Saturday, August 18, 2018

But Do They Have Paradox-Absorbing Crumple Zones?

Eugene Volokh flags an interesting case out of Wisconsin lying on that intersection of religious freedom and anti-discrimination. Basically, a male Muslim prison inmate objected to being strip-searched by what appears to be (the record doesn't say explicitly) a transgender male guard. The inmate claims that part of his religious beliefs are that (a) sex is assigned by God at birth (so if you're born a woman, you're a woman) and (b) he cannot be seen naked by any woman save his wife. He's demanding a religious exemption from being strip searched by that guard under RLUIPA (he doesn't object to strip searches generally).

Reading about this, all I could think about it is: how would Breitbart cover this? Which hatred would win out? Would they back the Muslim prison inmate, or the transgender man whose job description includes seeing people naked?

I really think it's a toss-up.

Friday, August 17, 2018

When The Mask Comes Off ... What's Beneath Doesn't Look All That Different

The Prime Minister of Malaysia, Mahathir Mohamad, explains why he is "glad" to be called an antisemite.
“There is one race that cannot be criticized. If you are anti-Semitic, it seems almost as if you are a criminal,” Mohamad said in an interview with the Associated Press on Monday, denying that he disliked Jews, as such. “Anti-Semitic is a term that is invented to prevent people from criticizing the Jews for doing wrong things.”
“When somebody does wrong, I don’t care how big they are. They may be powerful countries but if they do something wrong, I exercise my right of free speech. They criticize me, why can’t I criticize them?”
Mohamad, an avowed anti-Semite, was sworn in as prime minister in May, nearly two decades after he last held office. He is well known for his anti-Semitic rhetoric, writing on his personal blog in 2012 that “Jews rule this world by proxy.”
He has also said, “I am glad to be labeled anti-Semitic […] How can I be otherwise, when the Jews who so often talk of the horrors they suffered during the Holocaust show the same Nazi cruelty and hard-heartedness towards not just their enemies but even towards their allies should any try to stop the senseless killing of their Palestinian enemies.”
This, of course, is rather naked. It speaks of Jews (although the de rigueur conflation with Israel is present), and it does not shy away from (indeed it actively embraces) the idea of antisemitism. In that sense, it is almost too easy of a case. And this is not remotely out of character for Mohamad either.

But where these passages may be of some use is in highlighting how certain antisemitic tropes work in a context where they are freely and openly attached to an antisemitic ideology, the better to spot them when they appear without such an overt gloss. Basically everything Mohamad is saying is something that, dressed up (a little) more nicely, is a common feature of discourse about Jews in global society today.

First, there is the claim that the real victims of antisemitism are those accused of it -- antisemitism is not (or is not primarily) a genuine form of oppression for Jews, but rather is a perk Jews enjoy to shield ourselves from critical review. Compare here Bruce Robbins "The real issue here is anti-Semitism; that is, accusing people of it" or Naomi Klein suggesting that some Jews "think we get one get-away-with-genocide-free-card."

Second, there is the argument that in taking on the Jews, he is taking on someone or something "big". Here he really dips between referring to "Jews" generally and "Israel" specifically (For the record, Malaysia has four times the population of Israel across a territory almost sixteen times its size). Of course, the perception of Jews as inherently "big" -- domineering, cabalistic, pulling the strings -- has deep pride of place in antisemitic rhetoric. Mohamad is appealing to a notion whereby antisemitism always is a form of "punching up", "a movement of the little people against an intangible, global form of domination".  This perspective has come to occupy a critical role in the narrative Corbyn supporters tell of Jewish outrage -- both in the view that Corbyn, in antagonizing the Jews, is tackling the powerful, and in the view that the Jewish backlash is itself attributable to some nefarious conspiracy

Next, there is the invocation of "free speech". Of course, this particular ploy should by now be familiar to anyone forced to endure alt-right trolling of college campuses -- when they choose to be racist, it's just free speech! And if you call it racist, you're suppressing their free speech! But this device makes its appearance regarding antisemitism too, and has done so for a very long time. Jewish Voice for Peace's old blog was titled "MuzzleWatch", and one of the major fringe groups backing the Corbynistas and opposing Jewish efforts to raise awareness of antisemitism in the UK is named "Free Speech on Israel". Glenn Greenwald has likewise dismissed the widespread adoption of the IHRA antisemitism definition as part of a "global campaign to outlaw criticisms of Israel as bigotry".

Then there's the comparison of "Jews" (represented through Israel) to Nazis -- we're all familiar with that play, and I'm glad to see it here if only for completion's sake.

But we'll conclude with the most striking bit, and the one that perhaps seems least applicable to more workaday antisemitic cases: where Mohamad says he is "glad" to be called antisemitic. Here one might say I'm actually being a touch unfair to Mohamad, for what I suspect he means is something more like "while antisemitism -- appropriately (and narrowly) defined -- is terrible; what is called antisemitic in public discourse are actually good, noble, and virtuous positions that one should be proud to hold." This is buttressed by the caveat Mohamad gave at the beginning, where he denies that he "dislikes Jews, as such."

Once again, this has parallels. Steve Bannon notoriously said that being called racist is a "badge of honor"; Steven Salaita's contention that antisemitism has become "honorable" thanks to Zionism plays on the same turf. In all cases, the claim actually isn't "it is good to hate outgroups"; it's something more like "what outgroups claim is hateful, actually is good". Now, to be clear -- that's still a BS response, partially because it is too clever by half, partially because it depends on an epistemic injustice directed against the outgroups whereby their assessments of their own experience of inequality is so unreliable that one should be "honored" if they feel threatened by you. But at least formally, it reduces down to a claim that "one can and should dislike X group insofar as they act in A B C bad ways, or support D E F bad policies."

Which actually circles back, strangely enough, to my Tablet Magazine article on Open Hillel's intervention in the SFSU antisemitism debate. In that article, I cited Bernard Williams for the proposition that virtually no form of racism holds itself out as being a product of raw, unadorned antipathy. It always comes attached to claims that are at least on-face about something that qualifies as a candidate for a reasonable position. Wrote Williams:
Few can be found who will explain their practice merely by saying, 'But they're black: and it is my moral principle to treat black men differently from others'. If any reasons are given at all, they will be reasons that seek to correlate the fact of blackness with certain other considerations which are at least candidates for relevance to the question of how a man should be treated: such as insensitivity, brute stupidity, ineducable irresponsibility, etc. Now these reasons are very often rationalizations, and the correlations claimed are either not really believed, or quite irrationally believed, by those who claim them. But this is a different point; the argument concerns what counts as a moral reason, and the rationalizer broadly agrees with others about what counts as such -- the trouble with him is that his reasons are dictated by his politics, and not conversely. The Nazis' 'anthropologists' who tried to construct theories of Aryanism were paying, in very poor coin, the homage of irrationality to reason.
So too here. I quoted Mohamad's words extensively because to my mind they represent an unquestionable case of antisemitism. But his caveat that he does not dislike Jews "as such" is one that Open Hillel's standard of antisemitism has great trouble grappling with. If Mohamad's point is that he doesn't dislike Jews-qua-Jews, only the bloodthirsty ones, the Zionist ones, the Nazi-like ones, the ones who are "big" and the ones who censor his free speech -- is that antisemitism? Cast in that light, Mohamad isn't actually all that different from the peers I've been comparing him to; perhaps just a little rougher around the edges.

And that, ultimately, is the real point here. One might think that Mahathir Mohamad represents what happens when the screen of respectability comes down and an antisemite simply says what he thinks. But it turns out that, when that happens, what one sees doesn't look all that different from what one sees when the mask stays on. Mohamad uses tropes and claims and devices that are common in discourse about Jews by people who have far more claim to respectability than Mohamad does. One would like to think that's an indictment of the respectable. But it just as easily can become a defense of what we otherwise would think of as undeniable antisemitism.

Thursday, August 16, 2018

Things People Blame the Jews For, Volume XLVIII: Turkey's Currency Collapse

Turkey is going through a currency crisis. The causes are complex, as global finance often is, but one of the known triggers is tariffs imposed by President Trump in retaliation for Turkey's detention of an American pastor.

And another cause is, well, take a guess:
A senior Turkish official has blamed "Jewish-originated Zionist bankers" in a late-night rant for the currency crisis that saw the lira plummet against the US dollar in recent weeks.
Burhan Kuzu, a founding member of Turkey’s governing Justice and Development (AK) Party, made the remark in a series of late-night tweets in which he suggested US President Donald Trump was “not aware” his country was being managed by what he termed “Jewish banking families”.
“The American people believe the dollar is the US's currency,” Mr Kuzu wrote in one tweet in the early hours of Wednesday morning.
“In fact, the world is managed by the cash notes printed by twelve families of Jewish-originated Zionist bankers numbering not more than 300.” 
 In a later tweet, he said Mr Trump could demonstrate "courage" by wresting control of the US dollar from Jewish bankers and printing the notes himself — but that he would be likely be killed if he tried.
Hey, at least it's a step up from being blamed for Uber. Global currency manipulation is definitely a nod back to the classics.

In completely unrelated news, a full 10% of Turkey's remaining Jewish population has applied for Portuguese citizenship in response to rising tides of antisemitism in the country.

Wednesday, August 15, 2018

Who's Your (U.S. Citizen) Daddy?

The Second Circuit decided a very interesting case this week, concerning deportation proceedings against a man whom, it turns out, is a U.S. citizen. The litigant, Levy Jaen, was born abroad to a married couple; he and his family moved to the United States in 1988 when Jaen was 15. The husband was a U.S. citizen, and Jaen's father satisfied all the other requirements through which his citizenship would pass down to his son.

The problem was that Jaen's biological father was not the man her husband was married to. And the biological father (with whom Jaen's mother had an extra-marital affair) was not a U.S. citizen. So the question before the court was who, for the purpose of the federal statute governing citizenship in cases like Jaen's, was Jaen's "father"?

The court concluded that under well-settled principles of common law, the "presumption of legitimacy" that attaches to children born to married couples, Jaen's "father" is assumed to be the man married to his mother (the linchpin precedent for this proposition is a well-known family law case, Michael H. v. Gerald D., authored by Justice Scalia). And because Jaen's father was a U.S. citizen (and satisfied all other statutory requirements for transmitting his citizenship), Jaen was too -- and therefore could not lawfully be deported.

This is a happy ending, though it of course raises the question of circumstances where the facts are reversed (the biological father is a U.S. citizen but the "legitimate" father is not). Moreover, it is a happy ending to a grim tale -- Jaen was imprisoned for the entirety of his immigration proceedings and appeals, notwithstanding the fact that he had a colorable claim to citizenship that ended up being vindicated.

But a happy ending is a happy ending. Also, a shout out to my old firm Covington & Burling, which was on the brief for this case representing Mr. Jaen.

A Semi-Serious Question of Legal Strategy

One of the things Trump v. Hawaii does is that it seems to narrow the circumstances where we can infer discriminatory intent, at least in cases where the allegedly discriminatory-action does not wholly encompass all members of the putatively targeted group.

Of course, Trump is not the only precedent on that point, and in most cases it won't be dispositive one way or the other.

But here's my question: Suppose you were a plaintiff's attorney in a discrimination case, one which hinges on inferring discriminatory intent even though not all members of the protected class were targeted by the action you are challenging. And suppose you had a relatively liberal judge whom you were fairly confident detests the Trump decision. Finally, let's say that for whatever reason your case was somewhat politically contentious and so the judge might not be ideologically-predisposed to rule in your favor anyway.

Obviously, you can cite a string of precedent that supports a favorable ruling in your case. My question is: Would it be helpful to append a "but see" cite to Trump v. Hawaii at the end?

Of course, if Trump is a really powerful precedent for the defense, then one probably doesn't want to draw attention to it in this way. But if it isn't -- if the suggestion is more "in the evolution of anti-discrimination, the defense's argument takes us further down the road Trump v. Hawaii has paved" -- one might think that could be a savvy way of turning the judge against that approach.

I suppose this is another way of asking how quickly Trump v. Hawaii will become part of the anti-canon -- at least for liberal judges.

Tuesday, August 14, 2018

A Nice Rabbinical Lesson in Not Judging

I came across this earlier today -- it's from an Orthodox Jewish advice column where a woman asks how she can be less judgmental of other Orthodox Jewish women who don't dress according to her standards of modesty.

Obviously, on the substance of the issue I have no skin in the game. Modest dress -- by men or women -- is not a matter of religious significance for me, and indeed I'm not wild about religion arrogating to itself an opinion on the question at all.

But what I like about the answer is that -- putting the substance of the question aside -- I thought it was a great model in thinking through how to be kinder, more open, and less judgmental as a general matter -- something that no doubt we all have occasions to practice.

Anyway, here is the columnist's answer:
In terms of your question, I believe the answer can be found in Pirkei Avos. Our sages teach: “asay l’cha rav, u’konay l’cha chaver, v’haveh dan es kol adam l’kaf z’chus (make for yourself a rabbi, acquire a friend, and judge all men favorably).” Until today, I never understood why these three things are listed together, but upon trying to answer your question, a beautiful connection hit me. 
Let’s start with “judge all men favorably.” [It is] easy to think badly of others when we see them doing things which we consider “wrong,” but judging others favorably is a foundational Torah idea and the way you can do it in this case is: a) assume these women learned a different opinion than you did, because there are a range of opinions when it comes to the laws of modesty (the range is not infinite, but there is a range, which means there is more “grey” and less “black and white” than you may realize), b) assume they learned the same opinion you did but were never shown the beauty of modesty and Jewish law like you were and therefore don’t feel compelled to keep it like you do, c) assume they believe in the idea in theory, but it’s such a big struggle for them – much bigger than it is for you – that they haven’t conquered it yet, d) assume they are doing whatever their parents taught them and never looked into it further to realize there was anything problematic about it. 
Again, as applied to the "modesty" question this does nothing for me. But the core of the suggestion: that in matters of religious dispute, consider that the other person (a) has thought about the issue and has a different view; (b) has thought about the issue but doesn't view it as compelling in their life; (c) has thought about the issue and agrees with your view in theory but finds living up to it to be a greater struggle than you do; or (d) just never really thought about the issue at all -- all of these strike me as better and more charitable ways of approaching the matter compared to just assuming the person is willfully ignorant, obtuse, or wicked.

The questioner also suggested that seeing women who didn't adhere to her own standards of modesty made it harder for her to stay true to her own path. And the columnist gave advice on this matter as well:
But you can’t only judge others favorably without solidifying your own path. Just because these women have their reasons for doing what they do doesn’t (necessarily) mean that they should be your reasons. So “make for yourself a rabbi,” comes first. Find a rabbi (and rebbetzin) who are your speed that you trust as role models and stay close with them. Maintain a certain standard for yourself that your rabbi/community holds by. 
“Acquire a friend” comes after that because while it’s important to have a guide who can you look up to, it’s equally important to have close friends who have shared values so you can support each other even as you see that different “options” exist. It is possible to accept that there are differing opinions to the ones we follow and that there are opinions which we simply disagree with (but reserve judgment on those who follow them), while simultaneously maintaining a high standard for ourselves. Such a balancing act does not come very easily, but then again, nothing worthwhile in life ever does.
Anyway, it jumped out at me as something that was noticeably kind-hearted, even on a matter whose import is quite foreign to me, and so I figured it was worth sharing.

If Trump Used the N-Word, It Won't Matter

The debate of the day is whether, if a tape drops where Donald Trump uses the n-word, will it make a difference in how his supporters view him? Some say yes -- the n-word is such a redline that it removes all plausible deniability. I, however, am firmly on team Adam Serwer here:
Some have argued that Republican voters held their noses and voted for Trump because, while odious, issues dear to their hearts like religious freedom, or abortion, or taxes compelled them to make such a choice. But there’s no evidence a large number of Republicans object to Trump’s discriminatory policies, or to his frequent attacks on black public figures. According to one recent CBS poll, while most Americans disapprove of Trump’s record on racial issues, 83 percent of Republicans approve. The vast, overwhelming majority of Republicans aren’t quietly disgusted with Trump, but grateful for Neil Gorsuch. When Trump calls black athletes who protest police brutality “sons of bitches” and demands they be fired, they’re not embarrassed. They like it. Trump knows they like it. That’s why he keeps doing it. 
Given that, it’s hard to imagine that, even if a tape of Trump using the word nigger exists, it would substantially erode political support from his base. The idea that the word is some kind of red line that erases plausible deniability is an illusion. Every time Trump’s behavior violates some conservative value—from his alleged infidelity to his denigration of war heroes and gold-star families to his relentless crony capitalism— pundits predict his undoing, and Trump emerges unscathed. There’s no reason why many of Trump’s strongest supporters wouldn’t also be able to rationalize his use of a racial slur, especially given their enthusiasm for his culture-war provocations. 
It’s possible that this time would be different, that a recording of Trump using a racial slur would meaningfully alter his supporters’ perception of him. But given this track record, it seems very unlikely. 
The more likely outcome is the one that followed the recording of the president saying he likes to grab women “by the pussy.” Most Trump supporters easily acquiesced to the explanation that the remarks were mere “locker-room talk,” despite the more than a dozen women who said otherwise. This time, too, many would likely argue the tape is fake, or taken out of context, or that he’s being victimized by the political-correctness police. Or they’d simply change the subject. (Aren’t there lots of recordings of the Pulitzer Prize–winning artist Kendrick Lamar using the word? Checkmate, libs.)
The only thing I'd underscore here is that there is a propensity in the media to simply refuse to believe that sizable portions of the Republican base is racist. I think this stems from a lingering anxiety about being part of the "liberal media", all coastal elite-ish and out-of-touch with real America, and a corresponding skepticism about their intuitive instincts regarding the racial politics of middle White working class America. Sure, the most obvious reason for why they're attracted to Donald Trump is racism -- but that's such a mean thing to think! So media figures scramble about for alternative explanations that seem less judgmental and hostile -- hence how we've gotten years of "economic anxiety" narratives that just aren't backed by the data.

But the fact is, by and large Republicans like Donald Trump on race. It was racism, after all, that caused him to emerge from the pack of Republican candidates in the first place. Unabashed racism is and always has been Donald Trump's comparative advantage over other high-profile conservatives. And the past several decades have been one long campaign by conservatives in rationalizing what one might have thought would be indisputable cases of bigotry -- they're pros at it at this point.

So no, I don't think a tape of Trump using the n-word will have more than a marginal and fleeting impact on Trump's approvals. The people who like him already know who he is. That's why they like him.

Monday, August 13, 2018

The Slowly Crumbling Arrogance of the Center-Right

Israeli Rabbi and pundit Daniel Gordis is not a liberal.

But he's not a dyed-in-the-wool conservative either.

He's a member of the center-right, which at this point means he basically believes in conservative policies while being committed in principle to the underlying liberal architecture of freedom of expression, democratic norms, fairness and factuality in politics, and respect for minorities.

And like many members of the center-right, he's starting to feel uneasy about the decay of this liberal architecture at the hands of his less "center" compatriots. Here's him writing on the recent spate of heavy-handed security actions Israel has taken at Netanyahu's behest against dissident voices (detentions at the border, expelling artists):
Although it is hard to know exactly who is issuing directives to the security services on this issue, the clumsiness leads one to suspect there is an unstated goal. It seems likely that Netanyahu has decided to stoke the embers of “Zionists versus Israel’s enemies” discourse, which will win him points with the right-wing factions of Israeli society he needs to win the next elections, scheduled for next year, but may be called early. 
The prime minister is playing with fire. More than half of Israel’s Jewish citizens are either immigrants from North Africa, Yemen, Iraq and Iran or their descendants. They come from societies where freedom of speech is not nearly as sacrosanct as it is in the U.S. Add in more than 1 million Russian immigrants, many of whom are comfortable with the sort of heavy-handedness President Vladimir Putin is displaying there. Israel needs a leader who can model devotion to the values of liberal societies, not undermine them for the sake of short-term political gains. Appealing to citizens comfortable with authoritarian-leaning regimes may earn Netanyahu short-term political gains, but could eventually yield a country which no one would call “one of the world’s most open democracies.”
The first paragraph can't be stressed enough. Netanyahu doesn't fear confrontation with BDS activists and strident Israel critics. He revels in it, because it allows him to pour gasoline on an "us-vs.-the-world" dynamic which both energizes the right-wing base and puts the squeeze on liberal Zionist voices. Israel's right and the global left exist in symbiosis with one another, and Bibi knows it.

The second paragraph, though, needs some unpacking, and brings us back to the title of this post.

The defining characteristic of the center-right over the past few decades has been confidence -- I'd say now revealed to be arrogance -- in the absolute stability of the basic liberal norms of Western society. Whether due to cultural chauvinism or something else, they were absolutely sure that the core liberal commitments weren't going anywhere.

This thread on Jonah Goldberg provides a good iteration of this issue in the American context -- Goldberg now is recognizing the danger of the decayed form of conservatism that now runs supreme on the right, but doesn't acknowledge how he was a key contributor to it. The reason is that, at the time, he probably thought his dalliances were harmless. A little rabble-rousing here, a little mob-baiting there -- what's the big deal? It's all in good fun, or the wink-and-nod of playing the democratic game to win. The institutions were durable, they'd hold up. The stability of the liberal order was taken for granted.

Now, we're finally seeing that confidence fade a little bit. It turns out that liberal and democratic values need work put into them; they don't defend themselves, and they do decay under constant pressure of xenophobia, chauvinism, conspiratorial thinking, and the like. Democracy, as my former professor Melvin Rogers (channeling John Dewey) wrote, is a habit -- and it needs to be practiced.

In Gordis' second paragraph you can see both the recognition of the danger but also the denial of it. He locates the danger to Israel's liberal democratic character in its Middle Eastern and Russian Jewish population -- they, you see, don't have the patrimony of liberalism that we otherwise could take for granted. The implication of the paragraph is that Bibi is playing a game, but alas the ostjuden might not realize he doesn't mean it.

But why assume Bibi is playing a game? Why assume he does, somewhere, deep down, care about or retain commitment to liberal ideals? It's a relic of the center-right arrogance that assumes the unshakable bond between its tribe and those liberal commitments. But if there's one lesson we've learned over the past few years, its that this connection is far frailer than we thought. Bibi may be playing with fire; but he might really be indifferent to that which gets burned. And since he's the one wielding the flame, it's more than a little arrogant to point to the Russians and the Mizrahim and say they're the real threat.

The fact of the matter is that in Israel, or America, or the UK or France or Greece or India or anywhere else that has been blessed even with a temporary and partial spark of the the liberal democratic ideal -- these things require work to survive. They do not persist on their own. The center-right assumed they would, and so did not see the danger that was boiling up in their own yard. And now that it has boiled over, the sobering truth is that there is no natural counterweight to it. The system will not readjust to a natural liberal equilibrium, there is no such equilibrium that exists. Liberal values need to be practiced and they need to be fought for, or they will disappear.