Tuesday, February 23, 2021


There's a common debate that pops up every time a celebrity or some other figure runs into a scandal, one that's serious enough to threaten their career, but not serious enough to put them in prison. A lot of #MeToo cases fall into this category, though this isn't the only case, but it works as one to keep in mind (think Louis C.K.). At some point, after apologizing (whether sincerely or opportunistically) and laying low for awhile, they'll try to restart their profession. Once this happens, the pattern is almost rote:

  1. Some group of people will condemn the person for trying to restart his career ("You won't believe who's attempting a comeback!"), and/or condemn the venue for hosting him.
  2. A different group of people will defend the celebrity, asking whether or not his "whole life should be ruined" and whether he should be prevented from making a living in perpetuity.
  3. The first group of people will retort that not having access to some celebrity spaces is hardly the same as having one's life ruined nor is it a complete bar on any money-making endeavor. Lots of people, I'm told, live perfectly comfortable and money-earning lives without getting standup comedy specials or starring movie roles. Meanwhile, the person's re-entry into the professional space also will have the effect of rendering it unsafe and/or uncomfortable for members of the group the celebrity had previously victimized.
I think there's reasonable purchase in that third move. However, it does carry with it an implicit promise -- that there is some space where the erstwhile celebrity could enter into which would be legitimate (as a means of making money, continuing with their life, etc.). When one says "'not here' is not the same thing as 'life-ruining'", there is tacit "try over there." And that raises the question: where is the "there" that is okay?

Let's take Louis C.K.. Suppose in the wake of his scandal he takes a random, normal-person job -- I don't know, he's working at a call center. Being a former celebrity, he's quickly recognized. And some of the employees are uncomfortable with him around, knowing what he had done to people like them. What happens if they complain, and say "we don't want Louis C.K. in our office?"

The implicit promise in position #3 requires that, for at least some non-theoretical set of cases, that complaint has to be turned aside; notwithstanding that part of the force of position #3 is precisely that Louis C.K.'s presence in a given space exacts costs upon the women already occupying it (and that applies with similar, if not identical, force, if he's working at a call center compared to a club). Given that, do we have confidence that the advocates of position #3 will be able to find circumstances where they say "no, we do not support hounding this person out of this space -- they may not be allowed to redeem themselves in the celebrity sphere, but this place is okay."

It seems we have a classic NIMBY problem, or perhaps a N(R)IMBY problem (No Redemption in My Back Yard). Most of us probably are fine in concept that there exist some space where Louis C.K. goes off to live his life, perhaps not as a celebrity, but not in a state of utter banishment either. But none of us want it to be in our backyard. Redemption is a social good, we agree, but it shouldn't occur here but ... elsewhere -- an objection that will attach to virtually all "heres" with nary a suggestion of viable "elsewheres". Ironically, the most likely "elsewhere" that will be stuck with him over their own objection is an elsewhere populated by people who largely lack social power and influence. Indeed, to some extent, this is a feature of the "he can live his life, but not as a celebrity" account -- it's fine for him to seek redemption, but it should occur among the normies.

This is a problem I've puzzled over, and I don't have a really good solution to it. It's no answer to say that the person should do the work of repentance and redemption before they can make a claim to "live their life" in any space -- the work of repentance and redemption occurs in occupied space; it is impossible to do it from a place of social banishment. And if you're accusing me of a strawman -- nobody is arguing for outright "social banishment" -- then my goal here is to call the bluff a little bit and ask "okay, so where is good?" Is it low-level performances in their field? Interviews with journalists about their misconduct? Working at charities? Can we honestly say that in any of these cases, that we haven't seen at least some pushback -- "they shouldn't be here"? And again, it's not that I lack sympathy for what's motivating that pushback. But I am not sure how far it should go, and how far it can limit itself in going.

Monday, February 22, 2021

Trump's "Liberal"* Eighth Circuit Appointees

As many of you know, I did my clerkship on the United States Court of Appeals for the Eighth Circuit, for the late Judge Diana E. Murphy. It was a fantastic experience. It was also an eye-opening experience, not least because the Eighth Circuit is by far the most conservative court in the country. How conservative is it? I think there's a plausible case to be made that Donald Trump's appointees to the court were to the left of the median active judge on the circuit at the start of his administration.

The active judges at the start of Trump's administration, ordered from most liberal to most conservative (this is my somewhat arbitrary ranking), were:

Kelly, Smith, Shepherd, Wollman, Benton, Loken, Riley, Colloton, Gruender

The ideologically median judge would be Duane Benton. I've italicized the two judges that went senior during Trump's term; he also got two more appointments from judges (Bye and Murphy) who went senior at the tail end of the Obama administration but whose seats were still empty at the start of Trump's term.

Now let's order the current judges (italicizing Trump's appointees):

Kelly, Smith, Grasz, Shepherd, Kobes, Erickson, Benton, Loken, Straus, Colloton, Gruender

Three of four appointees are to Benton's left; the new median is Judge Ralph Erickson. Now, again, there's some amount of arbitrariness to this; I wouldn't read too much into the precise order (e.g., if one flipped Kobes and Erickson I'd hardly have any basis for objecting). Moreover, judges of course can be "liberal" on some dimensions but not on others (Smith, for example, is exceptionally conservative on issues like abortion but is more liberal on issues of discrimination and qualified immunity). And to be clear -- none of these judges (excepting Kelly, the sole Democratic appointee) are liberal under any objective standard. 

But even with all those caveats, there's a decent case to be made that the Eighth Circuit was so outrageously rightward slanted that Trump actually managed to slightly shift the court to the left. That's amazing.

Sunday, February 21, 2021

What Happens When There is No Contraception

The New York Times has a harrowing story about women in Venezuela who cannot access contraception. A raging economic recession has made condoms, IUDs, and other birth control products prohibitively expensive for many poorer women; at the same time, the cost of raising a family has also spiraled out of control. Many women have resorted to shady back alley abortion attempts (it is still illegal in the country), but unsurprisingly these are exceptionally dangerous.

If you're a conservative, maybe the fact that it's Venezuela and you can nyah-nyah about it since Chavez is of course AOC's role model for Americana will make the story resonate more. But let's be clear -- America is not as far off from this as we'd imagine ourselves to be. The legality of abortion is on the very brink, and cases like Hobby Lobby threaten contraceptive access as well -- again, especially for poorer women. It may be that in a few years, the main difference between America and Venezuela is that we have proportionally fewer women in the sort of abject poverty that is comparable to that found in the South American country -- but for those who do find themselves in that situation, this story could easily become a U.S. story as well.

Monday, February 15, 2021

Where Am "I"?

This post has no political content whatsoever. It is a random, rather inane question I was pondering last night.

When I think of where "I", am, spatially speaking, the answer is "my brain". That is the seat of my consciousness, it is the physical location I identify as being occupied by the core of my being. When I think, the spot where I feel like the thoughts come from is my head. Which makes sense, since my brain is where I do all my thinking.

But it also so happens that my brain is right behind my eyes. If we imagine our eyes as the holes in our body that we peer through to see the world, it makes sense that we'd conceptualize ourselves as existing right behind them. So maybe that's why that particular spot is the one we associate as being where "we" are.

So here's the question: If our eyes were in our chest, would we still view ourselves as centered around our brain? Or would it move to our chest? Or flip it: if our eyes were still in our head, but our brain was in our chest, would we still identify our thoughts as coming from our head or from our chest? (Or perhaps there'd be a more fundamental divergence between where we feel our thoughts "exist" -- our chest -- versus where the broader core of the "I" is -- our head).

Again, no big moral to this question. Just a random thought that grabbed my attention last night in lieu of sleeping.

Sunday, February 14, 2021

What To Make of Haley's "Break" With Trump?

The JTA's headline says it all: "Nikki Haley broke with Trump. It could make her a Jewish GOP favorite in 2024."

Well, perhaps not all. "Broke" is a very friendly way of putting it; I might go with "lickspittle stops licking." But that's editorializing.

In any event, what do we make of this decision by Haley?

Let's start with the Jewish angle, since that's how JTA frames it. I do think that Haley is well-positioned to be the Jewish GOP favorite in 2024, since she's followed a similar trajectory as most GOP Jews with regard to Trump. Start by loudly disavowing him, shift to "well, but look at what he does for Israel," crest at treating him like their God. Now that we're falling off that peak, I suspect they'll settle back into the groove of "sure he wasn't perfect, but Israel!", and Haley, viewed as the human instantiation of Trump's Israel advocacy, is well positioned to take advantage of that. The incongruity of going from genuflecting at Trump's magnificence to "breaking" with him will be easily overlooked, since much of the Jewish GOP will be doing the same contortion.

But what about Haley's 2024 prospects more generally? Certainly, there's risk -- as the last few weeks have shown, the GOP is still very much Trump's party. Nonetheless, I think this is a savvy move. Simply put: Haley wants to be President in 2024. That won't happen if Trump is strong enough in the GOP to win the Republican nomination. So Haley might as well act as if he won't be -- if he is strong, her support for him will be moot, and if he's weak, she has the advantage of presenting a clean ("clean") break.

Moreover, Haley doesn't currently hold elected office, so she doesn't have to worry about a primary backlash or other ways of the Trumpist base directly humiliating her. And even if Trump does hold his position, he's perhaps surprisingly tolerant of welcoming former adversaries back into his orbit if they grovel hard enough (see Graham, Lindsey). Haley may be saying that "we shouldn’t have followed him, and we shouldn’t have listened to him. And we can’t let that ever happen again," but I guarantee that if Trump remains the prime 2024 GOP power figure, Nikki Haley will absolutely be eager to do it all over again. And fortunately for her, that puts her in the same position as 95% of the GOP.

Well played, Haley. Well played.

Tuesday, February 09, 2021

How To Meet With the Jewish Community

Contrast two JTA stories of Republican congresspersons who had recently antagonized, or at least raised the eyebrows of, the Jewish community.

The first is Rep. Madison Cawthorn (R-NC), whose lowlights include a slightly-too-excited trip to see Hitler's bunker, appropriation of a poem about the Holocaust, a stated desire to convert Jews to Christianity, and, of course, inciting an insurrection against American democracy. The story is titled "Following a string of controversies, Madison Cawthorn meets with his Jewish constituents", and details the variety of Jewish community members whom he met with, including a local synagogue director,  an area pulpit rabbi, a Jewish educator, the executive director of a Jewish community center and a Jewish conservative activist. A diverse and seemingly plausibly representative bunch. I'm not saying that I think the meeting was or wasn't productive, or that it makes Cawthorn an ally of the Jews. But if you're going to reach out to the Jewish community after a controversy or scandal, this seems roughly like the way to do it.

Compare that with our second contestant, Rep. Mary Miller (R-IL), who gained notoriety for saying "Hitler was right on one thing" just before the Capitol insurrection. The title of this story is "Congresswoman who said ‘Hitler was right on one thing’ meets with rabbis", and my assumption on reading that headline was that she was meeting with local rabbis from synagogues in her district. But I was mistaken: the meeting was actually with representatives from the "Coalition for Jewish Values", a fringe right-wing group that has long carried water for the GOP. They had no particular connection to her district or the Jews who lived within it; the pull quote they offered as an apologetic for Rep. Miller came from a Rabbi residing in Florida.

This is most certainly not how one "meets with the Jewish community." It is the right-wing equivalent of a Democratic politico addressing concerns of antisemitism via a meeting with JVP. In either case, the clear ambition is not to actually hear the perspective of the Jews one represents, but rather to find some Jews who already agree with you and will offer themselves as shields against the communal majority. I have written at length as to why this sort of tokenizing move is an ethical no-no -- for both the tokenizer and the tokenized -- and I reiterate it here. Nobody should be fooled by what Rep. Miller is trying to pull here (and I wish the JTA would update their headline so that it doesn't have the potential to mislead).

(And, by the same token, kudos to Rep. Cawthorn for doing it right. The tokenization move is too easy and one sees it too often, and so while I don't want to give too much praise for doing the bare minimum, I do feel compelled to give at least a tip of the cap to him for avoiding the easiest dodge available).

Monday, February 08, 2021

What are the GOP's COVID Relief Ideas?

We keep on hearing complaints from Republicans about how the COVID relief bill needs to be "bipartisan". For my part, I'm all in favor of bipartisanship. I welcome any and all Republicans to vote for the COVID relief bill that Democrats bring to the floor.

But in all seriousness, I have no intrinsic objection to incorporating Republican ideas into the COVID relief bill. The problem is I don't know what ideas Republicans have. So far, their main ask has been to request that the bill do less to help fewer people. That's not an idea, that's a contraction of the Democrats' idea. Does the GOP have any positive suggestions for things that could improve the bill?

The one actual policy idea I recall Republicans proposing in the past is tort immunity for businesses that reopen during the pandemic. That's an idea. It's a profoundly terrible idea, and Democrats absolutely should not take them up on it, but it is at least an idea -- it is not just the negation of a Democratic idea.

Do they have any others? Preferably, ones better than "businesses should be allowed to murder their employees with impunity"? Or is the "party of ideas" stuck at preferring more misery over less?

Watching the Mainstream Jewish Community Stand Up to Lies About Ethnic Studies

When I saw Tablet Magazine had published a rapidly-going-viral article on the California Ethnic Studies curriculum, I felt a despairing sense of deja vu. I had already seen some other hit jobs on the curriculum floating around the Jewish media, and I knew that many of the claims undergirding the attacks were misleading if not false. Yet I assumed we were in for another scenario where the bad faith right-wing outrage machine, capitalizing on legitimate Jewish fears but also stretching way beyond them, would entirely drive the conversation about the curriculum and lead to unnecessary and damaging friction that would entirely blow up the hard work so many in the Jewish community had put in to ensure that Ethnic Studies fairly represented Jews.

You see, in the past when I'd found myself in predicting one of these trainwrecks from afar, I'd contact someone in the establishment Jewish community and plead with them to fire back. Don't let the bad faith actors occupy the field, don't let them control the narrative, don't let them poison the discourse without challenge. And over and over again, the response I got from the folks I talked to was "we don't want to give them any oxygen." The standard tactic in the face of these conservative narratives was to adopt an above-it-all posture of silence. It purported to be a stance of dignity -- not deigning to respond to such obvious falsehoods. In reality, it was an ostrich defense -- hoping that if they buried their heads in the sand, the problem would go away on its own.

And so when I sent out my now ritual missives on this issue; pleading with a leader of one of the organizations to push back against the Tablet narrative racing around the internet, I didn't expect much. And I wasn't surprised when the first response I got back was an instinct to just let it lie. The person I spoke with was worried that more attention might spark still greater backlash, threatening the incredible advances they had already made. 

I argued that silence was more likely to see those advances disappear -- to the extent they were added in deference to the Jewish community, if the perception is that the Jewish community is still unhappy, that doesn't exactly assist the credibility of those Jewish organizations who had been their advocates. More broadly, the folks in the California education system who had made these changes needed to know that the reward for working with concerned Jewish organizations would be to be left high and dry as soon as there was pushback. The last lesson we want someone to draw is that it's useless to try and assuage Jewish communal concerns because even if you do work with prominent community members you'll still come in for attacks and your erstwhile partners won't have your back.

And wouldn't you know it -- she listened. And others in the Jewish community seemed to have listened to.

It has been striking to see over the past week just how decisively the mainstream Jewish community has rallied against attacks from the communal right on the Ethnic Studies curriculum. Tye Gregory of the San Francisco JCRC had an early editorial out defending the latest draft. It was swiftly followed by columns by Sarah Levin of JIMENA, Hen Mazzig, and JPAC, all blasting the "misinformation" and "misrepresentations" being promulgated about the curriculum. A huge coalition of Jewish establishment heavyweights -- the ADL, AJC, Holocaust Museum, even StandWithUs -- released a united statement urging support for the Ethnic Studies curriculum and condemning bad faith attacks.

I haven't seen anything like it. And it's made a huge difference. The Tablet article's author has been thrown on the defensive, with a weak authors' note appended to the piece that does less to address the substantive criticisms than it does make evident just how effective the pushback has been. In the space of a few days, the article has gone from "the story" in the Jewish press (per Bari Weiss) to almost uniformly discredited. It seems obvious to me that the folks who had been pressing the histrionics about the Ethnic Studies have been taken a bit aback. And why shouldn't they? They're use to peddling this sort of nonsense without any resistance. This was new for them.

I hope it is the start of a trend. I hope it is the start of a more muscular Jewish center, one that knows that it cannot make the problem of right-wing zealots go away just by wishing it so. We'll see if the lesson takes. But boy, has it been nice to see our side throw some elbows of our own for a change.

Wednesday, February 03, 2021

Why Is Tablet Digging In?

The post I wrote the other day, debunking some claims in a widely-shared Tablet Magazine article about the latest draft of California's Ethnic Studies Model Curriculum, went pretty viral. Several readers were surprised that Tablet and the author have completely dug in their heels. They haven't admitted any wrongdoing, are defending the piece to the hilt, and have not even retracted the most obvious falsehood: the allegation that there is an antisemitic quote contained in the curriculum that is not, in fact, present. Their efforts at defense have gotten increasingly ludicrous, turning off even some readers who were broadly skeptical of Ethnic Studies in general but didn't support flatly lying about the curricular content. Why wouldn't they just confess error on that issue and move forward?

I admit I was a bit surprised too, and when someone asked me why Tablet was digging in I leveled two hypotheses. The first was professional vanity. It's hard for anybody to admit a mistake, and it's easier to go into denial mode and kick up a lot of dust. The second was that the article was so thin with respect to problems with the current curricular draft that if they conceded error on this quote, they really were left with virtually nothing. The entire edifice collapses without it, so they were forced to defend it lest they abandon the article entirely.

Both of those hypotheses I think remain plausible. But on reflection, I think there's a third possibility, and it relates to "cancel culture". In quotes, because I'm not referring to any actual cancellation, but rather the idea of "cancel culture", political correctness, and other such concepts that provoke so much ire in segments of the right-leaning media (Jewish media very much included). Persons who have drank of these waters believe we are overwhelmed with attempts at censorship, sugar-coating, and kowtowing to online gangs. For such persons, then, there is no greater betrayal, no greater cowardice, than acceded to the demand for a retraction. It doesn't really even matter if the claim under attack was justified or not; it ceases to be about defending the claim on its merits. The "principle", such as it is, is to stand up to the mob. Anyone who fails to do that is weak.

I started thinking about this when I called on Bari Weiss -- surely one of the doyens of this approach -- to retract the allegations she had made regarding the Ethnic Studies course that, it turns out, were objectively false. Weiss had just written a column where she said that "Being popular is not essential ... Telling the truth is essential." The truest test of character, she continued, is whether someone is "willing to tell the truth even if it hurts their own side." This would be a good place, I thought, for Weiss to practice what she preaches. To tell her readers that the claims about the Ethnic Studies curriculum she had amplified were false would not be popular with the readership she cultivated. But popularity isn't essential. Truth is. Or so she said.

Alas, Weiss has not seen fit to tell her readers the truth. But the issue about it being "unpopular", I think, is one that goes beyond an uncomfortable truth. If Tablet retracted the article, or even if they publicly admitted that there were flaws in it that shouldn't have been published, they would face a different sort of backlash from readers who thought they had prostrated themselves before the politically correct mob. It wouldn't matter that the claims in question fail basic journalistic standards. The fact that there was so much outrage (even justified outrage) on its own makes it imperative that Tablet stand its ground.

We cannot disconnect this from the sense of grievance which inspired some, albeit not all, of the popularity of the initial article. There is a segment of the Jewish community (and other communities) which views Ethnic Studies as so much PC claptrap, a sop to loud and angry minorities who want to silence anything and everything that doesn't present America as a bigoted hell-hole. They read the Tablet article and understood this curriculum as reflecting the ambitions of this cohort, they view the critiques of the article as Tablet being besieged by this cohort, and if the article was retracted they'd view Tablet as having been captured by this cohort. Ironically, Tablet's credibility with its readership (or at least large chunks of it), depends on them not correcting even obvious mistakes. Many of the folks who couldn't care less about the realities of the California Ethnic Studies Model Curriculum (the author of the article now forthrightly admits that it doesn't matter what's in the curriculum; she thinks its a poisonous idea no matter what it teaches) would never forgive Tablet if seemed to be giving in to "the left" (whatever that means).

Telling the truth does indeed, take courage. But telling this particular kind of truth -- that you made a mistake, that you have to retract -- perhaps takes even more courage than normal. And that's especially so when you're part of a social current which values above all else standing firm in the face of challenge.

It takes real backbone, and real commitment to the internal norms of journalistic integrity, to tell the truth in that case. I hope that Tablet can one day find those virtues in itself.

Friday, January 29, 2021

Republican Rep. Wants Us To Know She'll "Never Back Down" from her Antisemitic Conspiracy Theories

Republican House Rep. Marjorie Taylor Greene responds to Jews calling her out for antisemitism in the classic Republican fashion: telling us to get bent.

“I will never back down,” Greene said in a defiant statement Friday afternoon, one day after revelations of one of her conspiracy theory-filled Facebook posts from 2018 thrust the term “Jewish space lasers” into public discourse.

In the post, the freshman congresswoman from Georgia theorized that the Rothschild family was involved in starting California wildfires using lasers from space. Invoking conspiratorial control by the Rothschild baking family over world events is a centuries-old anti-Semitic stereotype, and it is also a theme in the pro-Trump QAnon conspiracy theory that Greene has promoted.


On Friday afternoon, Greene signaled — in a statement titled “A Message to the Mob” — that she felt emboldened by the criticism.

“Every attack, every lie, every smear strengthens my base of support at home and across the country because people know the truth and are fed up with the lies,” the statement said. “For me, it’s people over politicians. It’s people over Big Money PACs. It’s people over powerful elite corporations and the Silicon Valley cartel who are trying to cancel all of us.”

She added, “I will never back down. I will never give up. Because I am one of you. And I will always represent you.”

But don't worry: accountability is coming!

Republican leaders this week appointed her to the House’s education committee.



The Antisemitic Quote That Wasn't in California's Ethnic Studies Model Curriculum

A few years ago, back in 2019, there was a significant controversy over California's draft Ethnic Studies Model Curriculum (ESMC). Basically, it was a hodgepodge of far-left jargon that barely talked about Jews or antisemitism but sure had some things to say about Zionism and BDS. This did not make the Jewish community happy, as one might expect, and -- led by Mizrahi and Middle Eastern Jewish activists who were particularly galled to be erased from the course given their significant numbers in the state of California -- they rallied an impressive array of allies and community members to demand changes (full disclosure: I was among those who submitting comments on the initial draft urging significant modifications). Luckily, the education powers-that-be in California were actually quite receptive, and the text was sent back for substantial revisions.

Fast forward to today. The ESMC is on its third draft, and many of the Jewish community's suggestions have found their way into the curriculum. The current ESMC draft cites surging rates of hate crimes against Jews, and that we are the most common victims of religious-based hate crimes in southern California. It has an excellent unit focusing on Mizrahi and Middle Eastern Jews -- one of the first I've seen dedicated to this subject -- that specifically characterizes Jews as indigenous to the Middle East. It includes passages from a range of Jewish luminaries including Ruth Wisse, Julius Lester, and Angela Buchdahl. It speaks on how, while Jews have found America to be a land of opportunity, especially after World War II, our successes stand side-by-side with the continued reality of antisemitism -- especially for Jews who have resisted assimilation into dominant American culture. 

Like any work done by committee, one can pick at this or that bit of rhetoric or focus. Still, on the whole, leaders in the Jewish community, such as Tye Gregory of the San Francisco JCRC (and formerly of the LGBT rights group A Wider Bridge) are celebrating it for what it is: a success story. It is a testament to what we in the Jewish community can accomplish via constructive engagement and participation, and proof positive that we can be included in a positive and affirming way in an Ethnic Studies curriculum.

Unfortunately, for certain pockets in our community, this very success is a threat. There are some in the Jewish community who are have made much of the threat posed by Ethnic Studies and other leftist academic ideas, and who have gained a great following and acclamation from fear-mongering about it. Unlike those who have recognized problems in the field but have sought to engage and improve things, these persons are invested in the notion that things like Ethnic Studies are inherently antisemitic, inherently anti-Jewish, and inherently incapable of reform. The original draft of the California ESMC was an omen of how the American left was inexorably falling under the shadow of "Corbynization". For them, and for that narrative, the revised ESMC presented a large problem. What does one do when one's favored ogre appears to have turned over a new leaf?

The answer, if a widely cited Tablet Magazine article by Emily Benedek published earlier this week is any indicator, is simply to lie about it.

Much of the article simply presents generic complaints about "critical race theory" or rehashes content from the initial draft which had already been removed, in order to suggest that the curriculum continued to explicitly demonize Zionism and Israel. Plenty of credulous readers bought the message -- Bari Weiss, for example, linked to the article with a searing indictment of American Jewish leadership: 
"California's schools are mandating the erasure of Jews and the acceptance of anti-Zionism. I blame every single American Jewish leader who didn't bang on about this every single day. Every single one."

The problem? The current draft does not, as best I can tell, even mention the word Zionism or anti-Zionism. It's not present. And the reason it isn't present is because of a bevy of American Jewish leaders who did successfully bang the drum on this and now are having their hard work erased. Nice work.

But the reason why Benedek focuses on the old drafts becomes clearer when you look at what she has to say about the current one. In one of the few passages that speaks on this subject, Benedek writes that in the new draft

[t]wo lessons have been offered about Jews. One, following crude CRT dogma,  teaches that Mizrahi Jews coming to the United States from Arab lands were mistreated by “white” Ashkenazim. The other suggests that Jews of European descent have white privilege.

The first claim is simply a lie, and a lie that generated a furious reaction from the Mizrahi Jewish advocacy group Jews Indigenous to the Middle East and North Africa (JIMENA). JIMENA had invested extensive time and energy into helping develop the ESMC's Mizrahi Jewish unit, and they were not pleased to see their efforts so cavalierly misrepresented. They were doubly-displeased that Benedek didn't even deign to reach out to them to learn about the unit they helped construct. They have asked Tablet to issue a correction, but so far the magazine does not appear to have obliged.

The second claim relates to sections of the curriculum which discuss how Jewish racial identity is malleable and how some Jews have conditional White privilege. The intersection of Jewishness and Whiteness is an area I'd like to think I know a little about, and what the ESMC is saying is true -- and more than true, important for understanding how antisemitism continues to operate. As the ESMC notes, "conditional" whiteness is always revocable, particularly when Jews refuse to assimilate or insist on maintaining ourselves as a distinctive people. Recognizing that, and recognizing how Jewish racial status is malleable such that Jews can sometimes be treated as "White" and other times not, is essential if students are to understand how Jews who look like me can and do face continued antisemitic oppression even as in other contexts we might be able to access some of the prerogatives of Whiteness. To be Jewish in America is to be allowed to attend the all-White schools in the segregated south while simultaneously being targeted by the KKK as the ultimate threat to the White race. In short, our whiteness, and access to the privileges thereof, is inconsistent and shifting -- or, we might say, conditional. 

Yet for the ESMC's effort to present this nuanced position in good faith, Benedek echoes other critics in accusing it of being tantamount to Nazi propaganda. No good deed, indeed. 

But that isn't the worst of it. Having struggled to point to anything concrete in the current (as opposed  to older, abandoned) drafts of the ESMC that is antisemitic, Benedek finally appears to identify a whopper of an example in this paragraph:
As a result of the outpouring of criticism of the first ESMC draft, in August 2019, Superintendent Thurmond ordered a revision. A second draft was completed in August 2020 and was immediately criticized for simply moving objectionable material to the appendices and footnotes. In the current, third draft, released in December, some of the most offensive material was actually moved back in. For example, an historical resource was added with the following description of prewar Zionism: “the Jews have filled the air with their cries and lamentations in an effort to raise funds and American Jews, as is well known, are the richest in the world.”

That last quote is quite shocking, and if it were presented approvingly in the ESMC it'd be worthy of condemnation. And precisely because it was so shocking, I went in search of it, wanting to see if there was any context or explanation that might justify it. But my efforts stymied by a more fundamental problem: 

The quote isn't there.

I, along with several other readers, searched high and low for much of the day trying to find where this quote was. It did not appear to be anywhere in the ESMC. And we couldn't find it on google either, so we couldn't even figure out the initial source. Finally, Benedek gave us a clue: She cited line 11180 of the ESMC's "Appendix A", offering sample lesson plans for various units. A bit strange to see it located in an appendix, since it was cited as a case where offensive material was taken out of the "appendices and footnotes [and] ....moved back in" to the main text, but at least we now knew where to look.

Except, it wasn't there either. Line 11180 is part of a string citation to additional handouts and materials that might be consulted. That line specifically was a cite to Ameen Rihani's essay  (published in the 1920s) "Deserts of Fact and Fancy," though it didn't quote any passages from it. But while the quote wasn't in the ESMC itself, maybe it could be found inside Rihani's essay? No again. The words are not present in Rihani's essay either. So what on earth was Benedik talking about?

After several hours of sleuthing, we finally figured it out. The words were not in the ESMC. And they weren't in the "Deserts of Fact and Fancy" article cited in the ESMC. Rather, the material appeared in a different article, not cited or referenced anywhere in the ESMC, that happened to be printed in the same volume as "Deserts of Fact and Fancy" -- albeit 30 pages away. There, finally, we'd uncovered the big offense of the ESMC third draft.

If it wasn't so unethical, it'd be hilarious. Over eleven thousand lines deep into one of the appendices, someone -- no doubt frantically searching for something to hang their hat on in order to continue portraying the revised ESMC as an antisemitic document -- clicks on the alternate link provided for the "Deserts of Fact and Fancy" article (since the first is behind a paywall; if one read it on the original site, incidentally, it's clear that the quote is not present) and then, finding nothing of note in the essay itself, decides to browse through the entire newsletter it appeared in before finding a completely unrelated article with offensive material. Is that offensive material quoted in the ESMC? No. Is it contained in an article cited by the ESMC? No again. Who cares! Desperate times call for desperate measures.

Of course, there's virtually no chance that any actual student would ever come across the quote. It is not, contra Benedek, part of the curriculum, nor is it included in the resources cited in the curriculum. And if there are K-12 students who not only actually look up the fourth entry on the additional readings list, but also proceed to read all the other articles which share a volume with the suggested supplements, then frankly I tip my cap to the Ethnic Studies Curriculum for developing such voracious overachievers.

But the fact that one had to dig so deep into the weeds to find something objectionable in (or more accurately, not in) the ESMC is, in its perverted way, another testament to just how well the Jewish community did in securing necessary reforms. We should be taking a victory lap. And we should be taking down the names of those who would rather see anything else than a world where Jews are, in fact, fairly included and treated in Ethnic Studies.

Thursday, January 28, 2021

Sadomasochistic Judging

I have a new article out, entitled "Sadomasochistic Judging", in Constitutional Commentary. Nominally a book review of Richard Fallon's Law and Legitimacy in the Supreme Court, it's a classic law review style book review where the book itself is a flimsy veneer allowing me to talk about things I already wanted to talk about. 

In this case, "Sadomasochistic judging" is the practice of finding legal legitimation via the fact that a judicial opinion hurts people -- causes pain. It's legitimating because it supposedly falsifies the persistent worry that judges are merely imposing their own policy preferences, the inference being that if the decision is painful, then it is not be what the judge wanted to do but rather must be what the judge was legally compelled to do. Judges hate causing pain, but they crave the legitimacy hit they get from decisions that cause pain, and so end up pursuing pain as a means of garnering this illusive feeling of legitimation. Hence, sadomasochism: judges gain pleasure from the pain of causing pain.

Here's the abstract:

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial “hard cases,” many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent. 
As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them—upholding “uncommonly silly laws,” protecting “speech that we hate,” reluctantly permitting terrible injustices to persist because the law “ties our hands.” Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges—a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.

This article is also special for another reason: it is the first one where my bio includes my new title -- Assistant Professor of Law, Lewis & Clark Law School. It's jumping the gun a little bit, but I don't think anyone will begrudge me my eagerness.

Wednesday, January 27, 2021

No Retaliation for DC Statehood

A DC statehood bill has officially been introduced in the Senate.

I've been a big proponent of DC statehood for some time now. And one thing I really like about it as a political play is that it is (a) morally correct (obviously DC residents should have representation in Congress), (b) politically advantageous (it's two safe Democratic seats), and (c) immune from direct retaliation. You're usually lucky to get even two, let alone all three. Compare court packing: it'd be politically advantageous for Democrats to add more justices to the Supreme Court, and it's perhaps arguably morally justified, but it's also easily open to retaliation -- the next time the GOP controls Congress, they'll just add even more seats to re-pack the judiciary.

But DC statehood is relatively immune to that sort of tit-for-tat. I can imagine the conversation:

"You're only adding DC as a state to secure two new Democratic senators! Well if you do that, the next time we're in power we'll add two new states with safe Republican majorities!"

"Oh? Are there non-state territories under permanent American dominion that are overwhelming made up of conservative White people?" 
"Yeah. Funny, that."

Saturday, January 23, 2021

Coming Not To Praise Sheldon, But To Bury Him

Former Israeli Prime Minister Ehud Olmert's eulogy for Sheldon Adelson doesn't mince words: It's titled "I hate everything Sheldon Adelson loved about Israel". A taste:

Adelson loved Israel and contributed much to a variety of Israeli organizations. And yet, which Israel did he love? Adelson loved an Israel that expels Palestinians from areas under our control. He stated this explicitly on a number of occasions.

Adelson loved an Israel that ignores its Arab citizens and refuses to recognize their equal rights. Adelson believed in a right-wing, nationalistic and fundamentalist Israel, though he himself was not a religious person. He also thought that if Israel had nuclear capability, it should use this power against Iran.

Adelson contributed to public discourse in Israel by fueling hatred toward elements that did not identify with the extreme Right, and that were unwilling to bear the dominance of settlers and their supporters.


Sheldon loved an Israel that most of the residents living here don’t even want. He preached a racism that is inimical to us. He supported discrimination against Arabs, which we are definitely not prepared to go along with. He hated leftists, and did his utmost to make Israeli society fractious. He encouraged internal disputes and rivalries among ourselves, even though he himself didn’t live here.

Everything he loved, I hate.

Everything I love about Israel has nothing to do with Adelson.

May he rest in peace.

Woof. But hardly undeserved. (H/T


Thursday, January 21, 2021

Firin' Biden

The Joe Biden administration has already begun with a bit more fire than the "sleepy Joe" chanting GOP had probably hoped for. Among the moves they made on day one came the termination of several particularly noxious Trump-era holdovers. This is big news, if no other reason than it suggests that Biden will not, contra the fears of some, allow Republicans to have their cake and eat it too on the question of norms. Trump shattered norms for four years without nary a peep of complaint, and Biden does not appear interested in unilateral disarmament.

That's clearly a necessary move, and I applaud him for it. If the risk of Biden was that he'd be too enamored with the old model of Washington where gosh-golly we just play nice with one another and agreements will be made over some cocktails, the reward would be that he's a savvy enough DC insider to know when to play hardball. Indeed, while it's certainly too early to make such judgments, I'm feeling a faint burbling of hope that Biden might mimic Terry McAuliffe in Virginia -- the seemingly boring party man who punched way above his weight in terms of pushing an aggressive progressive agenda forward.

That's all good news for the immediate future. But what about the downstream effects? Who benefits if incoming presidential administrations feel more free to terminate the seemingly "burrowed" figures from the previous administration?

One of the main drawbacks to doing these sorts of terminations is that they leave gaps in the federal bureaucracy which are (temporarily, at least) filled by essentially whichever career civil servant happens to be next in line. The argument that the new normal favors Democrats would be that basically competent and conscientious bureaucrats are more likely to be at least amenable to Democratic priorities compared to Republican ones, and so the "empty" time will be less costly. The argument in favor of the Republicans is that Democrats generally need a fully functioning bureaucracy running on all cylinders to achieve their aims, whereas Republicans -- at least in their more nihilist moods -- can "achieve" their desires simply by allow things to fall apart.

Which will it be? Hopefully we won't find out, because hopefully the GOP will be in the political wilderness for a long, long time.

Wednesday, January 20, 2021

The Beginning of the Beginning

The Donald Trump presidency is officially over. Congratulations to our new President, Joe Biden, and Vice President Kamala Harris.

This is obviously a huge step forward in terms of stemming the bleeding and repairing the immense damage caused by the last four years of quasi-authoritarian rule. And yet, I worry that so much time will need to be spent on the act of repair that we may struggle to also effectuate the positive changes we need. To be clear, by "repair" I don't mean vapid acts of "unity" and acting like the Trump era didn't happen. I mean the actual steps of undoing and rectifying the damage wrought against our democratic institutions. These are very much necessary, but they also will take time and energy; and that's time and energy that can't be devoted to other things.

It is not an easy situation that Biden, Harris, and the other Democratic leaders have placed themselves in. I wish them all the luck and all the support as they try to navigate difficult shoals.

Monday, January 18, 2021

Happy Trails to Kevin Drum

Kevin Drum has announced he's leaving his post at Mother Jones for health reasons (Drum has been battling multiple myeloma for several years now). He isn't hanging up the spikes altogether -- he plans on launching his own blog -- but he felt he could not maintain the pace that justified working for a major magazine like Mother Jones.

Drum was one of the first bloggers I read -- I don't think I caught him during his Calpundit days, but I sure read him at the Washington Monthly -- and was a tremendous influence on my own development as a blogger. I'm certainly not alone in that: Drum was a towering figure during the Golden Age of blogging, whose influence on the mainstream liberal side of the commentariat could not be overstated. And while blogging is fading as an artform, Drum remained decidedly old school and has accordingly stayed as one of my favorites. His work on the lead/crime hypothesis was absolutely fascinating and dare-I-say important, and in general I've always respected him for being thoughtful, considerate, and fair-minded without being mushy or wooly. Those are virtues that are perhaps in rare supply these days, and so I'm especially grateful to Drum for modeling them for so many years.

I'll certainly be following Drum at his new gig, wherever it may be, and so I'm glad this isn't goodbye. But it did strike me as a good time to give a brief tribute to one of my favorite members of the blogosphere.

Wednesday, January 13, 2021

La Foule, C'est Moi, Part III

The pattern of Republican politicians just openly identifying with the lawless mob continues with Josh Hawley, who thinks he bravely stood up to the insurrectionists who rampaged through the Capitol by actively encouraging them and endorsing all their demands. Such boldness. Such courage.

Of course, this doesn't even get into the (at least) six Republican elected officials who were actually, literally part of the marauders.

Anyway, a whopping ten House Republicans voted to impeach President Trump for his actions fostering a violent attack on democracy. That's nearly 5%! I'll tell you what, the days of the GOP being in thrall to lawless anti-democratic authoritarianism are certainly coming to a middle.

Tuesday, January 12, 2021

Where Does Adelson's Wealth Go Now (Politically Speaking)?

Sheldon Adelson, casino magnate and massive backer of conservative and right-wing causes (particularly in the Jewish community), has died at age 87.

I don't feel the need to do any retrospective on Adelson's life. Suffice to say, while he did donate to some good causes, particularly in the medical field, his primary contribution to public life were to bolster regressive and reactionary forces in America and Israel. This influence will not be missed.

Of course, even with his death, his money doesn't simply disappear. The question is whether his heirs are as committed to serving as right-wing kingmakers as he was. To the extent his death dries up a significant source of conservative largesse, it could make a significant difference in the ecosystem of right-wing politics (again, especially in the Jewish community where Adelson was a major benefactor of an array of reactionary institutions).

Adelson's wife, Miriam, is a physician and is probably more responsible for the health-side donations of Adelson fortune. It's possible that she will pivot to focus more on those endeavors, which would be an unadulterated good. That said, while not having as high a profile as her husband, from all appearances Miriam's politics are not materially different from her late partner, and so it is entirely possible that she'll keep up the money flow same as before.

I suppose we'll see. But it will be interesting to see the degree to which the heirs of some of the Republican mega-fortunes share their parents' politics. It's possible that deaths such as these could effectuate significant shifts in the political landscape simply by changing who signs the checks (which is itself not exactly a healthy indicia of democracy, but leave that aside for now).

Friday, January 08, 2021

The Legacy of Trump Appointees Who Resigned Now

Many people are wondering how we should assess the legacy of Trump appointees who now, finally, have resigned from his administration. How much should this stand serve to rehabilitate them in the eyes of history? Is it meaningful, or is it too little too late?

My view is simple: If you resigned today, I agree you are absolved from responsibility for whatever Trump does in his last twelve days in office. Your moral liability for the preceding three years and eleven months (or however long you were in the administration) remains unaffected. If Betsy DeVos wants to start the clock running from the time she tried and failed in the push to invoke the 25th Amendment, I'm fine with that too.

Wednesday, January 06, 2021

The Beard and Overalls Putsch

We should be talking about Raphael Warnock and Jon Ossoff's historic victories today, ensuring that incoming President Joe Biden has a Democratic House and Senate that can implement his priorities.

But we can't. Because a mob of pro-Trump extremists has stormed our seat of government, an attempted insurrection aimed at the violent overthrow of our democratic system.

This is the final fruit of Trumpian authoritarianism, eagerly abetted by the overwhelming majority of the Republican Party. Even now, Trump can barely murmur a peep against the "protesters", limply calling for peace while insisting that their paranoid fantastical grievances are in fact wholly justified and salutary. In this, he has been backed by huge swaths of his own Party, who own this blot on our national heritage almost as much as he does. Figures such as Josh Hawley and Ted Cruz deserve permanent disgrace. They cheered this on. They helped make today happen.

And of course, the limp response of the Capitol Police to these acts of White Supremacist sedition stands in such striking contrast to the heavy hand taken against Black Lives Matter protesters. We can't even fathom a similar display to this emanating from the left, because if it had come from the left the streets would run with blood. Yet even here the right plays victim, comparing a few instances of vandalism against  a violent anti-democratic putsch and suggesting that it's the left which comes out with explaining to do. If you think they've learned anything, they haven't.

The Beard and Overalls Putsch will not succeed. It will not stop our democracy. This will not be the day that the American dream dies. But make no mistake. There has to be accounting, and there has to be reckoning. The men and women responsible for allowing this to happen cannot be permitted to escape without consequence. Yes we need to heal. But part of healing means finally expunging the toxic, authoritarian, anti-democratic poison that has been allowed to course through the body politic for far too long.

Tuesday, January 05, 2021

Sweet Home Georgia

(It's not a mistake, it's a Dollhouse reference)

Georgia heads back to the polls for two Senate run-off elections today, and I honestly don't know what to expect.

On the side of evil:

  • Perdue barely missed taking an outright majority in the first round, and the combined GOP vote in the special election was I believe ahead of the combined Dem vote.
  • As everyone knows at this point, Dems historically underperform in Georgia run-offs.
  • Polls have shown a deadlock, but it seems as if the polls this cycle have had a slight D slant, so a deadlock may translate to a slight R advantage.
On the side of good:
  • Early vote turnout figures look excellent for the Democratic candidates. And it seems plausible that in a run-off it will be easier to turn out the early vote than the in-person vote.
  • It's also not implausible that Republicans are demoralized after the 2020 election (even if they somehow actually think they won and it was "stolen", they might be less than keen to participate in an election they think will be "stolen" again).
  • Donald Trump being, shall we say, "distracted" might also undermine GOP enthusiasm.
  • The blue shift in highly-educated suburbs is, among other things, a shift in a relatively high-turnout constituency, which may undercut some of the historical "Dems struggle to turnout in run-offs" baggage.
Honestly, I don't know what to think. But here's hoping that these months where we Warnock-ed our Ossoff pay off!

Monday, January 04, 2021

Cursed Words in the Brandeis University Press

The end of 2020 brought on a burgeoning academic controversy involving the reprint of Marc Dollinger's book Black Power, Jewish Politics (which I happen to have on my desk). The gist is this: in preparation for a new edition, Dolligner authored a new preface which included language about how Jews have begun to reckon with the  "elements of white supremacy in their own lived experience." Dollinger's editors at the Brandeis University Press didn't like the linkage of Jews and White Supremacy. So they refused to print his preface, and allegedly sent the book to the presses without consulting him on their decision. This generated an outraged letter by a good number of eminent Jewish Studies scholars in Dollinger's field, and the BUP's newly installed editors wrote a rather vague reply suggesting potentially that they may revisit the decision.

Like others, I recognize that the linkage of Jews with my background and White Supremacy is a fraught endeavor. I wrote a lengthy two-part blog series trying to tease through this very topic. I haven't read Dollinger's preface (since, you know, it was never published), and it's possible I'd disagree with what he had to say about "White supremacy". But discussing the topic is well within the purview of academic inquiry into the relationship of American Jewry and the Black community, and it is not a healthy thing if the very phrase is treated as cursed words. The people who are praising the editors' censorial cowardice regarding a book that already passed muster in peer-review are doing a disservice to the project of open academic inquiry (not that I think they care). Give them 30 minutes, and they'll be back to complaining about "cancel culture" soon enough, but for the time being they're gleeful as all get-out that an academic press was afraid to even allow the phrase "White supremacy" to be uttered in a preface.