Thursday, June 20, 2019

David's Candidate Tiers

When it comes to the 2020 Democratic Primary, I'm doing my best to follow Walter Lippmann's advice: I'm holding my opinions of the candidates lightly, and abandoning them (the opinions) gladly. My working assumption is there are a lot of good candidates in the race, and for the most part I'd happily support any of them, and my main priority is not getting so wedded to any one person that I grow antagonistic towards the rest. And so while I am starting to form nascent preferences, my "tiers" of support I think basically reflect this outlook.

Earlier, I gave my (extremely early-bird) predictions. This, by contrast, reflects my preferences (albeit preferences which account for who I deem to have a realistic shot at winning). More or less, I've divided the candidates right now into five groups:

Tier A: These are the candidates I'm most excited about or who seem most likely to garner my vote in the primary. Right now, this class is comprised of Kamala Harris, Elizabeth Warren, and Cory Booker.

Tier B: These are the candidates who have something in their profile detracting them from the top tier, but whom I'm still basically fine with. This would include Buttigieg (too inexperienced), Biden (too old-fashioned; too gaffe-prone), Sanders (too hostile; too fractious), and Klobuchar (too moderate). Still, if any of them win the nomination, I won't be cranky.

This tier also includes candidates who seem otherwise quite attractive, but for whatever reason don't appear to be getting any traction -- for example, Castro, Inslee, and Gillibrand. But if any of them do catch fire, they'd get serious consideration for "A" status.

Tier S: "S" stands for Senate -- this is the group of candidates who I'm annoyed with only because I think they should be running for Senate instead. This includes O'Rourke, Hickenlooper, and Bullock. In all of these cases, if they did somehow win the nomination I wouldn't be mad, but since I doubt they will and they're passing up races they actually could win that Democrats desperately need, I'm mad now.

Tier U: The "unknown" group. This includes the multitude of random people who are running for President for reasons best described as "inexplicable", and whom I have no interest in learning more about. Swalwell, Ryan, Yang, and Delaney fit in this group, among others.

Tier Z: The candidates I'm actively hostile towards. This is basically "Tulsi Gabbard", though to the extent that Mike Gravel is a living human and not a teen prank I guess he's probably here too.

Wednesday, June 19, 2019

Happy Birthday Blog!

Once again, I missed the blog's birthday (it's June 15, FYI). It turned fifteen years old this year!

A pretty impressive run, if I do say so myself.

Anyway, I'm off to my 11th year college reunion (it's my wife's 10-year, hence the odd-number appearance). I consider that appropriate, as I started this blog the summer before I entered college. And look at me now!

Tuesday, June 18, 2019

My Not-Statement on Immigration Detention Centers as "Concentration Camps"

Some of you might have seen that Rep. Alexandria Ocasio-Cortez described the immigration detention centers the U.S. is housing migrants in as "concentration camps", invoking the slogan "Never Again".

Here is my not-statement:

I generally dislike Holocaust comparisons in public debates. That's true for a variety of reasons. For one, these comparisons frequently undersell the magnitude of the Holocaust as planned, conscious, industrial-scale mass extermination -- it stretches far beyond even truly horrible acts of authoritarianism. Moreover, I oppose the perceived entitlement claiming my people's genocide as a sort of communal property available to any and all political commentators searching for a particularly evocative exclamation point; an entitlement which frequently expresses itself as a resentment towards Jews seen as hoarding this precious "resource" to ourselves.


I also think that these misgivings of mine -- ultimately, disputes over choices of rhetoric -- are of completely trivial importance compared to the urgent and pressing need to oppose the brutal and inhumane policies the Trump administration is enacting on the American border. They should take up none of our time, they are in the grand scheme of things utterly insignificant compared to the need to focus on opposing these wrongs. This is called keeping a sense of perspective. It's not that the arguments against a "concentration camp" comparison are impossible to make -- though neither is it self-evident that these centers are not "concentration camps" either; the comparison is not absurd-on-face -- it's that they just Don't Matter. There are circumstances when it is important to "police" Holocaust comparisons -- most notably, in cases of Holocaust Inversion where terms associated with our own mass extermination are turned against other Jews. This is not one of those cases.

It is fine to dislike the use of "concentration camp" comparisons in this context. But anyone who thinks that litigating the question "is it proper to refer to these detention centers as 'concentration camps'" is more important, or as important, or maybe not quite as important but still within the same order of magnitude of importance, as full and unqualified opposition to Trump's border practices deserves naught but our contempt and scorn. If you want these comparisons to be made cautiously, great, I agree. If you think that investing energy in policing whether this or that comparison was sufficiently "cautious" is a worthy use of your time that can justify departing even for an instant from unflagging opposition to Trump's border policies, then you need to re-examine your priorities.

That not-statement is the only statement that I'm interested in hearing about "concentration camps".

First on the Agenda: Statehood for the Colonies

Sometimes, the moral thing to do conflicts with the expedient thing to do. That's a hard position to be in.

Sometimes, though, the moral thing to do is also the expedient thing to do. That's a really easy thing to do.

Statehood for American colonies -- that is, all the places under permanent American jurisdiction that lack full voting rights in Congress (most people think of DC and Puerto Rico, but I'm a hardliner: statehood for Guam!) -- is the latter case. It is clearly and incontestably a moral obligation -- a democracy cannot permanently deprive persons under its dominion of representation -- and it is also likely to result in a bunch more Democrats, particularly in a Senate that is right now geographically-skewed in favor of a population minority. Indeed, Mitch McConnell was "admirably" forthright in admitting that this was pretty much the only reason Republicans oppose statehood -- it'd result in new Democratic Senators.

Of course, that's actually an exaggeration -- Puerto Rico's current non-voting member of Congress is a Republican. So it's entirely plausible that the GOP could compete in Puerto Rico, if they cared to try.

But even if they couldn't -- and there's something embarrassing about the speed at which Republicans race to concede that they think there's no chance they could ever appeal to a non-White voter -- it wouldn't change anything. Democrats struggle to get elected in Wyoming, which is unfortunate, but I admit it never occurred to me that as a consequence we should try to deprive Wyoming of electoral representation. And I'm so old, I remember when the Senate was defended based on the need for "geographic diversity" and "protecting the minority" -- rationales which if anything underscore the necessity of giving Puerto Rico (and Guam, and the U.S. Virgin Islands, and American Samoa....) representation in that august body.

Monday, June 17, 2019

L'Étoile du Nord Roundup

Greetings from Owatonna, Minnesota. I'm here at my in-laws house in the interregnum between a family wedding on the north shore last weekend and a Carleton Reunion next weekend. The former represented my first trek to the far north of Minnesota, and it was truly gorgeous -- really embodying my favorite type of nature (to wit: very green and very forested).

* * *

Everybody seems to hate the "electability" argument for Joe Biden, but Kevin Drum asks whether anyone is actually making it. My hypothesis is that Biden's stance atop the polls baffles a lot of political observers -- how is he so seemingly popular with Democratic primary electorate, given his many weaknesses -- and so they infer that many of his supporters back him reluctantly as the safe, "electable" choice (for my part, I think it's still name-recognition, and he'll fade as the primary season moves forward).

Corey Robin has interesting-looking book coming out on Clarence Thomas as an Afro-Pessimist -- an outlook which very much coheres with my own.

Fascinating dialogue between Yossi Klein Halevi, author of "‘Letters to My Palestinian Neighbor," and Mohammed Dajani, who decided to respond. It's long but very much worth your time.

Jonathan Adler tracks some non-standard splits in the recent SCOTUS decisions and wonders if a new "pragmatist" axis is emerging.

Lest we were worried that the DC Dyke March's ban on Jewish Pride flags was the start of a trend -- looks like that isn't happening. Most Dyke Marches around the nation are not following their lead.

There's No Wrong Way To Terrorize a Black Guy in the Eighth Circuit

Last week, the Eighth Circuit released an opinion in Clark v. Clark, a case involving a law-abiding Black gun owner in Missouri. Police responded to claims of gunshots in the vicinity of a Missouri rest stop. On arrival, they encountered Gregory Clark, a Black man sitting a table outside the building. Seeing they were officers, Clark immediately handed over his driver's license, retired military ID, and concealed carry permit, and also informed them he was armed. He was questioned if he had heard any gunfire (he hadn't) and where he was going (Chicago).

Then the police ran his identification (which came back clean). Clark was apparently not wild that the police ran his ID, which he thought was potentially a case of racial profiling, and asked a question gesturing in that direction ("[would you] have done that to anyone else?"). The officer responded poorly, angrily replying "don’t play the race card with me", and returned the identification cards back to Clark.

The police then left Clark, and Clark in turn returned to his vehicle and drove away in the direction of Chicago. The police trailed him, and Clark began to fear for his life. He made a U-turn, and officers continued to follow. After more cop cars began to arrive on the scene, he pulled over to the side of the road and placed both hands outside of the window to show he wasn't holding his gun. Officers nonetheless approached the car with weapons drawn, one pointing his gun at Clark while ordering him out of the car. After a bit more confusion and discussion, it was eventually determined that Clark had committed no crime and done nothing wrong, and he was allowed to leave once more.

The Eighth Circuit, in an opinion by Judge Erickson joined by Judge Colloton, concluded that the entirety of the police conduct -- which culminated, let's recall, in the police pointing their weapon at a Black man who had done absolutely nothing wrong and had seemingly taken every conceivable step to scream out "I am not a threat" -- was wholly lawful.

And that's why I flag this case. In an alarming number of circumstances, there is nothing a Black man can realistically do to avoid having a gun pulled on him by police. He can be entirely law-abiding, forthright about his (legal) gun ownership, compliant with police demands, going out of his way to and keep his hands clear -- doesn't matter. And likewise, he cannot seek to avoid police interactions -- even knowing (apparently accurately) that they put him at risk of having a gun pulled on him for no reason whatsoever. Judge Erickson, for example, argued that both Clark's highway U-turn to avoid the police, and his affirmative decision to put his hands out the window to show that he wasn't holding his gun, were "unusual and may be indicative of guilty conduct."

Chief Judge Smith disagreed -- and it is perhaps not coincidental that Judge Smith is the only African-American Judge on the Eighth Circuit. In his view, while the initial encounter at the rest stop was lawful (and I agree -- while I understand why Clark might have felt aggrieved, he was the only person in the vicinity where gunshots had been reported and he admitted he was carrying a gun), the police response to Clark on the highway was not (Judge Smith ultimately would have found that the officer nonetheless enjoyed qualified immunity).

Put simply, Clark is allowed to not want to interact with the police. African-American men have excellent reason to try to avoid police encounters for fully innocent reasons like "wanting to avoid an elevated chance of having a gun pulled on you" -- as this case well demonstrates. But there's really nothing they can do to avoid it -- including "literally trying to avoid it".

Meanwhile, today the Eighth Circuit en banc dismissed, by 5-4 vote, Dorian Johnson's claims against Ferguson, Missouri and Officer Darren Wilson for conduct stemming from the infamous shooting of Michael Brown (Johnson was walking beside Brown during the incident). Johnson alleged that Wilson ordered the pair to "get on the fucking sidewalk", then abruptly parked his car in front of the duo, blocking their path, struck Brown with the car door, got into a scuffle with Brown, and ended up firing his weapon at the pair (missing Johnson but striking and killing Brown). Nonetheless, the Court concluded that the pair had not been seized because (a) Johnson did not need to "remain by Brown's side" while Wilson and Brown fought and (b) the position of Wilson's police car did not literally block them entirely from fleeing the area.

The dissenters (Judge Melloy writing for Chief Judge Smith and Judges Erickson and Kelly) simply make mince-meat of this argument. The touchstone question for a seizure is whether the officer's actions would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business". There might not be a single area of constitutional law with more ludicrous precedents than this -- the sorts of scenarios where courts say, with apparent straight faces, that people would feel free "to ignore the police presence" are beyond absurd (to take one example, cited in the dissent: in United States v. Hayden, we were told that any reasonable person would feel free to ignore the police when the officer pulled up alongside the defendant, shined a flashlight on him, and screamed “Police!”). Yet even here, the facts clearly "communicated an intent to use a roadblock to stop Johnson’s movement," and therefore a seizure.

The argument that the roadblock did not literally prevent all modes of escape from the area should be too ludicrous to reply to if the majority did not rely on it. Not only is that unrealistic in practice -- just how tight must the dragnet be, then, before it is conceded to be impossible to escape? Must the officers all lock arms in a circle? -- it has nothing to do with the legal inquiry, which is whether a reasonable person would understand the officers as trying to communicate an order to stop. Abruptly driving your police car to place it directly in front of your quarry's path does that, and it's not close. There's virtually no question that had Johnson attempted to "simply ignore" Wilson's directives the officer would not have thought "well, that's perfectly innocent conduct reflecting his right to ignore me under the Constitution" (look what happened to Clark!).

Of course, it's possible that in this case the extremely high-profile and heavily-reported nature of the controversy might have influenced the court's decision -- in particular, they might believe that the facts might not have been as Johnson alleged. But it is hornbook law that at this stage in the proceeding judges must accept Johnson's factual allegations as true -- disputes of fact are addressed at a later stage. And that matters because this case sets a precedent, which in turn applies to other cases down the line where the facts haven't been as thoroughly hashed out in the media as here. It is not just Dorian Johnson but any person who finds a police car screeching to halt inches in front of them after being screamed at by the officer who now will find that -- contrary to any actual "reasonable person's" perspective -- it would be wholly unreasonable for them to believe that the police were communicating that they needed to submit.

I'd say that the majority might have allowed itself to be swayed by the public nature of the controversy, except that gives them far too much credit. The fact is, the Eighth Circuit has near-infinite tolerance for police excesses directed against the citizens in its jurisdiction, in cases of any degree of public prominence. Clark is a low-profile case and Johnson is a very high-profile one, but they're tied together by the unifying cord of all the Eighth Circuit's jurisprudence in this area: extreme, complete, and unshakable deference to the police over and against ordinary citizens.

Sunday, June 16, 2019

On the Oberlin Verdict

You might have seen the news that a bakery won a $44 million dollar judgment ($11 million in compensatory damages, plus $33 million in punitive damages) against Oberlin College (under Ohio law, the punitive damages are capped at $22 million, so that will likely be reduced).

The short background is this: An Oberlin student tried to buy alcohol at the bakery with a fake ID. The ID was rejected, and he tried to leave with the bottle anyway. A store employee gave chase, a scuffle ensued, and the student and two friends (all who were Black) were arrested. Many on campus believed the incident was one of racial profiling, and protests by Oberlin students against the bakery quickly ensued. The bakery was labeled a "racist" institution, and the college briefly suspended its contracts with the bakery.

Ultimately, the students plead guilty to a crime; and follow-up investigations suggested that there was no pattern of profiling by the bakery.

Under these facts, it seems pretty clear that the bakery was treated poorly by the Oberlin community. That said, a damage reward of this magnitude poses a massive threat to free speech on campus -- a concern that many of those crowing over the verdict seem worryingly unconcerned about.

The evidence that Oberlin, as an institution, was responsible for the allegedly libelous statements by the students (and we should wonder whether claims of racism--an evaluative opinion--can qualify as libelous, though in context it's arguable that here it was an opinion based on undisclosed facts) is quite thin. Not non-existent, but thin. The administration let students use the copiers. They didn't censor the student government (an independent body) which issued a condemnation of the bakery. Administrators were "present" at the protests and didn't try to shut them down. One reportedly helped pass out fliers, and then wrote a remarkably bratty message considering "sic[cing] the students" on a dissenting professor before deciding that the college needed to "put the matter behind us."

Some of this -- like the "sic" message -- is genuinely bad behavior. Some of it is the college not proactively censoring its students. None of it comes close to justifying an eight-figure damage verdict.

But if the idea is that this verdict "sends a message" to colleges, what is the message they're likely to receive? Put differently, what is the compliance takeaway here, if you're a college administrator?

Here's a hint: it isn't "don't libel local businesses". It's "don't do anything -- whether in the form of action or inaction -- which could even hint at tolerating speech that the most hostile possible jury could consider to be libelous towards a sympathetic plaintiff." The latter is quite different from the former.

One thing I've learned from spending some time in "free speech" oriented social movements is that free speech has a lot of fair-weather friends. There are some principled actors. There are many more whose avowed commitment to free speech is in fact wholly one-sided, and in fact are eagerly insistent that colleges and universities in particular act against student or faculty speech that they dislike. They want faculty to be fired and students to be punished, suspended, or expelled; they want their clubs defunded and their newspapers pulled from the shelves; they harbor a deep populist resentment towards the entire modern educational system which yearns for an outlet.

That doesn't describe everyone, but it describes enough potential jurors that -- when tens of millions of dollars are on the line -- colleges are pretty much going to be forced to accommodate them. All the more so in communities where town-gown relations are frayed. I've heard that was already true in Oberlin. Certainly, the decision by a local judge to disallow the students what seemed to be a perfectly normal plea deal because doing so would supposedly validate the student protests -- something that I've mostly seen to underscore the community "standing up" to campus bullies -- to me instead underlines a deep-felt hostility and antipathy towards Oberlin, a desire to show those snooty hippies what's what.

(Likewise, if my alma mater of Carleton College -- which in many ways has a similar profile to Oberlin as a rural, highly-ranked national school with a liberal student body, an elite reputation, and iffy town-gown relations -- got sued by a local business, I imagine any trial attorney they'd hire would try to do anything and everything to keep the case away from a local jury).

And when you're trying to comply with that juror in mind, the need not to just avoid bad actions, but also avoid anything that the most negative possible factfinder could stretch to interpret as bad, ends up encompassing a lot of wholly innocent (or even laudatory) conduct. For example, having administrators observe student protests without interceding might seem to be a responsible, mature decision -- unless a hostile jury views it as a tacit endorsement and wonders why the administrators didn't try to proactively tamp down on the student speech. Which, in many circumstances, would itself be a free speech violation -- a fact which in turn emphasizes the impossible situation colleges will find themselves in.

Or another: in a bid to reduce tensions, Oberlin tried to cut a deal with the bakery where it wouldn't push to criminally prosecute first-time shoplifters. The bakery refused, saying shoplifting was a major source of lost revenue. They had every right to give this answer, but again, I've seen Oberlin's gesture interpreted in the most hostile possible light -- as granting all of its students a "get out of shoplifting free" card -- as if nobody had ever heard of alternatives to prosecution for first-time, low-level, non-violent offenses (let's not forgot the other side of the coin of bringing the full hammer of criminal law down upon every single shoplifting case).

I actually suspect that at least some, if not all, of the verdict won't survive an appeal. The damages are just so wildly out of sync with the college-qua-college's bad conduct, and the line between what the college did and the alleged libel so attenuated, that it seems very vulnerable. Plus, the conservative lawyers who've been backing the bakers have already got their headline, so I think they'll be more amenable to settlement than they had been before.

All of this is fully recognizing that the bakery was -- again, to reiterate -- treated poorly by the Oberlin community. The sort of conduct that many Oberlin students engaged in isn't just righteous anger or blowing off steam -- it hurts real people and impacts their real livelihood. But this verdict isn't about making a wronged bakery whole. It's a shot across the bow at institutes of higher education which many people simply loathe -- loathe for censoring speech and loathe for tolerating it, loathe for strangling student freedom and loathe for letting students run wild, loathe for their liberal uniformity and loathe for their diverse students bodies, loathe for thinking they're special and loathe for not making their specialness sufficiently accessible. That sort of loathing isn't healthy. And when it can get its hands on massive tort verdicts, it's positively dangerous.