Friday, February 29, 2008


This does strike me as one of those things that will never end well. The Telegraph reportsthat:
A senior Israeli politician provoked controversy today when he warned that Palestinians firing rockets from Gaza would be punished with a "bigger holocaust" from Israeli armed forces. The use of the Hebrew word for holocaust, "shoah", tends to be used exclusively in Israel to describe the Nazi persecution of Jews.

But this isn't accurate. "Shoah" means "disaster". "Ha-shoah" means "the disaster", which is shorthand for The Holocaust (which is "the disaster"), but Shoah alone is just a word, and in this context the proper translation is that Gazan rocket fire would be met with a "bigger disaster" for the Palestinians. Not exactly hearts and flowers, but pretty standard tit-for-tat military rhetoric.

Of course, now that the narrative is out there, it will never die, and we'll be treated to innumerable books and articles saying that Israel threatened to reprise the Holocaust on Palestine.

Identification, Please

Thank you Ann Friedman:
It's high time we acknowledge that every candidate has an identity: a race, a gender, a cultural background. It may not make or break every voter's decision, but a candidate's identity is always an electoral factor -- even when that identity is white and male. Clinton's female supporters and Obama's black supporters don't get enough credit. They are making tough decisions on how to reconcile their political beliefs with their gut reactions upon seeing someone who looks like them up on the dais. In fact, all Democratic voters are wrestling with this. Very few Americans have ever had the opportunity to vote for anyone other than a white man for national office. After so many years with "white male" as the default political identity, we're all suddenly forced to think about how much a candidate's race, gender, and background should matter.

Let's make this election about the issues, everyone says -- and rightfully so. Our presidential nominee should be chosen primarily on the issues. But most of us don't separate issues from identity as cleanly as we'd like to believe. When it comes down to it, everyone is an "identity politics" voter. The problem is that phrase, as commonly used by right-wingers and some on the left who are tone-deaf on issues of race and gender, has the effect of cutting down the political choices and involvement of women, people of color, and gays and lesbians.

After all, Clinton and Obama and their supporters aren't playing "identity politics" any more than John Kerry's supporters did in 2004, or George W. Bush's did in 2000. It's absurd to suggest that the Andover-Yale-Harvard-bred Bush adopting a swagger and thickening his Texas accent, or John Kerry riding a borrowed Harley onto The Tonight Show set, was anything other than identity politics. And after several early primaries, as it became clear that white men most strongly supported John Edwards, nobody accused them of playing identity politics. Nope, that distinction is reserved for people who have historically not been in positions of political power. In short, you can't be a white guy voting for another white guy and still play the identity game.

See also me, back in November, on this same issue.

Thursday, February 28, 2008

Mirror of Mirror of Justice

In the latest addition to the blog arena, Less Than The Least has emerged as the handiwork of Bill Stuntz and David Skeel. The description runs as follows:
We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.

Of course, it isn't a precise analogue to the Catholic Legal Theory blog Mirror of Justice. But anyone who's read MoJ wouldn't turn down the compliment, and I happen to know that Stuntz, at least, is a pretty cool guy (Skeel I simply don't know).

So welcome!

Less Black Babies

I spend a lot of free time blasting the FRC, often for concocting phony-scandals, so credit where it's due: this is genuinely appalling. I was at first hesitant to give a link, because I frankly don't trust the FRC further than I can throw them, but mainstream press (in the form of the Idaho Statesman) has picked it up, so tragically, this looks real. Basically, a pro-life activist masqueraded as a donor who wanted to give a gift to Planned Parenthood of Idaho, earmarked for the specific purpose of aborting Black babies.
The call to Idaho came in July to Autumn Kersey, vice president of development and marketing for Planned Parenthood of Idaho.

On the recording provided by The Advocate, an actor portraying a donor said he wanted his money used to eliminate black unborn children because "the less black kids out there the better."

Kersey laughed nervously and said: "Understandable, understandable. ... Excuse my hesitation, this is the first time I've had a donor call and make this kind of request, so I'm excited and want to make sure I don't leave anything out."

This is, in a word, appalling. It's flagrantly racist, and Planned Parenthood should be ashamed. As Feministing notes, it plays right into the right-wing talking points about race and abortion. PP refuses to say whether it's taken any further action against the offending employee. Is there seriously any question over whether he should still have a job?

It's Still Wrong, Paul

One of Paul Mirengoff's recent pet projects is viciously smearing Obama foreign policy adviser Samantha Powers. In the wake of no less of a conservative voice than Max Boot telling Mirengoff-source Noah Pollack to chill, Paul hesitated a half-step before reiterating the same bogus claims he's forwarded the last several go-arounds.

The first two points of contention -- the ones Power now describes as "weird" -- came out of a 2002 interview where she was asked about the Israeli/Palestine situation. Here's her quote:
Putting something on the line might mean alienating a domestic constituency of tremendous political and financial import; it may more crucially mean sacrificing -- or investing, I think, more than sacrificing -- billions of dollars, not in servicing Israel's military, but actually investing in the new state of Palestine, in investing the billions of dollars it would probably take, also, to support what will have to be a mammoth protection force, not of the old Rwanda kind, but a meaningful military presence.

Paul says that this shows that she wants to invade Israel and cut off all funding to its military.

I have two jabs and a haymaker here. My right jab is that, as Boot himself notes, many Israelis would be pleased if a NATO protection force was available to actually protect them from Palestinian intrusions. It'll never happen, because the international community will never put its own bodies on the line to protect Jews, but Power takes seriously at least as a moral matter this obligation to protect. My left jab is simply that Power is not saying we should cut Israel's military aid. She's saying that we should invest billions in creating a Palestinian state, as opposed to simply beefing up Israel's security yet more. I read her statement as saying we need to do both -- sure, Israel needs to be secure, but that's not going to fix the problem short- or long-term. Long-term, we need to invest in state building, not in giving Israel the option to occupy indefinitely.

But here's the haymaker: Look at the question she was asked!
Let me give you a thought experiment here, and it is the following: without addressing the Palestine - Israel problem, let's say you were an advisor to the President of the United States, how would you respond to current events there? Would you advise him to put a structure in place to monitor that situation, at least if one party or another [starts] looking like they might be moving toward genocide?

Notice anything peculiar? Like, say, the the last clause? If a genocide breaks out, then damn straight I think an international military presence should move in on the scene, and I don't care whether its the Israelis, Palestinians, Iranians, or Sudanese perpetuating the slaughter. This may be why Power finds this whole discussion "weird" -- aside from the most fervent anti-Zionist contingent, it's weird to think of Israel suddenly engaging in genocidal rampage. If Paul's point is that even in the face of genocide we should leave the Israelis (or Palestinians, for that matter) be, then I think we depart company, and he departs civilized company.

The second set of allegations stem from a 2007 interview where Power is accused of saying that Israel is responsible for the war in Iraq. This is maliciously false, as demonstrated by looking at the full text of the question and answer, where she says nothing of the sort, although if you cherry-pick the parts where she talks about Iraq and Israel, and omit the parts where she talks about broader structural forces these are examples of (along with Halliburton, which is the clearer link to Iraq), maybe it can look that way. This is not a matter of interpretation. This is a matter of Paul Mirengoff lying through his teeth without the slightest sense of guilt about it.

The final two cases are Power quoted a UN leader calling Israelis "bastards" without, apparently, swearing to personally desecrate his grave for it, and Power wondering why, if the New York Times believed there were war crimes in Jenin (and she doesn't say who committed then), why didn't the NYT lead with that as its headline? The last one doesn't come with any link to original source material, which is something Paul's friends have played fast and loose with before. But in any event, this is thin gruel for Mirengoff to say someone is reviving "the blood libel", but there you go.

Concludes Paul: "To me, it seems clear that, collectively, these positions overwhelmingly show Power to be anti-Israel."

Concludes me: "To me, it seems clear that, collectively, these statements overwhelmingly show Mirengoff to be a party hack who is willing to lie without compunction."

That's It! You're All Going to Jail!

The New York Times reports that the US has crossed a wonderful threshold: more than 1 in every 100 American adults is in prison. Crooked Timber links to another paper showing that:
in the cohort born between 1965 and 1969, thirty percent of black men without a college education—and sixty percent of black men without a high school degree—had been incarcerated by 1999. Recent cohorts of black men were more likely to have prison records (22.4 percent) than military records (17.4 percent) or bachelor’s degrees (12.5 percent).

Could there be...racism? No...Black people are just morally defective!

And the land...of the "free"....

Also of interest: The VC has a line graph up on the amount of people put in either prison or mental institutions from 1934 to the present day. Up through the 1960s, mental institutions dwarfed prisons. But starting around 1970, the amount of people held in mental institutions crashed, and prison populations began to skyrocket starting in the 1980s, such that the relative proportions are nearly completely reversed from where they were in 1934.

Part of this, of course, is that we've gotten better at diagnosing and treating mental illnesses so that they don't require institutionalization (or that they're not mental illnesses at all). But part of it is probably that people who do have mental illnesses are being shuttled off into prison instead of getting the care that they need.

"Every Lecture Has a Lie"

This is actually a fascinating pedagogical model, though I can't imagine I'd have the stones to do it in my own classrooms.

Wednesday, February 27, 2008

D&G Wear Combat Boots

This is one of the more bizarre articles I've read in a long time. It's like reading a Tom Clancy novel mixed with a policy debate round.

Tuesday, February 26, 2008

Who Needs To Watch?

When I was at UVA this weekend, one of the folks I met asked why I don't watch the Presidential debates. I said simply that I find them dull affairs, like dueling press conferences, and if anything important happened I'd see on the blogs. So why waste my time?

For example, what possibly could top Daniel Drezner's live blogging of the debate tonight?
10:08 PM: Russert tells Obama, "You have to react to unexpected events in this campaign." I half-expect him to then leap over the table, stab Obama with a shiv, and then say, "like that!!"

Anyone else with debate comments, leave 'em below the fold.

Maybe They Know Something We Don't

How horrible am I for finding this comic hilarious? Answer: pretty horrible.

Collective "Punishment"

George Mason University law professor Michael Krauss takes issue with the claim that Israel's economic sanctions on Gaza constitute collective punishment. He notes that, unlike the classic examples of collective punishment (Nazis massacring entire villages for resistance activities), Israel's alleged crime is merely that refuses to trade with its enemy. If Canada was lobbing missiles onto Buffalo, would we still have to send them cars from Detroit?

Close, but no cigar. While I certainly don't think Israel's actions rise to the level of Nazi barbarism, or close to it, my understanding is that Israel -- as an occupying power -- has special obligations towards Gaza compared to that of two unrelated belligerents. The closer analogy would be the US refusing to trade with Puerto Rico due to violent separatist activity in that state.

Electricity is a legitimate military target though, and as Krauss notes, Israel is merely restricting the flow of juice, not cutting it off, so that "Hamas will have to decide whether to provide electricity to hospitals or weapons lathes." That might be a legitimate move, except we all know Hamas' counter: give it to militants, then film sick kids outside of hospitals to showcase Israel's horrific cruelty. Who wins this battle? Usually not Israel.

In general, I don't think law or even morality is exhaustive of wisdom: one can make a legal or moral decision that isn't necessarily the best one. Israel has to ask itself whether the marginal (if present at all) boost in safety is actually getting them any closer to a long term solution to the conflict. I'm not convinced that it is.

Expanding Pro-Israel

In a meeting with Ohio Jewish leaders, Barack Obama argued that one can be pro-Israel without adhering to a specific right-wing vision of what Israel's future should look like:
"I think there is a strain within the pro-Israel community that says unless you adopt an unwavering pro-Likud ap-proach to Israel, then you're anti-Israel, and that can't be the measure of our friendship with Israel," leading Democratic presidential contender Illinois Senator Barack Obama said Sunday.

"If we cannot have an honest dialogue about how do we achieve these goals, then we're not going to make progress," he said.

He also criticized the notion that anyone who asks tough questions about advancing the peace process or tries to secure Israel by anyway other than "just crushing the opposition" is being "soft or anti-Israel."

Matthew Yglesias says "music to my ears", and Spencer Ackerman adds:
Now that is the sort of thing that a real friend of Israel says. Not a fair-weather fake friend who'd rather not risk angering your buddies, but the kind of friend who takes your car keys from your hand at the bar. Let's see the Rubins of the world twist his words, so we can demonstrate how little they actually care about the actually-existing state of Israel.

Agreed. One of the things I've tried to stress recently on the Israeli/Palestinian question is that it's not "pro-Israel" to envision it in perpetual, apocalyptic conflict with its neighbors. Jews die when Americans (usually American Christians) use Israel to reenact their favorite Crusade. And whatever else my personal religious or cultural beliefs regarding my obligation as a Jew toward the land of Israel entail, positioning myself as a tyrannical occupier depriving people of self-determination is not part of that vision.

None of this, obviously, is to say that I think Israel is the root cause of all evil in the region, or that Palestinians do not possess a major chunk of the blame for their own predicament by indulging in maximalist demands (including the destruction of Israel) and constant terrorist assaults. But I do think it's important to reiterate that there is no long term solution to the conflict that doesn't provide both people with a stable, secure, productive state, and that any move towards peace necessarily entails risk. "Crush them" can't always be the option of choice if things are to move forward, and it will take an American President who a) makes both sides understand that and b) makes both side understand that if one party exploits that trust, the US will not tolerate it, to really see progress on the issue.

Monday, February 25, 2008

Pop Culture, Then and Now

Herbert Spencer: The Britney Spears of the 1900s.

You Go To The Polls With Electoral System You Have

...not the one you wish you had. Ralph Nader supporters need to remember that, when they get on their kick of "if we only had instant run-offs, Nader wouldn't throw the election to anyone, so it's not his fault that he's vanity runs are threatening more years of GOP domination."

Sunday, February 24, 2008

Of Fugitive Slaves, Gay Rights, and The Line Through My Heart

The latest salvo in my and Mark's ongoing debate on questions of race focused specifically on whether states qua states should apologize for past moral atrocities (slavery, Jim Crow, the "lost generation", Native American genocide, the Holocaust, etc.). I argued that insofar as state actors are often instrumental in the promulgation and implementation of these atrocities, the state bears a share of the responsibility for which it must atone for. This is especially true when the victims conceptualize the wrongdoing as emanating from (at least in significant part) the state, as oppose to disorganized or irregular individuals (as in all four of the examples I mentioned above). Moreover, governmental sanction channels, directs, and legitimates power and violence. I can't sentence a person to jail no matter how snappy a black robe I buy, and I can't keep them there just because I own a natty blue uniform. It is the weight of governmental authority, in the form of a judge or a police officer, that grants me such authority. Indeed, this imprimatur transfers moral authority beyond our own personal knowledge and experience. A prison guard doesn't "know" that his wards deserve to be locked up -- he conducted no fact-finding mission, he held no trial. Yet he is morally allowed to imprison them (through threat of violence) because another governmental actor (a judge) tells him that this one committed murder, that one treason, that one robbery. That transfer of knowledge is only considered legitimate because it is governmental -- if a random person off the street points out a pedestrian and says "he's a murderer", the moral authority does not carry.

Mark responded that states are really just "phantasms", mere collections of individuals, and that there is no absolution or even relevancy in that "the state" (which, Mark would argue, is actually just individual legislators, bureaucrats, judges, etc.) is urging you to kill the Jews. He put forth, once again, his beloved quote by Solzhenitsyn about how the line between good and evil is drawn through every human heart. "[I]t is every human heart," Mark writes, "that needs to repent for things done, not those heartless state organs."

Unfortunately, I had to drop the thread while I was traveling to Virginia. I still think that it is more than obvious that the state in its own right creates power that did not exist before, which is why Judge John Anderson in chambers can sentence me to prison (and the guard will listen) but Mr. John Anderson on the street cannot. But I want to pick up this discussion of state relevancy, and the idea that the only thing that matters is the line through the heart, because I think it will lead to some positions Mark will be quite uncomfortable with.

The one of the main works of the late, great Robert Cover was an exploration of how Northern, anti-slavery judges reacted when they were asked to enforce the Fugitive Slave Act. The Fugitive Slave Act, I think we'd all agree, is an unambiguously monstrous law. It also, at least as far as lower court judges were concerned, was almost definitely constitutional under Article IV, Section 2 of the constitution. What does Mark think that these judges -- in their capacity as judges -- should have done?

One answer is to simply refuse to enforce the law. The law is evil, even if (in the words of Mark Graber) it is a "constitutional evil", and ultimately they must be guided by that line through their heart. If government demands evil, government must yield.

But let's take that idea and apply it to the modern day. I don't know Mark's position on Lawrence v. Texas (which outlawed prohibitions on sodomy in America). I suspect, however, that he does not believe that there is a constitutional right to gay marriage. For my part, laying the legal question aside, I find laws which prohibit gay marriage to be profoundly, monstrously evil. Not evil on the scope of slavery, but comparable to laws prohibiting inter-racial marriage, with the difference being only that of the number of people affected. Many people agree with me. Many people disagree with me quite profoundly -- they find the prospect of gay marriage to be that which is evil. Were I a federal court judge, would Mark advise that I push the legal questions aside and decide a prospective gay marriage case solely based on the "line through my heart" (which would lead me to invalidate the prohibition with extreme prejudice)? What of my colleagues who believe the reverse, and would prohibit gay marriage regardless of law if they follow their own line? Is Mark willing to allow for this sort of legal anarchy? And we could observe this same paradox in other cases -- most notably abortion -- where advocates on both sides see the alternative universe as being not just "wrong" but utterly and profoundly evil.

Of course, the prevailing rhetoric out of the right points in the precise opposite direction. They are outspokenly opposed to deciding cases based on the judge's personal moral precepts. Apply the law, don't make the law. Don't legislate from the bench. Don't impose your agenda on society. Mark has seemed to buy into this theory as presented by Scalia before, albeit more in the context of "dumb" laws than of evil ones (but then, I truly consider the laws at stake in Lawrence, to which he and Scalia were referring, to be evil, not stupid). And yet, as far as I can tell, from Mark's perspective this is letting the mechanics of government supersede the line through my heart. The legislature, the polls, the laws, the precedent, the constitution -- these are all the work of people. They have no special hold on me. Their power is phantasmic. And insofar as they point me towards the evil of anti-gay discrimination, I should simply ignore them.

But I do believe that I-as-a-judge have some obligation to the government, of fidelity to my position. It is a fidelity with limits, but it does exist, it is not a phantasm, and at times it will force me to write decisions I think are at odds with my vision of a moral society. And it is because of that, that I do not believe we can simply push away the question of governmental responsibility. The line may be through my heart, but government can influence the stroke of the pen. At the very least, governments know that their status as government is almost assured to alter the course of history. That's power. Power can be abused. And abuses require apologies and atonement.