Saturday, January 30, 2010

Israel's Goldstone Response

You can read the 52 page response here. It's not intended to be a comprehensive response to the Goldstone report, though it does address several allegations made in detail. More useful, I think, is its overview of the investigation procedures Israel takes in response to criminal allegations. If these procedures are sound, there is not grounds for international appeal even if a judge reviewing de novo might have reached different conclusions.

Friday, January 29, 2010


Scott Roeder has been convicted of first-degree murder in the slaying of Dr. George Tiller.


The fact that I tend to anthropomorphize everything makes today's xkcd the saddest thing ever.

Thursday, January 28, 2010

Non-SOTU Roundup

'Cause that would be cliched.

* * *

Pennsylvania Superior Court overturns a slew of anti-gay child custody decisions from the 1980s.

Indian roads create new opportunities.

The impact of Obama's school speech, one year later.

People are casting this post as Ta-Nehisi Coates pasting Chris Matthews, but I think the important points are far broader than anything Matthews-specific. That said, it's a fabulous post.

A U.Chicago study finds that female math teachers who are anxious about their own skills transmute that anxiety onto female pupils, resulting in reduced performance.

Bill Clinton hails Israeli mission to Haiti.

A touching post by Al Brophy on a friend of his who recently passed away.

As a pinball fan, I actually knew of the "call the shot" story which got pinball legalized in New York -- but that doesn't mean I won't share it.

Taking on the SCOTUS

I wasn't as affected as most by the events surrounding Obama's slapdown of the Supreme Court's Citizen United decision last night. To be sure, I thought it took some stones to attack a recent Supreme Court decision right in the face of the justices -- particularly one which isn't obviously unpopular (I think it likely is unpopular, but it isn't the sort of pitchforks and torches decision that, for example, a ruling striking down "under God" from the Pledge would have been). At the same time, Justice Alito mouthing to himself "that's not true", which I didn't notice live, didn't really bother me that much either -- I don't think he meant it as a "you lie" moment, and my instinct was to not make a big deal about it.

But apparently others are. Glenn Greenwald's argument is that Alito has made himself into a political figure: a political hero to the right, and a political enemy of the left, and that's inconsistent with his role as a judge. It's a fair point, although it's easy to overstate the impact -- it's just a more explicit exclamation point on something the general public already is well aware of: there are liberal judges who like and are liked by liberals, and conservative judges who like and are liked by conservatives.

Meanwhile, Jeffrey Rosen sees this as an opening gambit for Obama to attack "conservative activism" by the Supreme Court. Rosen claims that historically, it hasn't taken much explicit executive pushback to see a court labeled as "activist". One thing I like about it is that it helps balance out years of Republican claims that conservative judging is about common sense and rule of law (there's a paradox there, but no time to discuss it), whereas liberal judges are just making stuff up because they spend too much time reading deconstructionists (or something). This is a chance for liberals to strike back a little bit and cast the conservative wing of the court as the one that is out of step with history, precedent, and the American people.

Wednesday, January 27, 2010

SOTU Live Blog

In for a penny, in for a pound. I'll be live-blogging the speech at this post (refresh for updates).

* * *

9:25: Alright, I'm out for the night (I have no interest in hearing McDonnell's response). I might have a broader reaction post up later, or I might not. Anyway, thanks for hanging with me, and have a nice night!

9:20: "We don't quit. I don't quit." Great finish, to a good but not great speech. B/B+.

9:18: The recurring theme of this speech is about pressing forward, and not being timid. Yet in terms of what is actually being proposed, there aren't any blockbusters. It's a weird contrast. You can't do "Give 'em hell, Barack" without some hellraising to give.

9:13: Repeal of Don't Ask Don't Tell comes in the civil rights section of the speech. I expected it to be in the national security section, but I prefer it here.

9:12: "America must always stand on the side of human freedom and dignity. Always." Always.

9:08: The defense stuff is pretty good, but it's nothing new. Bring the troops home, torture is bad, security and liberty aren't at odds. Veteran care would be a wedge issue if Democrats were more ruthless.

9:02: "Democrats, we have the largest majority in decades," is the civil way of saying "pass the damn bill".

9:00: I agree with the sentiment behind Obama's plea for civility, but I can't help but wonder if it makes him look weak. The oblique attack against Senate holds is appreciated, but perhaps too quiet.

8:57: Here comes the smackdown of the Supreme Court. I was wondering if he'd go there. They sit stony face (it would have been cool if the dissenters had given a hearty "hell yeah", but oh well).

8:55: Obama's dig on Republicans ("that's what we did for 8 years") is not exactly accurate. The problem was that Republicans never were serious (and still aren't serious) about deficit reduction -- so of course deficits would rise on their watch.

8:52: The spending freeze is a promise he's simply not going to keep, particularly given the exemption for defense spending.

8:51: And here comes the neo-Hooverist portion of the speech.

8:46: Obama has always been a fan of this format -- he loves having a free rein to give out laundry lists, and explain policies, and clear up misconceptions. It brings out his inner wonk. And the good thing about Democratic policies is that the policies themselves tend to be popular, which is why they're so rarely attacked based on their actual content.

8:44: "I didn't take on health care because it's good politics." With all due respect, Mr. President, it's only a strike if you watch it as it sails by.

8:43: Health insurance reform finally comes up. This ought to be good.

8:41: Education focus is good, focus on community college is better. I approve. And student loan reform! Fabulous -- if it ever gets through Congress.

8:36: I wonder who Joe Biden just looked at with a shit-eating grin when Obama passive-aggressively mocked climate change deniers. I'm banking on James Inhofe.

8:35: Nuclear power! I'm surprised and pleased.

8:31: Finally, some aggression. This speech was feeling pretty conservative for awhile. Now Obama is bringing out the big guns against the persistent calls for delays, and that's a good thing. Anything that takes some wind out of the sails of spineless centrists who are afraid of their own footsteps.

8:30: Attacking the record of the Bush administration (even indirectly) is a weird thing. It's perfectly accurate, but is there anything left in the well?

8:28: Infrastructure! And it's the high-speed rail project in Florida that I've heard good things about! Excellent.

8:27: Rep. Eric Cantor (R-VA) doesn't like helping community banks, I guess. Or using the big bank's money to pay for it.

8:24: New jobs bill is the first concrete policy proposal. Doubling down on the stimulus, I guess -- at least he got that passed.

8:22: That little jab at congressional Republicans -- "I thought I'd get some applause there" -- I think was subtly quite effective. If Republicans won't applaud tax cuts, doesn't that show they just dislike anything Obama does?

8:21: Obama's starting out with straight out populism -- attacking the banks, bonuses, and the bailout. Anything that puts a wedge between Republicans' thrall to big businesses, and popular rage against the hyper-rich, is an effective strategy.

8:17: First applause comes six minutes in. That was a long intro. I'm bored already.

8:14: "The worst of the storm has passed, but the devastation remains" is good framing, I think; it balances between forward-looking optimism and recognition of current hurt.

8:11: Obama opens by telling us he's here only because the constitution tells him so. And history is looking over his shoulder.

8:10: Here we go! (I love the way Biden cheers).

8:05: I'll be curious how the spending freeze will be played in speech, particularly since Republicans have taken everything off the table.

8:00: You know what would be awesome? If Michael Buffer was hired as the sergeant-at-arms, just for tonight.

7:56: Will Obama announce that the best days of America are ahead? I'm banking on the upset: "The best days of America are behind us. I have formed a death panel to ensure that we handle our decline with grace and dignity."

7:53: Haitian ambassador is apparently getting a prime position in the audience.

7:49: Here's a shocking development (CNN calls it a "remarkable contrast"): Republicans think Obama has been too liberal, Obama doesn't think so. Whoa.

7:47: CNN reports Republicans are planning on being their best behavior. No more "you lies" this year ... assuming they can contain themselves.


Every year I promise not to watch the State of the Union. Some years I keep the promise, some years I don't. This year, I got curious about the reported call to overturn DADT. If you want to drink, here are your rules.

Also, CNN's focus group looks like they were kidnapped off the street and are being locked in the studio.

Hamas Finds No Wrongdoing By Hamas

We already discussed the likely shortcomings of any Israeli probe into IDF operations during the Gaza war. Now, Hamas has released the results of its "investigation" into its own conduct, finding that (surprise!), despite all appearances to the contrary, it was aiming at military targets. All those rockets raining down on Sderot (which has no military bases)? Just misfires, due to the fact that their rockets are unguided (if only they had better rockets!).

When the probe was announced, I differed with Matt Yglesias in that I thought Hamas' superficial participation in such "inquiries" was more harmful than good. Neither of us buys into the "transparent nonsense" (Matt's words) that Hamas was aiming for military targets. However, he thought that it signaled that Hamas saw its legitimacy as being tied at least to the perception that it was in adherence to human right standards. I argue that Hamas' participation was part of a larger strategy aimed at blurring human rights categories altogether, transforming them from legal principles into ambiguous tools suitable for a "lawfare" assault on Israel. Getting Hamas to superficially participate in human rights discourse is like getting Soviet-bloc states to sign human rights treaties they had no intention of upholding: a superficial, unaccountable move aimed at muddying the waters. The only way it could be seen as a positive step is if the international community holds their feet to the fire, Helsinki Watch style.

In other words, it does nobody any good (in fact, does much harm) if Hamas can simply say it is adhering to human rights standards, alongside patently ridiculous "reports" affirming the same. We will see if this report is taken by the relevant bodies with the derisive laughter it deserves, but I'm skeptical. And insofar as this dissipates pressure to hold Hamas account for its criminal acts, or serves as prop for disingenuous commentators to pretend Hamas is something it isn't, it is a qualitatively bad thing for the cause of human rights and the cause of peace.

Where Angels Fear

Jeffrey Goldberg takes aim at yet another Andrew Sullivan post extolling the bravery of those bold critics of Israel:

How true! How brave it is to stand athwart the Jews and yell "Stop!" We are a dangerous group of people. Just look at what has happened to other critics who have gone where angels fear to tread and criticized Israel. Take, for example, Stephen Walt and John Mearsheimer, the authors of "The Israel Lobby." Walt, as many of you know, is in hiding in Holland, under round-the-clock protection of the Dutch police, after the chief rabbi of Wellesley, Mass., issued a fatwa calling for his assassination. Mearsheimer, of course, lost his job at the University of Chicago and was physically assaulted by a group of Hadassah ladies in what became known as the "Grapefruit Spoon Attack of 2009." Now he teaches political science at a community college in Hayden Lake, Idaho, under police guard. And Michael Scheuer, the former CIA man who argues that American Jews are traitors to their country, was recently burned in effigy during a riot led by a cell of Reconstructionist rabbis. All across this country, assaults by Jews on their critics are on the rise. It's gotten so bad you can't even publish a mildly anti-Semitic cartoon without having your office sacked by gangs of extremists from the North American Federation of Temple Youth. It's tough out there for brave truth-tellers these days.

Presumably, Walt and Mearsheimer still teach at the sufferance of the Jewish overlords, who wish to give the appearance of freedom the our doomed world. Crafty folk, we are.

Tuesday, January 26, 2010

Interesting Case of the Day

Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964).

Why? Two reasons:

1) In 1964, it was a U.S. Supreme Court ruling that held in favor of the Cuban government in a case concerning that government's compensation-less expropriation of American property. The case turned on the application of the "state action doctrine", which holds, essentially, that the acts of foreign government's inside their own territory will be considered valid and legitimate.

2) In addressing the question of whether expropriation of property violates customary international law, the opinion notes and gives authority to the opinions of both communist and newly independent countries which argued that such a position was unfair and in service of "imperialist" interests:
There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state's power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them and it is argued that the traditionally articulated standards governing expropriation of property reflect "imperialist" interests and are inappropriate to the circumstances of emergent states.

The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. (428-30)

I'm not expressing an opinion as to either existence or normative desirability of a customary international legal norm against expropriation without compensation. Rather, I thought it noteworthy both that Cuba won a case like this in American courts, and more broadly, that an American court openly considered the implications of certain perspectives normally considered quite radical and out of bounds in our public discourse.

Generally, this is how one is supposed to approach questions of customary international law, and of course, this is the double-edged sword of that institution: since it represents the customs of the entire world, and there is much disagreement in the world over a variety of customs which we often take to be touchstones of modern human rights standards, generally international law will always be tied to the behavior of its most regressive members. Canvassing the international community in order to determine international custom doesn't mean just looking at countries generally in line with American interests or values, and I thought this case illustrated that in uncommonly vivid fashion.

Higginbotham's Recusal Opinion and the Politically-Active Jew

I dropped a rather cryptic cite in my last post to Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155 (E.D. Pa. 1974). The opinion deals with a recusal motion filed against famed Black Judge A. Leon Higginbotham in the midst of an employment discrimination suit.

The allegations were that Judge Higginbotham was Black and identifies with Blacks, specifically, he was a leader of the Black civil rights movement, with an "emotional attachment to the advancement of black civil rights" and a belief in rectifying racism in America, and that he had demonstrated the preceding in a speech before "a group composed of black historians" (the Association for the Study of Afro-American Life and History) (157-58). These demonstrated an appearance of partiality towards the Black plaintiffs, which warranted recusal. In the course of his now-famous opinion, Judge Higginbotham carefully eviscerated this argument, showing how it was predicated off essentially racist notions, effectuated a double-standard for both Black litigants and Black judges, and wrongfully conflates opposition towards racism with opposition towards Whites.

In support of his refusal to recuse, Judge Higginbotham mustered an impressive array of judges who had commented on matters of public concern and/or engaged in scholarship and inquiry on cutting edge, controversial legal topics, without feeling the need or pressure to recuse themselves. One of these examples includes the following:
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)

The opinion is a tour de force, and I highly recommend it top to bottom. But I am reminded of it most often in all the cases where it is asserted, explicitly or implicitly, that all but a bare handful of good Jews are too provincial, too partisan, or too biased to be worth listening to (much less be given any decision-making authority) on matters connected to Jewish life or experience.

While the motion did not, in fact, require that all Blacks refrain from judging cases involving Whites or civil rights, it did demand that only a very narrow range of "acceptable" Black persons, ones who had meticulously refrained from taking a stance on or discussing matters of racism, be permitted. And such a stance, Judge Higginbotham accurately noted, was functionally no different from a blanket rule of racialized exclusion. What motivated the motion, the Judge suspected, was that anxiety that Whites no longer were in a position where they could be assured that they'd never be forced to submit to the judgment of a Black man or woman.*
If, for the reasons previously discussed, defendants' motions are meritless, and since the motions are presumably filed in good faith, what other rationale could explain why defendants so vehemently assert their claim that I be disqualified in the instant case? Perhaps, among some whites, there is an inherent disquietude when they see that occasionally blacks are adjudicating matters pertaining to race relations, and perhaps that anxiety can be eliminated only by having no black judges sit on such matters or, if one cannot escape a black judge, then by having the latter bend over backwards to the detriment of black litigants and black citizens and thus assure that brand of "impartiality" which some whites think they deserve.

Since 1844, when Macon B. Allen became the first black lawyer to be admitted to the bar of any state, and since John S. Rock was admitted to the bar of the United States Supreme Court on February 1, 1865, black lawyers have litigated in the federal courts almost exclusively before white judges, yet they have not urged that white judges should be disqualified on matters of race relations. In fact, in the "good old days" before William H. Hastie was appointed in 1949 to the United States Court of Appeals for the Third Circuit, white litigants throughout America were able to argue before a judiciary from the United States District Courts to the Courts of Appeals to the United States Supreme Court without encountering a single black judge along the entire judicial route; for until Judge Hastie's appointment there were no black Article III judges. In fact, until 1961, white litigants in the United States District Courts never had to ponder the subtle issue which defendants now raise, because no President had ever appointed a black as a United States District Judge. If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations. (177)

And so it is today -- for Jews as well as Blacks. There are people who are furious that modern Jews won't accept their proper place as powerless and dispossessed, and display an "unholy glee" at the thought of forcibly returning them to that position. I cannot say descriptively whether they will succeed, but I do know the moral argument is dead wrong.** Non-Jews are going to have to accept the fact that Jews will sometimes be in positions of authority, and sometimes will be tasked with making decisions that others are bound to accept.

* This, more than anything else, represents the diminution of the unjust power Whites held over Blacks; as power, Carol Gilligan once wrote, means "you can opt not to listen. And you can do so with impunity." Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 Buff. L. Rev. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants).

** This is distinct from conspiratorial accounts by which the Jews (or "Zionists") control the world and are responsible for all (evil) global decisions. Persons who hold such views are delusional, anti-Semitic and dangerous, but one thing you can say for them is that they are only factually challenged -- were all the things they believed actually true (that Jews are poisoning vaccines or abducting Haitian children for organs or whatever it is we're up to today), they would be, in fact, bad things.

The people I am talking about would rarely stoop so low as to believe in any global Zionist conspiracies (unfortunately, sometimes they do flirt with such beliefs when their talk about The Israel Lobby stretches too far into hyperbole). But in some ways, their beliefs are more pernicious. They are not upset that the Jews control the world; they are upset at the prospect that Jews control anything; a slice of land, an organization, a political movement, a lobbying committee -- whatever. Any body that they cannot not ignore with impunity -- any body that they don't have power over (to use Gilligan's framing) -- is a body that cannot justly be in the hands of Jews. Because that would mean Jews are no longer purely in a position of subservience. And that is unacceptable.

A Storm is Brewing

Israel is considering forming a panel to examine the quality of its investigations into alleged wrongdoing stemming out of last year's Gaza conduct.
Under Barak's proposal, which is acceptable to Netanyahu and to [IDF Chief of Staff Gabi] Ashkenazi, the committee would focus on two main issues: the quality of the investigations conducted by the IDF of incidents and of the decisions taken by the cabinet, the security cabinet and the IDF General Staff regarding the policy of the use of force in the operation. The committee will have to determine whether the internal investigations met the relevant international standards. On the civilian side it will ask whether there is a basis to the Goldstone report's claims - which are categorically rejected by Israeli officials - that the operation was planned in advance as a punitive campaign against the civilian population in the Gaza Strip.

Hmm. Note that the panel is not meant to replace the aforementioned IDF probes, but to review them -- it does not have the authority to call operational commanders into testify. The problem I see is that all the questions being asked are the sorts that Israel can only give one answer to. Perhaps the committee might indict the decisions of the cabinet (anything to spite Tzipi Livni, after all). It also could revise doctrines regarding the use of force, which would be an interesting development. The IDF probes will likely be exonerated, as in all likelihood they did meet formal thresholds of fairness -- the question is whether they actually were dispassionate inquiries, or whether they had the trappings of neutral procedures but were really predetermined, and that's the sort of accusation I doubt a panel like this will make (possibly because it isn't true -- I don't mean to prejudge). The final question -- whether the operation was planned as a punitive campaign against the civilian population of Gaza -- will assuredly be answered "no".
The intention is to include on the panel Israeli jurists with international standing and perhaps also an international jurist. One name that has been mentioned in discussions is Prof. Alan M. Dershowitz.

Oh, now wouldn't that be a trip? I am conflicted about the selection of Professor Dershowitz, though not for the reasons one might expect. I don't think that a reputation for being pro-Israel is a disqualifier for impartial service on a judicial inquiry (see Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155 (1974) (Higginbotham, J., rejecting motion to recuse)). Professor Dershowitz has on plenty of occasions saw fit to criticize Israeli government policy; the objection to him is not his inability to admit critique of Israel, but his refusal to do so on the terms of the state's most harsh opponents. And while I suspect that Professor Dershowitz's presence on the panel would be used to discredit it as biased, I am willing to put my foot down in rejecting the notion that either "non-Jewish" or "anti-Israel" is a prerequisite (if not the definition) of non-biased. We all come from a perspective, Jewish or not, pro-Israel or not, and to label some perspectives "biased" and others invisible is just a replication of (in this case) anti-Semitic hierarchy.

No, my worry with Professor Dershowitz on this panel is that given the particular contours of the panel's mandate, I'm not sure he has the right outlook to insure fairness and justice are done. Dershowitz is primarily a defense attorney, and in effect the panel's review is to determine whether the IDF probes were too deferential to the defendants (Israeli soldiers, commanders, etc.). Even putting Israel out of the picture, this is an area where Dershowitz would likely begin from a position sympathetic to the status quo. Now, as per above, I don't think that being a defense attorney is disqualifying for service on such a panel -- it is important that someone concerned for the rights of the accused and attuned to both the possibility of rushing to judgment or using grunts as scapegoats to ward off international pressure be represented on such a panel. I just don't necessarily think that's the role that the international jurist needs to play; I suspect someone who fits that mold can be found from within Israel's own legal ranks.

Perhaps a better fit -- someone less polarizing, Jewish, notably non-hostile to Israel but with an unimpeachable commitment to human rights everywhere -- would be Irwin Cotler?

Just Another Holocaust Survivor/Turkish Rap Group Collab

Oh for cute. But also inspiring.

Shift Without Pause

It looks like the key strategy for defending Proposition 8 is to say that gays possess plenty of political power.

Monday, January 25, 2010

Andre Bauer Apologizes ... To Animals?

In my roundup yesterday, I noted comments by South Carolina Lt. Gov. Andre Bauer which compared poor people to stray animals (both apparently will breed if you feed them). Today, he issued an apology ... of sorts:
"I never intended to tie people to animals," he said, before opting for a kinder animal metaphor: "If you have a cat, if you take it in your house and feed it and love it, what happens when you go out of town?"

Noting that he has raised money for a group that protects animals, Bauer also said he is "not against animals."

Okay, what? First, note that he apologizes for an animal comparison by proceeding to make the comparison again, with stray cats. But then, in the coup de grace, he makes it clear that he has nothing against animals. And you have to feel bad for the poor animals -- subjected to the indignity of being compared to poor people! It's rather horrible. And rather sociopathic of Lt. Gov. Bauer.*

* Okay, that was out of line. I'd like to apologize to the sociopath community; they don't deserve to be grouped with Bauer (see what I did there?).

The Seventh Degree

Ross Douthat tries to square the circle between the dueling positions of "abortion is murder" and "but I don't want anyone to go to jail."
Nobody involved would go to jail, he said, as "it is possible to believe that abortion is murder and also believe it is a completely unique form of murder. Abortion would be, you know, if you have first-degree murder, second and third's like seventh-degree murder or something."

Kevin Drum calls this "about as good an excuse for not jailing abortionists as I've heard." Maybe, but that still doesn't make it very good.

First of all, it's worth noting that once you get beyond second-degree murder, for the most part (not everywhere), we stop calling the act "murder" and begin giving it other names. Like "voluntary" or "involuntary manslaughter". Below that, there's "negligent homicide". And all of these ever-lower degrees of "murder" still carry with them prison sentences.

Second, it's worth exploring why we have various degrees of homicide charges at all. Generally, it has to do with the state of mind of the perpetrator. We punish people who intend to kill more than those whose act was unintentional but reckless, which in turn carries more punishment than the person whose state of mind was merely negligent. We also provide some diminution when the actor's consciousness is blurred, due to some sort of provocation or temporary insanity, as well as outright acquittal where the action was justified (self-defense) or excusable (insanity).

What is unclear is why, if abortion is a species of murder, it falls under any of the exceptions that typically counsel even a reduced sentence (let alone an outright excuse). It's clearly premeditated. There is no immediate provocation. There isn't a self-defense claim (Douthat grants a life-exemption for abortion). The best argument I've heard, and I use the descriptor loosely, is one based off the idea that women are being per se irrational when they seek an abortion -- in other words, flat misogyny. We could say that abortion is entirely of its own kind, but that raises the question of why, if abortion rests so uncomfortably with our widely established and agreed upon intuitions of what murder means, it be considered a relative of murder at all? Either you buy into the framework or you don't -- you don't get to borrow the normative punch of the term "murder" without actually having to live with the consequences of labeling something that way.

Stomp the Floor

Ta-Nehisi Coates has a devastating piece up comparing ex-Rep. Harold Ford (D-TN), now considering a run for Senate in New York, to those figures in Southern politics who knew segregation was wrong, but said what they had to say to get elected. George Wallace (and I did not know this) had a reputation as a particularly unbiased and fair-minded judge for Blacks in the south, and indeed at one point ran for office with the NAACP's backing. It failed miserably. And so, Wallace said:
You know, I tried to talk about good roads and good schools and all these things that have been part of my career, and nobody listened. And then I began talking about niggers, and they stomped the floor.

Ford's political ambitions have caused him to take a variety of socially conservative positions that he is now racing to disavow. The most morally pernicious of these was his effort to position himself as the most anti-gay of the anti-gay politicians that infect the American political system. It's probable that Ford really didn't have a problem with gay marriage. But, as Coates writes:
In the 1950s and 1960s, Alabama had in its midst men who knew segregation was a reeking abomination, but embraced it because it allowed them to fix a road in their hometown, build a clinic in the underserved backwoods, or just hook a friend up for a job. Or maybe it was just power--who can tell?

From my perspective, motive is irrelevant. (There's usually a good reason to do evil. That's the nature of evil.) It takes a particular kind of cowardice to throw people's lives aside and bow to the mutually destructive curse of discrimination. I can believe Harold Ford was never actually against gay marriage, and was more concerned with good schools and good roads. But then when he said "constitutional amendment," they stomped the floor.


Cool Interviews with Cool People

It's a month old, but I just stumbled across this interview with Israeli MK Yuli Tamir (Labor). Dr. Tamir was one of the founders of Peace Now and holds a doctorate in Political Philosophy from Oxford (where she studied under Isaiah Berlin) with a specialty in the intersection between liberalism and national identity. Currently, she is the dissident minority faction of Labor which is refusing to join the coalition government formed by Likud PM Bibi Netanyahu.

It's a really fascinating interview with a really fascinating person. Highly recommended.

Sunday, January 24, 2010

The Great Debate

I watched the first 10 minutes of this debate between Harvard Law Professor Alan Dershowitz and J Street's Jeremy Ben Ami (moderated by Eliot Spitzer), but got bored relatively quickly. Why? Because, try as they might, they don't disagree about much. What disputes they have are nearly invariable about either focus or degree, rarely about substance. So both support two-states, both oppose the settlements, both support some division of Jerusalem.

In a sense, this is why I am very surprised by the amount of controversy J Street has managed to gin up. It's quite apparent here that Professor Dershowitz really wants to accentuate the differences between his positions and those of Mr. Ben Ami; it is equally clear that they really just aren't that far apart. The dissonance, I think, comes from popular misunderstandings both of J Street and the broader pro-Israel community: the former is often portrayed as much further to left than it is, the latter, much further to the right. And this debate helps illustrate just how facile those assumptions are. Professor Dershowitz is often used as a bogey-man for the broke-no-criticism-of-Israel wing, but as he notes he is a longstanding critic of several key Israeli policies (like the settlements). And if J Street can't be considered mainstream after essentially being in cheerful agreement with most of Alan Dershowitz's positions, what would establish it?

Ultimately, J Street isn't out of the mainstream of Jewish policy positions on Israel because there remains a relatively robust center-left consensus amongst American Jews regarding Israel, one that's been well represented amongst all the fixtures of American Israel-commentators. This debate simply dramatized the effect.

Sunday Roundup: Landlord/Tenant Edition

Busy weekend. Our landlord is trying to sell our house, which isn't directly a problem for us -- our lease is unaffected -- except that the real estate agent wants the four of us to live in full "sell the house" mode (every room sparkling clean, willing to vacate at anytime for showings, etc.) for the indefinite future. We're quite willing to be helpful up to a point, perhaps a few days of glittering cleanliness, but we can't effectively vacate the house as law students on any random night (where exactly are we supposed to go in Hyde Park?). I assume they can't force us to do anything, so I think we're in a solid bargaining position -- but the idea of a conflict is stressful to me.

Okay, that was a longer introduction than I intended. Roundup!

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Should we keep "negro" as a census option?

South Carolina likens free lunch programs for impoverished children to feeding stray animals. Why? "Because they breed. You’re facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don’t think too much further than that."

Anti-Semitic incidents way up in 2009.

Israeli right-wing extremists call Rahm Emanuel a traitor to the Jewish people in response to his upcoming visit to the country.

Cuban and American doctors are cooperating to relieve the Haiti crisis.

Italian gay couple hunger strikes for marriage rights.

Hussein Ibish warns of the perils of certainty regarding the outcome of the Israeli/Palestinian conflict.

Pittsburgh police officers nearly beat a student to death for aggravated possession of Mountain Dew (now they're charging him with resisting arrest).

A judge charged with investigating Judge Sharon Keller's conduct in preventing the filing of a last-minute death penalty appeal has decided that fault mostly fell on the defense team, not the judge. He did find several instances of poor judgment on Keller's part, but recommended she receive no punishment. The report will be delivered to the Commission on Judicial Conduct, which can decide whether to accept, reject, or modify the recommendations.