The Innocence of Youth

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

Rate That Apology!

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

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

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

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

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

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

Garofalo proceeded to say:

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

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

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

2014 Will Be The Year

Michele Bachmann accuses Jews of "selling out" Israel.

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

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

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

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

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

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

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

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

It Is What It Is

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

The question text reads:

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

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

Spiting Faces

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

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

Let Me Explain

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

Insert argument here.

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

Does an Originalist Constitution Need a Standing Doctrine?

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

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

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

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

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

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

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

Return on Investment

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

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

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

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

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

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

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

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

Distractions

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

The Ruthless Suppression of All Dissent Continues

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

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

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

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

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

Can't Stop the Censorship Train

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

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

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

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

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

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

Lessons in Hyphenation

Jon Chait on treating college athletics like a market:

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

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

This is How I Vacation

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

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

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

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

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

Nobody Calls Israel a Maoist State

At Tablet, Yair Rosenberg has an interesting retrospective on a 1961 debate between British historian Arnold Toynbee and Israeli diplomat Yaacov Herzog, regarding the legitimacy of the state of Israel. What is striking about the debate is how little the terms have shifted (particularly notable given that this was before Israel took over the West Bank and Gaza following the 1967 6-day war).

Toynbee was casually anti-Semitic (he considered Judaism to be a "fossil"), a sentiment that was hardly uncommon amongst elite Englishmen of the time period. And his main charge -- which prompted the debate challenge in the first place -- was his claim that Israel was morally equivalent to Nazis. Then, as now, this claim was trotted out without any sense of proportion: "Nazi" was little more than a stand-in for "person who did bad things"; because Israel had undoubtedly done bad things in the War of Independence, Israel was akin to a Nazi state. The problem, as Herzog observed, is two-fold.

First, "Nazi" is not in fact accurately used to describe an otherwise run-of-the-mill state that committed some wrongdoings. To diminish Nazism to such genericism is in effect a form of Holocaust denial -- it replaces the incredible magnitude and gravity of the Nazi Holocaust with a vague wave at condemnation. One sees this too with how some people treat racism -- stripping away the sheer sweep of centuries of ruthless murder, rape, terrorism, and enslavement; replacing it with some bromide about how for awhile we may not have quite lived up to our highest moral ideals. And if that's all racism ever was, then sure, every time President Obama suggests a policy proposal we find objectionable really is "just like slavery."

Second, if "Nazi" really does mean nothing more than "state which has committed a wrongdoing," then not just Israel is guilty. The UK is a Nazi state. America is a Nazi state. India is a Nazi state. Each of Israel's Arab adversaries is a Nazi state. Palestine will be a Nazi state. So why, then, should Israel be uniquely called out for being a Nazi state? If "Nazism" really is that mundane, it's almost not an observation worth making. But what's really happening is that Jews are being asked to meet an idealized standard of justice expected of nobody else, and when they inevitably fail to do so it is not seen as failing "normally", but rather as sharing space with the most monstrous of monsters.

But all of this, to me, raises another questions, which is "why Nazi?" If what we're really talking about is just a banal form of evil -- or hell, even if we're talking about much more serious, extreme evil -- Nazis are hardly the only choice we have. As offensive as the "apartheid" state analogy is, I will credit it as being less offensive than calling Israel and Jews Nazis. The reason people use Nazi this way -- divorced from the actual historical significance of the term, untethered from any proportionate sense of what the Nazis actually did -- is that it wounds Jews. That label appeals over all other ones because it has the unique capacity to hurt Jews on account of their Jewishness. It's akin to "criticizing" a Black person by calling him a plantation owner, or a lynch mob leader. It gains its power from a history of oppression, and when you are leverage historical oppression against the oppressed, that's prima facie evidence of racism or anti-Semitism no matter what your motives are.

Within all this, it is important to remember what the Holocaust actually "establishes" as relevant to contemporary discussions about Israel and Jews. Many people contend that Jews think the Holocaust has rendered them "perfect", unassailable, or immune from criticism. They seek to leverage the rhetoric of the Holocaust against Jews so as to remove this allegedly illicit gain, this wrongful bounty we illegitimately seized after being so lucky as to have been subjected to mass murder. But the Holocaust does not establish Jews are perfect -- it establishes that non-Jews aren't.

The fact of the Holocaust and other acts of anti-Semitism doesn't establish that Jews are unassailably virtuous. Why would it? There's nothing about oppression that purifies its victims -- imperfect people can be victims too. What it establishes is that non-Jews are not perfect; it destabilizes the hegemonic presence of non-Jewish voices and thus creates space for Jewish voices to be heard. To the casual observer that looks like a claim that Jews are "perfect", but that's only because Jews are claiming the right to speak on equal terms with a non-Jewish presence that had previously arrogated to itself a label of universal transcendence.

The frame that oppression makes the oppressed "perfect" is really more of a reactionary step. The framework sets up for Jews (and other minorities) a standard they can't possibly meet. And once they fail to meet it, it justifies stripping the label of "victim" and returning to the status quo where they can safely be ignored. It obviates the need to problematize the non-Jew in favor of providing a temporary elevation of the Jew to non-Jew status, contingent on the Jew maintaining a standard of conduct that nobody else can or is expected to meet.

(Original Tablet link via Daniel Goldberg)

Weekend Roundup: 1/31/14

Very busy at work right now. But I have a vacation coming up in a week. These two statements are not unrelated.

* * *

A fascinating peek at Utah's efforts to reform police raids.

The White House has announced it is looking to provide clemency to low-level drug offenders convicted in the days of overly-harsh mandatory minimums. Reason Magazine wonders if he's serious (both links via Radley Balko).

Maine Supreme Court rules that rules that banning a female transgender student from the girls' bathroom violates the state's anti-discrimination law.

Ken White at Popehat tackles people who compare critical speech to "lynch mobs", "the Holocaust", "witch hunts", and other like terms. Fair enough, but I again refer back to this post. "Bullying", for example, often includes physical intimidation, but just as regularly is "just" speech -- yet even Ken seems to recognize that this legitimately seriously harmful in a way that he dismisses in other contexts.

Meanwhile, Jon Chait tackles the ludicrous opinion of the Wall Street Journal that maybe rich people really are at risk of a Holocaust-style wave of terror. Kevin Drum takes a closer look at why -- against all evidence -- the rich "feel" besieged.

Breaking Madden

Who would have thought Madden 25 would have a kill screen?

Does that Star-Spangled Banner Yet Wave

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Friendly Rivalry

Without a doubt, the most important thing about this story is that JDate and Christian Mingle collaborate on an annual survey.

Also, Jews are less likely to cheat. So that's good.

David Hirsh's 101 Lesson on Opposing BDS

David Hirsh, in a masterful post gets all the key points of the anti-racist and counter-anti-Semitic movement against the BDS in one place. This is a necessary resource (Engage is already a necessary resource, but this post is an absolutely invaluable compilation).

The Wheel Never Stops Turning

Ta-Nehisi Coates writes:

From time to time, someone will ask why I write so much about racism. The underlying charge is that a writer should cease to follow his curiosities. I might well retort that Paul Krugman should stop writing about the economy, or Jeff Goldberg should stop writing about the Middle East. The difference is that the world which racism made is seen as a niche issue, with no real import. "Gender" and "women's issues" are often regarded in the same way.

And I thought that was strange, because of course plenty of people do say Jeff Goldberg should stop writing about the Middle East -- less because it is viewed as a "niche" issue and more because Goldberg is viewed as a niche person. Specifically, it is often argued that -- as a Jew with substantial ties to Israel -- Goldberg is biased, that he should leave the discussion to neutral, non-partisan gentile hands.

I'm reminded of the post I wrote about Judge A. Leon Higginbotham's opinion declining to recuse himself in an employment discrimination suit (Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (E.D. Pa. 1974)). Judge Higginbotham was black and a known civil rights advocate, and therefore, according to the defendants, biased. One of the examples Judge Higginbotham cited in declining to recuse himself was his Jewish colleagues:

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

My post, of course, turned the full circle -- in response to people who do say that Jews should not speak or should not be in positions of authority on matters relating to Jewish interests -- I used Judge Higginbotham's powerful opinion as a counterpoint. Higginbotham uses the example of Jews to help Blacks, I use the example of Blacks to help Jews. There's no jealousy, only an example that can help check a common foe.

And on the flipside, why do we see the same rhetorical tropes used to silence Jews and Blacks alike, in seemingly such different contexts? Well why wouldn't we? If a given tactic for maintaining a particular hierarchy has worked for one group, why wouldn't it be adopted and utilized by others trying to preserve different hierarchies? The issue here isn't that all oppressions are fundamentally the same, or any such trite nonsense. But oppression is, after all, ultimately about results. Racists take their cues on what has worked for anti-Semites, and vice versa. The prevalence of rhetoric that asserts Jews shouldn't speak on Jewish issues, versus that Blacks shouldn't speak on Black issues, depends primarily on (a) the relative well-being of the groups in question and (b) what community of speakers you're dealing with.