Tuesday, February 23, 2021


There's a common debate that pops up every time a celebrity or some other figure runs into a scandal, one that's serious enough to threaten their career, but not serious enough to put them in prison. A lot of #MeToo cases fall into this category, though this isn't the only case, but it works as one to keep in mind (think Louis C.K.). At some point, after apologizing (whether sincerely or opportunistically) and laying low for awhile, they'll try to restart their profession. Once this happens, the pattern is almost rote:

  1. Some group of people will condemn the person for trying to restart his career ("You won't believe who's attempting a comeback!"), and/or condemn the venue for hosting him.
  2. A different group of people will defend the celebrity, asking whether or not his "whole life should be ruined" and whether he should be prevented from making a living in perpetuity.
  3. The first group of people will retort that not having access to some celebrity spaces is hardly the same as having one's life ruined nor is it a complete bar on any money-making endeavor. Lots of people, I'm told, live perfectly comfortable and money-earning lives without getting standup comedy specials or starring movie roles. Meanwhile, the person's re-entry into the professional space also will have the effect of rendering it unsafe and/or uncomfortable for members of the group the celebrity had previously victimized.
I think there's reasonable purchase in that third move. However, it does carry with it an implicit promise -- that there is some space where the erstwhile celebrity could enter into which would be legitimate (as a means of making money, continuing with their life, etc.). When one says "'not here' is not the same thing as 'life-ruining'", there is tacit "try over there." And that raises the question: where is the "there" that is okay?

Let's take Louis C.K.. Suppose in the wake of his scandal he takes a random, normal-person job -- I don't know, he's working at a call center. Being a former celebrity, he's quickly recognized. And some of the employees are uncomfortable with him around, knowing what he had done to people like them. What happens if they complain, and say "we don't want Louis C.K. in our office?"

The implicit promise in position #3 requires that, for at least some non-theoretical set of cases, that complaint has to be turned aside; notwithstanding that part of the force of position #3 is precisely that Louis C.K.'s presence in a given space exacts costs upon the women already occupying it (and that applies with similar, if not identical, force, if he's working at a call center compared to a club). Given that, do we have confidence that the advocates of position #3 will be able to find circumstances where they say "no, we do not support hounding this person out of this space -- they may not be allowed to redeem themselves in the celebrity sphere, but this place is okay."

It seems we have a classic NIMBY problem, or perhaps a N(R)IMBY problem (No Redemption in My Back Yard). Most of us probably are fine in concept that there exist some space where Louis C.K. goes off to live his life, perhaps not as a celebrity, but not in a state of utter banishment either. But none of us want it to be in our backyard. Redemption is a social good, we agree, but it shouldn't occur here but ... elsewhere -- an objection that will attach to virtually all "heres" with nary a suggestion of viable "elsewheres". Ironically, the most likely "elsewhere" that will be stuck with him over their own objection is an elsewhere populated by people who largely lack social power and influence. Indeed, to some extent, this is a feature of the "he can live his life, but not as a celebrity" account -- it's fine for him to seek redemption, but it should occur among the normies.

This is a problem I've puzzled over, and I don't have a really good solution to it. It's no answer to say that the person should do the work of repentance and redemption before they can make a claim to "live their life" in any space -- the work of repentance and redemption occurs in occupied space; it is impossible to do it from a place of social banishment. And if you're accusing me of a strawman -- nobody is arguing for outright "social banishment" -- then my goal here is to call the bluff a little bit and ask "okay, so where is good?" Is it low-level performances in their field? Interviews with journalists about their misconduct? Working at charities? Can we honestly say that in any of these cases, that we haven't seen at least some pushback -- "they shouldn't be here"? And again, it's not that I lack sympathy for what's motivating that pushback. But I am not sure how far it should go, and how far it can limit itself in going.

Monday, February 22, 2021

Trump's "Liberal"* Eighth Circuit Appointees

As many of you know, I did my clerkship on the United States Court of Appeals for the Eighth Circuit, for the late Judge Diana E. Murphy. It was a fantastic experience. It was also an eye-opening experience, not least because the Eighth Circuit is by far the most conservative court in the country. How conservative is it? I think there's a plausible case to be made that Donald Trump's appointees to the court were to the left of the median active judge on the circuit at the start of his administration.

The active judges at the start of Trump's administration, ordered from most liberal to most conservative (this is my somewhat arbitrary ranking), were:

Kelly, Smith, Shepherd, Wollman, Benton, Loken, Riley, Colloton, Gruender

The ideologically median judge would be Duane Benton. I've italicized the two judges that went senior during Trump's term; he also got two more appointments from judges (Bye and Murphy) who went senior at the tail end of the Obama administration but whose seats were still empty at the start of Trump's term.

Now let's order the current judges (italicizing Trump's appointees):

Kelly, Smith, Grasz, Shepherd, Kobes, Erickson, Benton, Loken, Straus, Colloton, Gruender

Three of four appointees are to Benton's left; the new median is Judge Ralph Erickson. Now, again, there's some amount of arbitrariness to this; I wouldn't read too much into the precise order (e.g., if one flipped Kobes and Erickson I'd hardly have any basis for objecting). Moreover, judges of course can be "liberal" on some dimensions but not on others (Smith, for example, is exceptionally conservative on issues like abortion but is more liberal on issues of discrimination and qualified immunity). And to be clear -- none of these judges (excepting Kelly, the sole Democratic appointee) are liberal under any objective standard. 

But even with all those caveats, there's a decent case to be made that the Eighth Circuit was so outrageously rightward slanted that Trump actually managed to slightly shift the court to the left. That's amazing.

Sunday, February 21, 2021

What Happens When There is No Contraception

The New York Times has a harrowing story about women in Venezuela who cannot access contraception. A raging economic recession has made condoms, IUDs, and other birth control products prohibitively expensive for many poorer women; at the same time, the cost of raising a family has also spiraled out of control. Many women have resorted to shady back alley abortion attempts (it is still illegal in the country), but unsurprisingly these are exceptionally dangerous.

If you're a conservative, maybe the fact that it's Venezuela and you can nyah-nyah about it since Chavez is of course AOC's role model for Americana will make the story resonate more. But let's be clear -- America is not as far off from this as we'd imagine ourselves to be. The legality of abortion is on the very brink, and cases like Hobby Lobby threaten contraceptive access as well -- again, especially for poorer women. It may be that in a few years, the main difference between America and Venezuela is that we have proportionally fewer women in the sort of abject poverty that is comparable to that found in the South American country -- but for those who do find themselves in that situation, this story could easily become a U.S. story as well.

Monday, February 15, 2021

Where Am "I"?

This post has no political content whatsoever. It is a random, rather inane question I was pondering last night.

When I think of where "I", am, spatially speaking, the answer is "my brain". That is the seat of my consciousness, it is the physical location I identify as being occupied by the core of my being. When I think, the spot where I feel like the thoughts come from is my head. Which makes sense, since my brain is where I do all my thinking.

But it also so happens that my brain is right behind my eyes. If we imagine our eyes as the holes in our body that we peer through to see the world, it makes sense that we'd conceptualize ourselves as existing right behind them. So maybe that's why that particular spot is the one we associate as being where "we" are.

So here's the question: If our eyes were in our chest, would we still view ourselves as centered around our brain? Or would it move to our chest? Or flip it: if our eyes were still in our head, but our brain was in our chest, would we still identify our thoughts as coming from our head or from our chest? (Or perhaps there'd be a more fundamental divergence between where we feel our thoughts "exist" -- our chest -- versus where the broader core of the "I" is -- our head).

Again, no big moral to this question. Just a random thought that grabbed my attention last night in lieu of sleeping.

Sunday, February 14, 2021

What To Make of Haley's "Break" With Trump?

The JTA's headline says it all: "Nikki Haley broke with Trump. It could make her a Jewish GOP favorite in 2024."

Well, perhaps not all. "Broke" is a very friendly way of putting it; I might go with "lickspittle stops licking." But that's editorializing.

In any event, what do we make of this decision by Haley?

Let's start with the Jewish angle, since that's how JTA frames it. I do think that Haley is well-positioned to be the Jewish GOP favorite in 2024, since she's followed a similar trajectory as most GOP Jews with regard to Trump. Start by loudly disavowing him, shift to "well, but look at what he does for Israel," crest at treating him like their God. Now that we're falling off that peak, I suspect they'll settle back into the groove of "sure he wasn't perfect, but Israel!", and Haley, viewed as the human instantiation of Trump's Israel advocacy, is well positioned to take advantage of that. The incongruity of going from genuflecting at Trump's magnificence to "breaking" with him will be easily overlooked, since much of the Jewish GOP will be doing the same contortion.

But what about Haley's 2024 prospects more generally? Certainly, there's risk -- as the last few weeks have shown, the GOP is still very much Trump's party. Nonetheless, I think this is a savvy move. Simply put: Haley wants to be President in 2024. That won't happen if Trump is strong enough in the GOP to win the Republican nomination. So Haley might as well act as if he won't be -- if he is strong, her support for him will be moot, and if he's weak, she has the advantage of presenting a clean ("clean") break.

Moreover, Haley doesn't currently hold elected office, so she doesn't have to worry about a primary backlash or other ways of the Trumpist base directly humiliating her. And even if Trump does hold his position, he's perhaps surprisingly tolerant of welcoming former adversaries back into his orbit if they grovel hard enough (see Graham, Lindsey). Haley may be saying that "we shouldn’t have followed him, and we shouldn’t have listened to him. And we can’t let that ever happen again," but I guarantee that if Trump remains the prime 2024 GOP power figure, Nikki Haley will absolutely be eager to do it all over again. And fortunately for her, that puts her in the same position as 95% of the GOP.

Well played, Haley. Well played.

Tuesday, February 09, 2021

How To Meet With the Jewish Community

Contrast two JTA stories of Republican congresspersons who had recently antagonized, or at least raised the eyebrows of, the Jewish community.

The first is Rep. Madison Cawthorn (R-NC), whose lowlights include a slightly-too-excited trip to see Hitler's bunker, appropriation of a poem about the Holocaust, a stated desire to convert Jews to Christianity, and, of course, inciting an insurrection against American democracy. The story is titled "Following a string of controversies, Madison Cawthorn meets with his Jewish constituents", and details the variety of Jewish community members whom he met with, including a local synagogue director,  an area pulpit rabbi, a Jewish educator, the executive director of a Jewish community center and a Jewish conservative activist. A diverse and seemingly plausibly representative bunch. I'm not saying that I think the meeting was or wasn't productive, or that it makes Cawthorn an ally of the Jews. But if you're going to reach out to the Jewish community after a controversy or scandal, this seems roughly like the way to do it.

Compare that with our second contestant, Rep. Mary Miller (R-IL), who gained notoriety for saying "Hitler was right on one thing" just before the Capitol insurrection. The title of this story is "Congresswoman who said ‘Hitler was right on one thing’ meets with rabbis", and my assumption on reading that headline was that she was meeting with local rabbis from synagogues in her district. But I was mistaken: the meeting was actually with representatives from the "Coalition for Jewish Values", a fringe right-wing group that has long carried water for the GOP. They had no particular connection to her district or the Jews who lived within it; the pull quote they offered as an apologetic for Rep. Miller came from a Rabbi residing in Florida.

This is most certainly not how one "meets with the Jewish community." It is the right-wing equivalent of a Democratic politico addressing concerns of antisemitism via a meeting with JVP. In either case, the clear ambition is not to actually hear the perspective of the Jews one represents, but rather to find some Jews who already agree with you and will offer themselves as shields against the communal majority. I have written at length as to why this sort of tokenizing move is an ethical no-no -- for both the tokenizer and the tokenized -- and I reiterate it here. Nobody should be fooled by what Rep. Miller is trying to pull here (and I wish the JTA would update their headline so that it doesn't have the potential to mislead).

(And, by the same token, kudos to Rep. Cawthorn for doing it right. The tokenization move is too easy and one sees it too often, and so while I don't want to give too much praise for doing the bare minimum, I do feel compelled to give at least a tip of the cap to him for avoiding the easiest dodge available).

Monday, February 08, 2021

What are the GOP's COVID Relief Ideas?

We keep on hearing complaints from Republicans about how the COVID relief bill needs to be "bipartisan". For my part, I'm all in favor of bipartisanship. I welcome any and all Republicans to vote for the COVID relief bill that Democrats bring to the floor.

But in all seriousness, I have no intrinsic objection to incorporating Republican ideas into the COVID relief bill. The problem is I don't know what ideas Republicans have. So far, their main ask has been to request that the bill do less to help fewer people. That's not an idea, that's a contraction of the Democrats' idea. Does the GOP have any positive suggestions for things that could improve the bill?

The one actual policy idea I recall Republicans proposing in the past is tort immunity for businesses that reopen during the pandemic. That's an idea. It's a profoundly terrible idea, and Democrats absolutely should not take them up on it, but it is at least an idea -- it is not just the negation of a Democratic idea.

Do they have any others? Preferably, ones better than "businesses should be allowed to murder their employees with impunity"? Or is the "party of ideas" stuck at preferring more misery over less?

Watching the Mainstream Jewish Community Stand Up to Lies About Ethnic Studies

When I saw Tablet Magazine had published a rapidly-going-viral article on the California Ethnic Studies curriculum, I felt a despairing sense of deja vu. I had already seen some other hit jobs on the curriculum floating around the Jewish media, and I knew that many of the claims undergirding the attacks were misleading if not false. Yet I assumed we were in for another scenario where the bad faith right-wing outrage machine, capitalizing on legitimate Jewish fears but also stretching way beyond them, would entirely drive the conversation about the curriculum and lead to unnecessary and damaging friction that would entirely blow up the hard work so many in the Jewish community had put in to ensure that Ethnic Studies fairly represented Jews.

You see, in the past when I'd found myself in predicting one of these trainwrecks from afar, I'd contact someone in the establishment Jewish community and plead with them to fire back. Don't let the bad faith actors occupy the field, don't let them control the narrative, don't let them poison the discourse without challenge. And over and over again, the response I got from the folks I talked to was "we don't want to give them any oxygen." The standard tactic in the face of these conservative narratives was to adopt an above-it-all posture of silence. It purported to be a stance of dignity -- not deigning to respond to such obvious falsehoods. In reality, it was an ostrich defense -- hoping that if they buried their heads in the sand, the problem would go away on its own.

And so when I sent out my now ritual missives on this issue; pleading with a leader of one of the organizations to push back against the Tablet narrative racing around the internet, I didn't expect much. And I wasn't surprised when the first response I got back was an instinct to just let it lie. The person I spoke with was worried that more attention might spark still greater backlash, threatening the incredible advances they had already made. 

I argued that silence was more likely to see those advances disappear -- to the extent they were added in deference to the Jewish community, if the perception is that the Jewish community is still unhappy, that doesn't exactly assist the credibility of those Jewish organizations who had been their advocates. More broadly, the folks in the California education system who had made these changes needed to know that the reward for working with concerned Jewish organizations would be to be left high and dry as soon as there was pushback. The last lesson we want someone to draw is that it's useless to try and assuage Jewish communal concerns because even if you do work with prominent community members you'll still come in for attacks and your erstwhile partners won't have your back.

And wouldn't you know it -- she listened. And others in the Jewish community seemed to have listened to.

It has been striking to see over the past week just how decisively the mainstream Jewish community has rallied against attacks from the communal right on the Ethnic Studies curriculum. Tye Gregory of the San Francisco JCRC had an early editorial out defending the latest draft. It was swiftly followed by columns by Sarah Levin of JIMENA, Hen Mazzig, and JPAC, all blasting the "misinformation" and "misrepresentations" being promulgated about the curriculum. A huge coalition of Jewish establishment heavyweights -- the ADL, AJC, Holocaust Museum, even StandWithUs -- released a united statement urging support for the Ethnic Studies curriculum and condemning bad faith attacks.

I haven't seen anything like it. And it's made a huge difference. The Tablet article's author has been thrown on the defensive, with a weak authors' note appended to the piece that does less to address the substantive criticisms than it does make evident just how effective the pushback has been. In the space of a few days, the article has gone from "the story" in the Jewish press (per Bari Weiss) to almost uniformly discredited. It seems obvious to me that the folks who had been pressing the histrionics about the Ethnic Studies have been taken a bit aback. And why shouldn't they? They're use to peddling this sort of nonsense without any resistance. This was new for them.

I hope it is the start of a trend. I hope it is the start of a more muscular Jewish center, one that knows that it cannot make the problem of right-wing zealots go away just by wishing it so. We'll see if the lesson takes. But boy, has it been nice to see our side throw some elbows of our own for a change.