J Street U was "an important ally" in the fight, and framed its column around the importance of uniting the Jewish left and right in the anti-BDS struggle.

Meanwhile, at an anti-BDS conference at the UN, South Carolina State Rep. Alan Clemmons (R) told J Street U students in attendance, and who were asking for advice on how to combat BDS, that they were "antisemitic". His remarks were reportedly met with rousing applause. Clemmons has since taken to the Wall Street Journal to argue that the bare usage of the word "occupation" is antisemitic as a form of "demonization" (referencing Natan Sharansky's "3D" test of antisemitism as pertains to Israel -- double-standards, delegitimization, or demonization).

No matter what one's views are on the Israeli/Palestinian conflict, the notion that simply calling Israel's domain over the West Bank "occupation" is a form of "demonization" is patently ridiculous. If J Street U is antisemitic for using the term "occupation", then so are the Israeli Supreme Court and former Israeli Prime Minister Ariel Sharon.

Frivolous arguments like this delegitimize Sharansky's quite useful framework for sussing out the links between antisemitism and anti-Zionism. They also do great harm to an organization that has been a critical ally in fighting BDS on campus.

Anti-BDS coalitions and pro-Israel networks alike need J Street U far more than we need misguided political hacks like Clemmons. The Israel Action Network at least had the grace to offer some backing to J Street U following this scurrilous attack. The other key players in the anti-BDS movement -- particularly those who were involved in the event Clemmons spoke at -- need to step up as well.

UPDATE: Both the AJC and Hillel have now denounced the attack on J Street U.

Playing with Cards: Final Version Available

The final, official version of my article Playing with Cards: Discrimination Claims and the Charge of Bad Faith, is now publicly available (here on academia.edu or here at SSRN).

The full citation is:

David Schraub, "Playing with Cards: Discrimination Claims and the Charge of Bad Faith," Social Theory & Practice 42.2 (2016):285-303.

Enjoy!

And Nikki Haley's Reputation Was Ruined Forever

The Obama administration struggled when it came to Syria. That struggle was honestly arrived at. It pitted a brutal tyrant, massacring his own people, against a deeply unstable region beset by factionalism (of which ISIS was only the most terrifying), coupled with an America chastened in its ability to effectuate positive regional change at gunpoint from the debacle in Iraq and, more recently, Libya. That is not a cocktail which lends itself to any simple solution.

Of course, some people were less forgiving. Lee Smith at Tablet was brutal in lambasting Obama for his softness on Syria. And perhaps nobody was more viciously targeted than his UN Ambassador, Samantha Power, whom Smith deemed the "Ambassador from Hell." Power had and remained a constant and vocal critic of Assad and his barbaric attacks on civilian populations. But her inability to actually translate such vocalizations into tangible actions aimed at getting Assad out made her into a monster. Syria would be her everlasting shame.

Sadly, as much as some folks might miss it, Obama is no longer the President. Donald Trump occupies the Oval Office, and Nikki Haley is our UN Ambassador. A change of tone in the air? You could say so: Haley just announced that the US no longer cares if Assad stays or goes at all. She's right in line with the rest of the Trump administration -- Sean Spicer lectured the press corps that we needed to accept the "political reality" of Assad's leadership.

Now just to be clear: My opening paragraph continues to reflect my view on Syria. It doesn't become less knotty or nettlesome just because Trump's in office. And while I am (I believe justly) skeptical of the Trump administration's ability to successfully navigate such a delicate and thorny situation, there is no obvious path for Trump to take that one can fairly lambaste him for foregoing.

But Smith clearly didn't agree. He had no hesitation about drawing deep from the rhetorical well, and never assuming complexity when malice would suffice. So can we look forward to blistering editorials about how Nikki Haley is forever tarnished, a tool of genocidaires with the blood of countless Syrians on her hands? Can we expect him to speak of Trump's "deliberate" decisions to allow civilians to die, the better to snuggle up to his pals in Russia?

Color me dubious. Once Obama's gone, it's amazing how passé these hysterics suddenly get.

Spring Break Roundup!

It's Spring Break! Sadly, that's markedly less exciting when you're 31 years old and revising article drafts.

Nonetheless, it does present a good opportunity to do a roundup.

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Kate Manne has an incredibly powerful essay on sexual violence, the struggles over reporting it, and why men get away with it. It follows on Martha Nussbaum's revelation, in a lecture last year, that she was sexually assaulted at 20 years old by a famous actor and her explanation for why she didn't report it. This is a must-read.

A neat looking art exhibit by Indian Jewish artist Siona Benjamin.

Truly every dark cloud has a silver lining: Donald Trump's army of internet trolls is in a state of panic over the upcoming rollback of internet privacy protections.

Hungary's right-wing government looks to try to close the Central European University. CEU was founded by George Soros, and if what the Hungarian right says about Soros sounds familiar, that's because it's identical to what the American right says about him. And if talking about shadowy international Jewish financiers threatening our way of life sounds a wee bit antisemitic when Hungarians do it, well, thank God for American exceptionalism.

Mayim Bialik and Emily Shire on Zionism and feminism (it's the latest salvo in this whole thing).

Maajid Nawaz, a former Muslim extremist turned liberal reformer, is profiled in the New York Times magazine. It is hardly uncritical, but it does seem to support the argument that the SPLC did a hatchet-job on him. And the observations about why it is difficult to promote "eat-your-peas" secular liberalism have resonance well beyond the Muslim community.

Iranian Mullahs and Settler Rabbis Agree: Feminism's the Worst

Iranian Ayatollah: Feminism is a "Zionist plot".

Prominent Israeli settler Rabbi: "[W]omen have been taken hostage by the feminist movement .... I am trying to save the girls from feminist captivity."

Bonus irony: The settler Rabbi, though affiliated with the IDF, was speaking in terms of what Israeli military service allegedly does to Jewish women. So the agreement goes even deeper than what appears at first glance -- both think that the Israeli army is arm-in-arm with that dastardly dame, feminism.

In these times of strife and conflict and discord, we should all look to our points of commonality and connection -- some of which come in the most unexpected places. I, for one, am truly touched at this rare concordance. Who knows: maybe it will provide the opportunity for bonding? I can smell a regional peace initiative already.

Israel's Snuggles with Trump Threaten Israel

The most interesting thing about this article in Ha'aretz isn't the message, but who's allegedly delivering it:

In messages that have been conveyed to the Israeli Embassy in Washington, as well as to the Foreign Ministry and the Prime Minister’s Office in Jerusalem, these individuals have stressed that despite its desire to forge a close relationship with Trump, Israel must move cautiously and avoid making any moves that would distance the Democrats from the Israeli government and make it difficult for Israel’s friends in the party to come to its assistance.

No fewer than five senior officials in centrist American Jewish organizations that are known for their unequivocal support of Israel told Haaretz that they personally had conveyed messages of this nature to officials in the Israeli Embassy in Washington, to the Prime Minister’s Office and to the Foreign Ministry. 

One of the five — none of whom wanted to be named — said the response he got from his Israeli interlocutors was “a silent nod that expressed understanding, but not agreement.”

[...]

A senior Foreign Ministry official, who also asked not to be named, confirmed the messages, telling Haaretz that they had come from both representatives of Jewish organizations identified with the Democratic Party and from representatives of Jewish groups affiliated with the Republican Party and with the right.

The bolding is my own. And of course, it'd be interesting to know who these groups are -- it's hard to imagine ZOA or the RJC saying this, for instance. I suspect they are referring to mainline groups that lean more conservative (maybe AIPAC? maybe the Conference of Presidents?). In any event, whoever these groups are it's good that they recognize the threat, because it's a real one -- and one that, unfortunately, the American Jewish right has a vested interest in perpetuating rather than resolving.

Sadly, if the end of the third paragraph is any indicator, Israel will continue to ignore this advice outright and openly antagonize Democrats until they entire party hates them. Ron Dermer's speech at AIPAC expressing uncontained glee that Trump is the President instead of Obama would have been proof of this even if it hadn't come directly after the AIPAC President's plea to not to turn Israel into a partisan issue.

God Ron Dermer is the worst.

You Can't Take "Intent" Out of "Discriminatory Intent"

There is currently a debate regarding whether courts can use President Trump's campaign statements regarding his Muslim ban -- to wit, that it was indeed a "Muslim ban" -- as evidence of its unlawful character. Matthew Segal at Just Security says yes. Jeffery Toobin at The New Yorker says no. I confess I find Toobin's position baffling, verging on incoherent, and resting on fundamental confusion about how "intentions" might or might not matter in legal interpretation (a quick note: Toobin says he is basing his view on a forthcoming article by Cardozo Law Professor Kate Shaw. I haven't been able to locate a copy of Shaw's piece, so my critique is not directed at her or her arguments). Perhaps most alarmingly, Toobin's view continues a trend of making discrimination cases virtually impossible to win even in concept.

As we know, many of the judges who struck down Trump's travel ban did so, in part, by relying on statements by Trump and his aides telling us that this ban was designed to target Muslim immigration to the United States -- an unconstitutional motive. Toobin finds this "unsettling", as it implies that "an identical order would be upheld if Barack Obama had issued it, but that this one was invalidated because Trump was the author." As far as Toobin is concerned, either the "Muslim ban is constitutional or it's not" -- Trump's words don't matter; the constitutionality of the same legal text can't depend on extra-textual utterances by whoever happened to be the author.

I said that Toobin's argument rests on a fundamental confusion regarding how authorial intent might matter in legal interpretation, so let's parse that out. Consider a rather famous case where a federal statute criminalized the "use" of a firearm "during and in relation to . . . [a] drug trafficking crime." The defendant traded a gun for narcotics, the question was whether this qualified as a "use" under the statute. Imagine two universes, where the statutory text was identical, but had different primary authors:

In Universe A, the author says he is introducing this law because "I want to get as many criminals involved in drug trafficking off the street, for as long as possible. And since I know many drug traffickers carry guns, many drug traffickers will face stiffer penalties under this law."

In Universe B, the author says he is introducing this law because "the use of guns to commit or threaten violence is a scourge on our cities, and it is essential that we differentiate between violent and nonviolent instances of the drug trade."

Legislator-A's statement seems to suggest that he intended for "use" to include use as a means of exchange, Legislator-B's statement may suggest that he did not so intend. But, one might argue, the same legal text (again, recall that the text of the law is the same in both universes) should not have different meanings simply because of extramural utterances by the author that are not contained inside the text itself. The law means what it means; these statements simply have nothing to do with it either way. On this score, Toobin would have many followers (albeit not universal agreement).

In the above example, the question is whether stated intentions matter in determining what the law means -- who is included, who is excluded, what acts are allowed, what acts are illicit. But note that's not how intention is being used in the Muslim ban case. Courts are not using Trump's statements to determine whether or not the order does or does not encompass John Q. Muslim -- that is at least somewhat clear (relying on questions like whether he is coming from one of the covered countries). Rather, the question is whether or not the ban is lawful in the first instance -- not about its meaning, but about its legitimacy.

I stated that Toobin's argument basically makes discrimination cases impossible to win, and this distinction explains how. Suppose that Zack, an African-American man, has just been told by his boss Andrea "you're fired." Again, divide ourselves into two universes:

In Universe A, Andrea is racist, and she fired Zack because Zack is African-American.

In Universe B, Andrea is not racist, and she fired Zack because she doesn't like the color of Zack's shirt (in an at-will employment context, the reason doesn't have to be a "good" reason).

In both universes, Andrea has taken the same action -- she's fired Zack. Even more clearly than in the "use a firearm" case, the meaning of what Andrea did does not change based on her intentions -- it is unambiguous that she fired Zack. But the legitimacy, the legality, of her action absolutely depends on what her intentions were: in Universe A, Andrea has engaged in unlawful racial discrimination, in Universe B, she hasn't. That's because in American law the intention that motivates the action is what distinguishes discriminatory versus non-discriminatory conduct. And so here we have a clear example of what Toobin derides as absurd: the same action, the same text, is lawful or unlawful based entirely on who did it -- or more properly, based on the licit versus illicit motivations of who did it.

In this, discrimination cases are somewhat of an outlier in American law (though not completely so). For the most part, we assess the permissibility of a given law based on its effects, not based on the psychological motives that prompted it. In deciding whether a law imposes an "undue burden on a woman's right to choose" to have an abortion, for example, we're more concerned with the degree to which the law actually obstructs the ability to terminate a pregnancy. Intentions may be correlated -- it stands to reason that someone who wanted to impose such a burden is more likely to have written a law that does impose such a burden -- but they ultimately are not dispositive. A law intended to impose a significant burden that, in fact, does not do so will pass constitutional muster; a law that was not intended to seriously burden a woman's right to choice but turns out to be immensely burdensome should fail.

One could argue that discrimination law should operate in the same way -- it matters less what is in the headspace of any given actor and more the impact that it has on discrete and marginalized groups. So with respect to the Muslim ban, we might say that it doesn't matter why Trump did it, what matters is whether it has a disparate impact on Muslims (clearly it does), or whether it impedes their equal standing in American society (quite plausibly). But, for better or for worse, that's been firmly rejected by the judiciary. What matters is the intentions, and effects are only relevant insofar as they are probative of intent. In the inverse of the abortion case, we might think that an action that disproportionately and deleteriously impacts Muslims is more likely to have been motivated by anti-Muslim intentions than one which has no such disparate impacts; but ultimately the inquiry is solely about trying to figure out what motivated the action. And so again, it is entirely plausible given how anti-discrimination law operates that the same order, with the same impacts, could be lawful under one author (with neutral intentions) and unlawful under another (with racist intentions).

Obviously, lawyers are rarely stupid enough to simply admit that their client harbored a discriminatory motive. So much of discrimination litigation is about trying to suss out the actual motive in situations where the defendant insists that his or her intentions were pure as driven snow. It should go without saying that among the most powerful pieces of evidence one can put forward to establish a discriminatory motive is a declaration by the defendant that "I am doing this because of race/sex/religion".

Many people have commented on the emerging American trend of being less "racist" than "anti-anti-racist." Instead of affirmatively preaching racist policies, they instead stand aghast at anything actually being labeled "racist". How uncouth, how vulgar, how meanspirited! This instinct is the only thing that lets me make sense of simultaneously holding (a) that one can't call something discriminatory unless it was motivated by discriminatory intent and (b) that it's dirty pool to actually use someone's own direct statement of motivation as a means of establishing said intent. Talk about heads-I-win-tails-you-lose! If Toobin says we can't consider explicitly stated motives in assessing discrimination claims in a legal world where motive is legally dispositive, it becomes increasingly unclear what sort of evidence could establish an instance of discrimination even in concept. If (as Toobin holds) proper judicial interpretation doesn't incorporate statements of intention that lie outside the formal legal document, and "discrimination" only occurs where there is an illicit intent, then discrimination claims are impossible to win except in the absurdly rare case where the bad intention is somehow written into the document.

The New White Flight

Arwa Mahdawi has a thoughtful column on an upcoming change in the US census that would create a separate category of "Middle Eastern" (currently, they're considered "White").

The title and subtitle imply that this is an act of exclusion and marginalization (Mahdawi's own words are considerably more measured); but much of the history behind this change is campaigns by Middle Eastern Americans to "check it right; you ain't White!"  Meanwhile, last year I linked to an interesting article in Ha'aretz interviewing Middle Eastern Jews in America regarding how they felt about the change -- their thoughts were interesting in their ambivalence (identifying as Middle Eastern, but frequently not identifying as "people of color").

There is something intriguing about this -- for the most part, the racialization process in American history has been about groups struggling to "become" White and to preserve that status once attained. Yet now we're seeing at least some groups try to resist being identified as White, a new and novel form of flight from Whiteness. I've seen it before (at an earlier age identified with it) amongst Ashkenazi Jews, and now we're seeing it from many Middle Eastern and Arab Americans. At the very least, this suggests some level of improvement in racial egalitarianism ("some", of course, not being a synonym for "adequate") -- we've moved from a world in which non-Whiteness was flatly incompatible with being an equal American to one in which people can at least conceptualize "choosing" to be non-White without it coming off as a death wish.

Still, that doesn't explain the motive of why persons would proactively view Whiteness as mischaracterizing their identity. What makes it not the right box? What I suspect is going on here is the sense that being viewed as "White" is thought to diminish or negate the existence of significant ethnic oppression. "White" people are privileged, and so to the extent that Arab Americans are not privileged on account of their ethnicity, coding them as "White" misrepresents their social status in significant ways. Now, one might wonder why this would be so: we can talk of gay Whites as being simultaneously privileged (as White) and subordinated (as gay); so too we might be able to say that White Middle Easterners are privileged (as White) and subordinated (as Middle Easterners). But the idea seems to be that Whiteness absorbs certain types of marginalization -- particularly those based on ethnicity (this is probably related to the loose borders between "race" and "ethnicity" as concepts). Gayness and Whiteness are in different domains, but if a Middle Easterner is White, their Middle Easternness is a subcategory of their Whiteness.