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."