Saturday, February 11, 2012

Birthday Bash in Chicago


Well, actually, nothing so dramatic. But it is my birthday, and I am in Chicago celebrating with some friends.

Back in Champaign tomorrow night, but for now, it's the bright lights of the big city.

Friday, February 10, 2012

The Opinion Biz

The Free Beacon, as best I can tell, is seeking to become to Think Progress what The 1/2 Hour News Hour was to the Daily Show. But one of its more high-profile pick-ups was former Washington Jewish Week journalist Adam Kredo. Kredo had an excellent reputation as a neutral, non-biased writer, and certainly gave the fledgling right-wing site a shot of desperately needed credibility.

Unfortunately, what we've seen is an impressively dedicated effort by Kredo to dynamite his prior reputation -- going from "respected journalist" to "third string Jennifer Rubin" with impressive speed. His recent articles include Center for American Prejudice: Leftist Anti-Semitic Propaganda Handicaps National Security (notably, excepting a few six-month-old instances of writers using the term "Israel-firster" -- which they apologized for -- Kredo does not in fact cite any instance of CAP doing anything even arguably anti-Semitic) and Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda (lest you think it's all just about Israel, check out this bit on Obama's "secret" meeting with Carlos Slim).

Now, in a sense, this is all pretty above board. Kredo was a journalist. Now he's not -- he's a purveyor of a particular perspective, and freed from the shackles of such anachronisms like "objectivity" and "neutrality", he's taken on his new role with gusto. If he wants to flush his reputation down the toilet while on this little bender, hey, it's his career.

No, the tragedy here is that Kredo gamely insists that nothing's changed. When criticized about the hit he took out on Peter Beinart (that would be the "Former TNR Editor [who] flaks for Anti-Israel Group"), Kredo had the gall to reply that "I just report what people say. I'm not in the opinion biz. We here FreeBeacon report -- you decide." Uncritical parroting of the Fox News motto as a defense against biased journalism notwithstanding -- for serious? Your piece is titled "Former TNR Editor Flaks for anti-Israel Group: Apartheid, Jim Crow, yadda yadda yadda" and you say there's no opinion there? Or describing "J Street’s controversial credo" as calling "on the Jewish state to make peace with the Palestinians at any cost, even at the expense of Israel’s longstanding security needs"? Yeah, that's classic, traditional, "just-the-facts, ma'am" journalism that we can all be proud of.

I really can't even think Kredo actually believes it when he writes that. Frankly, he was too good of a journalist to not know the difference between what he was doing at WJW and what he's doing here. And frankly, he's tied enough into the journalism game that he knows the all loopholes -- specifically, that if one says earnestly enough that one is being "objective", then other media actors will have to act as if its true -- or at least, plausible. He's in the opinion biz, and his time outside of said business means he has the potential to be a particularly dangerous player in the opinion biz at that.

But to my eye, a site like Free Beacon may just be too over the top for Kredo to be believed. Adam Kredo was once a strong journalist. Now he's just another conservative hack, toiling on a C-string site. It's an unfortunate fall, but it is what it is.

Thursday, February 09, 2012

The Message of Conscience and Faith

Members of the Minnesota Rabbinical Association have released a statement opposing a state ballot initiative which would bar gay marriage (it's unclear whether the Rabbis were speaking only for themselves or for the Association). The letter concludes by urging "all Minnesotans of conscience and faith" to vote against the initiative -- a nice touch, given the degree to which opponents of gay equality have loved to cast themselves as the sole guardians of "conscience" and "faith" in this dispute. At least in the Jewish community -- which I'd like to think is also recognized as possessing a conscience and a faith -- they are in the distinct minority.

Wednesday, February 08, 2012

And Washington Makes Seven

Congratulations to Washington state, which is about to become the 7th state in America to legalize gay marriage! The State Senate, seen as the final hurdle, passed the bill 28-21 (wider than expected, as sponsors had been trying to scrounge up every last vote), and Governor Christine Gregoire has already promised to sign it.

A Light Unto Candidates

Obviously this is out of season, but still interesting: Rick Santorum's Channukah message to Jews:

Interesting choice of Bible verse there, don't you think? Very demonstrative of Santorum's sensitivity to the Jewish community. But you can't really blame Santorum. I mean, it's not like there is any parts of the Jewish religious tradition which Christians also consider to be there own, and that he might be familiar with. Because if there were, why, the decision to choose a verse like this might be considered gratuitously insulting.

UPDATE: And speaking of things that aggrieve me as a Jew, celebrating a famous historical killing spree by Christian soldiers slaughtering Jews en masse also seems more than a little ill-advised.

Tuesday, February 07, 2012

The Weirdness of the Prop. 8 Decision

The 9th Circuit, in a 2-1 decision, has struck down California's Proposition 8, which had eliminated the right of same-sex couples to marry. This is, of course, a great day for equal rights and liberty in the United States. But the particular way the court went about its ruling is a little strange -- intellectually speaking, if not legally or politically.

The first thing that needs to be emphasized about this opinion is that it did not hold that all laws barring same-sex marriage are unconstitutional. Rather, it held specifically that the decision of California voters to take away the previously vested right for same-sex couples (and only same-sex couples) to marry is unconstitutional. That California briefly legalized same-sex marriage, only to later have it stripped by referendum, distinguishes it from most states (where gay marriage has never been legal at any point in time).

This leads to weirdness part one: California spent many years prohibiting gay marriage, then briefly (through judicial decision) legalized it, then outlawed it again. But how can it be that what was legal for most of the past two decades becomes illegal based on a brief, half-year interlude?

As a matter of law, this actually isn't that difficult: the holding of the California Supreme Court established that the ban on gay marriage violated the state's constitutional guarantees -- in other words, establishing a right to gay marriage. As a matter of formal law, Proposition 8 acted to strip a particular class of citizens -- and only that class -- of rights it had previously possessed under the Constitution. That this move might be considered an expression of particularly malevolent animus, in a way qualitatively different from simply refraining from establishing gay marriage in the first place, is not hard to grasp.

The problem is that this seems to misapprehend the meaning of Prop. 8 as it reflects upon constitutional interpretation. The California Supreme Court's decision in Marriage Cases was that gay marriage was protected under various provisions of the state constitution (equal protection, fundamental rights, etc.). They held, in essence, that equal protection requires recognition of gay marriage; fundamental rights requires recognition of gay marriage. But when Californians went to the polls in 2008, they did not conceive of themselves as deciding whether or not to craft exceptions to these constitutional guarantees (equal protection, except that gay marriage can be prohibited). They thought of themselves as answering whether they believed the California courts original interpretation of these clauses was correct (does equal protection require gay marriage?). It was meant to be a signal as to their belief, not that the constitution was wrong to protect gay marriage, but that the California Supreme Court was wrong to believe that it ever did in the first place.

Now, it may be that as a matter of law this has no bearing -- judicial pronouncements of "what the law is" are authoritative, and any subsequent democratic revision or modification proceeds from there. So in that sense, the 9th Circuit got it right -- the California constitution gave gays and lesbians the right to marry, and then the people of California took it away. But it is notable what this outlook says about popular constitutionalism: it gives so little credence to popular understandings of constitutional meaning that even when they immediately reverse a judicial decision via an amendment that constitutionalized a prior doctrinal understanding of the original clause, that is coded as "changing the constitution" rather than "counterinterpretation of the constitution".

Anyway, the 9th Circuit proceeds to argue that the fact that this was California taking away a right, rather than declining to extend one, makes this case indistinguishable from Romer v. Evans. Romer was perhaps the Supreme Court's first high-profile gay rights opinion, striking down a Colorado constitutional amendment which forbade the state or localities from enacting anti-discrimination laws on basis of sexual orientation (and only that category). The law had been passed in reaction to the passage of such laws in a few more liberal Colorado cities (e.g., Boulder), and the Court found that it was effectively motivated by bare animus against gays.

There are few things that make Romer notable. First, the case does not stand for the proposition that states must have anti-discrimination protections on basis of sexual orientation. Rather, the Court's holding was that the state cannot arbitrarily pluck out a particular class of citizens and make it more difficult for them to garner the protections that others enjoyed. Second, Romer applied rational basis review, which is traditionally quite easy to meet. But Romer implies that the decision to take away a previously vested right is more suspicious (even under rational basis review) than simply not extending a right. It keys the analysis to the stripping of the right, and it is often harder to articulate a rational (non-prejudiced -- Romer and other cases establish that "animus" is not a rational basis) reason for taking the affirmative step of removing a right than it is to explain why one never bothered to grant it all. Third, Romer was a Kennedy-authored opinion, and the 9th Circuit decision is aimed like a laser at Justice Kennedy in an effort to hold his vote (or even avoid a cert grant -- I might have to dissent from Orin Kerr in calling Supreme Court review inevitable given the narrowness of this particular ruling).

In keeping with the Kennedy-focus, the 9th Circuit styled its opinion as a clean extension of Romer. But it did so through oddity #2 -- the narrowness of what Proposition 8 did. All Prop. 8 did was prevent gay couples from calling their relationships "marriage", which the court accurately described as a (quite significant) dignitary harm on gays and lesbians. By contrast, the rational bases typically offered for heterosexist marriage restrictions usually are some chatter about the state's interests in procreation and child-rearing. I think those arguments tend to be irrational gibberish anyway, but for the purposes of this case, the court simply observed that Proposition 8 had precisely no bearing on these topics. California already has well-established procedures for how gays and lesbians can conceive and raise their kids, and Proposition 8 effected those not at all. So since the only thing Prop. 8 did do was foist upon gay couples this dignitary harm, and since simply denigrating the legitimacy of gay people is not a legitimate state interest (falling under the ambit of animus), the law falls under Romer. The implication is that if California voters had done more -- for example, hinging certain childcare rights on marriage in tandem with restricting marriage to heterosexual couples -- it would have been more likely to survive rational basis review (or at the very least, force the Court to make the affirmative constitutional case for gay marriage nationwide).

Again, the court's analysis isn't necessarily wrong here, so much as illuminates an oddity in how broader constitutional doctrines manifest. Judicial supremacy means that we can't even conceive of a constitutional amendment that is meant to correct a "wrong" constitutional interpretation -- there is, in this view, no such thing as a "wrong" constitutional interpretation except when the courts themselves say so. Rational basis means that legislatures need to more aggressively target the rights of unpopular minorities, because if they don't, it is easier to say they acted out of animus.

I should stress that I think that the constitutional case for gay marriage is more or less a slam dunk, and in that sense the 9th Circuit opinion definitely reaches the right outcome. But in its (tactically quite wise) efforts to fit itself within the narrowest box possible, it helps illuminate certain strange elements of our constitutional order which I felt compelled to point out.

Monday, February 06, 2012

Practically Perfect in Every Way

Quite the little ego we have, don't we, Rep. Bachmann?
Asked by Bloomberg TV’s Al Hunt to name the most conservative candidate remaining in the 2012 race, Bachmann responded by plugging herself.

"I was. I was the perfect candidate," Bachmann said. "America had their chance with the perfect candidate."

That is so delightfully petty and petulant that I can't help but smile. Oh, Michele -- we didn't know what we had until it was gone.

Your Mouth Says No But Your Name Says Yes

In the course of discussing how it is that tensions between Iran and Israel have escalated so much, Jeffrey Goldberg remarks off hand that "I'm opposed to an Israeli strike on Iran; I'm also opposed to an American strike on Iran." Who wants to bet this will have precisely zero impact on the constant stream of articles insisting that Goldberg actually desires the exact opposite? I mean, come on, he's Jeffrey Goldberg. Who could possibly be so naive as to presume his policy preferences bear a relationship to what he publicly states them to be? Come on.

In other news, about six people were protesting near my apartment in favor of world peace and against war with Iran. One poster said "Not to war with Iraq/n", with the "q" turning over to an "n" like an odometer, which I thought was clever. Another said "no war for Israel", which was decidedly less so. It just made me wonder who we should go to war for? The U.S.? Well that just raises the question of what our "interests" are, and whether protecting a friend can count as one. Actually, I imagine the protesters just think we shouldn't go to war at all, but then why is it particularly distressing if we go to war "for Israel" as opposed to "for Kurds" or "for oil" or "for America" or "for freedom"?

In any event, I am in agreement with Goldberg that I'm not particularly keen on American or Israeli military action towards Iran (though I'd note that the odds either party would launch any sort of Iraq-style ground invasion, as opposed to airstrikes akin to what NATO did in Libya, are virtually non-existent, and that the latter has a very different calculus -- moral, strategic, diplomatic, logistical -- attached to it from the former).