Friday, March 31, 2017

And Nikki Haley's Reputation Was Ruined Forever

The Obama administration struggled when it came to Syria. That struggle was honestly arrived at. It pitted a brutal tyrant, massacring his own people, against a deeply unstable region beset by factionalism (of which ISIS was only the most terrifying), coupled with an America chastened in its ability to effectuate positive regional change at gunpoint from the debacle in Iraq and, more recently, Libya. That is not a cocktail which lends itself to any simple solution.

Of course, some people were less forgiving. Lee Smith at Tablet was brutal in lambasting Obama for his softness on Syria. And perhaps nobody was more viciously targeted than his UN Ambassador, Samantha Power, whom Smith deemed the "Ambassador from Hell." Power had and remained a constant and vocal critic of Assad and his barbaric attacks on civilian populations. But her inability to actually translate such vocalizations into tangible actions aimed at getting Assad out made her into a monster. Syria would be her everlasting shame.

Sadly, as much as some folks might miss it, Obama is no longer the President. Donald Trump occupies the Oval Office, and Nikki Haley is our UN Ambassador. A change of tone in the air? You could say so: Haley just announced that the US no longer cares if Assad stays or goes at all. She's right in line with the rest of the Trump administration -- Sean Spicer lectured the press corps that we needed to accept the "political reality" of Assad's leadership.

Now just to be clear: My opening paragraph continues to reflect my view on Syria. It doesn't become less knotty or nettlesome just because Trump's in office. And while I am (I believe justly) skeptical of the Trump administration's ability to successfully navigate such a delicate and thorny situation, there is no obvious path for Trump to take that one can fairly lambaste him for foregoing.

But Smith clearly didn't agree. He had no hesitation about drawing deep from the rhetorical well, and never assuming complexity when malice would suffice. So can we look forward to blistering editorials about how Nikki Haley is forever tarnished, a tool of genocidaires with the blood of countless Syrians on her hands? Can we expect him to speak of Trump's "deliberate" decisions to allow civilians to die, the better to snuggle up to his pals in Russia?

Color me dubious. Once Obama's gone, it's amazing how passé these hysterics suddenly get.

Wednesday, March 29, 2017

Spring Break Roundup!

It's Spring Break! Sadly, that's markedly less exciting when you're 31 years old and revising article drafts.

Nonetheless, it does present a good opportunity to do a roundup.

* * *

Kate Manne has an incredibly powerful essay on sexual violence, the struggles over reporting it, and why men get away with it. It follows on Martha Nussbaum's revelation, in a lecture last year, that she was sexually assaulted at 20 years old by a famous actor and her explanation for why she didn't report it. This is a must-read.

A neat looking art exhibit by Indian Jewish artist Siona Benjamin.

Truly every dark cloud has a silver lining: Donald Trump's army of internet trolls is in a state of panic over the upcoming rollback of internet privacy protections.

Hungary's right-wing government looks to try to close the Central European University. CEU was founded by George Soros, and if what the Hungarian right says about Soros sounds familiar, that's because it's identical to what the American right says about him. And if talking about shadowy international Jewish financiers threatening our way of life sounds a wee bit antisemitic when Hungarians do it, well, thank God for American exceptionalism.

Mayim Bialik and Emily Shire on Zionism and feminism (it's the latest salvo in this whole thing).

Maajid Nawaz, a former Muslim extremist turned liberal reformer, is profiled in the New York Times magazine. It is hardly uncritical, but it does seem to support the argument that the SPLC did a hatchet-job on him. And the observations about why it is difficult to promote "eat-your-peas" secular liberalism have resonance well beyond the Muslim community.

Tuesday, March 28, 2017

Iranian Mullahs and Settler Rabbis Agree: Feminism's the Worst

Iranian Ayatollah: Feminism is a "Zionist plot".

Prominent Israeli settler Rabbi: "[W]omen have been taken hostage by the feminist movement .... I am trying to save the girls from feminist captivity."

Bonus irony: The settler Rabbi, though affiliated with the IDF, was speaking in terms of what Israeli military service allegedly does to Jewish women. So the agreement goes even deeper than what appears at first glance -- both think that the Israeli army is arm-in-arm with that dastardly dame, feminism.

In these times of strife and conflict and discord, we should all look to our points of commonality and connection -- some of which come in the most unexpected places. I, for one, am truly touched at this rare concordance. Who knows: maybe it will provide the opportunity for bonding? I can smell a regional peace initiative already.

Israel's Snuggles with Trump Threaten Israel

The most interesting thing about this article in Ha'aretz isn't the message, but who's allegedly delivering it:
In messages that have been conveyed to the Israeli Embassy in Washington, as well as to the Foreign Ministry and the Prime Minister’s Office in Jerusalem, these individuals have stressed that despite its desire to forge a close relationship with Trump, Israel must move cautiously and avoid making any moves that would distance the Democrats from the Israeli government and make it difficult for Israel’s friends in the party to come to its assistance.
No fewer than five senior officials in centrist American Jewish organizations that are known for their unequivocal support of Israel told Haaretz that they personally had conveyed messages of this nature to officials in the Israeli Embassy in Washington, to the Prime Minister’s Office and to the Foreign Ministry. 
One of the five — none of whom wanted to be named — said the response he got from his Israeli interlocutors was “a silent nod that expressed understanding, but not agreement.”
A senior Foreign Ministry official, who also asked not to be named, confirmed the messages, telling Haaretz that they had come from both representatives of Jewish organizations identified with the Democratic Party and from representatives of Jewish groups affiliated with the Republican Party and with the right.
The bolding is my own. And of course, it'd be interesting to know who these groups are -- it's hard to imagine ZOA or the RJC saying this, for instance. I suspect they are referring to mainline groups that lean more conservative (maybe AIPAC? maybe the Conference of Presidents?). In any event, whoever these groups are it's good that they recognize the threat, because it's a real one -- and one that, unfortunately, the American Jewish right has a vested interest in perpetuating rather than resolving.

Sadly, if the end of the third paragraph is any indicator, Israel will continue to ignore this advice outright and openly antagonize Democrats until they entire party hates them. Ron Dermer's speech at AIPAC expressing uncontained glee that Trump is the President instead of Obama would have been proof of this even if it hadn't come directly after the AIPAC President's plea to not to turn Israel into a partisan issue.

God Ron Dermer is the worst.

Monday, March 27, 2017

You Can't Take "Intent" Out of "Discriminatory Intent"

There is currently a debate regarding whether courts can use President Trump's campaign statements regarding his Muslim ban -- to wit, that it was indeed a "Muslim ban" -- as evidence of its unlawful character. Matthew Segal at Just Security says yes. Jeffery Toobin at The New Yorker says no. I confess I find Toobin's position baffling, verging on incoherent, and resting on fundamental confusion about how "intentions" might or might not matter in legal interpretation (a quick note: Toobin says he is basing his view on a forthcoming article by Cardozo Law Professor Kate Shaw. I haven't been able to locate a copy of Shaw's piece, so my critique is not directed at her or her arguments). Perhaps most alarmingly, Toobin's view continues a trend of making discrimination cases virtually impossible to win even in concept.

As we know, many of the judges who struck down Trump's travel ban did so, in part, by relying on statements by Trump and his aides telling us that this ban was designed to target Muslim immigration to the United States -- an unconstitutional motive. Toobin finds this "unsettling", as it implies that "an identical order would be upheld if Barack Obama had issued it, but that this one was invalidated because Trump was the author." As far as Toobin is concerned, either the "Muslim ban is constitutional or it's not" -- Trump's words don't matter; the constitutionality of the same legal text can't depend on extra-textual utterances by whoever happened to be the author.

I said that Toobin's argument rests on a fundamental confusion regarding how authorial intent might matter in legal interpretation, so let's parse that out. Consider a rather famous case where a federal statute criminalized the "use" of a firearm "during and in relation to . . . [a] drug trafficking crime." The defendant traded a gun for narcotics, the question was whether this qualified as a "use" under the statute. Imagine two universes, where the statutory text was identical, but had different primary authors:
In Universe A, the author says he is introducing this law because "I want to get as many criminals involved in drug trafficking off the street, for as long as possible. And since I know many drug traffickers carry guns, many drug traffickers will face stiffer penalties under this law."
In Universe B, the author says he is introducing this law because "the use of guns to commit or threaten violence is a scourge on our cities, and it is essential that we differentiate between violent and nonviolent instances of the drug trade."
Legislator-A's statement seems to suggest that he intended for "use" to include use as a means of exchange, Legislator-B's statement may suggest that he did not so intend. But, one might argue, the same legal text (again, recall that the text of the law is the same in both universes) should not have different meanings simply because of extramural utterances by the author that are not contained inside the text itself. The law means what it means; these statements simply have nothing to do with it either way. On this score, Toobin would have many followers (albeit not universal agreement).

In the above example, the question is whether stated intentions matter in determining what the law means -- who is included, who is excluded, what acts are allowed, what acts are illicit. But note that's not how intention is being used in the Muslim ban case. Courts are not using Trump's statements to determine whether or not the order does or does not encompass John Q. Muslim -- that is at least somewhat clear (relying on questions like whether he is coming from one of the covered countries). Rather, the question is whether or not the ban is lawful in the first instance -- not about its meaning, but about its legitimacy.

I stated that Toobin's argument basically makes discrimination cases impossible to win, and this distinction explains how. Suppose that Zack, an African-American man, has just been told by his boss Andrea "you're fired." Again, divide ourselves into two universes:
In Universe A, Andrea is racist, and she fired Zack because Zack is African-American.
In Universe B, Andrea is not racist, and she fired Zack because she doesn't like the color of Zack's shirt (in an at-will employment context, the reason doesn't have to be a "good" reason).
In both universes, Andrea has taken the same action -- she's fired Zack. Even more clearly than in the "use a firearm" case, the meaning of what Andrea did does not change based on her intentions -- it is unambiguous that she fired Zack. But the legitimacy, the legality, of her action absolutely depends on what her intentions were: in Universe A, Andrea has engaged in unlawful racial discrimination, in Universe B, she hasn't. That's because in American law the intention that motivates the action is what distinguishes discriminatory versus non-discriminatory conduct. And so here we have a clear example of what Toobin derides as absurd: the same action, the same text, is lawful or unlawful based entirely on who did it -- or more properly, based on the licit versus illicit motivations of who did it.

In this, discrimination cases are somewhat of an outlier in American law (though not completely so). For the most part, we assess the permissibility of a given law based on its effects, not based on the psychological motives that prompted it. In deciding whether a law imposes an "undue burden on a woman's right to choose" to have an abortion, for example, we're more concerned with the degree to which the law actually obstructs the ability to terminate a pregnancy. Intentions may be correlated -- it stands to reason that someone who wanted to impose such a burden is more likely to have written a law that does impose such a burden -- but they ultimately are not dispositive. A law intended to impose a significant burden that, in fact, does not do so will pass constitutional muster; a law that was not intended to seriously burden a woman's right to choice but turns out to be immensely burdensome should fail.

One could argue that discrimination law should operate in the same way -- it matters less what is in the headspace of any given actor and more the impact that it has on discrete and marginalized groups. So with respect to the Muslim ban, we might say that it doesn't matter why Trump did it, what matters is whether it has a disparate impact on Muslims (clearly it does), or whether it impedes their equal standing in American society (quite plausibly). But, for better or for worse, that's been firmly rejected by the judiciary. What matters is the intentions, and effects are only relevant insofar as they are probative of intent. In the inverse of the abortion case, we might think that an action that disproportionately and deleteriously impacts Muslims is more likely to have been motivated by anti-Muslim intentions than one which has no such disparate impacts; but ultimately the inquiry is solely about trying to figure out what motivated the action. And so again, it is entirely plausible given how anti-discrimination law operates that the same order, with the same impacts, could be lawful under one author (with neutral intentions) and unlawful under another (with racist intentions).

Obviously, lawyers are rarely stupid enough to simply admit that their client harbored a discriminatory motive. So much of discrimination litigation is about trying to suss out the actual motive in situations where the defendant insists that his or her intentions were pure as driven snow. It should go without saying that among the most powerful pieces of evidence one can put forward to establish a discriminatory motive is a declaration by the defendant that "I am doing this because of race/sex/religion".

Many people have commented on the emerging American trend of being less "racist" than "anti-anti-racist." Instead of affirmatively preaching racist policies, they instead stand aghast at anything actually being labeled "racist". How uncouth, how vulgar, how meanspirited! This instinct is the only thing that lets me make sense of simultaneously holding (a) that one can't call something discriminatory unless it was motivated by discriminatory intent and (b) that it's dirty pool to actually use someone's own direct statement of motivation as a means of establishing said intent. Talk about heads-I-win-tails-you-lose! If Toobin says we can't consider explicitly stated motives in assessing discrimination claims in a legal world where motive is legally dispositive, it becomes increasingly unclear what sort of evidence could establish an instance of discrimination even in concept. If (as Toobin holds) proper judicial interpretation doesn't incorporate statements of intention that lie outside the formal legal document, and "discrimination" only occurs where there is an illicit intent, then discrimination claims are impossible to win except in the absurdly rare case where the bad intention is somehow written into the document.

Sunday, March 26, 2017

The New White Flight

Arwa Mahdawi has a thoughtful column on an upcoming change in the US census that would create a separate category of "Middle Eastern" (currently, they're considered "White").

The title and subtitle imply that this is an act of exclusion and marginalization (Mahdawi's own words are considerably more measured); but much of the history behind this change is campaigns by Middle Eastern Americans to "check it right; you ain't White!"  Meanwhile, last year I linked to an interesting article in Ha'aretz interviewing Middle Eastern Jews in America regarding how they felt about the change -- their thoughts were interesting in their ambivalence (identifying as Middle Eastern, but frequently not identifying as "people of color").

There is something intriguing about this -- for the most part, the racialization process in American history has been about groups struggling to "become" White and to preserve that status once attained. Yet now we're seeing at least some groups try to resist being identified as White, a new and novel form of flight from Whiteness. I've seen it before (at an earlier age identified with it) amongst Ashkenazi Jews, and now we're seeing it from many Middle Eastern and Arab Americans. At the very least, this suggests some level of improvement in racial egalitarianism ("some", of course, not being a synonym for "adequate") -- we've moved from a world in which non-Whiteness was flatly incompatible with being an equal American to one in which people can at least conceptualize "choosing" to be non-White without it coming off as a death wish.

Still, that doesn't explain the motive of why persons would proactively view Whiteness as mischaracterizing their identity. What makes it not the right box? What I suspect is going on here is the sense that being viewed as "White" is thought to diminish or negate the existence of significant ethnic oppression. "White" people are privileged, and so to the extent that Arab Americans are not privileged on account of their ethnicity, coding them as "White" misrepresents their social status in significant ways. Now, one might wonder why this would be so: we can talk of gay Whites as being simultaneously privileged (as White) and subordinated (as gay); so too we might be able to say that White Middle Easterners are privileged (as White) and subordinated (as Middle Easterners). But the idea seems to be that Whiteness absorbs certain types of marginalization -- particularly those based on ethnicity (this is probably related to the loose borders between "race" and "ethnicity" as concepts). Gayness and Whiteness are in different domains, but if a Middle Easterner is White, their Middle Easternness is a subcategory of their Whiteness.