Friday, March 16, 2012

The Fatal Flaw of Brandeis University

The latest element of the Sandra Fluke walking disaster for the right controversy is that her boyfriend is ... Jewish. Socialist Jew Brandeis University Marxist Jewish Socialist Unionizing Jew (to be precise). Fluke's connection with this Brandeis-affiliated Jewy Jew
begs the question… if you’re so connected to the Mutterperl family, Sandra, why not go to Brandeis, a school much more aligned with your worldview, instead of Georgetown University, a Catholic Jesuit school? Are you admitting that a Christian school is better than a neo-Marxist school, or is there some other agenda?

Indeed, what an interesting question! Why would Ms. Fluke prefer to attend Georgetown for law school rather than Brandeis University? An implicit concession of the inferiority of the leftist worldview? A natural aversion to associating with those unionizing Christ-butchers? A subconscious desire to cleanse herself of sinfully wicked lustful desires -- or a guerilla campaign to introduce such decadent ways amongst the faithful?

Or perhaps -- just perhaps -- it's because Brandeis University doesn't have a law school. Good news for the University of Louisville, bad news for the coherence (such as it is) of the conspiracy.

The Wise Also Fail

I knew of then-General Ulysses S. Grant's "General Order No. 11", which expelled all Jews from a huge swath of America. The order proclaimed that "The Jews, as a class violating every regulation of trade established by the Treasury Department and also department orders, are hereby expelled from the department within twenty-four hours from the receipt of this order." It was one of the most prominent examples of officially condoned anti-Semitism in American history (though the order itself was reversed by President Lincoln 11 days later).

What I didn't know was the story of the rest of Grant's career vis-a-vis the Jews (via TNC). Grant, it seems, was sincerely and genuinely repentant over what he had done. He recognized that it was incompatible with his broader commitments to human equality. And he committed himself, particularly while as President, to protecting the equality of Jews and fostering their inclusion as full Americans. This included visiting newly opened synagogues in DC, speaking out against abuses of Jewish human rights in eastern Europe, and appointing more Jews to public office than any President up to that point. At the end of his life, Grant was exceptionally proud of the fact that he counted Jews and non-Jews alike amongst his friends and visitors.

This was all the more impressive because Grant was not simply responding to a change in social attitudes. In fact, he was actively resisting social tides, which were trying to aggressively declare America a "Christian nation" and viewed Jews with distrust and contempt. Grant's overt and repeated gestures towards Jewish inclusion helped foster in a "golden age" of Jewish life in America paralleling the high point of reconstruction. Unfortunately, like with reconstruction, this era faded when Grant left office, as other national leaders were not committed to keeping equality on the front-burner.

Grant's response to the depravity of General Order No. 11 wasn't "but I have Jewish friends!" By all accounts, Grant exhibited genuine remorse and genuinely worked to make things better. It was not cheap grace. It was a true impressive commitment by Grant to make up for an acknowledged wrong. And so it was after Grant died that one of the great Jewish leaders of the era, Rabbi Isaac Mayer Wise, remarked "that the wise also fail." They do, and when they do they do so on a more public stage than most. But the wise also repent, and set out to make things right. And the ability to do that, consistently, in public, over the course of a long and powerful political career, is the sign of a great American patriot.

Wisconsin State Senate Evens Up

In a stunning announcement, Republican State Sen. Pam Galloway -- targeted in the latest round of Democratic recall efforts -- is resigning her seat (due to familial health concerns). This causes the State Senate to even up at 16 members apiece, depriving Republicans of their majority.

Not only does this temporarily stop the Scott Walker/Fitzgerald Bros. steamroller that's been ramming through right-wing legislation (until the next round of elections, which will more permanently settle who is in charge of the chamber), but it could have a huge effect on redistricting. A Republican gerrymander is currently in front of the courts. If the Court rules the maps unlawful, they get kicked back to the legislature -- which, no longer unified under GOP control, won't be able to pass a map anywhere near as GOP-friendly as the one currently being pushed. That means either there will need to be a compromise map, or the courts will draw one -- either way, gerrymander (likely) averted.

Thursday, March 15, 2012

Rep. Gary Ackerman (D-NY) Retiring

All I really knew about Ackerman was that he was a seemingly run-of-the-mill NYC Jewish Democrat. So the tidbits about him in the story about his surprise retirement were particularly entertaining:
Mr. Ackerman had always baffled people on the Hill. He was hard to miss in the corridors of Congress, always wearing a white carnation boutonniere on his lapel and pulling up to work in white 1966 Plymouth Valiant.

And unlike other lawmakers who live in apartments, hotels and houses during the week while Congress is in session, he lived on a houseboat called the Unsinkable II, a 42-foot vessel with one room that was docked on the Potomac River, just miles from Capitol Hill. (The Unsinkable I sank in the Potomac in the mid-1980s.)

The district is solidly Democratic, but there will undoubtedly be some primary action on the blue side after this announcement.

Wednesday, March 14, 2012

National Treasure

Know who I respect? Richard Simmons. He was basically a national joke for so long, with his flamboyance and short shorts and overwhelming perkiness. And you know what? He just decided "I am going to own this." And he did. He played along with all the jokes and totally owned his character, and look at him now. He's completely made the transition to from national laughingstock to national treasure. And now when we see him on TV, he's a cherished part of our collective culture.

And he hasn't changed a bit.

Tuesday, March 13, 2012

Pro-Israel Groups Silent as One-State Goes Mainstream

Following South Carolina and the RNC, the Florida state legislature just passed a resolution calling for a one-state solution. Specifically, the resolution disavows that Israel is "an occupier of the lands of others", instead affirming its right to jurisdiction over the West Bank and Gaza and proclaiming "that peace can be afforded the region only through a whole and united Israel governed under one law for all people." Which is another way of saying one-stateism.

The anti-Zionists at Mondoweiss are crowing, and why shouldn't they? This rash of one-state support is easily the highest-profile domestic victory they've ever seen. The ADL and AJC, among others, have denounced one-stateism as inherently anti-Israel. But it is rapidly becoming mainstream, with these resolutions leading the charge.

What might be most remarkable, though, is that essentially all the main players are effectively admitting that they simply weren't thinking too hard about Israel's best interests. Responding to the objection that he was forwarding a one-state agenda, Alan Clemmons (author of the South Carolina resolution) stated that "This document was drafted over a period of hours, not months, in an exercise of exorcising my own concerns with President Obama over advocating that Israel abandon Judea, Samaria, and East Jerusalem." He continued: "this resolution was passed as a symbol and it truly is little more than a symbol. I don’t pretend to know what the best answer is with respect to the voting issue in Judea and Samaria, and in Israel for that matter." A Florida Democratic co-sponsor conceded that "I did not focus on [the one-state call" and ventured that "If it’s anything other than support for the State of Israel, then I would say shame on us for signing on."

Even (well, "even") the right-wing Zionist Organization of America, which was the prime mover behind these resolutions, admits that it doesn't actually know what it was advocating. Talking about the the "one law for all people" clause, ZOA President Mort Klein admitted "It’s not so clear what it means. I remember struggling with that phrase. It was not written very clearly." (Of course, the problem is actually that it is written too clearly, and too clearly indicates that ZOA prefers a one-state solution to the conflict compared to the two-state paradigm which ZOA's Joe Sabag declared "is not working").

What is going on here? Well, at one level, it is another indicator of Zionism becoming post-Jewish, as what counts as "pro-Israel" becomes ever more divorced from how Jews think of the issue. Instead, Zionism becomes a talking point right- and left-wing agitators who neither know nor care about Jewish values or interests. Essentially none of the proponents of this resolution were actually willing to defend its text; most candidly admitted that it was an attempt at symbolic support for Israel, agnostic to any particular policy paradigm. But of course, the last thing Israel needs is empty symbolism -- what it needs is friends who care about it and are willing to fight to make sure it stays secure as a Jewish democratic homeland. That's a policy priority for most Jews, but it's not for the new gentile "Zionism" and their token Jewish allies in ZOA. For these so-called Zionists, the important thing isn't whether Zionism lives or dies, it's whether one demonstrated fealty to the right "symbol". That sort of "support" is worse than worthless -- it is disgraceful and should have no place in the pro-Israel community.

At another level, it shows the weakness of mainstream Jewish institutions like the ADL and AJC. It is notable that while these groups were able to react swiftly and decisively to a one-state conference hosted by fringe leftists, they've been virtually silent about its growing hold on mainstream American political institutions (particularly on the right). Obviously, there's a reason for that: The AJC has more than enough clout to take on a few radical academic types, but nowhere near the influence to be able to comfortably check the entirety of the Republican Party.

For all the claims at the massive power and influence of The Israel Lobby(tm), for the most part it is successful because it advocates positions which are overwhelmingly popular amongst the public and amongst mainstream politicians. It is a rare situation where pro-Israel groups are forced to frontally challenge a mainstream political position -- but of course, the prospect of an anti-Israel position becoming mainstream is precisely why it is so important that we have these sorts of groups. So where are there? Cowering. The AJC, the ADL, AIPAC, these groups don't have the spine to challenge the right's push to mainstream one-stateism. Remember what happened when the ADL tried to take on Mike Huckabee? So while the AJC and ADL should be coming out with statements lambasting Florida, South Carolina, the RNC, and ZOA (which frankly should be drummed out of the pro-Israel tent as the right-wing equivalent of the JVP for this heresy), they'll remain silent -- and Israel's security will suffer for it.

Israel is in a very precarious situation right now, and this whole scenario illustrates just how dangerous things are. Its "friends" are, by their own admission, more concerned with empty symbolism than actually securing Israel's future. Its stateside political veneer is, more and more, falling under sway of a radically anti-Israel position that has as its inevitable end the destruction of Israel as a Jewish, democratic state. And the American Jewish community -- tasked with protecting Israel from that fate --can't muster up the courage to draw a line in the sand and say that this is all a bridge too far. It's disgraceful, and true friends of Israel won't forget their failure.

Monday, March 12, 2012

As a Breitbart-Approved Expert, Breitbart is Full of Shit

One of the Breitbart flunkies has decreed that I am an officially approved Derrick Bell expert, and that in order for the "controversy" regarding Derrick Bell and Critical Race Theory to abate, folks need to hear me weigh in.

Hey, anything for Breitbart. Ready? The claims Breitbart's site is making about Bell and Obama are entirely wrong, and betray a fundamental misunderstanding not just of critical race theory, but of massive swaths of literature on the judiciary.

Now, the pattern of Breitbart's attacks is hard to discern -- it seems to be just throwing up random arguments Bell has made over the course of his career, punctuated by scary adjectives. So, for example, my expertise is demonstrated via my 2006 description of Bell's interest-convergence theory, which holds, in essence, that civil rights advances occur when they are in the interest of Whites. In terms of Brown v. Board, the interest was maintaining our diplomatic edge in the Cold War, which caused the Eisenhower administration to intervene on the side of the NAACP (the Soviets had been using Jim Crow abuses as a cudgel against the US in their diplomatic efforts to curry favor in the Third World).

As I noted in my post, subsequent historians have verified that Bell's argument here is perfectly accurate (the key book is Cold War Civil Rights, by USC legal historian Mary Dudziak), and I'm not sure why the claim should be seen as controversial. I mean, I suppose it dispenses with the notion that civil rights advances were done because White people collectively saw the light, but so what? Obviously the truth should be an absolute defense anyway, but to the extent Bell is arguing simply that people act in their self-interest, he's observing nothing more controversial than the building block of capitalism, law & economics, and the Federalist Papers ("if men were angels ..."). If anything, Bell's argument is fundamentally conservative -- it's not about fuzzy notions of "justice" and "doing the right thing", it's about hard-headed analysis of the national interest.

In any event, despite linking to me on this point, this doesn't form the core of their objection to Professor Bell. Rather, they take issue with his general disdain for using courts as methods of social change. Well -- sort of, and here is where they seem to fall wildly off the rails. This column attempts to claim that Barack Obama wished the Warren Court had been "more radical", a sentiment he allegedly shares with Bell. It is almost impossible to count the ways this is wrong -- it manages to get Obama's position wrong, Bell's position wrong, as well as misattributing the actual position in question as emblematic of "critical race theory", when it has a much broader reach than that.

The quotes they give from Obama make the relatively unremarkable assertion that, for all the Warren Court's supposed "radicalism", it actually was surprisingly modest in its reach. It did not attempt wide-ranging socio-economic reform (typically seen as beyond the reach of the judiciary). It focused on enforcing negative rights -- freedom from governmental coercion -- which is well within the classic wheelhouse of the judiciary. And he goes on to say that social movements who adopted a "courts-focused" strategy made a terrible mistake, because they expended resources in a forum that would not and likely could not actually grant them the victories they desired. And Bell is mostly in agreement here -- his experiences as a litigator for the NAACP convinced him that a judicial strategy was sharply limited in what it would be able to accomplish for everyday Blacks.

What's wrong is the extension Breitbart asserts over and over is "clear" -- that Obama (and Bell) wish the Court would have taken on this role. That claim, alas, is "clearly" wrong. Most mainstream legal theorists don't think the Court is legitimately in the business of guaranteeing positive rights -- it would be illegitimate for them to make such guarantees part of their jurisprudence. This holds true even if one thinks that some positive guarantees should exist. So, for example, I might think that we should have a minimum wage (I do), but not believe the Courts should mandate one as a matter of constitutional law. This is not a particularly complicated concept -- it simply holds that there is a difference between one's political commitments and what one thinks is the legitimate province of the courts -- a staple of conservative constitutional principles, incidentally. That's half of Obama's point (I'll get to the latter half in a second) -- that the judiciary is properly constrained by certain essential principles, that the Warren Court did not break free of those constraints but rather stayed well within them, and that thus nothing it did should be seen as particularly out of the mainstream. To the extent liberals wanted to see change of the sort not properly engineered by the courts, they should have focused on social elements that are legitimately tasked with those projects (such as legislatures).

That's a legitimacy point -- that the Courts are not properly tasked with certain social agenda items, even if it would be a good thing for society if they were accomplished in some other way -- and it is perfectly mainstream. Does Bell agree? It's unclear, since Bell is more focused on the second half of the equation -- legitimate or not, are courts institutionally capable of accomplishing widespread social reform? Bell's answer here -- mediated by his time as a frontline NAACP attorney during the civil rights revolution -- is a resounding no. If what one wants is widespread social reform, going through the courts is a bad idea. It doesn't matter whether courts ought to do it or not, in fact, it doesn't matter whether courts want to do it or not. They are structurally incapable of accomplishing significant social reform. Reformers should focus their attention on other, more effective means of attaining their desired ends -- like community organizing, like lobbying elected branches.

Is this a CRT position? To some extent, yes, but it's hardly restricted to them. Probably the most well-known defense of this stance came in Gerald Rosenberg's The Hollow Hope. Rosenberg is not part of the Critical Race Theory movement (he's also a White dude, so Breitbart readers can trust him), but his book is the go-to citation for the claim that courts can't bring about social change on their own. Brown, he argues (and backs up with a mountain of data), was relatively meaningless -- desegregation didn't begin in earnest until Congress passed the Civil Rights Act, and desegregation ceased as soon as the political costs began to outweigh the benefits. Rosenberg is quite clear that the problem was not a lack of effort by the judiciary. Rather, it is structural weaknesses present in the judicial branch -- for example, lack of control over budget and enforcement, lack of resources and expertise to oversee complicated remedial plans, and constitutional inability (due to standing rules in Article III) to be proactive in face of popular resistance. To say the problem is that Courts "aren't radical enough" is to wildly miss the point -- the problem is that people think the Courts are even capable of effectuating this sort of change. Bell absolutely concurs with this argument -- adding other reasons for judicial incapacity as well -- but the position itself is not unique to Crits. It is a mainstay of the entire American Courts subfield of political science and law.

And again, why should this position -- that social movements shouldn't rely on the judiciary to achieve their ends -- even be controversial? The irony is that these positions are fundamentally conservative ones. The right-wing has always complained that liberals want courts to engage in social engineering beyond their institutional capacity, in ways that supersede the will of the people as expressed through democratic branches. But Bell's beliefs are entirely consistent with this critique -- he agrees that one shouldn't use courts as primary engines of reform, and that one should instead look to more localized methods of achieving ones ends. The obsession liberals have with the courts, Bell and Obama both hold, is counterproductive -- it accords the courts far more power than they either ought to have or are capable of effectively wielding.

The final area of Bell's writing that might be controversial is his belief that the American corpus of law maintains and perpetuates racism and White supremacy. This would be something thing is distinctively CRT. It also has no link to President Obama, who is notable for the rarity with which he approaches policy through the lens of race or racial equality. And that, more than anything, is why Dorothy Brown was clearly right in saying Obama doesn't even have a "vapor" of CRT. CRT approaches problems of law primarily through how they affect questions of race, and their general answer is "American law perpetuates racism". As Obama doesn't really focus on race in American life at all, it is bizarre to label him as particularly CRT-oriented.

Should the idea that racism is ingrained in American law be controversial? I guess it's inevitable. But the argument isn't hard to make. The starting point is that racism is normal in American society. That's an empirical argument resolvable by empirical research -- people can chest-thump all they want about how outrageous it is to assert that racism is common-place in America, but the fact remains that racism is something we can measure, and the measurements indicate it still is very prevalent (see, e.g., here (applicants with Black-sounding names fare considerably worse than Whites with identical qualifications), here (holding credentials constant, Blacks on the job market fare worse than Whites with criminal records), and here (knowledge of a seller's race causes buyers to offer reduced prices for goods of identical quality sold by Black merchants)).

But since the law (incorrectly) assumes racism is aberrational, it generally maintains a stance of neutrality -- it doesn't talk about race, and generally just upholds the (still racially biased) status quo. Moreover, since the law's presumption is that it should not delve into racial matters, what efforts do exist to remedy that still-extant racial inequality are greeted with significant suspicion by the courts -- leading to, for example, the Court finding that voluntary desegregation of public schools is an unconstitutional violation of the 14th Amendment. Given these twin arguments (1) that society remains racist and (2) that the dominant legal structures are geared to prevent significant shifts along the axis of race, the conclusion that the law acts to perpetuate racism is perfectly plausible.

It's worth one final point here -- note that these problems of racism (e.g., that Black sellers receive less than White sellers, all else equal) are not problems that seem amenable to judicial resolution. How exactly would a seller bring a claim to remedy this racial disparity? It's unclear, and for a court to try and solve this problem would likely be futile and would probably constitute overreach. So if we think that disparity is bad, our remedy should not come from the courts but from elsewhere. But that observation -- that social reform should come from institution more democratically accountable than the federal judiciary -- is not something that distinguishes Crits from mainstream Americans. If anything, it is something that seemingly unites across political borders.

So to conclude:

(1) Many of the arguments under dispute here simply aren't (or shouldn't be) that controversial. Interest-convergence is simply a historical point regarding what causes major civil rights shifts, and the particular claim about Brown has been verified by subsequent historical literature. The idea that people should not look to the courts as the primary engineers of social reform is (a) mainstream, if not conservative, and (b) hardly the exclusive province of critical race theorists.

(2) The claim that Obama and Bell want a "more radical" judiciary is almost comically false in its misreading of the argument. The claim Bell, like Rosenberg and Obama, make is that the judiciary is a terrible locus point for social movement efforts, and that it was a massive tactical mistake to focus on the courts as opposed to other avenues for reform. Their argument is fundamentally a critique of those who were saying "if only the courts were willing to do more, we'd be in the promised land".

(3) The distinctively "CRT" elements of CRT are the focus on race as the point of the analysis for American law, with Bell concluding that the law entrenches and reifies racial hierarchy in America. Obama can't be said to operate from this lens, since Obama almost never talks about or focuses on the law's effect on race and racial relations -- putting him in a polar opposite position from the CRTers. As for the merits of Bell's position itself, it's perfectly plausible. American legal doctrine as stands generally views the racial status quo as adequate and works to maintain it -- unwilling to tolerate significant efforts to make it either more or less racist. But if the baseline is already one of White supremacy -- if racism is the default setting (an empirical question) -- then this "neutrality" perpetuates and protects a racist status quo. This is "radical" in the sense of challenging fundamental assumptions about American law, but it's hardly something that should be beyond the pale for academics to explore.

UPDATE: The one thing left is this question about whether CRT is "about White supremacy". "About" is ambiguous language -- it can mean "related to" ("this class is about physics") or it can mean "exemplifying" ("I'm all about authenticity"), and I think that's where the confusion lies. Pollak cast CRT as being the antithesis of Martin Luther King, instead being "about White supremacy". That is more of the "exemplifying" reading (the opposite of being MLK is supporting White supremacy), and that sounds like what Brown and O'Brien were responding to (obviously, CRT is not about supporting or maintaining White supremacy). Does Critical Race Theory talks about racism and White supremacy? Of course it does. Does it support White supremacy and racism? Obviously not.

Now which way to Pollak mean it? It's hard to say, as he was kind of rambling, which is how these sorts of miscommunications happen. If anything, it seems like he doesn't mean anything in particular, instead relying on the emotive punch of the phrase "White supremacy" (specifically, his belief that it will rile up White ressentiment which is tired of being supposedly blamed for the existence of racism and sees all discourse about racial inequity as "playing the race card") absent any content whatsoever. This is the political cleverness of this gambit -- it's not about particular arguments. It's simply a belief that any discussion about racism is a discussion Republicans are winning, because it appeals to a sense of siege and victimization by the GOP's White base.

Reality-Based Voting Bloc

In anticipation of their upcoming primaries, PPP polls Alabama and Mississippi. They're finding that both states are essentially knotted up between Romney, Gingrich, and Santorum. But there are some interesting breakdowns once you consider the, er, unique views of many Dixie Republicans.

For example, in Mississippi only 12% of voters think Obama's a Christian to 52% who think he's a Muslim and 36% who are not sure. In Alabama just 14% think Obama's a Christian to 45% who think he's a Muslim and 41% who aren't sure. Among voters who answer this question correctly, Romney dominates, but among the Obama's-a-Muslim crowd Gingrich starts to pull back into favor (holding an 11 point lead in Mississippi and tying the race in Alabama).

Barely half of Mississippi Republicans belief interracial marriage should be legal, and Newt crushes amongst those who think it should not. Romney leads amongst the quarter of Alabamans and Mississippians who believe in evolution, while Gingrich tops amongst the majority that does not.

Basically, one thing you can say about Romney is that he does do better among the bloc of Republicans who still have at least a foot planted in reality. The problem, of course, is that this is a relatively small segment of the GOP primary electorate.

Sunday, March 11, 2012

Bibi Backs Arab Justice

Israeli Supreme Court Justice Salim Joubran, the first Arab to sit on the state's high court (and whom I blogged about here), caused a mild stir when he declined to sing the Israeli national anthem at a swearing-in ceremony (he didn't disrespect the anthem -- he just stood silently). The anthem specifically refers to the Jewish yearning for Zion, which needless to say the state's Arab residents find alienating.

The usual far-right suspects went nuts and called for him to be removed from the bench, but Justice Joubran is getting backing from a perhaps surprising source: Bibi Netanyahu himself. Netanyahu dispatched one of his top aides to assure Joubran that the Prime Minister understood and backed his decision. Meanwhile, a right-wing heavy-hitter, Moshe Ya'alon of Likud (not known as the fuzzy sort), savaged Joubran's critics, saying "The attack on Salim Joubran is inexplicable, unnecessary and reeks of persecution due to his origin."

Weekend Roundup

I have been dialed in these past few weeks, and the blogging has suffered, I know. Not sure if things will pick-up or not in the upcoming days.

* * *

Rick Santorum lets the economic cat out of the bag -- if it improves, Republicans suffer.

Republicans try, fail, to lift a consent decree barring them from voter suppression.

Sarah Palin says Obama pines for pre-Civil War America. I have to say, anytime someone says "obviously, even the most hardened conservative wouldn't say such-and-such", I immediately have very little trouble envisioning a conservative saying it.

My job is awesome. But lots of jobs stink.

Jon Chait postulates that "Bellgate" is just an instantiation of Jewish Republicans wild tendency to see Black anti-Semitism in every corner.