Dispatches From SCOTUS' War on the American People: Clear Text Won't Save You This Time

Today, the Supreme Court invalidated the Occupational Safety and Health Administration's vaccine-or-test COVID mandate for large businesses. The opinions span 30 pages. They could and should be less than one. The relevant statute authorizes OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID is an "agent", it poses "grave danger" to employees, and vaccines and/or regular testing are necessary to protect workers from their toxic and/or physically harmful effects. The statutory language is clear, the application is straightforward and that should be the end of the story.

Of course, things are never so simple with this Court, which rarely has missed an opportunity to play doctor at the expense of actual doctors during a pandemic. The Court's analysis in this field has been almost utterly unmoored from pre-existing legal precedent and is, at best, "justified" by policy disagreements with Democratic elected officials which the conservative SCOTUS majority elevates to the level of novel doctrinal creations on the firm legalistic basis of "because we can". Rarely has Justice Brennan's quip that "with five votes you can do anything" been so enthusiastically lived out.

I've actually been repeatedly returning to one of the most prominent cases from my tenure as a judicial clerk, a case I've talked about before -- Keiran v. Home Capital, Inc. Keiran was a Truth in Lending Act case that was simultaneously technical and quite straightforward. TILA gives consumers making certain transactions a right to rescind those transactions within a given period of time -- typically three days, but (where the seller fails to make certain disclosures) sometimes up to three years. The statutory text states that "the obligor shall have the right to rescind the transaction ... by notifying the creditor, in accordance with regulations of the [Consumer Financial Protection] Bureau, of his intention to do so." The relevant regulations likewise state that a consumer can "exercise the right to rescind" by "notify[ing] the creditor of the rescission by mail, telegram, or other means of written communication." The CFPB, for its part, also took the view that a consumer exercises their right to rescind by notifying the creditor.

And the plaintiff in Keiran did exactly what the statute, and the regulation, and the enforcing agency, said he should do: notify the creditor that he was exercising his right of rescission. Nonetheless, a majority on the Eighth Circuit (my judge dissented) decided that the clear text of the statute, and the regulation, and the opinion of the relevant agency, all should be ignored in favor of an additional requirement -- the plaintiff must file suit within the relevant statutory time period. What motivated the court to graft on this invented hurdle? Basically, applying TILA as it was written would make big banks -- and therefore, it seems, the Eighth Circuit -- sad. That seems harsh, but there really isn't much more to it: the Eighth Circuit panel thought that this statutory process made rescission too easy, and created devious opportunities for evil, ruthless homeowners to exploit poor defenseless banks by manufacturing clouds on title. So the text doesn't matter, and the regulations don't matter, and the agency opinion doesn't matter, and the purpose of TILA as a consumer protection measure doesn't matter. If big banks need to be saved, by golly, the courts are there to come to the rescue.

Keiran was reversed unanimously by the Supreme Court in the shortest opinion of the term -- an outcome I chalked up to the difference between good lawyering the Supreme Court and mediocre lawyering at the appellate court. I still think there's something to that, at least in relatively low-salience cases. But just as Keiran demonstrated at the appellate level, NFIB demonstrates at the Supreme Court level that where a judicial majority is hell-bent on reaching a certain outcome, they certainly aren't going to let little things like clear textual mandates stop them.

The Surprising War of ADL vs. Facebook

Am I the only one who's surprised by the intensity with which the ADL has been going after Facebook recently?

I want to be clear: For purposes of this post, I mean "surprised" in a wholly value-neutral way. I'm neither saying "about time" nor "this is out of control". One can make arguments either way about whether the ADL is right or not, and those arguments are worth having, but here I'm really just focusing on the descriptive character, because what we're seeing just seems very out of character for what we know about the ADL's standard operating procedures.

There are many strategies towards trying to effectuate social change. Some are more confrontational, others are more collaborative; some are more utopian, others are more pragmatic. Along that spectrum, I think it's fair to say the ADL tends to work mostly within established systems and structures rather than radically challenging them. Again, that's not a judgment -- there's a place for radical disruption and there's a place for negotiated advances, and it just so happens that the ADL tends to be more about the latter.

And that's why their campaign against Facebook stands out. Facebook is a tech heavyweight, the sort of entity with whom the ADL typically approaches in a more collaborative spirit, knowing full well that this will involve negotiation-with-the-devil compromises and suboptimal, half-a-loaf-is-better outcomes. Whatever when can say about the virtues and defects of that approach, the ADL is hardly naïve on the subject and is relatively comfortable in its own skin as an insider operation. And as I recall, initially that was how the ADL was relating to Facebook as well -- for example, bringing Facebook execs onboard its then-new Center for Technology and Society in 2017 specifically to help combat hate speech online.

But boy is that not their tenor today. Over the past few years, the ADL has been unabashedly presenting Facebook not as a partner to be reformed, but as a menace to be confronted head on. They've organized an advertiser boycott under the banner "Stop hate for profit". Their CEO has said of Facebook "I don't think ever before a single company has been responsible for so much misfortune." They've savaged Facebook for permitting Holocaust denial and for promoting manipulative political misinformation. It is, I think it's fair to say, a full-blown war, of the sort I cannot recall the ADL waging against any institution as prominent as Facebook. Again, this is just not how the ADL typically operates when relating to organizations of Facebook's size and stature.

So while the normative analysis of whether the ADL is right or wrong, or should be doing more or less campaigning like this, is plenty interesting, for the moment I'm just curious about how we got here. What is it that made the ADL break its normal boundaries? Just what happened during the earlier period of collaboration that seemingly made the ADL completely lose patience with Facebook as an even potentially viable partner? I bet there is a very interesting story here, and I'd love to hear about it.

The New Holocaust Minimization from Europe to America

It is a common cliché to claim that 21st century American antisemitism will follow the trajectory of 21st century Europe's, lagging only by a couple of years. I hear it most often in claims that the Democratic Party will inevitably Corbynify (I never hear the follow-up of what is supposed to be the American iteration of "... and then Corbyn is trounced in the general and summarily tossed from his leadership post"). Far less frequently is attention paid to how the American right can and will follow in the footsteps of its European peers.

On that note, I want to put two stories in conversation with one another. The first is a right-wing party in Romania under attack for dismissing Holocaust education as a "minor topic". The second is a Republican legislator in Indiana, State Sen. Scott Baldwin, taking flak for insisting that, under his proposed "anti-CRT' law, educators must and should take a "neutral" stance on Nazism.

The Indiana incident is hardly the first of its kind. From the outset, the anti-CRT push has undercut Holocaust education initiatives -- an utterly predictable consequence that thus far has barely even registered an iota of worry amongst Republicans who just a few months ago were holding themselves as the last hope against an incipient tidal wave of antisemitism (then again, it was barely a year ago when Republicans were still holding themselves out as defenders of free speech in education -- who can keep up?).

But it is worth putting these developments in America in conversation with what's happening in Europe, and why it is exactly that they find the Holocaust to be so disposable. For the most part, it is not that I think that the legislators in Indiana or Texas are secret Hitler admirers. However, I do think they may possess, and be acting on, a sort of annoyed indifference to the Holocaust's preeminence. Much like Republican frustration over how all political scandals end in -gate, there is frustration over how the main "shared" exemplar of pure political evil is a right-wing phenomenon. Sometimes this frustration manifests in absurd attempts to pretend that Nazism was "actually" a left-wing ideology. But another play is to seek to undercut the Holocaust as "just another" historical event, one that shouldn't receive undue attention or be subject to special condemnation. Who cares about the Holocaust when somewhere, someone is reading a book on how to provide support to LGBT youth? It's not pro-Nazi so much as it's anti- expending any resources to fight Nazism or inculcate the view that Nazism is bad. 

On the European side, the new far-right parties are not (yet) outright praising Hitler, but they're very much taking the view that we obsess too much over Hitler. Nazism is a minor blemish, an inkblot, a footnote in an otherwise glorious White European history, and bringing it up is just an obnoxious distraction from the "real" threats posed by immigrants, Muslims, and multiculturalism. And of course, the American right is increasingly lining up with these parties -- Steve King was just a touch ahead of the curve, but the snuggling up to Viktor Orban in Hungary has long since passed into the GOP mainstream. Why should the view of the Holocaust resist the trend? Indeed, the Indiana and Texas cases already show the GOP is happily galloping along with it.

A Quick Note on DEI Professionals and Antisemitism

This is a topic careening around my corner of the internet, and I've almost blogged on it a few times. Instead, I'll just share some quick and tentative thoughts.

(1) Anecdotal evidence aside, I entirely believe there are many DEI professionals who don't know much about antisemitism, and so are poorly equipped to recognize or address instances of antisemitism.

(2) The above can be, but I suspect is not primarily, due to latent hostility towards Jews or a belief that antisemitism "doesn't matter". 

(a) First of all, most people don't know much about most things, including but not limited to antisemitism.

(b) Second, in the American context, I suspect the professional development of DEI staffers tends to concentrate, for understandable reasons, on race and sex, with comparatively less (albeit not zero) attention paid to other potential axes of marginalization (such as religion, disability, indigenous status, and class). I also think that people wildly overestimate the breadth and depth of knowledge DEI professionals have -- which is not a knock on them, they have a hard job! -- in assuming that any gap in their understanding can only be a matter of willful ignorance (and that every other group is the beneficiary of their infinite fount of wisdom and energy).

(c) Finally, while some "generic" principles of DEI training might be cross-applicable to handling instances of antisemitism, I tend to view antisemitism and other forms of marginalization as sufficiently distinct such that one cannot simply deduce proper orientation to one via knowledge of another, and so it is not the case that one knows how to treat antisemitism by taking what one knows about racism and cross-applying.

(3) I do not, therefore, unduly begrudge a DEI professional for not knowing much about antisemitism -- so long (and this is an important point) as they know they don't know much about antisemitism and do not assume expertise they don't have. It's fine for people not to know things -- most people don't know most things. It's when people think they know things they don't that we run into problems -- this is why I actually really find the assumptions attacked in 2(c) dangerous. The problem of antisemitism in DEI isn't that people don't know much about it, it's that too often they don't know much about it but assume that they know plenty much primarily because they oppose racism and so that suffices to establish their anti-antisemitism bona fides (I've sometimes referred to this as treating antisemitism as a BOGO -- learn about racism, and you get credibility on antisemitism thrown in free!).

Putting all this together, and recognizing that DEI training time is a scarce resource and "become an expert on everything in advance" is not actually a viable proposal, the integration of antisemitism into DEI spaces may be better served by developing a culture of outsourcing -- recognizing that, outside a basic corpus of principles that everyone can reasonably be expected to know, that on-site DEI professionals may not have significant expertise in antisemitism and can, without being viewed as failures, turn to outside authorities (such as respected local Jewish organizations) for assistance if and when issues come up.

On Using IHRA To Defend Emma Watson

The other day, Emma Watson (or whoever runs her social media account -- it's possible she's handed over the reins) posted the message "Free Palestine". This resulted in perfectly predictable commentary, including Danny Danon calling her an "antisemite". My immediate contribution was to note that, since saying "Free Palestine" does not in any way plausibly violate the IHRA definition of antisemitism, "I look forward to the many who vociferously promote IHRA as the key definition of antisemitism to castigate Ambassador Danon for his wrongful claim."

As it happens, I have been relatively pleased to see how many people -- and not just the obvious suspects, I'm talking about people who are IHRA backers -- are indeed pushing back on Danon. That's a good thing! But it is interesting that I've seen virtually no instances where such persons have cited IHRA as a reason for why Danon was wrong to call Watson an antisemite. There have been no, or nearly no, cases of persons saying "according to the IHRA definition, this is not an instance of antisemitism."

This goes to a point I've been harping on about IHRA (and, in the opposite direction, JDA). It is not the case that IHRA backers think every single thing they don't like is antisemitic. But it is mostly the case that IHRA is only cited in order to say "this thing that is being called antisemitic, is antisemitic"; never to say "this thing that is being called antisemitic, is not antisemitic." JDA has the opposite problem -- it's not that JDA backers think literally nothing is antisemitic, but JDA is virtually always cited to say "this is not antisemitic" and never to say "this is antisemitic."

The problem here isn't one of hypocrisy or inconsistency, precisely. Again, that people -- including those who support IHRA -- are acknowledging that Watson said nothing antisemitic, and that Danon was wrong to claim otherwise, belies the notion that all they want out of life is to call anything squirmy about Israel antisemitic. But it is revealing regarding IHRA's own utility in public discourse about antisemitism and Israel -- it wouldn't occur to anyone to use it to bolster a defense against the charge of antisemitism, even in cases where we might agree the defense has the better of the argument. Unconsciously, perhaps, we all know that isn't IHRA's role.

I've Fallen and I Can't Get Up

The other day, I had the throwback experience of seeing an ad for Life Alert featuring the "I've fallen and I can't get up!" slogan. This line debuted in 1989 and by the early 90s had become a veritable catch-phrase in pop culture, most notably attributed to Urkel. I kind of assumed that its use as a literal advertising slogan had been abandoned after it became a widely-shared cultural joke, but apparently these ads are still running.

Which got me thinking: Are we at the point where the people who were the target audience for the pop culture joke "I've fallen and I can't get up" -- those who laughed at Urkel contemporaneously and unironically -- are now the target audience for the Life Alert product?

Time is a vengeful mistress indeed.

New Year's Resolutions: 2022

Everyone's favorite Debate Link tradition, coming to you live from Christmas Day! Here are the 2021 resolutions, and the whole series can be found here. As always, we begin by seeing how last year's resolutions went:

Met: 1 (knock on wood), 2,  3, 5, 6, 10, 11, 12, 13, 15

Missed: 4, 7, 9, 14, 16

Pick 'em: 8 (no RingFit, but I have been semi-regularly doing sit-ups).

Onwards to 2022!

***

1) Get any recommended COVID boosters that are released in 2022. (Met)

2) Get a book contract. (Missed -- it's been "under review" for a year and a half!)

3) Submit a sample chapter for the antisemitism textbook. (Missed)

4) Buy a house(!!). (Met!!!)

5) Make a new friend in Portland (if at first you don't succeed...). (Met)

6) Reach a new rating high on Chess.com (current peak rating: 1214). (Met, and how -- a new peak of 1522, over 300 points higher than last year's peak)

7) Go for walks on a semi-regular basis. (Missed)

8) Buy a new video game (not a repurchase of an old game). (Met)

9) Go to a sporting event. (Met)

10) See a sight in Oregon that's not in Portland(Pick 'em -- does Salem count as a "sight"?). 

11) Publish another column in The Oregonian. (Missed)

12) Successfully manage an RA. (Met)

13) Visit at least one of the following places: DC, Las Vegas, Bay Area, or Seattle. (Met)

14) Donate to at least one new charity. (Met -- I was actually reminded by this post to donate to the Oregon Jewish Museum!)

15) Go to a local comedy club at least once. (Missed)

Out/In: 2021-2022 Edition

It's not quite a tradition, but we have done it at least once before: an out/in list. What is out, and what is in, come the New Year? Read below to find out!

Out Delta Oregon v. Smith Open Hillel Nailing Trump on the insurrection Abortion rights Afghanistan Susan Collins switches parties? Build Back Better (original flavor) Challenging election results Second Reconstruction Cancel culture Blue Virginia Texas is a swing state Trump/Bibi bromance Jewish Institute for Liberal Values "The Supreme Court is not a superlegislature" Ivermectin Timothy Chalamet Steve King Antifa LibDem wave First Amendment Lochnerism Vaccine mandates

In Omicron Sherbert v. Verner Closed Jewish Currents Nailing Trump on racketeering Bounty hunting Ukraine Kyrsten Sinema runs as an independent? Build Back Better (Manchin diet edition) Ignoring election results Second Redemption Book burning blue Virginia New Jersey is a swing state "Fuck him." Some equally annoying astroturf group "The Supreme Court is a super-CDC" Anthrax Pauline Chalamet Paul Gosar Regular fa Prime Minister Keir Starmer Lochnerism Right to die

What If Trump Had Been Clear on the Vaccine from the Start?

Kevin Drum flags a new approach from former President Donald Trump vis-à-vis the vaccine: it was my doing and MAGA-land should stop letting liberals take credit for it. Drum says that if this had been Trump's approach from the get-go, "We'd probably be 90% vaxed by now. Hell, Republicans might have a higher vaccination rate than Democrats."

Not sure about that last part. But it is certainly the case that much -- not all, but much -- right-wing antipathy towards vaccines would have never come into being. Some would have still existed -- the conspiratorial anti-vaxx wing of the conservative movement predates COVID and would not have been squelched entirely no matter what Trump did -- but it wouldn't have been amplified endlessly on Fox, nor would it have become a tribal identifier for true Trumpist loyalty.

Would Democrats have simply flipped and become the new anti-vaxx party? Unlikely. We'd still see anti-vaxx sentiment from these sorts of "progressives". And they'd be roundly thought of, and presented as by other liberals as idiots worthy of contempt and scorn (though they'd no doubt be defended vociferously by Glenn Greenwald types). Hippy-dippy anti-vaxx sentiment on the left would have remained a joke, just as it had been for years before it became a conservative domain and suddenly had to be respected as a grave matter of conscience and a deep policy dilemma. The vast majority of Democrats would still get vaccinated, because at least in this domain polarization really is asymmetric and Democrats aren't willing to enroll in a death cult just to do the opposite of whatever Trump does.

Oh, and I also strongly suspect that if Trump had taking this loud pro-vaccine stance from the beginning, there's a solid chance he'd still be President today. So take from that what you will.

Being a Black Man Sure Sounds "Reasonably Suspicious" To Me, Says Eighth Circuit

It's another 8th Circuit special!

This week's entry is Irvin v. Richardson, involving a so-called "Terry stop" in Cedar Rapids, Iowa. Police were called to the scene by a woman who reported three Black men having an argument, one of whom displayed a weapon. Two of the men (including the alleged gun owner) were described further, the third was not. Officers show up and see two Black men who match the description of ... neither of two described gentlemen. So naturally, they draw their guns, force the men to the ground, handcuff them, and pat them for weapons as both men protest their innocence. No weapons are found, and eventually, the original caller comes by and says "no, these aren't the guys I was talking about". Oopsy-daisy.

The men sue and say "there was no reasonable suspicion to stop us -- we didn't look like the descriptions the officers had, and in particular not like the man who supposedly displayed a firearm." Eighth Circuit  (in a 2-1 decision, with Judge Kelly writing her usual exasperated dissent) replies "but there was a third, undescribed individual who was allegedly involved in the argument, and since the police didn't know what he looked like, that means there's 'reasonable suspicion' that any Black man in the vicinity could be that guy. Qualified immunity."

Every day I'm proud anew to be a clerkship alum of this august circuit.

AIPAC Starts PACking

The big money story in politics this week, literally, is that the famed pro-Israel lobby group AIPAC is starting a PAC. If that doesn't seem like much of a story, AIPAC has, for its entire existence, not actually been formally involved in donating to political candidates. It's one of the reasons why the notion that it "bought" Congress is so offensive. While AIPAC certainly was valuable in introducing members of Congress to prospective donors, the new AIPAC PAC (yes, that's the name) will be the first time the organization itself donates directly.

Yet this is a fraught time for AIPAC to join the donation game. AIPAC's political engagement strategy for as long as I've remembered has been characterized by one major rule: talk to everyone. It wants a pleasant relationship with as many members of Congress as possible. To that end, it has not -- contra some assumptions -- been all that aggressive in enforcing a hard party line on Israel. This has frustrated Republicans who think AIPAC should serve as a right-wing attack dog. But it also has provided cover for AIPAC in not speaking out on plenty of right-wing heresies too.

All of this works primarily because, what the exception of its big conference bash, most of what AIPAC does is quiet and private -- the slow, boring, but fruitful work of building relationships whenever and wherever it can. And I can't help but think that right now is a very difficult model to adjust to making donations, where AIPAC will be quite publicly making some tough choices and will unavoidably have to get loud on them.

The JTA article on the AIPAC PAC suggests that it is actually meant to be a vehicle for AIPAC to show more support for Democrats it likes, to counter allegations that it has gotten too snuggly with the GOP. I support the ambition, but I think this is a terrible way to get there. The more obvious way for AIPAC to restore diminished luster amongst Democrats would be to actually, you know, show its teeth in supporting the elements of Israel policy that Democrats actually like, such as a two-state solution. If money is their strategy for regaining Democratic warm-feeling, that suggests they're looking for a route that doesn't involve them actually shifting policy in any way, and that's a strategy with a very limited shelf life.

And even if we take the money front in isolation, I think it's a tactic doomed to fail. Let's assume that AIPAC will be less heavy-handed and self-defeating in its political interventions than DMFI, because, well, who couldn't be? (Answer: possibly AIPAC) Even still, AIPAC was already doing a perfectly serviceable job of introducing new Democratic politicians to potential donors; it was fine in the role of intermediary. Going in directly and, well, one needn't overstate the toxicity of the AIPAC brand amongst Democrats to say that it certainly is a ripe target for attack in some wings of the Democratic coalition. We already see plenty of calls for Democrats to skip AIPAC's conference due to its right-wing priorities. A world in which AIPAC donates directly is a world where we're going to hear a lot more calls to "reject AIPAC money" (just like rejecting "fossil fuel money" or "gun lobby money"), and that's a fight that AIPAC loses just by having. Notice how it again largely traverses this debate in the status quo by serving as a connection point: saying "reject AIPAC money" is a lot easier and pithier and tractable than "reject Sue Lowenstein's money" where Sue is the local Jewish donor that nobody has ever heard of but whom AIPAC set up with the fresh-faced state senator running for a new House seat.

At the same time, wading directly into the domestic political fray poses problems for AIPAC on the GOP side of things too. Shortly after AIPAC's announcement, J Street issued a call to all Jewish and pro-Israel organizations to commit to not donating to any politician who refused to endorse the validity of the 2020 election results. Seems like a no-brainer and the obvious right decision -- and it is -- but that also covers nearly 150 Republican members of Congress, because, and I can't emphasize this enough, rejecting the basic operation of American democracy is the mainstream Republican position. Yet it'd be pretty tough for AIPAC to maintain its vaunted "bipartisan" credibility while disavowing the bulk of the GOP. Whereas before it could easily traverse this issue because it doesn't donate to candidates, now its ducking has to be far more out in the open. AIPAC thus far hasn't commented (no kidding), but we'll all see the list of candidates it selects to donate to sooner rather than later. The ducking can only last so long (and while I'm at it, kudos to J Street for a pretty savvy political squeeze play).

Obviously, we'll see how all this shakes out soon enough. But I'm skeptical this is going to turn out well for AIPAC. I'm on the record as saying AIPAC desperately needed to mend fences with the Democratic Party if it wants to stay relevant as a bipartisan actor. If this is their gambit for doing so, it leaves a lot to be desired. More direct money is no substitute for a robust, realistic policy vision that Democrats who care about both Israeli and Palestinian security, safety, and equality can get behind without embarrassment.

What Would Happen If Trump '24 Turned Against Israel

It was the "f*ck him" heard 'round the (Jewish) world. Donald Trump, in an interview, raged against former Israeli Prime Minister Bibi Netanyahu, whom he blamed for congratulating Joe Biden on his 2020 election victory. The profanity was shocking enough -- Bibi and Trump had seemingly been joined at the hip over Trump's term in office -- but the substantive appraisal was perhaps even more striking: Trump said that he came to believe that it was Abbas and the Palestinian Authority who actually desired a peace deal, and Bibi who was the recalcitrant obstructionist. From any source that'd be a noteworthy claim, given the ferocity with which the American Jewish establishment clings to the narrative of Palestinian rejectionism, but coming from Trump? It was earth-shattering.

This makes me wonder: what would happen, in terms of internal GOP political attitudes, if Trump really did in his next campaign and (God forbid) administration demonstrate hostility to Israel?

I'm not saying this is guaranteed or even especially likely. But it's hardly impossible. Trump is notorious for keeping grudges, and this one is a doozy. Moreover, the dark reactionary currents that represent Trump's deepest well of support is viciously antisemitic and growing more so. Many in that cadre unsurprisingly harbor no love for the Jewish state. Even for those who sometimes gesture at a perceived shared ethnonationalist values, the "love" for Israel is thin and easily cracked. Israel's standing in a new illiberal world order would be precarious indeed.

For those reasons (among others), I've long believed that it is more-or-less an accident of consanguinity that Trump was not even more antisemitic than he was. I have no idea the degree to which Kushner (or Greenblatt or Friedman) remain in or out of the Trumpist inner circle these days. But in terms of his own instincts, there is plenty of gravitational pull where "America First" means no longer standing at attention to the Zionist globalist puppet-masters who've been pulling our strings for too long. Couple that with a feral desire to get back at those who wronged him, and one can easily imagine a new Trumpist approach towards Israel that is exceptionally hostile.

Of course, this would all run against the decided weight of recent Republican Party orthodoxy, which is deeply wedded to its identity as "pro-Israel". So the big question is whether the strength of Trump's cult of personality -- and what is the GOP these days if not a cult? -- can crack these attachments. And I think the chances would be decent. Republican voters have evinced a marked ability to turn on a dime when it comes to perceptions of foreign policy ....

... and it's hard to see why Israel should prove immune here. Indeed, there's a pretty common pattern that's emerged when Trump takes actions that clash with putative commitments of GOP party elites:

1. The elites, thinking Trump has finally "gone too far" and is "betraying core conservative principles", say words to the effect of "well, of course we don't endorse this";
2. The GOP base makes it abundantly clear they do not remotely care about these principles but absolutely do care about GOP "leaders" who dare betray the dear leader;
3. The elites come crawling back and accommodate the new Trumpist orthodoxy.

We saw this with the Muslim ban, with the sexual assault allegations, with the attempts to overturn the election, and with the January 6 insurrection. Every time Trump appears to cross a conservative red line, it turns out that there are no red lines. Maybe the attachment of GOP voters to Israel is so intense it resists these tides where nothing else has proven able to do so. But would you really bet on it? Again, current conservative identification with Israel notwithstanding, there are plenty of resources within MAGA ideology that easily could support a new, anti-Israel slant (one that would, invariably, stand side-by-side with an accelerated anti-Jewish slant). 

One can easily imagine how it will go. A few weeks or months of "very concerned" faces from the usual GOP subjects, the slow, shocked processing of the fact that none of their voters actually care about the things they thought they did, and eventually, the familiar sycophantic mewling that has become the signature tune of the contemporary Republican "leader". The only major question is how many Nikki Haley Units it will take for the median GOP politician to fall back into line.

The Race To Narrate Mizrahi Jews

We are witnessing the start of a race: the race, between various political factions generally but not exclusively tracking "Zionist" vs. "anti-Zionist", to determine where Mizrahi Jews will be placed in contemporary political narratives. If the starting gun has not been fired, it will be soon. And while I think most readers of this blog are relatively familiar with the competing narratives being put forward, to summarize briefly:

• The Anti-Zionist narrative seeks to present Mizrahi Jews as "Zionism's other victims". While not necessarily denying the fact of some oppression, this narrative presents Zionism as having destroyed a vibrant and robust Middle Eastern Jewish (sometimes rendered "Arab Jewish") culture and having replaced it with a concocted framework where Jew and Arab were irreconcilable opposites. It highlights past and ongoing discrimination of Mizrahi Jews by Israel's Ashkenazi elite to suggest that Israel's multicultural claims are deceptive and opportunistic, and suggests that a potential alliance exists between Israel's two "brown" underclasses vis-a-vis their foreign European oppressors. More broadly, it presents a rejection of Zionism as a step towards  (and a prerequisite of) restoring a fractured relationship between Mizrahi Jews and their former neighbors, seeing past tales of eternal enmity and envisioning mutual recognition and support.

• Under the Zionist telling, by contrast, Mizrahi Jewish presence in Israel, and general commitment to Zionist beliefs, destabilizes the notion that Zionism is a European import. It, too, contests the sharp divide pitting "Jew" versus "Middle Eastern", but does so by suggesting that the "Middle Eastern" perspective has until now implicitly Jew-free in orientation by not accepting Mizrahi Jewish political behavior as legitimately "Middle Eastern" to the extent it aligned with Jewish (read: Zionist) perspectives. The oppression and eventual expulsion of Middle Eastern Jewry may not "cancel out" Palestinian oppression, but suggests that anti-Zionists have their own reckoning to do and that there is more interfering with paradisiacal co-existence than evil Zionist perfidy. Emphasizing Mizrahi Jewish life also means that certain more extreme anti-Zionist arguments -- e.g., that Israeli cultural is purely "appropriative" or invented -- can easily be turned as forms of antisemitic erasure that denies basic elements of (Mizrahi) Jewish history. To the extent Mizrahi Jews identify Zionism as part of their liberation (and anti-Zionism as part of their oppression), this links up with elements of contemporary discourse which respect minoritized communities' right to define their own experience, even as against persons who do not accept that (White European) Jews generally count as a minoritized community.

As presented above, these narratives are both over-simplified. This is intentional -- not necessarily because those working this field are committed to oversimplification (though some may be), but because the manner in which these narratives will penetrate popular consciousness almost inevitably will be oversimplified. As a matter of popular political discourse, there likely will never be a deep, layered, and complex understanding of Mizrahi Jewish history (matters of popular political discourse do not tend towards deep, layered, and complex understandings of anything). What there will be a sort of gestalt understanding of a "side" that the Mizrahi Jewish frame supports. And so the casual way of putting the question is: for which side will "Mizrahi Jews" become an argument? Will "aligning with Mizrahi Jews", in its most general public understanding, be taken to mean acting in accordance with the first narrative (broadly conceived), or the second?

Right now, this is an open question. For many years, Mizrahi Jewish history and experience was ignored in contemporary discourse about Jews, Israel, Zionism, and the Middle East. This overlooking was in many way overdetermined. Here are just a few of the factors that likely played a role:

1. Eurocentrism. For many years, history in general, as a subject, ignored most things and happenstances that occurred outside of Europe and America.
2. The demographics of American Jewry being disproportionately Ashkenazi, making Mizrahi Jewish heritage relatively unfamiliar to American Jews writing about "our own" history.
3. The concentration of Mizrahi Jews as being mostly in Israel, meaning that most people not-in-Israel, when they encountered Jews, encountered Ashkenazi Jews and assumed that they were all who needed to be thought about when thinking of Jews.
4. Israel's desire to be seen as as a "western" nation, which involved minimizing or diminishing the salience of non-European elements (such as its Mizrahi Jewish inhabitants).
5. Anti-Zionists' desire to present Israel as a purely foreign, colonial imposition to the Middle East, which is disturbed by recognition of significant Middle Eastern Jewish presence; as well as a desire to minimize their own decidedly ignoble behavior towards their Jewish communities in the 20th century (which is why Mizrahi Jews are now concentrated mostly in Israel -- see #3).

There are no doubt other factors as well. Put them all together and you had a recipe which simmered for decades, one in which Mizrahi Jews were mostly a sideshow to broader patterns of political discourse about Jews (and Jewish states).

Even a few years ago, this was still true -- I still remember how rare it was to write on this subject when Analucia Lopezrevoredo and I published our "Intersectional Failure" article in 2016. But things are different now. Like it or not, the turn towards identity politics continues apace, and in the extremely well-trodden terrain that demarcates debates of Israel, Mizrahi Jews represent rare fresh land to till. Most people along most dimensions of Israel have views that are, if not always informed, then are relatively entrenched. Narratives about Israel being colonial or liberatory, a democracy or an apartheid state, struggling against terrorism or crushing necks under its boot, are by now familiar to anyone paying a speck's worth of attention, and people largely know where they stand on them.

But the issue of Mizrahi Jews is not a subject most people have given much thought to, and as a matter of social discourse it has not yet concretely been narrated into a particular side. It also seems to sit adjacent to several important conceptual "nodes" relevant to current debates about Israel -- e.g., indigeneity, Jewish (non-)Whiteness, colonialism, cultural appropriation, and even ethnic cleansing. This makes it very valuable discursive real estate, and one can already see just how hot this commodity is when considering the sharp, dare I say histrionic, reaction found in some quarters to the announcement that several professors have received a grant to write a book about contemporary (post-1800) Mizrahi Jewish history. As ridiculous as it is to witness such fulminations for a book project that is a good three years out (and I say that without prejudice to any judgment as to whether the final product will be good or bad), the underlying cause  of the reaction is recognition that this is a rare arena where opinions remain unsettled, and so nobody knows which will be the book (or set of books, or articles) which successfully implants the new conventional wisdom.

Which raises the question: who do I think will win the race? I can't answer that, but it does seem that both sides have some noticeable advantages and disadvantages that can be flagged from afar (I will skip making any contentious judgments about who has the "advantage" of being right). 

The Zionist-favoring narrative has one very obvious advantage: realistically speaking, more Mizrahi Jews agree them. This is an advantage that can manifest both in terms of raw numbers but also in terms of perceived legitimacy -- if part of this project is to present a "Mizrahi Jewish" perspective, it should matter what position resonates with the bulk of Mizrahi Jews. The fact that many of the anti-Zionist claims simply do not gibe with how most Mizrahi Jews conceptualize and articulate their own history is a decided disadvantage, notwithstanding earnest efforts to present those conceptualizations as matters of false consciousness or foreign implantation.

The anti-Zionist narrative, however, may see its adherents disproportionately present in academic forums dedicated to researching the question, and that may allow them to punch above their weight in terms of driving intellectual conversation on the subject. Moreover, they may be more adept at speaking in the "tongue" of identity politics -- an arena which many more conservative Jewish figures remain suspicious of and whose endeavors to work in this argot sometimes fail to be much more sophisticated than "I know you are but what am I?" The anti-Zionist narrative may be able to more easily produce a resonant narrative that fits within how we are conditioned to think of "identity politics" stories. So both sides have attributes working for and against them.

Ideally speaking, of course, the history would be the history, and we'd talk and engage and write on it because it's important to know and explore regardless of which or what political narrative it endorses -- accepting, as will inevitably be the case, that history rarely supports any one political narrative with its full throat anyway. And I do not mean to suggest that the bulk of authors or academics working in this area are consciously intending to serve as political leafleteers, or that their academic interest is merely a smokescreen for a political agenda. I am sure many of the people working in this area are diligent and are attempting as best they can to be dispassionate, fair-minded, and sensitive to all the various complexities of the area. But I am fairly convinced that the political headwinds here are too strong to be ignored. And the result is going to be a pitched and nasty fight over where to situate Mizrahi Jews -- and I fear that Mizrahi Jews themselves will not necessarily get the last word.

What if Critical Race Theory Doesn't Cause Antisemitism?

Note: This was originally going to be a column published in a Jewish media outlet -- it got caught in publishing purgatory for months before eventually being killed. Though it is now slightly dated, I republish it here. One significant modification is that JILV has revised its "white paper" since its initial publication -- you'll have to take my word on what the original version said, though I contemporaneously addressed some of the biggest howlers in this post shortly after the original was released (it actually is not entirely implausible that my post inspired several of the unnoted "corrections" in the revised document!).

* * *

It is time for the Jewish community to take seriously the question: Is critical race theory causing a surge of antisemitism in America?

And by “take seriously,” I mean take seriously the possibility the answer is “no.”

This is, after all, what it actually means to take a question seriously. One does not take a question seriously by presupposing a given answer, then clinging to that conclusion come hell or high water. That’s not rigorous inquiry, that’s dogma.

Yet the cottage industry of Jewish pundits, speakers, and institutes that purport to ask questions about the role of critical race theory in the growth of antisemitism aren’t really asking questions at all. For them, it is an article of faith that “critical race theory”, or “intersectionality”, or “critical social justice” (the terms are frequently used interchangeably, and with little precision), is a primary driver of contemporary antisemitism in America. Though they style themselves as bold truth-sayers, their conclusions come pre-loaded, held with a zealous fervor that brooks no naysaying.

But what happens when we try to actually put the hypothesis to the test? It is not hard, of course, to find examples of antisemitism emanating from progressives (or conservatives or centrists for that matter). Yet frequently, the case for “critical race theory” being a prime cause of antisemitism is nothing more than collecting a series of anecdotes of bad behavior by presumed progressive or non-white actors, then asserting that they’re all attributable to the theory. This slipshod practice is troubling for a host of reasons. 

First, critics of “critical race theory” or its cousins often are maddeningly vague in defining what the term(s) mean. A recent “white paper” by the Jewish Institute for Liberal Values attacking what it calls “critical social justice” is emblematic. “Critical social justice” is an invented term—it is not to my knowledge commonly used as a self-identification by anyone—but incredibly the white paper does not bother to give a definition of what the term means either. Hence, a rigorous reader has no way of assessing whether any of the forms of antisemitism identified in the paper—things like “the canard of Jewish privilege” or “the erasure of Jewish identity”—are elements of, or attributable to, “critical social justice.” Many readers might suspect that these practices are best criticized through a Jewish iteration of critical race theory methodologies (amusingly, one of the few academic sources cited, incorrectly, in the white paper as a supposed critic of “critical social justice” actually is a prominent advocate for developing what he calls “HebCrit”—Jewish critical race theory). But a writer or reader already steeped in the dogma doesn’t need “critical social justice” to be defined to be convinced it is to blame. For them, of course these antisemitic incidents are elements of “critical social justice” (whatever it is). 

Second, there’s little effort to show the scope or significance of the problematic activities as representative of the supposed theories that generate them. The JILV white paper, for instance, contends that “there is evidence that the more extreme versions [of critical social justice] are gaining ground and influencing public discourse.” In the white paper's initial formulation, the sole citation for this claim directed to a list of state rules and regulations seeking to ban critical race theory by force of law. Of course, such a list provides absolutely no evidence that theories of critical social justice, “extreme” or otherwise, are “gaining ground”—if anything it shows the opposite. What the list did show quite starkly is that the most overt threat to traditional liberal values in American politics today comes from the anti-CRT movement groups like JILV proudly attach themselves to.* 

Third, there is often the assumption that any antisemitic activity that occurs in an urban or coastal area must come from progressive people of color. Yet, as Laura Adkins has repeatedly emphasized, even when talking about, for example, antisemitic attacks on Orthodox Jews in New York, the data does not support the commonly-held assumption that the perpetrators are primarily Black or other persons of color. Moreover, it is grotesquely reductive to assume that any antisemitic action by a person of color is an instantiation of critical race theory, or even progressivism. Indeed, the latest data we have suggests that the highest levels of antisemitism among young people are found among non-White conservatives. This makes sense: there is nothing progressive about the extremist fringes of the Black Hebrew Israelite movement, so there is no reason to think antisemitic attacks committed by BHI adherents emanate out of any progressive philosophy. Yet how often have we seen writers lazily conflate “Black” with “left”?

Finally, even among the archetypical young, progressive, college-educated set, if “critical race theory” was responsible for generating antisemitism, then we’d expect to see spikes in antisemitism amongst persons (over)exposed to it. It is commonly claimed that certain academic disciplines, or even the collegiate system as a whole, are indoctrinating students with critical race theory and this suffusion is responsible for heightened antisemitism on campus. If this were true, we’d expect antisemitic attitudes to grow in intensity among students majoring in the problematic disciplines (the humanities compared to STEM), and/or students in their final year of college compared to their first. Yet the data does not support this either—it turns out that there is no measurable increase in antisemitism among students over the course of their college career nor among those majoring in the fields supposedly dominated by critical race theory.

That the crusade against critical race theory appears largely impervious to contradictory data or testing is worrisome. For one, it speaks to a troubling decay in our collective commitment to subjecting important hypotheses surrounding antisemitism, equity, and equality, to critical scrutiny and review. Helen Pluckrose, a hero of those rallying against critical race theory (she is the one who coined the term “critical social justice”), identifies laudatory “critical thinking” as “the examination of an argument or claim in the light of reason and evidence rather than accepting it uncritically …  looking for flaws of reasoning or unevidenced claims or unwarranted assumptions being made due to an ideologically biased interpretation of a situation.” If this is the value, it is largely absent amongst self-styled critics of “critical race theory,” whose assertions on the subject frequently assume conclusions not in evidence and who abjure critical engagement with actual CRT thinkers in favor of circular citation to members of their own ideological bubble.

The larger problem, though, is how we risk misallocating resources in the essential fight against antisemitism. Put simply, if we devote our resources toward fighting critical race theory as a means of fighting antisemitism, and it turns out that critical race theory has no significant relation to causing antisemitism, then we’ve just wasted a ton of time and energy! Polls of American Jews have been consistent in showing that most Jews see the primary instigator of antisemitism in America as being the political right, including the Republican Party. Increasingly, Soros conspiracies, tropes of shady “globalist” string-pullers, and what Deborah Lipstadt calls “softcore Holocaust denial” are normal not just on the right fringe, but the totality of the conservative movement. The insistence on clinging to a theory of antisemitism that is not backed by the evidence is blinding many of our communal institutions addressing a veritable tsunami of antisemitic sentiment surging through American politics.

The Jewish community has for years now labored under a torrent of tweets, YouTube screeds, public orations, and institutional white papers, all committed with a single-minded focus to the assertion that critical race theory is an enemy of the Jewish people. They have had much time to make their case. They have not done so—indeed, they’ve scarcely attempted to do so. That’s because their case is long since ceased to be a proposition that can be falsified by argument or evidence. It is a dogma. And it’s time we start seriously asking what happens if that dogma is not true.

* In the revised version, this list was removed and replaced by a hodgepodge of citations to companies or institutions allegedly practicing "CRT" -- though with no effort to draw the requisite comparisons between allegedly more or less "extreme" versions of the concept, let alone establish trends towards the former; and in some cases no effort to tie certain alleged practices to "CRT" at all.

It is notable that, with the deletion of the (perhaps inadvertent) citation to the long list of official governmental efforts to ban CRT, the white paper no longer addresses even indirectly the prominent, de jure efforts at censoring wrongthink being promulgated by its ideological compatriots. The closest it comes to doing so is in its discussion of filing lawsuits to chill the adaptation of diversity or equity initiatives -- a practice JILV endorses.

Why Did the JDA Exonerate David Miller?

A few months ago, I described the David Miller controversy as the JDA's "test case": would it ever be used to declare a contested case of commentary on "Zionism" to be antisemitic, or would it only be used to level "not guilty" verdicts? Shortly thereafter, it was revealed that an internal investigation by the University of Bristol into Miller's antisemitism had entirely exonerated him -- largely relying on the JDA to do so. The JDA critics cried vindication.

Now, two signatories of the JDA -- Yair Wallach and David Feldman (the latter is a JDA co-author) -- have written to explain why they think that was incorrect and a misapplication of JDA. They make reasonable arguments for why Miller's conduct should have been viewed as antisemitic under the JDA framework. However, they observe, a definition is only as good as those applying it -- Labour, after all, didn't become  instantly free of antisemitism simply after adopting IHRA. The JDA, too -- any definition, really -- can only be so resistant against interpreters determined to see no evil.

This is a fair point. But I think a little more reflection is needed. Reading Wallach and Feldman, one might get the sense that the exoneration of Miller was simply a matter of bad luck: the university picked the wrong actor to conduct its internal inquiry, who did a bad job reading the JDA and so came to incorrect conclusions. A better reader who exhibited more careful, lawyerly interpretive skills would have come to the right conclusion: that Miller was, under the JDA framework, antisemitic.

I agree that texts alone will provide only moderate, if any, constraints on poor reading. And I agree that the JDA, fairly read, very much can provide support for why Miller was antisemitic. But Wallach and Feldman do not grapple with the cultural meaning of JDA which I think clearly is germane to why it was used, as its critics predicted it would be, as a tool of exculpation. 

As a cultural phenomenon, JDA was introduced to the world as a corrective against the overzealous labeling of things as antisemitic. The "problem" JDA was there to correct was the presumed assumption by IHRA and its adherents that "criticism of Israel is antisemitic"; it corrected this (among other ways) by sharply delinking "Jewishness" and "Zionism" and declaring itself a sentinel against their wrongful conflation. In a real sense, the JDA was less concerned about protecting Jews from antisemitism than it was protecting non-Jews from being (wrongfully) accused of antisemitism. It's not that the former wasn't important, but the latter was what JDA believed was missing from antisemitism discourse and addressing that problem was accordingly the document's value-added. Nearly all of the JDA's marketing and public reception centered around this function, and it was accordingly taken up as the standard by people whose primary orientation towards antisemitism is that of Bruce Robbins: "The real issue here is anti-Semitism; that is, accusing people of it." 

JDA defenders will no doubt argue, as Wallach and Feldman do, that the text of JDA belies any claim that it is unconcerned with what is antisemitic and that, properly applied JDA very much can and does offer resources which can support a guilty verdict as much as a not-guilty one. This is true, but only in the same way that IHRA also has textual resources which could be used to forestall its use as a blunt cudgel against any harsh criticism of Israel. Those cynical of the practical relevance of those textual provisions in assessing whether IHRA actually is enabling or disenabling productive discussion on antisemitism should recognize a similar potential problem in JDA. In either case, the text isn't really what's important; it cannot explain the definitions' actual use. Hence, upon JDA's release I predicted:

[J]ust like IHRA there is a risk that the JDA will be "applied" in a purely symbolic manner divorced from its actual textual mandates. Just as IHRA's language insisting that context matters has been roundly ignored, one can easily imagine persons accused of antisemitism "citing" the JDA for the blithe retort that "criticism of Israel is not antisemitic" while disregarding language in the JDA which arguably encompasses their particular "critique".

And indeed, that does seem to be what happened here.

To the extent that Wallach and Feldman view the failure to identify Miller's antisemitism as antisemitism as a failing, then, it will not do to simply run back to the text and say "but a good interpreter would read this provision differently." It's not really about the text, and it's not really about reading comprehension skills either.

The simple way of identifying the problem is this: on an epistemic level, the JDA looked at how antisemitism discourse proceeded in certain center-to-right Jewish and Zionist spaces and treated the primary problem of antisemitism as one where people where too quick to believe, to listen, to conflate, to say "yes". In "correcting" those mistakes, it overlooked entirely a parallel form of antisemitism discourse, prevalent in many non-Jewish (as well as Jewish left) spaces, where people were eager to dismiss, to brush off, to endlessly dissect, to say "no". The JDA has, perhaps unintentionally but very much predictably, become the standard for the latter branch of the discourse. To a large extent, the JDA would be seen as a failure if it regularly and in high-profile contested cases rendered "guilty" verdicts -- this would falsify the core epistemic assessment which indicted IHRA and supposedly demanded the JDA's adoption in the first place (that in high-profile contested cases too many people are being adjudged guilty of antisemitism when they are, in fact, falsely accused).

It is not accidental nor idiosyncratic, then, when JDA is read and interpreted in a fashion that maximizes its function as an exculpatory tool. Those who read it that way aren't reading it badly, they're just reading it in the context of how it was presented to the world. Since the JDA is a corrective to overuse of antisemitism, it is hardly a misreading when readers adopt a canon of construction where all ambiguities should be resolved against a finding of antisemitism. 

If JDA proponents want to head off those readings, they cannot simply ask for people to be better or more educated readers. They'll have to take aim at the golden calf of their epistemic camp, and decisively declare that the problem of antisemitism is not just "accusing people of it", the problem is as much (if not -- dare I say -- more so) reflexive denials of it. Unless and until the JDA forthrightly tackles that aspect of how we talk about antisemitism, no amount of careful reading will stop the JDA from being almost exclusively seen as and used as a means of exonerating anyone and everyone from antisemitism.

Will You Miss Me When I'm Gone?

I've been reflecting over the past few days about why it is that BDS/anti-normalization causes such existential panic amongst diaspora Jews -- more so, I'd wager, than it does for Israelis. I've written, of course, about how such movements frequently result in considerable regulation and injury to diaspora Jews who actually can be effectively subjected to external policing, so that's part of it. But as I think about it more, the fear comes from a much deeper place. What we fear is living in a community or a polity where people simply do not care what Jews think, and are content to speak upon Jews without being much concerned about Jewish contributions to the conversation.

As is the case in many such fears, this is not an injury that only the Jews have experienced. To take one adjacent example: the Trump "peace plan", constructed as it was with virtually no Palestinian input, was an effort to resolve the issue of Palestine without being especially concerned with what Palestinians had to say on the subject. Unsurprisingly, they were not so keen about being viewed as dispensable to the process of an Israeli-Palestinian accord; in addition to predictably producing a slanted deal, it was also taken -- rightfully so -- as a form of disrespect and degradation. The "deal" was always going to be stillborn, for that reason alone.

In Israel and Palestine, there are plenty of people who cling to the notion that they can "resolve" the conflict without remotely engaging with the perspective of the other, or actually coming to some sort of accord. For Israelis, this is the intoxication of power -- they have the land and the guns and the status quo high ground, and this is the prerogative of dominion. For Palestinians, there is the fundamentalism of despair -- if a negotiated deal is impossibly out of reach and we're stuck in the realm of fantasies, then why not be a maximalist? There's no opportunity cost to going for broke if there is no next-best alternative being passed up, because there aren't any actual alternatives being passed up at all. And of course, for both camps, the allure of unilateralism is bolstered by a resolute sense of righteousness -- why should we have to give an inch to them, when we are right and they are wrong? Where is the justice in being forced to make concessions to the wrongdoer?

Those who adapt this view may, as Abe Silberstein writes, respond to claims that they're being unrealistic by portentously insisting that they are "resisting hegemonic limitations on what is possible." They're not, and most people, at the end of the day, recognize the unyielding if not always convenient truth that a permanent solution to the Israeli/Palestinian conflict will have to entail some sort of accord or agreement between both parties. Neither side will be able to impose a lasting solution to the situation by force of will alone. Even if you think a two-state solution is dead in the water, a binational state would be roughly 50/50 Jewish and non-Jewish; such a state could only function if there is not just nominal but robust commitment to coexistence and mutual recognition. Neither party is going anywhere, which means that whatever the final status of the land is -- be it marriage or divorce -- it will still involve some agreement on how to live together, each party (if only via necessity) attentive to what the other thinks.

But things are different in the diaspora. Here there are not, objectively speaking, all that many Jews. Here, to imagine a world where one no longer need to speak to or think about Jews is not to imagine something impossible or even implausible. It is quite possible, at least in certain communities and spaces, to have a perfectly pleasant, happy, and functioning existence without any meaningful Jewish contribution whatsoever, and so a situation where Jews are not part of one's community is not necessarily a harbinger of dysfunction or chaos.

The BDS/anti-normalization cadre has made a calculated decision that it does not need to hear Jewish contributions. This is not the same thing as saying it actively does not want Jews. It is, for the most part, perfectly happy to have Jews aboard as passengers for the ride. It just means that this movement does not feel as if it has failed or is endangered in any particular way if it doesn't secure Jewish buy-in, and so if it turns out that it is a movement operating mostly independent of Jewish contribution, that does not represent a problem. 

• Morally, this calculation manifests as a view that the correct moral answer to the Israel-Palestine question is "Israel is wrong from root to branch", and while it'd be nice if Jews got onboard the righteous train, their failure to do so does not in any way modulate the right answer to the moral question (which exists entirely independent of what Jews think on the subject). 
• Politically, it is an assessment that their practical campaigns do not need Jewish presence or agreement in order to be functional; they can accomplish what they want to accomplish even if it is perfectly well-known they're doing it over howls of Jewish objection. 
• Finally, interpersonally, it carries an implied belief that there is no real loss felt to the extent one's circle is purged of (most) Jews -- our absence does not register as a cost, or at most is an acceptable one. Relationships with Jews are dispensable.

This belief represents a radical reimagination of the contemporary liberal political landscape -- it is very much not the status quo in the Democratic Party. Right now, the mainstream moral position amongst liberals is that a just solution to the Israeli-Palestinian conflict must be one that is acceptable to both sides; there is no party for whom it is right to simply see crushed.* Right now, it mostly remains the case that political legitimacy on matters of Israel depends on some amount of non-trivial Jewish buy-in -- it is not the case, as is often alleged, that this buy-in is withheld unless one goes all-in for Likud, but it is true that consensus Jewish redlines against extreme anti-Israel positions do roughly track the line between reputable and disreputable Democratic politics. Democrats believe that hearing from Jews (not just from us, but us too -- "necessary" is not "sufficient") and securing Jewish buy-in is necessary to come to the right decisions on Israel, and that hearing from Jews is necessary to come to politically viable decisions on Israel.

Most importantly, the degree to which Jews are imbricated into the fabric of mainstream liberal politics means it would actually be really hard, on a national level, to extricate oneself from ties and relationships with Jews without immense cost. To a far greater degree than any other diaspora nation, Jews are present all over the place in contemporary Democratic politics -- in Congress, in interest groups, among staff, in policy workshops, and in coalitions. To ask your average Democratic politician to detach themselves from any Jew whose views fail to line up with this radical reimagination is to ask them to divest themselves of countless rooted, meaningful attachments, built over years, which will not be dislodged so easily. These relationships are absolutely not dispensable, and as SunriseDC found out, that degree of embeddedness and entrenchment is quite resilient to challenge. 

Yet, unlike in Israel-Palestine, here in the US this radical reimagination is not an impossible reimagination. It is possible to conceive of. Most clearly, the people pushing this reimagination believe that hearing from Jews and securing buy-in from Jews is not necessary to develop morally correct postures on Israel. And as a matter of politics, the necessity of Jewish buy-in may be true on a national level, but it won't hold in every district or locality (there just aren't enough of us), to say nothing of the advantages in staking out a passionate minority position. Moreover, there is a difference even in how, say, Ilhan Omar orients to the Jewish community -- she does, however haltingly and ineffectually, try to engage with us -- and, say, what I've been seeing out of Imani Oakley (from whom antipathy towards engagement with Jewish community appears to be central to her political identity in a way that is unrivaled by any member of Congress I can think of, Squad absolutely included). I know little about the Newark-area district Oakley is running in (as a primary challenger to Donald Payne, Jr.) or about whether Oakley has any real shot at winning, but certainly she senses that overtly positioning herself in this way is not necessarily toxic.

Finally, the imbrication of Jews across liberal politics is true now, but it is not an inevitable fact of nature. So the reimagination begins by chip, chip, chipping away at the ability of Jews to enter into the room freely -- an ideological litmus test here, a campaign against interfaith work there, all serving to gnaw away those interpersonal connections which serve as hedges preserving relationships where political necessity fails. It is a tide lapping at a cliff-face, and the erosion can be slow even as the progress is steady. The DSA maybe can't expel Jamaal Bowman, and Bowman ("given his community") will not ditch his Jewish constituents so easily -- but what would be high cost in the case of Bowman is low cost when it comes to a city councilor in Des Moines or state representative in Raleigh. Old bonds die hard, but new institutions and spaces and visions that lack decades of accreted history will find it much easier to promulgate norms obstructing the development of new ones. Chip, chip, chip -- intervene to stop the connections from forming at the point of conception, and the roots won't be wide or deep enough to serve as a check if and when there is a moment of reckoning.

Cherrie Moraga wrote years ago of how "so often the women seem to feel no loss, no lack, no absence when women of color are not involved.... This has hurt me deeply."** The Jewish terror is that this reimagined politics is one where it is not even felt as a loss if Jews are not present. Ironically, as much as Israel is the fulcrum for the politics' development, as a much as those who promote it insist to high heavens they're just talking about Israel and Zionism, not Jews, it is Jews-not-in-Israel who will feel the brunt of it, because it is they who are actually in a position to be excluded from communities and spaces and places which had been and otherwise would be their own.

Again, it is not that, for those who promote this reimagination, Jewish absence is an affirmative good, necessarily. It's just that the absence isn't seen as a bad; it is not a failing that needs to be rectified. The people who promote this politics would be happy if Jews sign up for the ride, but they aren't going to adjust themselves a half-inch if Jews instead are registering complaints or seek to alter the trajectory. We are permitted to be passengers (or, perhaps, ballast), but not helmsmen. They don't need us, they will not accommodate us, and their assessment of their own path is implacably indifferent to whether it results in our presence or absence. That is a scary thought indeed.

 * Outside of the liberals, and until recently among many liberals, it was the case that many did believe exactly this -- just of Palestinians: they were the bad guys, and a "just" solution is one where they're punished, to hell what they think of it. I won't say that turnabout is fair play, but the howls of protest demanding "nuance" and acknowledgment of "both sides' legitimate claims" from many Jewish organizations do present a dissonant juxtaposition with the happy acceptance of the decidedly unnuanced and one-sided accounts of the conflict that prevailed for many years to the benefit of Israelis.

** Cherrie Moraga, "Refugees of a World on Fire," Forward to the 2nd ed. of This Bridge Called My Back (Watertown, Mass.: Persephone Press, 1983), 33

A Matter of Opinion at NYU

The NYU Review of Law & Social Change, a secondary law journal at NYU, has announced it will be implementing an academic boycott of Israel (it has been condemned by the NYU and NYU law administrations). In doing so, it said two things which should be juxtaposed -- not hard, since they remarkably come in successive paragraphs. First:

[The journal will boycott] Academic activities, projects, or publications “based on the false premise of symmetry/parity between the oppressors and the oppressed or that claim that both colonizers and colonized are equally responsible for the ‘conflict’ . . . .” We find such efforts to be “intellectually dishonest and morally reprehensible forms of normalization” that must be boycotted.

Second:

The academic boycott is an institutional boycott “[a]nchored in precepts of international law and universal human rights,” and “rejects on principle boycotts of individuals based on their identity (such as citizenship, race, gender, or religion) or opinion.” [emphasis added]

So the journal won't boycott a scholar based on his or her "opinions", except insofar as their "opinion" takes the form of proposing ill-defined "symmetry", in which case it "must be boycotted". Roger that.

In fairness, the journal is quoting from the PACBI guidelines here, so its incoherence is not fully its own.

Anyway. Among the calls of the journal is for NYU to shut down its longstanding collaboration with Tel Aviv University, and it says it will refuse to participate in any programs which are "convened or cosponsored" by TAU or other "complicit Israeli institutions" ("complicit", here, is a three-syllable word for "all", albeit with some inchoate amount of room for fudging attached). Query what would happen if NYU Law simply had all of its affiliates (no need to single out Tel Aviv University -- NYU Abu Dhabi, Madrid, and all the rest can play too) provide some pro forma contribution to cosponsor all its events for the year? Could be interesting.

We Chose This

I was in middle school when Columbine happened.

At the time, it felt like a national watershed. In hindsight, I actually don't know the degree to which Columbine stood out from other school shootings, versus whether it just happened to be "the" big shooting that occurred in the formative part of my life where I began paying attention to such things. Maybe for people born a few years earlier or a few years later, a different school shooting was "the" shooting. Lord knows we don't lack for choices.

Nonetheless, I remember thinking then that obviously Columbine was going to prompt us to do something about gun violence. There was no chance that our collective response to that tragedy would be to do nothing. As a kid, you believe adults are interested in protecting you. Perhaps as an adult, without strong evidence to the contrary, you also believe other adults will take the steps necessary to ensure children aren't being gunned down in schools or in streets.

But, more than 20 years later, our response to school shootings has indeed been: essentially nothing. We can't say we're still "working on it", or that we're still processing. At this point, it is fair to say America has made a conscious choice as a polity that we find school shootings to be an acceptable price to pay in exchange for allowing guns everywhere.

Twenty years after Columbine, nobody can pretend as if we don't know the consequences of our choices. We chose to let Oxford happen. We'll no doubt choose to let the next one happen too. There is nothing surprising or shocking or even unexpected happening anymore. Each of these deaths is attributable not just to the loathsome gunmen who pull the triggers, but to choices we've made collectively as a community. We are committed to an open highway of free, unfettered access to guns, and these bodies are the change the NRA throws into the tollbooth on the way.

The Sovereign's Grace, Kosher Food, and BDS at UofT

A BDS resolution passed by students at the University of Toronto's Scarborough campus is in the news, primarily because of one interesting wrinkle: it specifically addresses the matter of Kosher food sources. In particular, while the resolution sweepingly targets goods, services, and events which it deems implicated in Israeli apartheid, it offers a narrow carve-out for Kosher food products if "no alternatives are available." The specific policy language is this:

Efforts should be made to source kosher food from organizations that do not normalize Israeli apartheid. However, recognizing the limited availability of this necessity, then exceptions can be made if no alternatives are available.

The resolution was, for what it's worth, sharply criticized by the President of the University.

I do want to focus on this Kosher food issue, though, because it raises some interesting issues. The specter of the student government policing how Jewish students gain access to Jewish food -- seeking to ensure that Jews obeying the dictates of their faith do so in a way that satisfies a political litmus test set by the student union -- understandably rankles many Jews on campus (not the least because one suspects there are sharply different opinions between the student government and the median Jewish student about what it means for a food organization to "normalize Israeli apartheid"). Yet, at one level, this language was almost certainly meant as a conciliatory gesture -- an accommodation meant to alleviate burdens placed on Jewish students by the resolution by treating Kosher food options more leniently and opening the possibility of exemption. There is history here: a few years ago the UofT graduate student union made headlines for refusing to support Kosher food access on campus, on the grounds that the campaign was allegedly incompatible with BDS commitments. This was highly embarrassing for the union, which was forced to issue an apology. I strongly suspect that this provision of the new resolution was meant to avoid, or at least, ameliorate, the prospect of a repeat. I can even imagine the student union being surprised and hurt that their kind-hearted, magnanimous gesture is being thrown back in their face with such revulsion.

And yet. Often times, supporters of BDS lean so hard on the trite truism "Israel and Judaism are not synonymous" that they begin to act almost as if any connections between the two are wholly  idiosyncratic and coincidental. It can end up verging on the comical: "Israel is related to Judaism? Why, I had no idea -- in any event, that interesting factual tidbit, which never occurred to me until just now, certainly has nothing to do with anything I'm doing." But increasingly, it is becoming impossible to overlook the obvious fact that BDS commitments, interpreted expansively, necessitate significant regulation of Jewish political, social, cultural, and religious life, including aggressive and systematic policing of which Jews are okay to talk to or work with. The SunriseDC fiasco was one manifestation of this, the AMP position paper seeking to establish rules regarding when it is okay to collaborate with Jews is another. The myth that "BDS" will or perhaps even could be pursued in such a way that only incidentally and idiosyncratically affected Jews qua Jews (as opposed to "Zionists" or "settlers" or "occupiers") is collapsing.

Even if in the minds of the resolution drafters they were resolutely thinking about Zionists, Zionists, Zionists, and not Jews, Jews, Jews; there was no avoiding the reality that in practice the brunt of the impact would be felt far more in the latter capacity than in the former. Indeed, while virtually none of the entities which support BDS are in a position to impose regulatory burdens on the Israeli state, they absolutely can regulate their local Jews, and so it is the local Jewish community that in practice will predictably be the main venue through which these campaigns actually regulate conduct (I am hardly the first to note that BDS does far more to injure diaspora Jews than it does to harm Israel in any concrete way, let alone motivate Israel to alter its conduct). Who is most likely to have a speaker, or a food product, or a program, that potentially runs afoul of the guidelines (and who is most likely to have their speakers/foods/programs checked and rechecked and placed under the finest microscope to ensure they satisfy the relevant political litmus tests)? It's the local Jewish groups (and not just on matters that directly relate to Israel, either). The effect of these mandates is to place Jewish groups under constant, humiliating surveillance and interrogation to ensure they're not stepping out of line ("Wanna support the miners--what's your position on Zionism?" Or for a campus example, just ask Rachel Beyda). 

Critics sometimes argue that if the Jewish community in North America is that tied up with the Jewish community in Israel, that's an "us" problem. But it is simply not reasonable or feasible to expect the Jewish community writ large to wholly disentangle itself from a place where nearly half the world's Jewish population (and well more than half of the non-European Jewish population) lives and which is central to Jewish religious worship, history, and culture -- particularly given the depth of the "disentanglement" demanded (whereby nearly any connection whatsoever is sufficient to be deemed "complicit" or "implicated"). And again, that sort of insistence on a sweeping and dare I say revolutionary reorganization of Jewish public life is necessarily one that represents a "significant regulation of Jewish political, social, cultural, and religious" affairs. Even if one supports that revolution, and even one supports it so fervently that one is fine with it taking place via external non-Jewish compulsion, at the very least those making this demand cannot plausibly hold to the comforting myth that "we're not talking about Jews". They are, inescapably, and Jews are not doing anything unfair or unreasonable in calling it what it is (a few proponents of the revolution -- some Jewish, some not -- are open in saying "yes, we are targeting the Jews for compulsion because the Jews need and deserve to be compelled", and at the very least I appreciate the honesty).

History provides many examples of edicts placed upon the public whose effects would be to make Jewish public life difficult or potentially impossible. And sometimes, the sovereign in his grace would agree to the possibility of dispensation or exemption for Jews, or at least worthy Jews or sufficiently well-connected Jews, or for the Jews who impressed him and garnered his favor. Much of Jewish political history has been the project of begging for the establishment of these exemptions, begging for them to actually be effectuated, and then begging for them not to be removed or retired when the sovereign's mood changed. And on the one hand, the prospect of these exemptions existing is better than them not being available at all. On the other hand, their presence really hammered home the degree to which the Jews were at the mercy of the sovereign's whim; it illustrated in stark tones who was the law-maker and who was the supplicant subject.

The UofT clause on Kosher food is heir to this tradition. The broad sweep of the resolution risks making Jewish qua Jewish life on campus intolerable (there is a reason why the Nexus definition of antisemitism specifically includes as a species of antisemitism "conditions that discriminate against Jews and impede their ability to participate as equals in political, religious, cultural, economic, or social life."). The law-makers in their beneficence thus offer the possibility of an exemption, if those seeking it come with the right amount of supplication and prove their worthiness by demonstrating to the student union's satisfaction that there is absolutely no "alternative". How gracious! But in its grace, it actually lays bare something previously obscured. In so many words, what the student union is doing is developing an official bureaucratic apparatus whose job specifically is to regulate and oversee Jewish religious life -- with no question regarding who ultimately holds the power and who comes in as a mere petitioner.

Ironically, when there was no exemption at all it would be perhaps easier to cling longer to the myth that the impact on Jews qua Jews is mere idiosyncratic coincidence. The drafters surely would concede that there might be some people who might happen to be inconvenienced by the resolution and it just so may happen that some number of them (who can really say how many) might be Jewish -- but such is life! These things happen! Here, by contrast, the prior history of the Kosher food issue meant that the student union here finally had to admit to itself "yes, thinking about Israel and Zionism means also thinking about Jews" (lack of definitional identity notwithstanding). And in doing so, and in actually being somewhat responsive to that thought, it made visible the actual power dynamics in play that perhaps previously could be denied.

Journalistic Defectors

One of the more dangerous players in contemporary discourse -- or at least one of the types that makes me the most nervous, anyway -- are people who are trained as journalists, who know the forms of the genre, but now are working consciously and intentionally as advocates.

Adam Kredo -- he of Kamala Harris' pot-gate -- is one example. Before joining the Washington Free Beacon, he was a relatively well-respected "neutral" journalist working for the Washington Jewish Week. Now, nobody confuses what he does for the Beacon as dispassionate journalism (except maybe Kredo, who claimed -- apparently with a straight face -- that at the Beacon he remains a straight news reporter who is "not in the opinion biz"). Nonetheless, there's little question that Kredo is more effective as a purveyor of partisan hit pieces precisely because he knows how to write an article in a way that follows journalistic conventions. Get quotes from alternative sources, ask subjects for comments (that they're damned if they do and damned if they don't is a bonus), do much of the heavy narrative lifting not by direct accusation but in terms of presuppositions and framing -- it works in a way that more direct propaganda doesn't. I suspect the "news-ier" side of Fox News (not Tucker Carlson or Sean Hannity, but the parts that present themselves as straight coverage) fits this mold too.

On the other side of the street, one can see similar characteristics at Jewish Currents. Again, many of the people writing for Currents have clear talent as journalists, and their stories track journalistic conventions. They aren't obvious agitprop. But they're great examples of how, if you know what you're doing as a journalist, you know how to push every convention to the limits of its tolerance band in a way that gets you to something pretty close to agitprop while still looking on face like a regular investigation. If every choice of framing is meant to accentuate one side's story, if every presupposition of the relevant political climate or social atmosphere reaffirms a particular point of view, if every inference or interpretation is just a little credulous to the right people and cynical to the wrong ones, the result is an article in which all the constituent elements are defensible as fair but the net result is intentionally one-sided (their piece on Ritchie Torres I think works as a decent example of what I mean).

I've sometimes said that the "evil" version of me would make a good press secretary, because I think I'd be very good at spinning effectively. This is a version of that -- if you're a journalist, you know how the narrative machine works, and knowing how it works you also know how to break the machine. And as parts of a political toolkit this is very effective; arguably even necessary, even as it is also intentionally manipulative and kind of hackish. The reason "evil" me is a Press Secretary rather than actual me is that in real life I don't have the stomach for that sort of work. Which is not the same thing as saying that either I or the people I admire are perfectly virtuous or fair-minded in how we relate to our own interlocutors. We have times our biases shine through too. But there is, I submit, a difference between unknowingly being swayed by one's personal biases, or even a temporary lapse acknowledged as a wrong, and knowingly and self-consciously trying to align one's work product with one's biases to the maximum extent possible.

In any event, I suspect the people who do this are in fact decently self-conscious about what they're doing -- they don't (contra Kredo) actually think they're not engaged in opinion; they're relatively open about their agenda. Press them, and they might say something like "all news coverage has a political agenda behind it; the difference is that we are self-conscious about it, whereas the people who think they're doing straight news are more likely to be unconsciously parroting orthodox Pablum without recognizing that's a view too." And I have some sympathy for that critique, actually. We all could stand to be more reflective on what our biases and presuppositions are. But I also think there is a difference between actually trying to understand issues on their own terms and be fair to subjects one is covering, versus just going through the motions of it because "hey, everyone has an agenda right?" Such is the curse of many liberal values (objectivity, neutrality, even-handedness, etc.): they're simultaneously impossible to achieve, and yet things are so much worse when people stop even trying to achieve them.

Demystifying the very much non-neutral "mainstream" coverage norms need not necessarily take the form of "replicating those norms, but intentionally and in service of a different political program." But in practice, it often does, and the result is I think work product that is very slick, very effective for its chosen audience, and very dangerous for the project of fair-minded discourse.