Happy New Year!

I'm celebrating the ringing in of 2023 in two main ways:

(1) We're hosting a group of my college friends at my house (this group has met for new year's every year since graduation).

(2) I'm taking my laptop in for repairs, since it overheats constantly even when doing comparatively minor tasks, has done so since basically the day I bought it, and I want to get it fixed while it's still under warranty.

The latter, I imagine, means I will be without this laptop for at least a few weeks. It's possible I get a cheap netbook to tide me over. But it's possible I'll be computer-free for a little while. I can scarcely think of anything scarier (cornea surgery? Definitely not).

So if I am quieter around these parts through the beginning of the new year, that might be why. Regardless, I hope you have a happy and healthy new year, one full of all the best milestones and celebrations.

Lift Every Jewish Voice and Sing

Apropos my earlier post about the prospect of a Jewish florist asked to make an Easter flower arrangement, I found this article about Jewish singers who regularly sing in churches during the Christmas season to be quite interesting.

It seems quite clear that religious majorities and religious minorities have very different understandings about the degree to which they can be expected to encounter and interact with other faith traditions, including messages that contradict their own beliefs. Church singing was, above all, a good job in a profession where regular paydays aren't always easy to come by. The singers accordingly generally viewed church singing as just a job -- even though the hymns they sung would have (understandably) expressly Christian messages, even though they sometimes encountered direct antisemitism there. They draw a clear distinction between singing a rehearsed song versus praying in their own voice.

For what it's worth, I tend to view singers as towards the far end of a spectrum ranging from "jobs expected to serve anyone who comes in the door" to "jobs where the professional has absolute discretion to pick and choose clients." The further you proceed down that spectrum, the more justifiable it is for a professional to refuse to take a job for whatever reason they want -- so I don't feel it would be unreasonable for a Jewish tenor to turn down a church job, even as in practice they typically seem able to maintain the conceptual separation I argue the florist should have. But the nebulousness of the spectrum (where do florists fall? I think somewhere in the middle, but reasonable minds can disagree on that) is part of why the anti-discrimination/free speech issues here are so difficult.

In any event, though, I wanted to flag the piece less because it illustrates any major theoretical point, and more for it says about how many Jews think about these issues in practice. Simply put, we can't afford to be hypersensitive in the way that many Christians -- perhaps for the first time experiencing the barest hints of conflict between their religious precepts and the public arena -- demand the law provide protection for. To borrow from Kimmy Schmidt: "It's so funny what people who aren't minorities think is oppressive!"

New Year's Resolutions: 2023

It's that most wonderful time of the year: Debate Link New Year's Resolutions! Last year's resolutions are here, and here is the entire series. As always, we begin by reviewing last year's performance.

Met: 1, 4, 5, 6 (damn straight: 1522 -- over 300 points higher than my peak last year!), 8, 9, 12, 13, 14 (this reminded me to do that: I just donated to the Oregon Jewish Museum!).

Missed: 2 (it's been "under review" for almost a year and a half!), 3, 7, 11, 15.

Pick'em: 10 (does Salem count as a "sight"?).

Great job, 2022! Now onto 2023!

***

1) Host a successful conference on law and antisemitism.

2) Fully recover my vision post-surgery.

3) Go through the year with no other surgeries.

4) Get a book contract (it's been "under review" for almost a year and a half!).

5) Improve my teaching.

6) Do more physical activity.

7) Visit my friend Joel in Eugene (or have him visit me).

8) Attend my 15 year Carleton reunion.

9) Go to a sporting event with friends.

10) Attend a boxing match.

11) Find a reliable bagel place.

12) Make Mastodon (or something not-Twitter) my primary social media platform.

13) Seriously consider one significant home improvement project or modification (including converting any room into a different purpose).

14) Get my laptop fixed.

Was Blind But Now I See

Happy holidays, all (and Merry Christmas, some!). As some of you know, I had eye surgery earlier this week. Not LASIK, but the considerably more exotic corneal cross-linking. This was actually the third time I was scheduled to have the procedure. The first time, which I believe was the summer of 2019, was scrubbed due to insurance issues; the second time, which was slated for this past summer, I got COVID a week before the operation. That's frustrating for more than the normal reasons -- cross-linking doesn't improve your vision, it just stops further deterioration, so any vision loss I've experienced from the initial date to now is likely permanent.

But let's not dwell on that. The procedure itself was not really what I was anticipating: it was (as one tech very accurately put it) 90% putting in eye drops. Seriously: that was the overwhelming majority of the 90 minutes I spent lying on the operating table -- getting eye drops placed in my eye over two minute increments. For about half of it, I also stared into a UV light while getting still more eye drops. The miracles of science. I was anticipating more in the way of scraping or needles or lasers, but other than one period where they scraped a layer of cells off the top of my cornea (don't worry, some of those eye drops were the numbing kind), there really wasn't any of that.

The recovery has been a bit more of a slog. One consequence of the surgery is that I can't wear a contact in the affected eye for a week before and a month after the procedure. With my contacts in, I have close to 20/20 vision; without them in, I'm legally blind. So the upshot is I'm blind in my right eye until mid-January (including the first two weeks of teaching).

There's also the pain. After the surgery I was prescribed percocet, which should have let me know they weren't messing around, but for whatever reason I was underselling the pain side of the recovery period. The first day once the numbing drops wore off was pretty rough -- my eye had that stinging sensation like when you stare into a bright light for too long (another helpful tech reminded me that "you kinda did"), but it wasn't really fading. The pain came in waves, abating before it would come back, and as time has progressed the severity of the pain has decreased while the length of time between waves has increased. I'm hopeful that by today I'm out the other side, and the major side effect I'll still need to deal with is the aforementioned half-blindness.

In other news, the winter storm that hit Portland (and I gather everywhere else in America) froze a pipe and knocked out water to our kitchen faucet. More annoying than anything else, but it was the first "crisis" our house has really experienced since we bought it, so a good learning experience for us. Jill spent most of yesterday trying to get a plumber to come out before "frozen pipe" turned into "burst pipe". It took a long time -- everyone was booked until at least Tuesday -- but we finally got a guy who came out, found where the freeze was, and thawed it out. The whole experience really was more stressful because of the confluence of events (holiday season making it hard to find people, I'm half out of commission because of the surgery), but we got through it. Yay us!

A Tale of Two McCarthys

Abdul El-Sayed has an article in TNR about Florida Gov. Ron DeSantis' latest endeavor to stake out anti-vaxx turf, promising a full-scale legal investigation into "any and all wrongdoing in Florida with respect to Covid-19 vaccines." El-Sayed dubs DeSantis' strategy "vaccine McCarthyism", which is a term I appreciate. After all, is not today's GOP little more than equal shares of Joseph and Jenny McCarthy?

I tend to think that anti-vaxx politics are a trap for the GOP. Yes, anti-vaxx views are passionately held by the conspiratorial Republican base, which means that under the God-given rules of media fairness we must treat that position with the utmost seriousness. But anti-vaxx politics remain broadly unpopular even with Republicans, to say nothing of independents (or Democrats). Much like (either) McCarthy, opposing vaccines may gain DeSantis press and clout for a little while, but it's likely to make him an irrelevant laughingstock in the long term.

A Holiday Greetings Flowchart

How do I handle holiday greetings as a Jew? Here's the order of operations:

• If you say "happy holidays" to me and I don't know you or what you celebrate, then I say "happy holidays" to you in return.
• If I know you're Jewish, I say "happy Chanukah."
• If you wish me "Merry Christmas" and you don't know I'm Jewish, then I say "happy holidays."
• If you wish me "Merry Christmas" and you do know I'm Jewish, or if you say "merry Christmas" in any way that suggests that doing so is your way of striking back against PC liberal elites, then I say "happy Chanukah."
• Finally, if I know you celebrate Christmas but you nonetheless wish me "happy Chanukah" because you know that's what I celebrate, then I will wish you a "merry Christmas" in return as that's what you celebrate.

Feel free to use this in your own interactions. 

And from me to you: happy holidays to all, happy Chanukah for those for whom it applies, and merry Christmas to those who've earned it!

Where the Sun Does Shine

Arguably the most prolific antisemitic organization operating in America today, Goyim TV, is decamping from its Bay Area base and moving to Florida. Notorious for distributing flyers and dropping banners blaming Jews for everything from COVID restrictions to the Ukraine war, Goyim TV's leader, Jon Minadeo, has indicated that he is tired of his negative treatment in California and thinks Florida will be more hospitable to him and his message:

Despite his close family ties and following in Northern California, Minadeo had increasingly felt besieged by negative press and by criticism of his behavior by authorities. Minadeo’s family owns the historic Valley Ford restaurant Dinucci’s Italian Dinners, a popular road stop en route to the Sonoma Coast, and a source close to Minadeo said the 39-year-old once worked as a waiter at the restaurant, one of his last real jobs.

Yet he had developed a dismal reputation in the North Bay after a flood of media attention on his provocative antisemitic propaganda operation in J., the San Francisco Chronicle, the Santa Rosa Press Democrat and other outlets.

[...]

Minadeo hopes Florida will be more hospitable to him and his worldview, and he may have reason to believe that to be true. A recent report from the ADL described an upward trend of extremist and antisemitic activity in the Sunshine State, driven in part by new white supremacist groups including White Lives Matter, Sunshine State Nationalists, NatSoc Florida and Florida Nationalists. 

It is, of course, notable that one of America's most vicious antisemites looked across the country for more hospitable terrain and said "Florida -- that's the ticket". There is absolutely a straight line between the "anti-woke" neo-fascism promoted by Gov. DeSantis and the belief by the likes of Minadeo that Florida will be a welcoming home for his brand of hate. In fairness, Minadeo released a video targeting Florida Gov. Ron DeSantis for signing a bill targeting antisemitism and for visiting Israel; it's not that Minadeo views DeSantis as directly an ally. But the ideological consanguinity is real, to the point that I'm genuinely curious what would happen if an enterprising journalist asked the following question of some DeSantis press flack:

Jon Minadeo, proprietor of the prominent "Goyim TV" outlet, has announced he's moving his base of operations from California to Florida due to the former's ideological inhospitality and overall "woke" atmosphere. Do you credit Gov. DeSantis' policies for facilitating this sort of move, and do expect similar organizations to likewise flee states like California for Florida going forward?

I bet at least half of the press team on DeSantis' crew would give an answer praising the move and bragging about it. It'll be followed up by a clarifying disavowal, of course, but still, it'd be A+ trolling and I want someone to try it.

Testing a IFTTT Cross-Posting App

Apropos this post, this is a test to see if the IFTTT recipe I just created (with helpful guidance from the Boley Law Library!) works.

This block quote is simply to pad out the text of the post, though it does explain why I'm doing this:

For example: I use IFTTT to autopost links to my blog onto my Twitter account. This is incredibly important for me, as I'm pretty sure at this point virtually my entire readership comes from Twitter links. But as best I can tell, neither Post nor Mastodon has anything (whether via IFTTT or otherwise) that provides similar functionality. At the moment, I'm getting there sideways by an app which autoposts my Tweets to Mastodon (so my blog autoposts to Twitter, which then autoposts to Mastodon). But I've found no equivalent at all for Post. In general, cross-posting functionality is really important especially in the transition period where I want to be using both Twitter and its alternatives.

Wish me luck! 

UPDATE: It didn't work.

Why Is Biden Exceeding Expectations as a Progressive President?

Scott Lemieux makes the following observation explaining why Joe Biden has been a much, much better president than many progressives had predicted:

For those of us who lived through the 90s, pragmatism on the part of prominent Democrats was inherently suspect because it was generally used to justify feints to the right, sometimes plausibly rooted in public opinion but other times much more rooted in elite prejudices. For Biden, though, having a sense of public opinion isn’t just a pretext for moving to the right — sometimes it means sensing that the public is with you and going to be more with you and acting accordingly. 

[...]

Biden’s value as a president was going to be heavily context dependent — but, then, if LBJ had magically become president in 1952 or 1992 nobody would remember him as a great liberal on domestic policy either.

I don't disagree with this, but I'll add to it: Biden a good progressive president because he's a consummate party man in a situation where the Democratic Party has institutionally moved in a substantially progressive direction.

When I talked about what I liked about Biden back in the 2020 primary, one area I ranked him highly on is on the "staff positions with good people" metric, and that is part of this. Biden understands very well where the political center of gravity is both nationally and within the Democratic coalition, and acts accordingly. He is going to surround himself with smart, capable individuals who are roughly aligned with median Democratic Party opinion.  And under circumstances where the Democratic center of gravity is in a generally progressive place -- neither captured by bomb-throwing extremists nor slavishly adherent to chin-stroking centrism -- that's a recipe for happy outcomes for progressives.

Help Me Leave Bird App!

Speaking of off-ramps, I am trying to transition my main microblogging app off of Twitter and onto an alternative. But so far, the two sites I have accounts on -- Mastodon (@schraubd@mastodon.lawprofs.org) and Post (@schraubd) -- aren't fully meeting my needs, and each have problems that significantly deter their ability to fully serve as a Twitter replacement.

For example: I use IFTTT to autopost links to my blog onto my Twitter account. This is incredibly important for me, as I'm pretty sure at this point virtually my entire readership comes from Twitter links. But as best I can tell, neither Post nor Mastodon has anything (whether via IFTTT or otherwise) that provides similar functionality. At the moment, I'm getting there sideways by an app which autoposts my Tweets to Mastodon (so my blog autoposts to Twitter, which then autoposts to Mastodon). But I've found no equivalent at all for Post. In general, cross-posting functionality is really important especially in the transition period where I want to be using both Twitter and its alternatives.

I'm also finding it incredibly difficult to find people to follow, especially on Mastodon but to a lesser extent on Post as well. You can get some people via those sites that trawl through Twitter to see who has posted their new social handles online, but that's been limited so far in my experience. The easiest thing (albeit perhaps the most worrisome from a data privacy standpoint) would be one of those widgets where you plug in your email and it tells you all the accounts which are associated with emails in your contacts. I don't think exists yet for either site, and maybe it shouldn't for privacy reasons. The next best move is to go to the people you're already friends with and see who they're following. But Mastodon, in particular, makes this impossibly unwieldy by refusing to show followers from other servers. You can get there via the scenic route if you go to each profile on its own server, but then you can't just click a button to follow (since you're not logged into that server). It's slow and clunky and needlessly frustrating. And I'll note that even Mastodon's basic search bar functionality has, in my experience, been shaky.

Finally, while comparatively minor Post has some user interface problems that are just outright annoying. Defaulting to the "explore" tab, which is not my feed but the feed of a (presumably curated) section of randos, is not what I want and I resent having to swap over to my personal feed every time I go to the site. Also, Post might suffer from having too generic of a name -- good luck finding an answer to any question you have about its functionality online (imagine Googling "how do I cross-post on post")

So what I want is basically (1) ability to cross-post across platforms, especially autolinking to my Blogger posts, and (2) a relatively easy and straightforward way to find and follow my contacts if and when they join the new sites. Whichever site (Mastodon, Post. or something else) perfects that cocktail may well be my winner.

Can We Convince Elon Musk To Declare Victory and Go Home?

It is clear, even to Elon Musk (one has to think), that Musk's acquisition of Twitter has been a disaster.

It is equally clear that Musk is far too much of a narcissistic egomaniac to ever admit it.

And while it would be nice to leave Twitter outright and hit greener pastures, the current main alternatives to Twitter -- sites like Mastodon or Post -- are not even close to primetime ready. The ideal outcome is Twitter being put back in the hands of the at least semi-reasonable before the site detonates outright.

What Musk needs is an off-ramp -- some way for him to get out of Twitter while still claiming it as a victory.

To be clear: No reasonable observer has to actually think Musk has accomplished anything or that this excuse be anything but a flimsy façade. Much like the US and Vietnam, every rational human will understand it as pure political dissembling -- "saving face" here means only an excuse that will satisfy Musk's most sycophantic fanboys. Fortunately, that cadre is the only group Musk seems to listen to anyway.

He's never going to be able to unload it for a profit -- that's out. But is there some other narrative he could spin ("It was never about the money!") where he retroactively will have "accomplished what he set out to accomplish" and can leave while saving face? Maybe he can say the "Twitter Files" exposed the dirty heart of old Twitter but now he's successfully cleaned house. Maybe he can triple down on the random staffers he's thrown under the bus as the "real problem" and now that they're gone, all is well (none of us have to believe it; again, this is all about spinning a yarn that will successfully soothe a narcissistic manchild who can't possibly admit he screwed everything up).

I don't know. It's weird to try to come up with "pathetic lie for Elon Musk to tell himself so he leaves the rest of us alone." But that's the best exit strategy we have right now, I think. Suggestions welcome.

You Can Take the Girl Out of the Green Party ...

Arizona Senator Kyrsten Sinema has announced she's leaving the Democratic Party and registering as an independent. It appears that Sinema will still be effectively caucusing with the Democrats (she's slated to keep her committee assignments), so to some extent this is just another performance and won't directly upset the balance of power in the upper chamber. Nonetheless, this is entirely in character for a woman whose politics are very slightly left-of-center but also mostly gibberish that she spins up as having a "maverick streak" and being too pure for the confines of the dreaded two party system.

I'm not exactly surprised by the news. Indeed, to some extent I think it's politically savvy. Sinema was a dead woman walking in a 2024 Democratic primary -- Mark Kelly demonstrating that one can be a normal Democrat and win in Arizona took away Sinema's only hope of staving off an inevitable progressive challenger. But formally identifying as in indie gives Sinema two big advantages. 

Rhetorically, as empty as this gesture is, it still will appeal to a certain branch of voter (and, more importantly, pundit) who salivates over "no labels!" and "independence!". At this point, that cadre is the only base Sinema could ever hope to have, so she might as well juice them for all they're worth.

More practically, by laying the groundwork for an independent run now, Sinema arguably boxes off a Democratic challenge more thoroughly than she ever could within the party. Sinema has effectively flipped a dead man's switch and promised to run in 2024 even if it means splitting the vote with an actual Democratic nominee. Do Democrats feel confident they can win in Arizona even with Sinema peeling off a non-trivial part of the vote? I bet that prospect has Democratic strategists feeling real nervous. There are several instances (Alaska springs to mind) where Democrats have simply lined up behind independent candidates in states knowing that they can't win if they split the vote, and Sinema is trying to make Arizona one of them. (The wild card is if Republicans decide not to run a candidate against Sinema, but that strikes me as vanishingly unlikely. The infuriating truth of American politics is that even in her most asinine and frustrating moments, Sinema still isn't even close to being as bad as even a normal Republican, let alone an Arizona Republican).

Indonesian Parliament Unanimously Passes Texas GOP Platform

Ted Cruz must be so jealous:

Indonesia’s Parliament unanimously voted on Tuesday to ban sex outside of marriage and insulting the president and state institutions.

Once in force, the bans will affect foreign visitors as well as citizens. They’re part of an overhaul of the country’s criminal code that has been in the works for years. The new code also expands an existing blasphemy law and keeps a five-year prison term for deviations from the central tenets of Indonesia’s six recognized religions: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. The code still needs approval from the president, and the government says it will not be fully implemented for several years.

The amended code says sex outside marriage is punishable by a year in jail and cohabitation by six months, but adultery charges must be based on police reports lodged by a spouse, parents or children.

Citizens could also face a 10-year prison term for associating with organizations that follow Marxist-Leninist ideology and a four-year sentence for spreading communism.

Making it illegal to be Communist and Jewish? The Fifth Circuit might have to reconsider its stances on citing foreign law!

Am I Nuts for Thinking a Jewish Florist Should Have To Make an Easter Arrangement?

One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].

But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:

What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.

McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.

Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.

At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).

There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.

For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.

But perhaps some of my readers disagree. Curious to hear people's thoughts on this.

Hertz So Bad

Hertz Rental Cars has settled a lawsuit after allegations that it had falsely accused numerous customers of stealing cars, resulting in terrifying police encounters, arrest, and even imprisonment. 

The rental car company Hertz Global Holdings, Inc. announced on Monday that it would pay about $168 million to settle disputes with hundreds of customers who claim they were falsely accused of vehicle theft.

The company, which filed for bankruptcy in 2020, occasionally recorded certain vehicles as stolen, even after customers had extended and paid for their rental periods, sometimes leading to frightening run-ins with the authorities, and even jail time, according to lawsuits filed on behalf of customers across the country.

As many have noted, this is all things considered a pretty light punishment -- a monetary fine that will mostly be covered by insurance, and no tangible consequences for the executives responsible for the policy itself.

I have a general rule of thumb when transacting in a business sector with a somewhat skeezy reputation: Always work with the company that most recently was caught in a high-profile scandal, because they're most likely to be on their best behavior in the near-term (it's why I bank at Wells Fargo!). But even taking that rule into account, I stay away from Hertz. The bespoke Grand Theft Auto expansion pack is just the start of their customer service trainwreck.

We Are Not Ready for AI

Two AI developments in rapid succession have me, I'll be honest, a bit rattled.

The first development was a study where an AI player managed to perform very well in an online Diplomacy tournament. Diplomacy is a board game which prioritizes negotiation and manipulation to achieve one's ends (so it's not like a game like Chess, which is purely a matter of raw calculation). Leaving aside my general discomfort with "we've successfully trained an AI to lie and manipulate humans to achieve a goal of world domination!", this represents a huge leap in AI's ability to effectively use natural language and discourse in a way that I think, until recently, would have seemed beyond the realm of possibility.

The second was using OpenAI to answer short answer prompts that might be found on a law school exam. It did ... decently. Not perfect, and sometimes quite wrong, but not awful either, and sometimes more or less correct. For example, here's what it gave me when I asked "How did Twombly and Iqbal change pleading rules?"

Twombly and Iqbal changed pleading rules by raising the standard for the sufficiency of pleadings in federal civil actions. The Supreme Court held in Ashcroft v. Iqbal that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." This ruling effectively raised the bar for pleadings in federal civil actions, meaning that plaintiffs must provide more detailed facts in their pleadings than they had to under the old standard. The Court also held in Bell Atlantic Corp. v. Twombly that a complaint must contain more than mere labels and legal conclusions, and must instead contain factual allegations that show that a claim is plausible. This ruling established a two-pronged standard for the sufficiency of pleadings in federal civil actions, requiring plaintiffs to provide more detailed facts in their pleadings than they had to under the old standard.

That's not perfect, but it's not terrible either. And since OpenAI is available to the public, I assume there are more proprietary AI models out there that can do an even better job.

My colleagues are worried about what this means for open book law school exams (students can enter the prompt and have a decent answer spat back out). But I'm not worried about having to adjust my exams (I don't use short answer prompts anyway). I'm worried about what this means for needing human lawyers. Not quite yet, but we're getting there.

All of this, in turn, brought to mind two articles by Kevin Drum on the issue of AI development. The first made the point that once it comes into full bloom AI will not just be better than humans at some jobs, it will be better than humans at all jobs. This is not a problem that is limited to "unskilled labor" or jobs that require physical strength, deep precision, or even intense calculation. Everything -- art, storytelling, judging, stock trading, medicine -- will be done better by a robot. We're all expendable.

Article number two compared the pace of AI development to filling up Lake Michigan with water, where every 18 months you double the amount of water you can add (so first one fluid ounce, then eighteen months later two fluid ounces, then in eighteen more months four fluid ounces, and so on). Both "Lake Michigan" and "18 months" weren't chosen at random -- the former's size in fluid ounces is roughly akin to the computing power of the human brain (measured in calculations/second), and the latter reflects Moore's Law, the idea that computing power doubles every 18 months.

What was striking about the Lake Michigan metaphor is that, if you added water at that pace, for a long time it will look as if nothing is happening ... and then all of the sudden, you'll finish. There's a wonderful GIF image in the article that illustrates this vividly, but the text works too. 

Suppose it’s 1940 and Lake Michigan has (somehow) been emptied. Your job is to fill it up using the following rule: To start off, you can add one fluid ounce of water to the lake bed. Eighteen months later, you can add two. In another 18 months, you can add four ounces. And so on. Obviously this is going to take a while.

By 1950, you have added around a gallon of water. But you keep soldiering on. By 1960, you have a bit more than 150 gallons. By 1970, you have 16,000 gallons, about as much as an average suburban swimming pool.

At this point it’s been 30 years, and even though 16,000 gallons is a fair amount of water, it’s nothing compared to the size of Lake Michigan. To the naked eye you’ve made no progress at all.

So let’s skip all the way ahead to 2000. Still nothing. You have—maybe—a slight sheen on the lake floor. How about 2010? You have a few inches of water here and there. This is ridiculous. It’s now been 70 years and you still don’t have enough water to float a goldfish. Surely this task is futile?

But wait. Just as you’re about to give up, things suddenly change. By 2020, you have about 40 feet of water. And by 2025 you’re done. After 70 years you had nothing. Fifteen years later, the job was finished.

If we set the start date at 1940 (when the first programmable computer was invented), we'd see virtually no material progress until 2010, but we'd be finished by 2025. It's now 2022. We're almost there!

That we might be in that transitional moment where "effectively no progress" gives way to "suddenly, we're almost done" means we have to start thinking now about what to do with this information. What does it mean for the legal profession if, for most positive legal questions, an AI fed a prompt can give a better answer than most lawyers? What does it mean if it can give a better answer than all lawyers? There's still some hope for humanity on the normative side -- perhaps AI can't make choices about value -- but still, that's a lot of jobs taken off line. And what about my job? What if an AI can give a better presentation on substantive due process than I can? That's not just me feeling inadequate -- remember article #1: AI won't just be better than humans at some things, it will be better at all things. We're all in the same boat here.

What does that mean for the concept of capital ownership? Once AI eclipses human capacity, do we enter an age of permanent class immobility? By definition, if AI can out-think humans, there is no way for a human to innovate or disrupt into the prevailing order. AI's might out-think each other, but our contribution won't be relevant anymore. If the value produced by AI remains privatized, then the prospective distribution of wealth will be entirely governed by who was fortunate enough to own the AIs.

More broadly: What does the world look like when there's no point to any human having a job? What does that mean for resource allocation? What does that mean for our identity as a species? These questions are of course timeless, but in this particular register they also felt very science-fiction -- the sorts of questions that have to be answered on Star Trek, but not in real life, because we were nowhere near that sort of society. Well, maybe now we are -- and the questions have to be answered sooner rather than later.

The Judeo-Christian's Junior Partner

It's hardly a revelation at this point to observe how the "anti-CRT" style bills have quickly become tools to censor Jewish and Holocaust education. A recent story out of Florida, where a school district cited Florida's "don't say gay" bill to block a parent from giving an educational (but non-theological) presentation to teach students what Channukah is, wouldn't even be especially noteworthy (the district did eventually reverse itself). But there were some details in the story that I thought were illustrative about the location Jews are perceived to occupy in religious pluralism discourse versus the position we actually occupy.

The first thing to note about this district is that it is not some sentinel of secularism. The schools reportedly are replete with "holiday" decorations that are very much tied to Christmas. Nonetheless, when the parent tried to schedule her yearly Channukah presentation, the district demurred on the grounds that if the school allowed such an event, "“they would have to teach Kwanza and Diwali."

To which the Jewish parent replied: "I think that would be awesome!"

What we see here is how "Judeo-Christian" renders Judaism the (very, very) junior partner. Christians won't actually give Jews equal standing with Christians in terms of holiday exposure; as the "junior" they're not entitled to such largesse. But Christians assume nonetheless that Jews remain partners in the desire to maintain "Judeo-Christian" hegemony against upstart interlopers like Hindus or African-Americans. The idea that Jews would not be horrified by, but would in fact welcome, greater inclusion for other minority faiths and creeds -- that Jews actually identify more with other minority faiths and creeds than they do with hegemonic Christianity -- is incomprehensible.

The reality is that this unequal partnership is a creature of the Christian, not Jewish, imagination. Even if "Judeo-Christian" ever actually were a relationship of equals -- and I scarcely imagine it -- the fact is Jews do not see ourselves as part of this "Judeo-Christian" collective with a shared interest in standing against other minorities. That religious outsiders might be included is for us a feature, not a bug.

An Alum Reaches Out With a Question

It is the nature of being a law professor that one sometimes fields questions from alumni, who naturally turn back to their alma mater's faculty whenever they have a question about some burning issue of the day. I'm typically happy to get these emails, as it is nice to stay engaged with the broader university community and help provide what insight I can to the areas I'm claim expertise in.

For example, just today I received an email from a Lewis & Clark Law grad, class of '80, who had the following inquiry (reproduced below in full):

Question: Why is it considered ant-semitic [sic] to point out Jewish domination of the media, international finance, and Hollywood? 

It's so nice to be recognized as a subject-matter expert.

The email came from the guy's official law firm email address, which for some reason I find tickling. (I also find tickling that he was given a stayed suspension from the practice of law in 2020, which follows a censure and a reprimand all within the past five years). Nonetheless, I think I'll decline to reply to this one.

Will DeSantis Run Against Trump's Antisemitism?

On Twitter the other day, I registered what I called a slightly "off-beat prediction" that DeSantis might attack Trump on his antisemitic associations (Kanye, Fuentes) in a 2024 primary setting.

Lo and behold, others are having the same idea: 

"This is a f---ing nightmare," said one longtime Trump adviser who spoke on condition of anonymity for fear of stoking the former president's ire at "disloyal" people who criticize him. "If people are looking at [Florida Gov. Ron] DeSantis to run against Trump, here's another reason why."

Now, I want to expand on my logic a bit. 

To be clear, the reason DeSantis might take this approach is not because DeSantis is against antisemitism in any non-trivial sense. DeSantis has long been a promoter of the most popular forms of antisemitism in the GOP; the sorts that focus on Soros conspiracy mongering and which ultimately are gateway drugs to the more explicit White supremacist stuff forwarded by the likes of Fuentes.

Nor do I think DeSantis has some principled opposition to the line Trump has crossed. If it ever became clear that snuggling up to Nick Fuentes was good GOP politics, I have no doubt that DeSantis would be getting his cuddle on.

But DeSantis is in an interesting position if he's running against Trump. He needs to find a way to distinguish himself from Trump. But it has to be something that doesn't immediately code him as a cuck RINO. And that's especially difficult when for the most part any position Trump takes immediately becomes the gospel right-wing truth for GOP primary voters. It's hard to be more Catholic than the Pope when the Pope can issue catechisms.

Hitting Trump on express antisemitism is a rare example of a potential differentiation that might fit the bill. I stress "might" because there is absolutely no guarantee that it will work. Between "Trump is Israel's greatest friend" and "Trump has Jewish family members", the GOP has long been primed to dismiss as absurd allegations of antisemitism. And at the same time, classic right-wing antisemitism conjoined with "stabbed in the back" narratives may make GOP voters more inclined to accept Trumpist antisemitism on its own terms.

But there aren't many better alternatives I can think of, and DeSantis might need to gamble here. Much of the GOP's current self-id about Jews is that they're the Jews' best friends; a high-profile white knighting on Jews' behalf does in some ways fit current GOP self image. DeSantis would basically be placing a bet that GOP voters currently prefer "better Jews than the Jews" antisemitism to the completely unadorned variety. Is that a sure bet? No. But DeSantis needs to find something that could work, and this does seem to qualify.

What I can say is that if DeSantis does take this tack the media will positively drool over it. Sista Souljah moment! Look at how principled and anti-racist DeSantis is! So at the very least, we the Jews have that to look forward to.

The Era of Conservative Legal Formalism is Over

When I was in law school, most legal liberals had a touch of anxiety that we were supporters of "activist judging".

That isn't to say we thought we were lawless. We just knew what our sin was, and our sin was being too tempted to be "flexible" with the law in order to secure important progressive ends of justice or equality. Legal conservatives had the opposite sin -- a too-rigid commitment to legal formalism that might cause them to unnecessarily endorse suffering or injustice based on slavish fidelity to legalistic principles. Whether earned or not, conservatives were seen as the mantle-holders of technical legal prowess (albeit perhaps at the expense of the bigger picture).

These were just fears, and so perhaps they never reflected reality. What I can say is that these days, those fears even as fears are gone. I know of no legal liberals these days who think of judicial conservatives as being the guardians of (too much) legal formalism. 

Reading folks like Steve Vladeck or Rick Hasen -- who if nothing else are technical experts in their respective domains (of federal courts and election law, respectively) has emphasized not just the moral objectionability of many recent right-wing rulings, but their legal sloppiness. They are absolutely not instances where a slavish devotion to legal formalism is leading to unpalatable results. They're instances where judges are just completely ignoring legal forms in order to stretch to the unpalatable result.

The era where the battle lines were "conservative formalists" versus "progressive pragmatists" are over. Conservatives have lost even the perceived dominion over being committed to formal legal procedures -- no small feat, if I'm right that even legal liberals for a long time had tacitly conceded that to be a conservative strength. But this is indeed the era where conservative judicial activism is running amok; right-wing judges running roughshod over any sort of professional legal principle in the manic pursuit of conservative policy objectives. If nothing else, it's restoring confidence among the legal liberals in our own technical aptitude. Small consolation, I know, but perhaps it will lay the foundation for a broader backlash.

It's Not (Always) About IHRA

The Cal student government just passed a resolution denouncing antisemitism. However, a handful of student Senators (I've seen different reports -- between five and nine) abstained from the vote, contending that the resolution "penalizes" senators by "forcing them" to approve a resolution that "equates supporting Palestine with being antisemitic."

When I hear language like that, I immediately assume that the problem is over utilization of the IHRA antisemitism definition -- a widely accepted tool for identifying antisemitism that has come under significant scrutiny and controversy for allegedly improperly targeting pro-Palestinian speech or action.

But here, the resolution doesn't mention IHRA. In fact, the resolution doesn't talk about Israel at all. None of the "whereas" clauses speak to antisemitic incidents related to Israel. None of the resolution parameters in any way speak about Israel or Zionism in any way whatsoever.

So given all of that, how is it that a cluster of students -- a minority, but not an insignificant one -- thinks that the resolution "equates supporting Palestine with being antisemitic"?

The apparent answer is that the resolution identifies a webpage created by Berkeley's Center for Jewish Studies as a resource students can use to find more about antisemitism. And that webpage, in turn, among its many links and resources, contains a video about antisemitism which contains a small segment trying to articulate when criticism of Israel becomes antisemitic. 

The video draws the line in relatively normal places (criticism of Israeli policies is fine, supporting a Palestinian state is fine, supporting Arab rights in Israel is fine; relying on classic antisemitic imagery is not fine; Nazi comparisons are not fine; opposing Israel's existence where one supports analogous forms of national autonomy groupings for other marginalized groups is not fine). But one needn't find the video sacrosanct to think that it represents a tremendously thin reed through which to say that this particular resolution "equates supporting Palestine with being antisemitic."

I think this reaction, though, illustrates something important. Much of the criticism of, for example, IHRA, styles itself as lawyerly or technical objections to IHRA's vagueness, or over- or under-inclusivity. I share many of those criticisms; I think IHRA has many problems. Yet I've been very hesitant to join in on the various "drop IHRA" campaigns. And the reason why is that the underlying social movement that drives these campaigns is not one predicated on technical or lawyerly objections. It is based on belief in a more fundamental claimed entitlement: the absolute right that no type of "anti-Israel" or "pro-Palestine" speech or conduct ever be deemed antisemitic, in any case or context. Any condemnation of antisemitism that doesn't promise plenary indulgence for anti-Israel activity will be deemed tantamount to "equating supporting Palestine with being antisemitic."

For this reason, I think that many of the more thoughtful anti-IHRA critics are deluding themselves if they think their compatriots' problem with IHRA really boils down to things like "there's no need for a more specific codified standard of antisemitism" or "it's too vague" or "it's applied overexpansively". All of those things may be true -- but one can take them all away and the core opposition would still remain in any case where claims of antisemitism are treated as conceptually plausible in a non-trivial number of cases relating to speech or conduct about Israel or Zionism.

The Berkeley resolution studiously -- perhaps too studiously -- avoided the issue of Israel. It passed, which was good. But the minority opposition's claims that even a resolution that anodyne was objectionable -- that it was tantamount equating any support for Palestine with antisemitism -- I think is revelatory about a sort of political positioning on antisemitism that cannot be dismissed as a bit player. For some people, it isn't about IHRA, nor about technical objections or more precise language. A lot of the push here is by people who will settle for nothing less than a blanket, preemptive exoneration of anything and everything that might be said or done to or about Jews, so long as it styles itself as "supporting Palestine." And it's going to be up to the good faith critics of IHRA et al to recognize the existence of that cadre and its non-triviality, and decide how to sever them from the ranks, because right now they're unfortunately driving a lot of the conversation forward in a fashion that -- if they have their way -- would essentially make any non-nugatory move against antisemitism impossible.

On The Ease of Having Friends With Political Differences

One of the feature creatures of the alt-center scare machine these days has been the alleged unwillingness of "certain" people (read: progressive Gen Z-ers and millennials) to make or keep friendships with persons they disagree with politically. 

That truly awful JILV poll generated stories breathlessly claiming that "two-thirds of progressives and 54 percent of 'very liberal' respondents said they have effectively 'cancelled' a friend or family member because of their political views" (the poll actually asked whether one had "lost a friend, stopped talking to a relative, or grown distant from a colleague because of political opinions or differences?", which is a rather far cry from "effective cancellation", but no matter) is one good example. This column from Samuel Abrams and Pamela Paresky, bemoaning the oversensitivity of college students who don't want to date peers who voted for the opposing 2020 election candidate, is another.

I have to say, I find this line of concern a bit perplexing. As a general matter, it seems incredibly easy for people to make and keep friendships across political difference. For example: this past election those of us who lived in Portland had quite a few ballot issues to vote on, including things like local bond issues, switching from run-off elections to ranked-choice voting, and altering the structure of our city government from a "commissioner" model to multi-member geographically zoned districts. As in all elections, I did my best to research these issues and come to a conclusion on them. But -- while I haven't asked any of my Portland friends or colleagues how they voted on any of these questions -- I can't imagine the possibility of losing relationships if they voted differently than I did. These political differences, it seems, are rather easily overcome by the bonds of friendship.

Now, the trumpeters of the "cancellation" epidemic narrative will surely cry foul here. The political differences they have in mind are not local Portland ballot initiatives; it's pedantic to use them as a falsifying example of the larger "problem". And I agree that these examples are obviously not the cases that someone like Abrams or Paresky or David Bernstein has in mind.

Which means it'd probably be useful to be specific about the actual cases one has in mind.

Consider, for instance, a trans college student. A live political controversy, right now, is whether or not they should have been legally prohibited from getting necessary health care in their teenage years and whether they should have been forcibly ripped away from their parents (who, in turn, should be imprisoned as child abusers) if they tried to provide such treatment. If such a student finds out that one of their "friends" believes that all of that should have happened; and will vote in order to make it more likely that this would happen, can we really say with a straight face that the student is wrong if they sever the friendship? If the friendship is indeed distanced -- and it won't always be, people are complex -- it would be both factually incorrect and uncharitable to the extreme to say that the student has shown an inability to tolerate "political differences", generally. The student surely would not make a similar judgment regarding political differences about the proper top marginal income tax rate. It is a specific "difference" that is beyond the pale for them, and with respect to that specific difference it's hard to say that their judgment isn't reasonable.

There are many classes of vulnerable individuals who face such questions as pertain to live political controversies. Gay and lesbian individuals, who learn a peer "differs" on the subject of whether their marriage should be forcibly dissolved and their very identity re-criminalized and subjected to prison time (both live subjects of political dispute, given emergent threats to Obergefell and Lawrence). If they distance from that relationship, is that really evidence of a broader failure to respect political difference? Undocumented "Dreamer" immigrants, who must reckon with the reality that "I may be torn from the only home I’ve ever known at any moment and a sizeable portion of what I thought was my community will cheer as they drag me off." If they react poorly to that difference, are they really engaging in cancellation?

We are not talking about "political differences" generally. We're talking about a subset of specific differences that pose deep, arguably existential, threats to individuals' lives and well-being. And to the extent there's asymmetry in how often progressives find a live political difference that fall into that category, that might reflect nothing more than an asymmetry in which political camp is overwhelming responsible for that particular type of existentially-threatening "difference." There is not any sustained progressive campaign to make it illegal for, say, Southern Baptists, to get married (and if you are a progressive who does support such a policy, any resulting loss of Southern Baptist friends would be entirely on your head!).

"Not every point of political disagreement can be treated as an existential threat to one's very existence." I could not agree more. Moreover, it seems blatantly obvious that nobody -- even the dreaded progressive Gen-Zers -- thinks otherwise. People have absolutely no problem making and keeping friendships and relationships across political difference, generally. They have a serious problem with certain specific political differences. Those who think that problem, is a problem, should do the courtesy of naming the issues. Then we can assess whether the young woman who was impregnated by rape is wrong to cut ties with the "friend" who says she should be forced to give birth on pain of a prison sentence.

Why Is Ron DeSantis Such a Marco Rubio?

Following his apparent 59/40 romp to reelection over Charlie Crist, Eugene Volokh wants descriptive answers to the question of why Ron DeSantis did so well, particularly in contrast to his razor-thin 2018 victory (where he won by less than half a point). What's the secret of his political success?

I'm not going to fully venture an answer to that question. But there's an important data point that I want to flag which is I think easily overlooked in the coming DeSantis mania, namely: that Marco Rubio had almost the exact same result as did DeSantis. He prevailed in his Senate race over Val Demings 57/41. This also represents a significant improvement over Rubio's margin in his last race (which was in 2016, not 2018, so not apples-to-apples, but still pertinent)

I mention this because it suggests that a consilient explanation for DeSantis' strong performance probably should be one that also explains Rubio's near-identical performance. The similarity in results is especially notable given that Rubio and DeSantis don't seem like especially similar political figures or cut similar profiles beyond both being conservative Republicans -- it'd be hard to come up with personal attributes that both share that represent plausible explanations for explaining their respective performance. That DeSantis and Rubio seem quite different (we're talking about DeSantis, not Rubio, as a potential 2024 contender) makes it all the more noteworthy that they basically had identical margins this election. That suggests that the factors driving the results had less to do with DeSantis' personal political genius (unless that genius is something he somehow shares with Rubio), and more on broader structural considerations that have little to do with DeSantis-qua-DeSantis.

So, to move towards an answer to Volokh's question of why DeSantis did so much better in 2022 than 2018, some plausible factors (none of which naturally demonstrate particular "political brilliance" by DeSantis) include:

• The general "reddening" of Florida.
• 2018 being a worse year for Republicans than 2022.*
• Incumbency advantage.

Now, of course, all of these could be unpacked further, and potentially in a fashion that gives more individualized credit to DeSantis. For example, maybe Florida is "reddening" in part because of DeSantis' policies or personal popularity (though the trend seems to predate him -- there hasn't been a Democratic Governor in Florida since 2000, hasn't been a Democratic Senator since 2018, and by 2018 Democrats were already down to a single statewide elected official). Or maybe Rubio's performance this time around is attributable to good coattails from running with DeSantis.

But to a large extent, I think we're overstating DeSantis' political acumen based on this election. I understand the first-blush appeal -- he did far better than many of his Republican colleagues in the 2022 cycle. But he didn't do materially better than his other Florida Republican colleagues, which suggests that the explanation for his success might be Florida-specific, but probably isn't DeSantis-specific. Contrast that to, say, Marcy Kaptur in Ohio, who seemed to dramatically outperform other Ohio Democrats -- that suggests that she might have some personally unique mojo worth looking into. Ditto Chris Sununu in New Hampshire, who easily won reelection in a swing state where Democrats won three tightly contested Senate and House races. Compared to Kaptur and Sununu, DeSantis looks pretty well ordinary -- no more impressive than Marco Rubio.

* This is obviously true, though it's a bit obscured because Democrats probably overperformed expectations more in 2022 compared to 2018. But the actual results of the 2018 midterm were far better for the Democrats than was the case in 2022.

Reading Rosenberg in 2022 Portland

I'm teaching a seminar on Anti-Discrimination Law this semester -- the first time I've taught the class in 10 years. One of assigned materials is Gerry Rosenberg's classic book The Hollow Hope, a famous critique of the judiciary's ability to bring about social change.

I was especially curious to hear my students' reaction to the book, as I think a lot has change even over the past ten years regarding some of the underlying presumptions that made Rosenberg's book so explosive when it was released, or even when I first assigned it in 2012.

Back then ("then" being the early 1990s, when the book originally came out, and 2006, when I first read it, and 2012, when I first taught it), liberal law students still were I think largely operating in the nostalgic shadow of the Warren Court as the model of what courts should be doing on behalf of vulnerable minority groups. Courts were presumed to be an important vector of social change; to the extent the Supreme Court had become conservative it was frustrating that judicial conservatives wouldn't let the judiciary do its job like it did in the mid-20th century. The Hollow Hope was such a shock to the system because it suggested, not that the Warren-era precedents were illegitimate or products of bad judicial reasoning, but that they didn't matter -- they (allegedly) did virtually nothing to bring about the lauded progressive changes like desegregation in the 1950s and 60s.

But kids these days, I figured, may not hold the judiciary even conceptually in such high regard. I could very much imagine the progressives in my classroom coming in with a lot of preexisting cynicism towards the courts -- the baseline assumption being courts as obstacles to social progress rather than (currently malfunctioning) enablers of it. For that sort of student, how would Rosenberg be received?

The conversation we had in class was interesting and dynamic (as they typically are -- I have great students). But it ended on a topic that has virtually never come up in my law school classrooms until now: the earnest questioning of when political violence is justified.

I want to be clear: this question, like any other, is a valid subject for classroom discussion. America was founded by violent revolution, after all; in my Constitutional Law class we just finished reading about the importance of protecting under First Amendment principles discussion about, or even "abstract advocacy" of, violence as a tool for seeking political change.

Nonetheless, it was a sobering discussion, and one that felt very much borne out of despair. Rosenberg, it seemed, put the nail in the coffin of any hopes of using courts as a vector for social change, at least as against entrenched and powerful social interests. And they were already deeply cynical about the vitality of democratic institutions as a meaningful avenue for securing progress -- not because they opposed democracy in concept, but because they thought our democratic institutions had been so malformed by corruptions like gerrymandering, voter suppression, and boundless money in politics that there was no longer reliable correspondence between the nominally democratic levers of power and the popular will. Given that, they wanted to ask, to what extent are we in an arena where at the very least we need to take seriously the prospect of widespread political violence, and act accordingly? (One student, in particular, was absolutely emphatic that liberals needed to arm themselves -- the fascists were coming, he said, and we absolutely cannot rely on the state to protect us anymore).

Again, the discussion was thoughtful, bracing, and serious -- in particular, there wasn't a lot of gleeful discussion of violence that one occasionally hears from the more radical set, which falls over itself in the eagerness to "punch Nazis". But also again, it was sobering just that this was where my students' minds were at -- a cynicism and depression pushed nearly to the breaking point, and serious lack of confidence in the vitality of the basic institutions of liberal democracy. As a pretty normcore liberal, that worried me. And even more worrisome to me is that I did not feel like I had a lot of compelling arguments to assuage their fears.

The 2022 Almost-Post Mortem

I was a bit hesitant to write my post-mortem recap today, since some very important races remain uncalled. Incredibly, both the House and Senate remain uncalled, though the GOP is favored in the former and Democrats have the slight advantage in the latter. It would be truly delightful if Catherine Cortez Masto can squeak out a win in Nevada and so make the upcoming Georgia run-off, if not moot, then slightly less high stakes. But again, things are up in the air that ought make a big difference in the overall "narrative" of the day.

Nonetheless, I think some conclusions can be fairly drawn at this point. In no particular order:

• There was no red wave. It was, at best, a red trickle. And given both the underlying fundamentals  on things like inflation and the historic overperformance of the outparty in midterm elections, this is just a truly underwhelming performance for the GOP. No sugarcoating that for them.

• If Trafalgar polling had any shame, they'd be shame-faced right now, but they have no shame, so they'll be fine.

• In my 2018 liveblog, I wrote that "Some tough early results (and the true disappointment in Florida) has masked a pretty solid night for Democrats." This year, too, a dreadful showing in Florida set an early downer tone that wasn't reflected in the overall course of the evening. Maybe it's time we just give up the notion that Florida is a swing state?

• That said, Republicans need to get out of their gulf-coastal-elite bubble and realize that what plays in Tallahassee doesn't play in the rest of the country. 

• That's snark, but also serious -- for all the talk about how "Democrats are out-of-touch", it seems that the GOP also has a problem in not understanding that outside of their fever-swamp base most normal people maybe don't like the obsession with pronouns and "kitty litter" and "anti-CRT". Their ideological bubble is at this point far more impermeable, and far more greatly removed from the mainstream, than anything comparable among Democrats.

• Abortion is maybe the biggest example of this, as anti-choice measures keep failing in even deep red states like Kentucky, while pro-choice enactments sail to victory in purple states like Michigan (to say nothing of blue bastions like California). Democratic organizers should make a habit of just putting abortion on the ballot in every state, and ride those coattails.

• It's going to fade away almost immediately, but I cannot get over the cynical bad faith of what happened regarding baseless GOP insinuations that any votes counted after election day were inherently suspicious. On November 7, this was all one heard from GOP officials across the country, even though delays in counting are largely the product of GOP-written laws. But on November 8, when they found themselves behind on election night returns, all of the sudden folks like Kari Lake are relying on late-counted votes to save them while raising new conspiracies about stolen elections. Sickening.

• Given the still powerful force of such conspiracy mongering, Democrats holding the executive branch in key swing states like Wisconsin and Michigan is a huge deal. Great job, guys.

• For the most part, however, most losing MAGA candidates are conceding. Congratulations on clearing literally the lowest possible bar to set.

• The GOP still should be favored to take over the House, albeit with a razor-thin majority. And that majority, in turn, seems almost wholly attributable to gerrymandering -- both Democrats unilateral disarmament in places like New York, but also truly brutal GOP gerrymanders in places like Florida. This goes beyond Rucho, though that case deserves its place in the hall of shame. The degree to which the courts bent over backwards to enable even the most nakedly unlawful districting decisions -- the absurd lawlessness of Ohio stands out, but the Supreme Court's own decision to effectively pause enforcement of the Voting Rights Act because too many Black people entering Congress qualifies as an "emergency" on the shadow docket can't be overlooked either -- is one of the great legal disgraces of my lifetime in a year full of them.

• Of course, I have literally no idea how the Kevin McCarthy will corral his caucus with a tiny majority. Yes, it gives crazies like Greene and Boebert (well, maybe not Boebert ...) more power, but that's because it gives everyone in the caucus more power, which is just a recipe for chaos. Somewhere John Boehner is curling up in a comfy chair with a glass of brandy and getting ready to have a wonderful day.

• My new proposal for gerrymandering in Democratic states: "trigger" laws which tie anti-gerrymandering rules to the existence of a national ban. If they're banned nationwide, the law immediately goes into effect. Until they are, legislatures have free reign. That way one creates momentum for a national gerrymandering ban while not unilaterally disarming like we saw in New York. Could it work? Hard to know -- but worth a shot.

• Let's celebrate some great candidates who will be entering higher office! Among the many -- and this is obviously non-exhaustive -- include incoming Maryland Governor Wes Moore, incoming Pennsylvania Governor Josh Shapiro, incoming Pennsylvania Senator John Fetterman. Also kudos to some wonderful veterans who held their seats in tough environs, including Michigan Governor Gretchen Whitmer, Virginia congresswoman Abigail Spanberger, New Jersey congressman Andy Kim, Maine Governor Janet Mills, and New Hampshire Senator Maggie Hassan.

• Special shoutout to Tina Kotek, who overcame considerable headwinds (and the worst Carleton alum) to apparently hold the Governor's mansion in my home state of Oregon. Hopeful that Jaime McLeod-Skinner can eke out a victory in my congressional district too, though it looks like that might come down to the wire.

• I also think it's important to give credit even to losing candidates who fought hard races. Tim Ryan stands out here -- not only did he force the GOP to spend badly needed resources in a state they should've had no trouble keeping, but his coattails might have pushed Democrats across the finish line in at least two House seats Republicans were favored to hold. (I hate to say it, but Lee Zeldin may have played a similar role for the GOP in New York).

• I'm inclined to agree that, if Biden doesn't run in 2024, some of the emergent stars from this cycle (like Whitmer or Shapiro) are stronger picks for a presidential run than the also-rans from 2020. But I also think that Biden likely will get an approval bump off this performance -- people like being associated with winners!

• On the GOP side, the best outcome (from my vantage) is Trump romping to a primary victory and humiliating DeSantis -- I think voters are sick of him. The second best outcome might be DeSantis winning narrowly over Trump and provoking a tantrum for the ages that might rip the GOP apart. DeSantis himself, as a presidential candidate, is an uncertainty -- I'm not convinced he plays well outside of Florida, but I am convinced that if he prevails over Trump the media will fall over itself to congratulate the GOP on "repudiating" Trumpism even though DeSantis is materially indistinguishable from Trump along every axis save that he's not abjectly incompetent (which, in this context, is not a plus).

• The hardest thing to do is to recognize when even candidates you really like are, for whatever reason, just not going to get over the hump. This fits Charlie Crist, Beto O'Rourke, and (I'm sorry) Stacey Abrams. It's no knock on them -- seriously, it isn't -- but they're tainted goods at this point. Fortunately, Democrats have a deep bench of excellent young candidates who we can turn to next time around.

• And regarding the youth -- I'm not someone who's a big fan of the perennial Democratic sport of Pelosi/Schumer sniping. I think they've both done a very good job under difficult circumstances, and deserve real credit for the successes we saw tonight and across the Biden admin more broadly. However, we do need to find room for some representatives from the younger generation to assume leadership roles. Younger voters turned out hard for the Democratic Party and deserve their seat at the table. It says something that Hakeem Jeffries, age 52, is the immediate current leadership figure springing to mind as a "young" voice -- that (and again, there's no disrespect to Jeffries here) is not good enough.

Why the GOP Can't Quite Quit Kanye and Co.

It's been a month and this tweet is still up:

Kanye. Elon. Trump.

— House Judiciary GOP (@JudiciaryGOP) October 7, 2022

Why? Why, after spending countless hours railing against "Black antisemitism", is the GOP not interested in repudiating Kanye West?

At one level, the answer is obvious: As I talk about in my latest Haaretz column, the GOP has gone full Jeremy Corbyn this cycle, up to and including the antisemitism. The GOP won't condemn Kanye because the GOP is antisemitic.

At another level, the answer is still obvious: fair weather opposition to antisemitism is hardly a rare phenomenon, and the GOP has hardly shown much in the way of moral fortitude when it comes to denouncing hatred from their "side". The aforementioned "countless" hours attacking "Black antisemitism" were, as any half-awake political observer could tell you, not about genuine solidarity with Jews but a cynical way of living out the GOP's favorite hobby (trashing Black people).

But at still another level, there is something at least a little less obvious, and perhaps more provocative, that can be said. Namely: antisemitism may be a quick and easy way for the GOP to make inroads among Black voters. More than any other issue, antisemitism is a growth opportunity for the Republican Party.

Now I want to be absolutely clear: antisemitism is not a way to actually win a majority of Black voters, or anything close to it. Most Black voters are not antisemitic, most are not interested in antisemitism and are actively turned off by it.

However, the Republican Party doesn't need to win Black voters. It just needs to increase its margins from the currently abysmal levels to the merely horrible. Going from a 10% share to, say, a 25% share still objectively means they're getting absolutely crushed among Black voters -- but it also would make a huge difference in swing-y states like Georgia or Virginia.

So the operative question is not whether antisemitism is popular amongst Black voters, generally. The question is whether it is appealing to the particular tranche of Black voters who are most amenable to being picked off by GOP appeals. And there's good reason to believe the answer is yes. Or put differently: If you're a political strategist trying to flip even a few Black voters to the GOP, the small but not utterly trivial number of Black antisemites represent the lowest hanging fruit.

Kanye himself is evidence of this, of course, as is Candace Owens, recently spotted boosting far-left antisemite extraordinaire Max Blumenthal on their shared hatred of the ADL allegedly inventing contemporary antisemitism. Indeed, the dirty secret of contemporary data on antisemitism in the US is that there is a spike in minority communities -- but that spike is clustered along the most conservative tranche of the community. So it is entirely plausible that this subclass of Black voters -- likely the most natural target of conservative political appeals generally -- could be particularly attuned to emergent GOP rhetoric relying on antisemitic dogwhistles about Soros, about "globalists", about the ADL, and so on.

When one thinks about it, this isn't really anything unique to African-Americans. Similar dynamics are also playing out in Latino communities, for similar reasons. And if it weren't for the fact that White antisemites already vote overwhelmingly GOP, this strategy would work on them too (indeed, such appeals probably are part of what makes the antisemitic alt-left -- including folks like Max Blumenthal or Jimmy Dore -- at least MAGA-curious). Antisemitism appeals to conservatives, and that includes conservatives who -- for either idiosyncratic personal or communal historical reasons -- haven't voted Republican in the past. It so happens that in the Black community that there are more conservative individuals who haven't voted Republican, but the underlying dynamic is little more complex than "conservatives are attracted to antisemitism."

So this perhaps completes the answer of why the GOP can't quite quit Kanye and company. It's not just or exactly that they agree with him, or even pure partisan tribalism. Kanye is symbolic of a particular political opportunity conservatives have to win over, not the majority of Black voters or even a sizeable minority, but a large enough cohort of the most conservative group members.  Kanye represents an incredibly tempting future where the GOP again does not "win the Black vote" or come anywhere close to doing so, but does grab an additional 10% or so that might make all the difference in some crucial races. But the point is that, in terms of that opportunity's content, antisemitism is not just an unfortunate hanger-on. It is central to the appeal.

How Long Will The Second Redemption Last?

If you asked me to summarize the contemporary conservative legal mantra, it would go: "We had to suffer through the Second Reconstruction; so you're going to endure a Second Redemption."

There's little doubt in my mind that we are in the era of the Second Redemption: a fundamentally anti-democratic backlash against racial equality and progressivism more broadly that has captured elite institutions (particularly the federal courts) and seeks to entrench minoritarian political power as against liberal political priorities. In particular, the Supreme Court right now is not just conservative, it acts basically as the Republican Party's anti-democratic goon squad for the precise purpose of decoupling conservative political power from democratic accountability.

The cast of cases that fit this mold is sprawling. You have the cases that hoist nigh-insurmountable barriers to popular progressive priorities (Bruen, Citizens United, Parents Involved) , those overturn prior precedents which had secured rights and projects central to the liberal project (Dobbs, the Harvard/UNC affirmative actions cases), and -- most worrisome to me -- the cases which directly undermine the very structures of representative democracy that reflects the popular will (Shelby County, Rucho, Brnovich, the "Independent State Legislature" cases). 

That conclusion felt quite the downer, and so it got me to thinking how long the Second Redemption is likely to last. Of course, the whole purpose of the Redemption -- first and second -- was to insulate itself from political recourse, so it is far from guaranteed that even wildly unpopular judicial machinations will be abled to be countered by "democratic" responses. Nonetheless, I am generally of the view that politics is cyclical -- periods of democratic progress are followed by backsliding and regress, which eventually yield to renewed progress again. The big question is simply how long the cycles last. And while there's obviously no guarantee that the Second Redemption will mirror the timeline of the first, it does offer at least a point of reference.

The original Redemption refers to the successful reclamation by White supremacists of political institutions in the American south that had temporarily been integrated during Reconstruction. Its beginnings are typically dated to 1877, and generally had succeeded by the 1890s. However, the "Long Redemption" -- if by that we mean the period in which the Supreme Court was generally a force for anti-democratic retrenchment as against progressive political initiatives -- continued for quite awhile after that, and probably should not be deemed over until the "switch in time" of 1936.*

1877 to 1936 -- that's nearly sixty years. Well, that's not too comforting, even if it does suggest that eventually the reign of the witches will pass. But then the next question is, "how far along are we in the Second Redemption"? Put differently, when did the Second Redemption begin? Many legal commentators have dated the beginnings of the earnest judicial backlash to the Second Reconstruction (typically dated roughly from 1945 - 1968) as starting in the 1980s with the Reagan administration (though some would place it even earlier, in the Nixon administration). If that's the case, we may be pretty far along in the process!

Of course, what settled for a conservative backlash in 1980 is positively tame compared to what's happening right now. But the Long Redemption was not a slow crest followed by an equally slow decline. Some of the most reactionary justices and judicial decisions were present right up to the end of the line (Justice McReynolds could give even the most racist 19th century SCOTUS justice a run for his money). There's good reason to think that anti-democratic forces in elite institutions will be at their most extreme and fight most fervently when they sense that the end may be nigh.

We can only hope.

* While 1936 is more often viewed as a dividing line for the Court's economic jurisprudence -- the abandonment of Lochner-ism and the accession to New Deal programs -- it also tracks when the Court started to pivot towards more concern for racial minority rights. Carolene Products, whose "footnote 4" became the ur-text of the liberal judicial approach to civil rights, was decided in 1938. Missouri ex rel. Gaines v. Canada, which augured the changing of the tides against school segregation, was decided that same year.

What's the Matter With Nevada?

Most of the polls I've seen in Nevada have had narrow Republican leads in both the Governor's race and, more distressingly, in the Senate contest. Nevada had been a state that seemed to be trending blue, so this is especially disheartening in a year Democrats can't afford extra bad news.

One element I've seen increasing chatter about in the past few weeks is that the Nevada Democratic Party has been doing a terrible job of rallying voters to the polls. The state party had a notoriously good turnout machine that was the legacy of former Senate Majority Leader Sen. Harry Reid, but Reid's team was dumped last year after a slate endorsed by the Democratic Socialists of America took over the organization in 2021. Quite a few people have suggested that the new DSA party leaders have let Reid's work wither, and the result may be the loss of a Senate seat we can ill afford.

Of course, this is all chatter. Putting aside that the election isn't over until it's over, these complaints could be leftover sour grapes from the changing of the Nevada party guard. It's not as if Catherine Cortez Masto would've coasted to victory even under the best of circumstances, after all. So I'd like to hear more. 

Still, it does not strike me as implausible, based on what little I know if the internal Democratic politics in Nevada, that the new regime would (by arrogance or incompetence) run the party apparatus into the ground. Precisely because they often take it as an article of faith that they are the true voice of the masses, DSA sorts sometimes have a dangerous habit of overlooking the gritty work of actual building mass democratic power (see also: losing to a write-in campaign after successfully winning a Democratic primary for the Buffalo mayorship). If they end up costing the party a winnable Senate race, that would be a serious black eye and a near-unforgivable sin.

Humility vs. Hate

When it comes right down to it, we're not sure how to fight hate and hateful ideologies.

Should it be called out loudly, wherever and whenever its seen? Or does that mean giving oxygen to cranks, amplifying their influence to places they could not reach on their own?

Should bigots be deplatformed? Or does that simply make them more alluring? Should we debate them? Or does that only give them credibility? Should we rally forces against them? Or does that give sustenance to the notion that they are resisting the dreaded establishment? 

Should we punch Nazis? Or are they thereby converted into martyrs? Should haters be ostracized, wholly excluded from all elements of social life as demonstration that their views will not be tolerated? Or should we reach out to them, trying to pull them back from the abyss and convert them to the side of right?

Figuring these questions out is tremendously important. Indeed, there may be little more important than figuring out which interventions against hate are most effective.

But the fact is, we don't seem yet to know what works and what doesn't. So perhaps we can all stand to show a little more humility on the subject. I see so often people very confidently declare their answers to the above questions as if anyone who acts otherwise is a Nazi sympathizer, and I simply do not know where that confidence stems from. Because the fact is, we don't know yet which tactics work and which do not. And so while I'm fine debating the tactics, I'd rather not treat tactical disagreement under conditions of extreme uncertainty as tantamount to be a Fifth Column.

An Apology

I'll be brief. In some old posts on this blog, I wrote words to the effect that Dennis Prager, a right-wing Jewish commentator, was "really" Christian or secretly "wished to be Christian", due to the overlap of his beliefs with right-wing Christian precepts.

This was wrong. I disagree with Prager on nearly every issue, including on what it means to be Jewish and the best articulations of Jewish value. Nonetheless, it is wrong to tell a Jew -- any Jew -- that they are any less of a Jew because of political or social disagreement. Jews are Jews are Jews -- including the Jews I or Prager really, really dislike. As these sorts of attacks on Jews for not "really" being Jewish become more common (and, in particular, seep into the mainstream where even non-Jews feel comfortable challenging the Jewish identities of Jews they dislike), it is especially important to practice what one preaches.

I've endeavored to delete these comments from my archives; it's possible I've missed some. Again, the practice of denying the authentic Jewishness of Jews one dislikes is wrong, full stop, and I was wrong to do it to Prager.

The (Hopefully More Symmetrical) Future of Congress' Black-Jewish Caucus

Rep. Brenda Lawrence (D-MI) was one of the key forces behind the founding of Congress' Black-Jewish caucus. The caucus is nominally bipartisan, though with regard to both "Black" and "Jewish" Congress offers slim pickings amongst Republicans. The only Black GOP member, Rep. Will Hurd (R-TX), has already left Congress, and the only GOP Jewish member, Rep. Lee Zeldin (R-NY) will depart at the end of this term. All other members are Democrats.

But now Rep. Lawrence is retiring (redistricting scrambled her district -- Lawrence endorsed Rep. Haley Stevens in the district that's the closest to being its successor), and the JTA has an interesting article about the vitality of the caucus in the future.

One unfortunate fact about the caucus, Lawrence suggested, is that it has been almost entirely silent on matters of racism. Despite the fact that its existence is nominally about providing a vector where both Black and Jewish members can learn about and be responsive to the sensitivities of the other, in practice the caucus has almost exclusively tackled matters of antisemitism and made little progress in addressing issues of racism.

In addition to the antisemitism she has confronted throughout her tenure, another disappointment, she said, has been the reluctance of her Republican colleagues to call out anti-Black racism. 

“They just put their head down because they’re so committed to a Republican agenda,” she said. “They are not willing to stand up and call a colleague out if their rhetoric is one that promotes racism or antisemitic behavior.”

A review of statements from the caucus suggests that it has only substantially addressed antisemitism, and its most egregious expressions — the hostage-taking at a synagogue in Colleyville, Texas this year; the stabbing attack at a Hanukkah celebration in Monsey, New York, in 2019; and the anniversary of the 2018 massacre of Jewish worshippers in Pittsburgh. 

When the group has made references to anti-Black racism, the caucus talks about it as if it were a thing of the past — in commemoration of the 1960s civil rights cooperation between Jews and Blacks at an opening session in 2019, or in a celebration of Juneteenth, the holiday marking the end of slavery.

Lawrence described with frustration her attempts to get Republicans to talk more about anti-Black racism. She recalled that one Black Republican she would not name said “Look at me, I’m a Black and I made it,” and how conversations with other Republicans devolved into calls on Democrats to condemn Antifa, the loose-knit network of far-left protesters, or the Black Lives Matter movement.

This was always going to be a point of concern.  And it is tremendously disappointing, and a discredit to the hard work persons like Rep. Lawrence have put into this initiative, that the caucus thus far has been so overtly asymmetrical in its focus.

A Black-Jewish caucus is unabashedly a good thing. But it has to be a relationship of equals, not one of Jewish tutors and Black pupils. Ilhan Omar should learn from her Jewish colleagues some things about antisemitism she perhaps hadn't thought of before. But also and equally, Lee Zeldin should learn some things about racism from his Black colleagues that he perhaps was insufficiently attuned to (like why it's offensive for the Capitol Building to honor men who committed treason in defense of slavery). It's absolutely good to come together to denounce contemporary instances of antisemitism such the attacks at Colleyville and Monsey. But it is troublesome that this is not paired with denunciations of contemporary instances of anti-Black racism. In a Black-Jewish caucus neither component should be the junior partner. If the caucus is going to carry forward and do justice to Rep. Lawrence's vision, things need to change.