A Bleg For Two Judicial Quotes

In my head, I remember two striking quotes from judicial opinions -- neither of which I can remember the source or even the precise verbiage of. In my mind, they're both from Judge Easterbook, though I can't confirm that.

The first goes something like this:

"On appeal, [Party] raises four issues, three of which won't survive the end of this paragraph...."

The second goes something like this:

"This case pits [Constitutional right], which is in the Constitution, against [other constitutional doctrine -- perhaps the Dormant Commerce Clause?], which is not."

Any help? Did they come from Will Baude? Did Will Baude used to have a personal website with favorite quotes? Am I completely hallucinating?

UPDATE: We got one! Bridenbaugh v. Freeman-Wilson (and yeah, it was a Judge Easterbrook opinion):

This case pits the twenty-first amendment, which appears in the Constitution, against the "dormant commerce clause," which does not.

Why is This Antisemitic?

This was discovered in a bathroom at San Francisco State University this week.


For those who can't see an image, it is a swastika labeled "San Francisco State University", with a Star of David in the middle. Below it, the author wrote "Free Palestine".

Most people have condemned this as antisemitic. I agree. But I want to actual go through the steps. In particular, I want to challenge some of the antisemitism skeptics -- the people who think too much is called antisemitic, particularly in the "criticism of Israel" subspecies -- why this is properly deemed antisemitic (or, perhaps, for them to forthrightly assert that it is not).

In doing so, I want to insist on keeping the focus on the graffiti being a case of antisemitism. Certainly, it is vandalism, and therefore is a crime regardless of whether it is specifically antisemitic or not. Likewise it might be described as rude, uncouth, overwrought, insensitive, or any number of other bad things that nonetheless are distinct from antisemitism. David Hirsh describes this pivot as "pleading guilty to the lesser charge" -- admitting that a challenged piece of conduct is wrong in some way while holding the line that it was not antisemitic. I fully accept that many people will agree that this graffiti was "wrong", in some way, but I want to concentrate on establishing it specifically as an antisemitic wrong.

We spend a lot of time insisting that "criticism of Israel is not necessarily antisemitic", which is true. We spend considerably less time establishing that criticism of Israel is not necessarily not antisemitic either. Yet both are important; and in particular, it is useful to test whether our proposed demarcation lines between what is antisemitic and what is not can capture cases such as this.

So, why is the above antisemitic? Here are some candidates:

• The phrase "Free Palestine". But surely this can't suffice on its own, at least if the "pro-Palestine =/= antisemitic" formulation is to have any legs at all. The fact that the speaker claims to desire a "free Palestine" would not, on its own, establish antisemitism.
• The Star of David. This is perhaps the clearest hook that the target is Jews, not Israel -- but then, we know that some say it is being used not as a Jewish symbol but an Israeli symbol (this was the justification for expelling the Jewish marchers from the Chicago Dyke March -- their Rainbow flag with a Star of David was coded as "an Israeli flag superimposed on a rainbow flag"). One can certainly imagine the "artist" here making that case -- after all, by saying "Free Palestine" they at least implicitly cast their target as being Israel, specifically.
• The swastika. Again, we might think this suffices to establish the drawing as antisemitic. But note that the swastika could be symbolically representing two different things here. One possibility is that it is meant to evoke sympathy for Nazis (the artist saying, in effect, "I am a Nazi; I am making a Nazi point"). In that case, the antisemitism becomes pretty undeniable. But the other possibility is that the artist is intending to saying "Israel is a Nazi state, and Nazis are awful" (the artist is putatively making an "anti-Nazi" point, while associating Israelis or Zionists with the terrible Nazis). Is this formulation antisemitic? Note we just went through this, to some extent, with Eli Valley and the "kapos" controversy (and before that, with David Friedman) -- many people are very insistent that it is perfectly fair game, or at least not antisemitic, to compare Israelis or Zionist Jews to Nazis.

If we think that this scrawl was antisemitic, we implicitly reject at least some of these defenses. We have to commit to the position that using the Star of David to denote a group that you hate is antisemitic, or that comparing Israel to Nazism is antisemitic. And that, in turn, should constrain us come other cases. The fact is, if we think this was an antisemitic act, then we can't be so blithe in asserting that other perhaps more elegant acts whose alleged antisemitism rests on similar presuppositions (e.g., that Israel = Nazi comparisons are antisemitic) are mere "criticism of Israel". And, by contrast, if we want to hold the line and say that it is not antisemitic to compare Israel to Nazis, then we are far harder pressed to agree that even an act like this is an antisemitic act.

It's Just a Flesh Wound!

Donald Trump does not poll well among Jews.

His favorables are a miserable 29/71. His re-elect statistics against a generic Democratic opponent stand at 23/67. Jews overwhelmingly oppose him on virtually every policy: from abortion (40/60) to immigration (33/67) to healthcare (31/69) to the Iran Deal (36/64 -- take note, American Jewish leadership) to antisemitism (29/71 -- really take note, American Jewish leadership). Even his handling of US/Israel relations -- supposedly his strongest suit -- barely squeaks into positive territory (55/45).

Yet if you're the Republican Jewish Coalition, these figures are good news!

Matt Brooks, the Republican Jewish Coalition’s executive director, said the news was good for Trump.

“The Jewish numbers for Trump are a floor and generic Dem numbers are a ceiling,” Brooks said on Twitter. “No one who now says they’re for Trump are going to change their minds. He will get a higher share of the Jewish vote than this.”

Higher than 23%! Can you feel the Jexodus yet?

Oh, and Barack Obama? He stands at a cool 70% favorable, 23% unfavorable spread.

(Another fun bonus stat: Israeli Prime Minister Bibi Netanyahu inspires deep ambivalence, currently sporting a 45/38 favorability spread. That's worse than Bernie Sanders -- 51/43 -- and far worse than Joe Biden's 66/29. But he's still net positive, so hey, congrats on that).

What Did Eurovision Do To Israel?

This is a truly stellar analysis piece by Abigail Nussbaum on the impact Eurovision had on Israel and -- in particular -- the blow it struck against Netanyahu and his brand of politics.

One thing it does very well, which many analyses do not, is that it understands and recognizes Israel as a fully-fleshed out place -- with factions, institutions, power dynamics, and all the rest that are exactly as deep and complex as any other modern state and society. Israel is a "they", not an "it", and the blithe assumption that "if Eurovision succeeds, that's a win for Bibi" is naive to actual facts on the Israeli ground. To the contrary, Nussbaum does great work in establishing how Netanyahu and his allies have all but declared war on Israel's cultural institutions and sought to instead foster a hermit-nation, "us against the world" mentality that is disdainful (if not outright antipathic) to any sort of effort at global communal engagement. Eurovision does not ratify Bibi's view of Israel; it is a direct challenge to it.

In hosting Eurovision, the Israeli government had little choice but to give Israel's cultural institutions their due and resources (as much as Miri Regev might resent it). It featured a presenter descended from both Holocaust survivors and Palestinian refugees, delivering a greeting in Hebrew and Arabic; it featured the grand success of a public media corporation that Bibi had been desperately trying to kill, and yes, it even featured those little Israeli and Palestinian flags on the backs of Madonna's dancers.

Most importantly, in the context of a cooperative, international event, Eurovision also offered a daybreak, however brief, from the "everyone hates us and will always hate us" insistences of the Israeli political right. Against those forces counseling retreat and insularity in the face of an implacably hostile world, Eurovision showed the promise of continued cosmopolitan engagement. As Nussbaum puts it:

[The success of Eurovision] proves that the horror stories we’ve been told about the hatred that awaits us in Europe are nonsense (not to mention cover for Netanyahu’s increasing coziness with actual Nazis, just because they share his authoritarian tendencies). These are messages that the Israeli public has desperately needed to hear, and maybe for some people, they got through.

Game Over

*Warning: Spoilers for the Game of Thrones finale*

So Game of Thrones is finally over. While I'm certainly in the majority camp that the series seriously stumbled down the stretch, all in all it still was a fun ride. And -- taking into account the corner that the writers had painted themselves into -- I actually think the series finale was a pretty decent episode. Yet quibbles are more fun than compliments, so here are my final scattered thoughts:

* I didn't mind the Daenerys heel turn at the end, though I agree it didn't have quite enough run-up. But the group that really suffered, character-wise, was the Unsullied. If we now view Dany as a fanatical would-be tyrant who casually murdered innocents, what do we make of her most loyal footsoldiers who unquestioningly carried out the slaughter? There's a story that could have been told here that carries an arc from their freedom from slavery to their status as a murderer's shock troops, but we never got it because the Unsullied -- even Grey Worm, outside his love for Missandei -- were never developed beyond mere arms of Daenerys.

* But at least there was a vague gesture at trying to resolve the Unsullied's thread: they were offered the Reach, and ended up sailing to Naath (to do what?). The Dothraki didn't even get that much. And to be honest -- they're a much bigger threat than unhappy Unsullied. Unsullied are at least disciplined -- they wouldn't move unless someone ordered them to. Indeed, once the Queen was killed, you could almost see how they froze up -- not executing Jon or Tyrion in the days(?) it took for the Lords of the Realm to gather at King's Landing, and scarcely thinking to contemplate the argument that they had claim to be rulers of King's Landing now. But the Dothraki are a mounted band of marauders whose default setting is to rampage over the countryside pillaging everything in sight, in a land where much of the security infrastructure has been decimated. They're a recipe for chaos.

* That said, the main Dothraki question is clearly "Where did these alive Dothraki come from?"

* I'm not entirely sure why Arya wants to get on a boat and sail west. But I'm sad that Yara didn't appear to be joining her (yes, yes, objectively she should be running the Iron Islands. I still can be sad).

* Bran as King is ... okay, I guess. I think the main thrust of the choice is that he's more of a figurehead who will leave the day to day management to his advisers. It's part of the slow "democratization" process (poor Sam -- your actual democratization process got laughed out of the room).

* If the North secedes, Dorne obviously would secede too. There wasn't really any way to build that into the show and not sap Sansa's speech of all its drama, but it's still true.

* Littlefinger may be dead, but someone successfully lived out his "Chaos is a Ladder" motto. From sellsword to Lord of Highgarden and Master of Coin -- well done Bronn! (Though what would have happened at the Unsullied taken the offer to be ceded the Reach -- which includes Highgarden?)

Who's Afraid of Valerie Plame's Antisemitism?

Two years ago, Valerie Plame -- previously best known as the CIA officer whose cover was blown by Bush administration officials in the run-up to the Iraq War -- got into a bit of trouble for sharing an article titled "America’s Jews Are Driving America’s Wars," published on the far-right White Supremacist website Unz Review.

Plame went through the usual cycle of "it's worth considering!" to "some of my best friends are Jewish!" to "I'm sorry -- but how could I have known an article titled 'America's Jews Are Driving America's Wars' might be antisemitic?" And then she disappeared again.

Now, she's reappeared, announcing a run for Congress in New Mexico's 3rd district. The New York Times did a 12-paragraph piece reporting on this reemergence -- and somehow "forgot" to mention the relatively recent antisemitism scandal she had been embroiled in.

As Yair Rosenberg points out, this is ridiculous and should be unacceptable. I'm actually more forgiving of the Times for not "contextualizing" Alice Walker's antisemitic book recommendation -- it was part of a series with a very particular structure that never included providing comment on the recommendations, so there the editors could plausibly say they were just following procedure. But this was a free-form story written on their own initiative -- it was entirely up to the writer and editors what information should be deemed important enough to include. That Plame's most recent emergence as a public figure came in the form of a high-profile antisemitism scandal should have garnered mention.

Let the Race for Hillel Presidency Begin!

Eric Fingerhut has announced he's leaving his post as head of Hillel International in order to assume the role of CEO of the Jewish Federations of North America. Fingerhut has led Hillel since 2013.

With his departure, Jewish students are gearing up for an exciting race to see who will be elected as the next Hillel President. Like the annual UJS elections, it should be a great opportunity for young Jewish students to make clear their priorities and exercise democratic oversight over the most important Jewish institution on American campuses.

Just kidding: Hillel isn't a democratic association, and so the students whom Hillel nominally serves will play virtually no substantive role in selecting who runs their organization. Fingerhut's successor will be chosen by a non-student body based on his or her appeal to non-student donors.

71% of Jews Must Be Very Confused

It feels like a lifetime ago that a Greek newspaper, writing on Barack Obama's 2008 election, heralded it as "the end of Jewish domination" (in fact, it was over a decade ago). I remarked then that if Obama was the loyal opposition to the Jewish people, then the 78% of us who voted for him must have been very confused.

Today, President Trump's approval ratings by Jews hover somewhere south of abysmal -- he's rocking a 71% disapproval rate (against 26% approvals).

And yet over and over again, I hear people -- usually non-Jews -- describe Trump as "the most pro-Jewish President in American history". Their rationale, I imagine, is that Trump has willingly backed the right-wing tendencies of the Netanyahu government, and that is all they think it takes to be "pro-Jewish".

Of course, it fails to register that many Jews don't actually like the Netanyahu government and thus don't view this joined-at-the-hip quality to be a perk. And beyond that, since American Jews are -- you know -- American, we understandably care far more about how Trump has affected the status of American Jews in America than we do about Trump's self-professed love for us when we're citizens of another country half the world away.

But if I were to describe American philosemitism ("a philosemite is an antisemite who [thinks he] loves Jews") in a nutshell, it's non-Jews completely ignoring what Jews thinks in order to anoint their own hero as the Jews' beloved. In the philosemitic imagination, the opinions of actual Jews are utterly unnecessary (if not actively obtrusive) to the project of declaring what is good for the Jews.

(Cf.: Alabama citing the Holocaust to justify its draconian anti-abortion ban without any regard to actual Jewish teaching and practice on abortion).

Inartfulness is a Human Condition

One thing we're going to have to learn, as Palestinian voices finally start to become a part of mainstream American politics through figures like Rashida Tlaib, is that they are going to be imperfect. And inartful, and awkward, and sometimes wrongheaded. It is a foolish myth to think that when voices-previously-unheard emerge onto the public scene, they do so in a pristine state of innocence and insight -- perfectly clear-eyed, universalist, and humanistic in orientation. Whether this purity is taken as a descriptor (as it is on parts of the naive left) or a criterion (as it is on parts of the reactionary right), it is equally unreasonable and distorted.

The historical fact is that Palestinians did not, in any meaningful systematic capacity, want to assist Jews during the Holocaust or provide them refuge. For the most part, they were actively against it. Haj Amin Al-Husseini is an extreme figure, and his "leadership" over Palestinians can be overstated, but he's not unimportant, and he implicates genuine collaborationist attempts between Palestinians and Nazis. That history needs reckoning with.

Yet the broader historical fact is that virtually no nation or people performed well on the metric of "giving Jews refuge". Not Americans, not Brits, not Australians, and not Palestinians. If it is self-soothing pablum for Palestinians to tell themselves that they tried to give Jews refuge from the Nazis, it is little more so than the British patting themselves on the back for the kindertransport as a means of ignoring their much broader hostility to taking in Jewish refugees -- a hostility which was explicitly antisemitic in character. Everyone prefers to think of themselves as solely the part of the hero (or at least the noble victim), but part of growing up means accepting the warty parts of one's own history.

But again, this is a very human foible. Awkward attempts at historical revision to make oneself feel better, but which have the effect of minimizing or downplaying the wrongs done to others, are an ever-present feature of political life. That doesn't make them unreal, it just makes them ordinary. If you're Jewish and Zionist, think of all the times you've heard and perhaps repeated the mantra "a land without a people for a people without a land." Imagine what someone like Rashida Tlaib thinks when she hears that. It is a mantra downplays hurt caused to another -- people who very much were also of that land. Eventually, upon encountering the narratives which inform us of how it hurts, the better among us shift to new language -- but that awkward moment of transition will always be there. And so when we hear tales of how Palestinians "gave" Jews refuge, and bristle as to the historical illiteracy of the claim, we are indeed experiencing something. The point, though, is that it is nothing different from what many others -- Palestinians (and Jews, for that matter) included -- have experienced before.

In reality, imperfection and awkwardness and partiality and belief in comforting myths that make one out to be the hero of the story is a human condition, not a specifically Palestinian one. The sooner we attribute it to being typically human rather than atypically monstrous, the better of we'll be.

"And Never Rat on Your Friends!": NYC Sexual Harassment Edition

If you've ever taken a company- or university-mandated sexual harassment seminar, you probably remember those multiple-choice quizlets they always hand out. The option set usually comes with one or two reasonable-sounding answers, one answer which the facilitator drummed into you is the wrong answer, and then one answer that's just flat bonkers. For example:

[New York City] councilmembers were presented with a hypothetical scenario in which they were “asked what they should do if they overheard a chief of staff making sexually inappropriate comments in an elevator” that “visibly upset” a female staffer.... According to multiple city councilmembers present, [Ruben Diaz Sr.] interrupted the presentation to scream, “I’m not gonna rat my people out! This place is full of rats!”

Oooookay. And Diaz is not even close to a first-time offender here.

Sadly, he's also not a complete nobody. Diaz is running in the Democratic primary to replace retiring Rep. Jose Serrano in a deep-blue district. You'd think a guy who campaigned with Ted Cruz and talked about how much he liked Donald Trump would be toxic in New York City, but for whatever reason Diaz seems to have strong local backing in his corner of the Bronx. We'll see if it translates to an entire congressional district though -- Serrano, for his part, is a member of the House Progressive Caucus and sports an A "progressive punch" rating, so it's hard to see the district as a whole voting for a self-described "conservative" like Diaz.