Tuesday, May 24, 2022

Uvalde Parents Are About To Learn Just How Little the American People Care About Them

A shooting at an elementary school in Uvalde, Texas has killed nearly two dozen people, including nineteen children.

I grieve for the parents and families of those who were killed. They are going through a tragedy I cannot even begin to fathom. But as awful as things are right now, I cannot imagine what the survivors will have to endure starting about a week or a month from now.

Because that is when it will be hammered home just how little the American people care about them.

I want us to really understand this point. We love to talk about tragedies bringing out the best in the American people. We love heartwarming stories about blood being donated and volunteers flooding hospitals and homes being opened up. I don't want to discount any of those things. But we never talk about, and we should talk about, how tragedies like this bring out the absolute worst in the American people -- and here I'm not talking about the shooter. I'm talking about us, all of us, as a collective polity, who in a democratic society is tasked with making a collective response to catastrophes like these and has consistently collectively decided to shrug and carry on as if nothing happened.

It is human nature to shout, holler, cry out when we are hurt or scared. The more grievous the injury, the louder the scream. Why? To attract attention. Deeply rooted in our psyche is a fundamental belief that if others become aware of our hurt, they will help us.

The level of grief and pain the Uvalde parents are going through is unimaginable to me. Experiencing it, and knowing that others know you're experiencing it, naturally breeds the assumption that others will try to help you. How could they not? How could they be impervious to such raw, acute anguish? How could they just ignore the cries?

Imagine if you were shot on a public street. You cry out; people see your distress. Imagine if they do nothing. They just keep going about their business. Perhaps a few shoot you a sympathetic glance as the carry on with their errands. You beg for help -- maybe your leg can be saved if you get to a hospital quick enough. Nobody does anything. You are left alone to fester in agony -- seeing with your very eyes people who you know know how hurt you are and are consciously electing to do nothing about it.

And yet -- we know from far too much experience that ignoring is exactly what will happen to the Uvalde parents. We all are witnesses to their anguish, we all hear their cries for help. They know we hear them, and we know they know we hear them. Even still, there will be no serious efforts to respond to this catastrophe or ensure it does not happen again; same as there were no such efforts for the catastrophe before this, or the one before that. In a few days, the American people will have moved on. In a few months, they will make choices at the ballot box that could be responsive to the pain of the Uvalde parents, but most likely will not be. We could choose to elect politicians who would enact policies that might stop tragedies like this, but we won't -- stopping CRT in schools or maximizing our tax breaks will be far higher priorities. And so our politicians will continue to not pass meaningful gun control measures, and our judicial overlords will continue to pick away at the few that are enacted in slavish fealty to a maximalist interpretation of the Second Amendment. Nothing will change. The Uvalde parents will have been utterly abandoned to their grief. They will know, in their bones, that Americans simply do not care.

I've been struck, when reading about the "anti-CRT" panic, how often the complaint of the activist-rabble rousers sounds in the register of avoiding "guilt". "I don't want my kid to feel guilty!" I absolutely do not believe anyone should feel guilty for who they are. But we absolutely can justly be made to feel guilty for the choices we make, or fail to make. Our collective decision to turn away from scores of grieving parents, to not take any meaningful action to try to ameliorate their pain or at the very least change course so the next tragedy does not occur, is indeed a choice, and one we should feel very guilty about.

Maybe that's the right approach. Fear that our children might be next doesn't motivate us; nor does justice and retribution for the last batch of victims. Perhaps being forced to sit with the guilt that our choices represent abandoning our fellows in their moments of greatest need, to really stew in our own callousness and confront our abject indifference to the searing pain around us -- maybe that will be enough to motivate a change in behavior. I'm doubtful. But maybe.

Inventing "Fraud" Isn't Necessary for the GOP's 2024 Robbery Plans

In 2020, Republican politicians made bogus claims of fraud in order to justify attempting to steal an election they lost. But why bother with the "fraud" allegation at all? Why not just attempt the robbery? The answer, presumably, is that claiming fraud -- however spuriously -- was necessary to justify overturning the will of the voters and assigning electoral college voters to a candidate who got fewer votes.

The problem with this strategy was, of course, that the fraud claims were obvious nonsense and every sane observer -- including virtually all judges -- knew it. Insofar as the strategy was based on a flagrant lie, it was vulnerable to rejection once it actually hit the judiciary.

Fast forward a few years, though, and Republicans are coming to a realization: They don't need to claim fraud. They can cut out the middleman entirely and just assert the right to ignore the voters entirely. The claim being developed is a version of the "independent state legislature" doctrine that just asserts that state political officials (themselves often in highly gerrymandered seats that bear no relationship to the popular will) have free reign to decide who gets their state's electoral votes. Their decision need not be in any way constrained by such piddling trivialities like "who the voters of their state actually voted for" -- even in the funhouse mirror sense of "well if you discount the votes that we assert are fraudulent because *mumble mumble brown people*, then the voters actually chose our guy." The new version of the steal is a straight line argument that if the state legislature wants to assign their EVs to Trump, Trump gets them. The people can pound sand.

Unlike the concocted fraud allegations, this is fundamentally a legal assertion -- an extreme, terrifying legal assertion, but a legal assertion all the same. Getting the GOP judiciary to accept it does not depend on forcing judges to deny reality, it just depends on getting the right mix of reactionary nihilists who can issue a chin-stroking pontification about how slave states in 1810 organized their elections with a straight face -- and recent history suggests that a welter of federal court judges will be eager to accommodate them. 

Nonsense fraud claims might gild the lily of this endeavor, but they aren't necessary to the strategy. And for that reason, this strategy for stealing the election is far more likely to succeed than the last one. The 2020 steal attempt was a largely ad hoc, on-the-fly paint splatter thrown together by the least competent attorneys Trump's money could buy in a context where it still was mostly taken for granted that the vote tallies ought determine the winner. In 2024, the GOP establishment will have had time to prepare itself logistically, but also mentally -- it will have come to terms with making the argument that in our allegedly constitutional democracy votes don't have to matter at all (See the Senate! See the electoral college itself! We're a republic, not a democracy!).

Republicans swung as hard as they could in 2020, but they just weren't strong enough to ring the bell. This time around, they'll be trained, toned, and ready. I hope we are too.

Wednesday, May 18, 2022

Has AIPAC Invested Any Substantial Money in GOP Primaries?

Yesterday was a big primary day, and there are a lot of storylines being bandied about. One close to my neck of the political woods has been AIPAC's heavy investments in Democratic primaries attacking candidates it perceives as insufficiently pro-Israel. Their success rate was mixed -- two AIPAC-backed Democrats, Valerie Foushee and Don Davis, won in North Carolina, but in Pennsylvania Summer Lee looks to have narrowly defeated Steve Irwin for the Democratic nomination in a Pittsburgh-area seat where AIPAC dumped $2.7 million in on Irwin's behalf (AIPAC spent over $2 million on each of the North Carolina races).

Seven million dollars is quite a bit of cash on three Democratic primaries (in another race, AIPAC has backed Rep. Henry Cuellar in his primary run-off against Jessica Cisneros to the tune of $1.2 million). My question is whether there are any GOP races where AIPAC has spent equivalent sums seeking to ensure that its preferred candidate wins (or -- perhaps more saliently -- that a dispreferred candidate does not)?

I haven't heard of such expenditures, though I won't pretend I'm such an eagle eye that I'd necessarily spot them if they'd occurred -- that's why I'm asking! Still, my guess is that the answer is no, they haven't (this disclosure also suggests that AIPAC's United Democracy Project super PAC has only spent money on Democratic races). And the reason for my guess is that there aren't any credible Republican candidates whose positions AIPAC considers unacceptable on Israel. I could dimly imagine that they might have gone in against Thomas Massie, whom they've sparred with in the past over Iron Dome funding, but Massie cruised to victory last night with 75% of the vote.

What we're really seeing -- and this isn't a shocking revelation -- is that AIPAC has no meaningful "right-wing" boundary to what it considers acceptably pro-Israel. Absent David Duke style neo-Nazi anti-Zionism -- which actually is starting to nibble into the conservative mainstream but hasn't yet manifested on any national stage to my knowledge -- it is fine with literally any GOP position on Israel, no matter how conservative. One-stateism, pro-apartheid, pro-settlement -- nothing is off-limits to AIPAC. It may pay lip service to supporting a "two-state solution", but when it comes to things that actually get them off the couch and spending money, all the action occurs on the Democratic side of the aisle.

Tuesday, May 17, 2022

The (Non-)Prevalence Problem of CRT

Years ago, I remember reading a famous paradox concerning how Americans viewed the subject of foreign aid. If you asked them "should the US spend more or less on foreign aid," most Americans would answer "less" -- they thought we spent way too much money on the issue. But when you asked them to estimate how much the United States spent on foreign aid each year, they gave an answer that was an order of magnitude higher than what we actually spent. And worst of all, if you asked them how much they thought we should spend on foreign aid, their answer was still far higher than what we actually did spend -- and remember, this is from people who thought their position was that we needed to cut foreign aid!

At one level, this confluence mostly just shows that most people are innumerate. But taking it somewhat at face value, there is a nettlesome political puzzle here. What does one do if people say they want to adopt position X, but actually advocate for moving away from X, because they are under the misapprehension that the status quo is on the far side of X and thus believe that moving away from X actually means moving towards it?

This is a problem with some folks who've joined up on the "anti-Critical Race Theory" crusade. Of course, there are plenty of people who make no bones about their position -- they think CRT is a Globalist Marxist Socialist Communist Soros Triple Parenthesis plot, and they want to destroy it. But others at least purport to believe that Critical Race Theory should be taught, it just shouldn't be the only thing that is taught. For instance, David Bernstein of the "Jewish Institute for Liberal Values", a prominent anti-CRT voice in the Jewish community, took the position that any school which teaches a "traditional" narrative about civil rights should also teach a CRT perspective.

Now here's the thing. If your opinion is that every school should teach both a "traditional" and "CRT" style approach to civil rights, you are advocating for a position that is way to the left of the status quo. The vast majority of primary and secondary schools in the United States do not teach "CRT" at all. In some small number, you might get a CRT-influenced approach in conjunction with more traditional accounts. The number of students who are only being exposed to CRT, and no other perspective, is absolutely negligible. Objectively speaking, if your view is "students should hear both traditional and CRT views", you should be pushing for far more inclusion of CRT into public school curricula than is present in the status quo.

In other words, the entirety of the barrier to getting to the world Bernstein claims he wants to see comes from folks like the Speaker of the Wisconsin Assembly, who's trying to get the University of Wisconsin to rescind its hiring of respected scholar Jennifer Mnookin as Dean because Mnookin (this is a direct quote) "supports critical race theory being taught on campus". It's Texas passing laws limiting what can be taught in the classroom with the express goal of seeking to "abolish" CRT. It's Florida with a veritable cavalcade of legislation seeking to target and suppress "woke" ideologies.

Yet Bernstein, like the ill-informed respondent on foreign aid, has adopted a politics that sprints off in the exact opposite direction from where he claims he wants to go, because he has a wildly off-base assessment of how common Critical Race Theory is. He thinks CRT is everywhere, so getting to a position of even-handedness means pushing back against CRT's hegemony, even if it means making common cause with some unsavory actors. The reality is that CRT is still relatively obscure for most Americans, and so getting to evenhandedness would mean a more aggressive deployment of CRT into the American educational curriculum than would be dreamed by even the philosophy's most fervent supporters. 

Is he actually that ignorant about the true (non-)prevalence of CRT in the American educational system? I think he probably isn't; but there is something to be said for a certain type of elite who forgets the world exists more than 10 miles beyond Brooklyn and so confuses what is commonplace in a Williamsburg coffeeshop with the national status quo. A little of column B, a little (a lot) of column B, I'd wager. 

Thursday, May 12, 2022

The PA Has All the Leverage When It Comes To Investigating Shireen Abu Aqleh's Death

Earlier this week, Shireen Abu Aqleh, a highly respected Palestinian journalist, was killed during an Israeli raid in the West Bank. Eyewitnesses contend that Israeli soldiers shot her, and the bulk of the evidence points in that direction, though Israel maintains it has not yet been conclusively established who fired the bullet. Israel has asked the PA to conduct a joint inquiry into Abu Aqleh's death, but the PA has thus far refused -- preferring to conduct its own investigation and communicate the results to the US and Qatar (Abu Aqleh worked for the Qatar-based al-Jazeera, and she was a U.S. citizen).

As I said, as of right now the evidence strongly points towards the conclusion that an Israeli soldier killed Abu Aqleh. That corresponds with eyewitness testimony (including testimony that, at the time of the shooting, there were no Palestinian militants operating in the area). The bullet fired is one that is used by both IDF and Palestinian forces, so that washes. And an early video which purported to show Palestinian gunmen as the perpetrators has basically been debunked (the video was taken in an area that was nowhere near where Ms. Abu Aqleh was shot and from where it would have been effectively impossible for her to have been hit by any fired round).

Given all this, the fallback position of Israel's online defenders has been to cry foul over the PA refusing to cooperate with Israel in jointly investigating the event. "Why don't they want the truth?" "What are they trying to hide?"

But the fact remains that the PA has very little incentive to cooperate with Israel here, and "truth" has little (though not nothing) to do with why.

There is basically one, and only one, thing a joint investigation with Israel might be able to offer to the PA that it cannot get on its own. It's not access to the "true story" -- most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh, and the marginal benefit of "confirming" that belief (whatever that means) is likely to be minimal even if we thought that a joint investigation would make such confirmation more likely.

Rather, what Israel might be able to provide that the PA almost certainly cannot get on its own is information on the actual individual who fired the bullet. If the goal is to see a particular John Doe face potential criminal consequences for killing Ms. Abu Aqleh, then a joint investigation is probably necessary.

That's the incentive for cooperation: not just the "truth", in the abstract, but the specific possibility that the investigation will reveal the personal identity of the shooter, who then will face material and appropriate consequences. What are the risks?

It is true that, from a bloodless, political vantage, the status quo of the narrative on this story is already one aligned with the PA's interests. Most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh. An investigation could confirm that belief, or refute it, or muddy it up ("we cannot know for certain ..."). From the PA's vantage point, the latter two outcomes are very bad. And that's assuming the Israelis investigate in good faith, a stipulation that even some Israeli government officials concede is not one that Israel is entitled to receive.

The risk, in short, is not just that "the evidence" won't back up the prevailing narrative, it's also either that a bad faith Israeli investigation claims exculpation, or (whether in good or bad faith) the investigation only acts to kick sufficient dust around the issue so as to blunt calls for accountability. The PA presumably deems these risks to be quite weighty; and that fear cannot be dismissed as unfounded. And unfortunately, sans the unlikely event of absolute incontrovertible evidence emerging (which seems unlikely), any outcome other than "all parties agree an Israeli soldier was the shooter" -- whether it's (1) Israel lying about whether one of its soldiers killed Ms. Abu Aqleh, (2) it being genuinely not knowable whether an Israeli soldier killed Ms. Abu Aquleh, and (3) an Israeli soldier actually not having killed Ms. Abu Aquleh -- are largely going to be observationally equivalent.

So the choice of whether the PA should cooperate with Israel can be summarized as a weighing of the following probabilities:

P(Israel identifies a specific soldier who shot Ms. Abu Aqleh and subjects that soldier to adequate criminal possibility)


P(Joint investigation genuinely reveals Israel wasn't responsible) or

P(Israel in bad faith uses investigation to disclaim responsibility) or

P(Investigation, whether in good or bad faith, cannot decisively establish who bears responsibility)

Simply put, it strikes me as very hard to argue that the first probability is high enough to outweigh the latter three. Again, the PA has no reason to believe Israel will investigate itself fairly. Nor does it have much cause to believe that, even if Israel did identify a discrete perpetrator, that it would subject him to meaningful criminal sanctions. The most prominent recent case of an Israeli soldier being convicted of homicide against a Palestinian actor was Elor Azaria, who served a mere nine months for manslaughter after shooting a disarmed and incapacitated Palestinian assailant -- even that short sentence occurring in the face of massive public pressure supporting Azaria (something like two-thirds of Jewish Israelis backed pardoning him outright). I suspect the PA weighs the likelihood of the first probability -- that the investigation will fairly seek out the perpetrator and that the IDF will identify him if it is an IDF soldier and that the Israeli justice system will adequately punish him for any criminal misconduct -- as essentially nil.

In an ideal world, a joint investigation would still be the best outcome: if all sides act in good faith, a joint investigation is most likely to get at "truth" and most likely to identify any perpetrators who ought to face criminal liability. In the world we have, we cannot assume good faith and so we cannot assume a joint investigation in any way makes the "truth" more likely to come out. In practice, the PA has no doubt written off the realistic possibility that it will get the name of any Israeli soldier who shot Ms. Abu Aqleh, much less that he will face significant criminal consequences. Given that, the PA has zero incentive to give Israel the opportunity to blur the extant public narrative of this case; while Israel has every interest in hoping something ("truthful" or otherwise) will alter the prevailing discourse. 

In this environment, the PA has all the leverage, and it's up to Israel to offer something that the PA wants to make a joint investigation worth the latter's while. The most obvious thing Israel might be able to offer is the prospect that, if a perpetrator is found, he will face meaningful justice. It is hard for me to imagine how Israel could make that commitment in a manner that the PA would find credible -- unless, of course, Israel is able on its own initiative to find and arrest the shooter. If it can't do that (whether because it doesn't actually want to, or because it isn't actually able, or because no such shooter exists), I don't know what it could do that would make the PA inclined to be cooperative.

Tuesday, May 10, 2022

"Ex Post Facto" Abortion Prosecutions

I don't want to give any grandstanding GOP District Attorney ideas here, but I have a question about potential legal jeopardy of women who had abortions while Roe was good law following its likely invalidation in Dobbs.

If you've seen the maps about the status of abortion rights post-Roe, you've likely seen figures suggesting about half the states in America would ban abortion in Dobbs' immediate aftermath. Some of these are just states which are poised to act when Roe falls. Others have so-called "trigger" laws, which would criminalize abortion starting from the moment Roe is overturned.

But in at least a few states, there were laws which pre-dated Roe banning abortion that have never been repealed. And that, to my somewhat untrained eye,  presents a big problem for women in those states who may have had an abortion during the Roe era.

When a law is "struck down" as unconstitutional, it is not, as is popularly held, stricken from the books. The law still exists, it is just practically unenforceable. One effect of Dobbs would be to resurrect these zombie laws. But the question is whether the prohibitions found in those laws could be used to prosecute women who had an abortion while Roe was still in effect.

The instinctive answer is no, because the constitution prohibits ex post facto criminal lawmaking. You cannot criminalize conduct retroactively. So a state could not newly criminalize abortion and make that law apply to conduct that occurred before the law was passed. That would characterize many of the "immediate" abortion ban states; including, I think, the "trigger" law states.

But in the case of our states that simply kept their pre-Roe abortion prohibitions on the books, things may be different. The argument there would be that abortion was always illegal in those states, including during the Roe period. Yes, those laws couldn't be enforced during Roe's pendency, but the criminal prohibition was still on the books at the time the woman had the abortion in question. It will not be Dobbs that criminalizes abortion in these states, Dobbs will just remove the barrier that had prevented the state from enforcing its always-operative anti-abortion statute. It's as if you committed a crime but the DA couldn't prosecute because his hands were literally tied behind his back. Once he is freed from restraints, you cannot then say "well, I acted relying on the knowledge that the DA was incapacitated".

Does the rule against ex post facto criminal laws prevent prosecutions in such a case? It is far from clear to me that the answer is yes. Women in states that had continuous abortion bans in place during the Roe era may be at real risk of prosecution (assuming they're within the relevant statute of limitations). Yet another way that overturning Roe will wreak havoc on the settled expectations of millions of American women.

Thursday, May 05, 2022

A Quick Clarification on "Replace" (as in "Jews Will Not ...")

Apropos of nothing in particular, I thought it was worth noting an easily-overlooked elision that sometimes makes the antisemitic chant "Jews will not replace us" more opaque than it need be. 

Some hear the chant "Jews will not replace us" and, in addition to being appalled, are perplexed. How could Jews "replace" White people when there are so few of us?

The issue comes from an ambiguity in the term "replace". Imagine you're at a baseball game, and you hear the sentence "Smith replaced Jones on the pitcher's mound." That sentence could mean one of two things:

  1. Smith could be the relief pitcher; the person who takes Jones' place upon the latter leaving the game.
  2. Smith could be the manager; the person who made the call to remove Jones from the game.
In the context of "Jews will not replace us", I think the latter meaning is far more likely to be operative. Jews are posited to be the power-behind-the-scenes that is making the decision to "replace" White people. This, of course, does not require any particular numerical supremacy, and it fits well with general White Supremacist tropes that obsess about Jewish hyperpower and shadowy control. It merges, in turn, with paranoia about racial minority groups (particularly immigrants), who in the antisemitic imagination are being brought to America by Jews in order to replace White people (so the immigrants are the "replacers" in the first sense of the word). Fitted together thus, the chant "works" -- or works, at any rate, within the warped and hateful confines of the White supremacist imagination.

Tuesday, May 03, 2022

On the Ohio Primaries (Vance, Mandel, Brown, and Turner)

Ohio's primaries are in the books. The two biggest stories, at least from my vantage, are J.D. Vance defeating Josh Mandel (and some other members of the clown car) for the GOP Senate nomination, and Shontel Brown stomping Nina Turner in their House rematch.

On the first: the choice between Vance and Mandel in the GOP primary has been a constant source of agony for me. Both are I think equally dangerous, and both are I think (sadly) favored to win the general against Democratic nominee Tim Ryan. So the only transient joy I knew I'd get would be that at least one of these sniveling spineless far-right weasel hacks would go down in ignoble primary defeat. But if forced to choose, which one did I most want to see humiliated?

There's an old psychologist's trick in situations like these where you're agonizing over a decision: you're just told an outcome and then measure your gut reaction to the news. On that front, when I first saw the initial returns suggesting Josh Mandel was going to lose, my immediate, uncontrolled, visceral response was elation. Yes, it's a bitter pill that J.D. Vance won. But Mandel is just absolutely loathsome, and has been for years. I joked (and it's barely a joke) that had he been elected, he potentially would have made history as the first Jew to ever be the most antisemitic member of the Senate. There are few people who more deserve crushing humiliation than him, and on a week like this I'll take the joy where I can get it (plus I think that Vance may be a marginally weaker candidate against Tim Ryan).

Which brings us to the Brown/Turner race, which Brown is winning by about 33 points (compared to a 6 point victory in their 2021 special election contest). Rematches like this -- a quick repeat of an close open-seat contest -- very rarely go well for the round one loser (see also: Rashida Tlaib/Brenda Jones), and it was hard to see what Nina Turner's path to victory was here. But then, it was hard to see what Turner's theory was for why Brown should be turned out of office so quickly other than "it is cosmically unfair that I am not in Congress already." The closest thing she has to a concession up on her Twitter is a retweeted rant from Marianne Williamson of all people blaming Turner's defeat on the "Democratic machine" and "abandonment by progressive Congressional leadership". One might think that if both the "machine" and the "progressives" have lined up against you, then you don't have much of a lane in Democratic Party politics. And maybe Turner agrees, since she's apparently now planning to parlay two consecutive losses in congressional races into an independent 2024 presidential run. Ugh ugh ugh. That woman's ego could power Trump Tower. 

Tell Me Who To Vote For, Portland Edition

It's primary season here in Oregon, and I'm new in town. Consequently, I don't know a ton about local politics here. I'm trying to learn -- I know that homelessness is, by far, the most important issue driving local politics, though I don't have a firm grasp on what the relevant policy divisions are -- but it probably won't happen in time for me to cast a ballot.

So I'll give the races I'm interested in and my preliminary lean, but I am open to more information and persuasion. If you're a Portlander and/or Oregonian, feel free to give me your take and/or efforts at persuasion.

Governor: Tina Kotek.

Of the two major candidates running, Kotek is the more progressive, but she's got a lot of institutional experience as former state house speaker. That's my sweet spot. Plus, the Oregonian endorsed her with the single hesitation that she may have been too ruthless in dealing with state Republicans, which, I have to be honest, I'm not viewing as a downside right now.

State Rep. (38th District): No lean

Daniel Nguyen vs. Neelam Gupta. It seems like Gupta is positioned as the relative progressive to Nguyen's moderate, but I don't have a strong sense of what that means in practice. To be honest, both of their campaign websites were pretty thin. Nguyen's seemed even thinner than Gupta's, but Nguyen seemed to have at least a little more experience. Maybe the tiniest lean towards Gupta, but a stiff breeze could push me the other way.

Bureau of Labor Commissioner: Christina Stephenson

Basing this solely on the Oregonian's endorsement, but they made a good case (and the other candidates they "considered" didn't really wow me).

Multnomah County Commission Chair: Sharon Meieran

A very soft lean here compared to Jessica Vega Pederson. Meieran represents my part of Portland on the city commission, and I like my part of Portland, so she gets some positive feelings off that. She also seemed to have non-platitude plans for dealing with issues like homelessness. Sharia Mayfield is pretty much out for me because she lacks significant political experience. Lori Stegmann doesn't grab me but you're welcome to make your case.

Multnomah County Sheriff: No lean

The Oregonian endorsed Nicole Morrisey O'Donnell, but there doesn't seem to be a lot between her and Derrick Peterson. Very open to persuasion here.

Portland Commissioner (Position 2): Dan Ryan 

Won a special election and now is the incumbent. Seems like a thoughtful guy doing a good job. AJ McCreary seems like the sort of activist-y tinged insurgent candidate that I worry won't actually be effective once in office.

Portland Commissioner (Position 3): Jo Ann Hardesty or Vadim Mozyrsky

Hardesty is the incumbent, and made her name securing some big wins for police accountability. That's worthwhile. But she also seems to have that simplistic activist-y mentality that drives me bonkers, and is limiting her ability to broaden her accomplishments. Simply intoning "it's developers' fault" isn't actually the basis for a policy reform. The Oregonian endorsed Rene Gonzalez, but criminalizing homelessness doesn't actually appeal to me, so he's out. Mozyrsky seems like a boring bureaucratic functionary type, which very much appeals to me, but I have no idea where he actually stands on anything. The Willamette Week's endorsement write-up captures my ambivalence well.

Portland Auditor: Simone Rede

It would take a lot for me to pick an Our Revolution/Green Party type (Rede's opponent, Brian Setzler) when there's a credible alternative in the Democratic field.

Metro Council President: Lynn Peterson

A light lean, but here my bias for experienced incumbents benefits the progressive over the centrist challenger (Alisa Pyszka). Peterson seems to have made some mistakes, but "I'm not her" isn't enough for me to back Pyszka, who seems far too tied to business interests for my tastes.

Metro Councilor, District 6: Duncan Hwang

Absolute slightest of lean here, based on incumbency. Both seem good. The Oregonian endorsed his opponent Terri Preeg Riggsby, but was impressed with both and their reasons for favoring Riggsby over Hwang didn't strike me as compelling.

How Gullible is Susan Collins?

As the implications of the Supreme Court's leaked draft opinion overturning Roe continue to reverberate, one major political figure has dialed up her concern-o-meter all the way to 11. Sen. Susan Collins claims she is shocked to see Justices Kavanaugh and Gorsuch voting to overturn Roe given their assurances made to her during the confirmation proceedings about their respect for precedent.

To be honest, I don't think Supreme Court justices can or should be bound to any "assurances" they made during their confirmation proceedings. But that's neither here nor there. What I'm really curious about is just how gullible Susan Collins actually is?

Seriously, I'm curious. On the one hand, it seems impossible to believe that she believed that Kavanaugh and Gorsuch wouldn't overturn Roe. She's shocked that what everyone knew and everyone told her actually came to pass? She thought that some bromide about "respecting precedent" would actually constrain them? Come on. Nobody is that stupid.

But ... well, maybe some people are that stupid. Or more aptly: one of the vices of being powerful is that it generates a feeling of insulation -- the bad things are never actually going to happen. If things are going well -- and if you're a powerful U.S. Senator, things are almost by definition "going well" for you -- it's hard to imagine that some of the privileges and entitlements you've taken for granted could just suddenly go away. It's the same complacency that's led some politicians, on both sides of the aisle, to shrug as the fabric of free and fair elections in America continues to fray. Of course we'll never stop being a democracy. That's unfathomable. And since it's unfathomable, what's the harm in letting others pull out another joist here or loosen another screw there? We're still in power, and so we can still pump the brakes if things get too far.

Until you can't. That's the thing people like Collins forget -- at some point, when the surrounding structure has gotten weak enough, she doesn't have the power to pump the brakes anymore. The fabric of reproductive freedom, just like the fabric of our democracy, requires work to maintain. But if you've gotten so used to its existence that it feels less like an ongoing project and more like a fact of the world, you forget that necessity.

So maybe Susan Collins really was that gullible. She got so used to the world is at is that she forgot to take the steps necessary to actually stop Roe from being reversed. Its complacency, and its laziness, and its arrogance, and its hubris. And now it is all coming to roost. Congratulations, Susan Collins. Your tremendous credulity in the face of overwhelming evidence that, yes, obviously, these Justices would take an axe to Roe means that reproductive rights in America are now dead and gone.

Or maybe Collins doesn't actually care at all, and this "shock" is another one of her performances. Certainly, that hypothesis also has to remain live, since one can be sure that her tangible response to the Court overturning Roe will begin and end with a statement expressing shock. But I suppose when it comes to Susan Collins, the range of options always has lain somewhere between unfathomably gullible and sociopathically manipulative, without too much riding on where she actually falls.

Saturday, April 30, 2022

Antisemitism and Social Malaise

Michelle Goldberg has a very insightful column in the New York Times about antisemitism. It begins by talking about the rapid acceleration of antisemitism that paralleled the rise of Trumpism. Certainly, we are seeing a resurgence of far-right antisemitism (and increasingly, the "far-" is redundant). But even after Trump left office, antisemitic activity has continued to surge. And the most striking thing about this pattern is not its political character, but rather how apolitical it is.

[F]or a huge number of antisemitic episodes, the political motive, if there is one, is illegible. According to Greenblatt, more than 80 percent of the incidents documented in the A.D.L. report “cannot be attributed to any specific extremist group or movement.” Much of the threat to Jews in America seems to come less from a distinct, particular ideology than from the broader cultural breakdown that’s leading to an increase in all manner of antisocial behavior, including shootings, airplane altercations, reckless driving and fights in school.

It is weirdly tempting to think antisemitism is "about" Jews in some meaningful, if mutated, fashion, such that changing something about Jews -- how Jews talk are or talked about, how Jews behave or are perceived to behave, how Jews are viewed or where Jews are positioned in society -- will alter patterns of antisemitism. The vast majority of counterantisemitism initiatives focus on some version of this approach, thinking -- reasonably -- that antisemitism is about Jews

But as Goldberg points out -- and this resonates with my own observation -- antisemitism often is associated with more inchoate frustration and social malaise. Antisemitism follows things like erosion of trust in social institutions, growth in conspiratorial thinking, widespread financial insecurity, and so on. Such developments are not "about" Jews; no amount of Holocaust education or anti-BDS campaigning or interfaith Seders will change them. And yet they probably play a more direct role in the rise of antisemitism than any Jewish-specific factor one could name.

Even apolitical antisemitism has a political connection, albeit an indirect one. "Post-truth" politics, the decay in an epistemically healthy environment, the rise of viral social media practices which create all sorts of terrible bad coherences, gravely accelerate the rise of "apolitical" antisemitism; in this, it is not an accident that the current surge began with and tracks closely the rise of Trumpism (nor is it coincidental that it's leftward manifestations follow closely similar post-truth post-trust ideologies like tankie-ism). But it suggests that wrestling back down antisemitism paradoxically will have little to do with a distinctively Jewish politics. Antisemitism is a symptom of a larger disease, a disease that ultimately is not really about Jews in any specific sense. One will not ameliorate the symptom without addressing that disease.

Monday, April 25, 2022

Seeing Double Standards

A new article co-authored by Albert Cheng, Jay P. Greene, and Ian Kingsbury was just published in Antisemitism Studies purporting to show that highly-educated people are more prone to adopting antisemitic double-standards

The authors had previously publicized their findings in a Tablet Magazine article, and at that time I actually shared critical feedback with one of the co-authors explaining some serious methodological flaws that severely undermined their conclusions. I had hoped that these concerns would rectified or at least addressed once the article was submitted for peer-reviewed publication. Unfortunately, the final published piece continues to ignore the issues outright -- not even acknowledging their existence, much less meaningfully responding to them. So I'll raise them publicly here, so unwary readers are not led astray.

The basic thrust of the article relies on the notion of the double-standard -- treating Jews differently (worse) than similarly-situated non-Jews should be viewed as a form of antisemitism. Unlike some, I am not instinctively averse to the idea that a double-standard is evidence of antisemitism or other discrimination -- indeed, it seems to me that the core of what discrimination is treating likes unalike. However, the devil in such analysis always is figuring out what counts as a "similarly-situated" case (in anti-discrimination law, we call this a valid "comparator"). If there is a different characteristic than the one being measured that distinguishes the comparators from the base (Jewish) case, then it's entirely possible that that characteristic is what drives any differences in resulting treatment.

For example, suppose one wanted to measure if baseball teams performed better against opponents based in the eastern United States. One thing you might do is look at 2020 MLB records and compare how teams fared against Pittsburgh Pirates compared to the Los Angeles Dodgers, where you would find that teams typically did much better against the Pirates. Hypothesis confirmed? Obviously not -- the Dodgers won the World Series that year, and the Pirates were awful. If we had instead compared the Atlanta Braves (top of the NL East) against the Arizona Diamondbacks (bottom of the NL West), we'd have reached the opposite conclusion -- but the real conclusion is that "it's not geography, it's the quality of the team". The choice of comparators ends up driving the conclusion.

The article constructs four pairs of "cases" which it claims are similar enough such that, if the Jewish-coded option is treated worse, we should infer a double-standard is at work. The pairings are:

  1. Whether "the government should set minimum requirements for what is taught in private schools," with either Orthodox Jewish or Montessori schools given as the illustrating example. 
  2. Whether "a person's attachment to another country creates a conflict of interest when advocating in support of certain U.S. foreign policy positions," with either Israel or Mexico offered as illustrating examples. 
  3. Whether "the U.S. military should be allowed to forbid" the wearing of religious headgear as part of the uniform, with either a Jewish yarmulke (kepah) or Sikh turban offered as illustrating examples.
  4. Whether public gatherings during the pandemic "posed a threat to public health and should have been prevented," with either Orthodox Jewish funerals or Black Lives Matter protests offered as illustrating examples.
Highly-educated respondents tended to be less favorably disposed towards the "Jewish" examples in these pairings, which the authors claims is proof of an antisemitic double-standard in that cohort.

When I saw these pairings, though, what jumped out at me is that each of the "comparator" examples was culturally-coded as to the "left" of its Jewish partner. Montessori schools are associated with wooly progressivism, attachment to Mexico most associated with immigrant communities under siege by Trumpists, Sikhism being a predominantly non-White and non-European religious community, and BLM ... well, that one's obvious.

Hence, it struck me as plausible -- if not likely -- that what we really were seeing in these results is favorability towards perceived cultural-ideological compatriots, given that highly-educated Americans tend to have left-of-center cultural-ideological attachments. If we used comparators which were culturally-coded as to the "right" of the Jewish example, I suspect the double-standard would disappear (or even reverse). Another commenter similarly observed that the "Jewish" examples are consciously stacked towards Orthodox Judaism in at least two and arguably three of the four examples, which also means we might be picking up on views about Orthodox Judaism rather than Judaism writ large.  That's definitely still meaningful, but it is also a more specific finding and one that arguably fits well within my own theory about of cultural-ideological attachment.

Indeed, it was striking and dare I say suspicious how one-sided the choice of comparators was -- even in circumstances where there was a far more obvious comparator that would have coded as more conservative. The clearest example is in Orthodox Jewish funerals versus BLM protests -- Evangelical megachurch services is right there, is far more obviously parallel (as a religious rite) to an Orthodox Jewish funeral than a political protest, and was very much in the news as a substantial area where COVID restrictions were being deliberately flouted under claims of religious practice. Choosing to "compare" the Orthodox Jewish funerals to BLM in those circumstances is, well, it's a choice, and one that feels very clearly motivated by a desire to come to the "correct" result.

Imagine, instead, that the study used the following as its comparator pairs:

  1. Whether "the government should set minimum requirements for what is taught in private education," with either Jewish day schools or Christian home-schooling given as the illustrating example. 
  2. Whether "a person's attachment to another country creates a conflict of interest when advocating in support of certain U.S. foreign policy positions," with either Israel or Russia offered as illustrating examples. 
  3. Whether "the U.S. military should be allowed to forbid" the wearing of religious apparel as part of the uniform, with either a Jewish yarmulke (kepah) or a large crucifix offered as illustrating examples.
  4. Whether public gatherings during the pandemic "posed a threat to public health and should have been prevented," with either Orthodox Jewish funerals or Evangelical megachurch services offered as illustrating examples.
  5. Whether medical professionals should be able to receive exemptions from laws which conflict with their religious commitments, with either "Reform Jewish doctor asking for a religious exemption from laws preventing him from prescribing contraceptives" or "Catholic doctor asking for an exemption from laws requiring him to prescribe contraceptives" as illustrating examples.
In those pairings, the non-Jewish comparator is coded to the "right" of the Jewish example, and my hypothesis is that highly-educated respondents would be more favorably disposed to the Jewish examples compared to the non-Jewish alternative.

To be clear, this would not demonstrate that actually highly-educated Americans harbor a philosemitic bias, for the same reason why the published study does not show highly-educated Americans harbor an antisemitic bias. Rather, we'd have a situation where highly-educated persons treat Jews worse than some cases and better than others, and we'd need an explanation why -- and my proposed explanation is "perceived ideological-cultural compatibility".

It is unfortunate that the study did not do a better job picking its comparators (to be charitable -- the uncharitable take is that the authors did exactly the job they were intending to when picking their comparators), and it's still more unfortunate that the authors did not even address this criticism. The closest they come is in the following passage in the conclusion:
Of course, critics of this research might object that our four paired items are not truly comparable. They might claim that the public health dangers of BLM protests and public funeral gatherings are not the same, or that a yarmulke and turban are not the same, or that dual loyalty concerns with respect to Mexico and Israel are not the same. However, we are all limited by the lack of a clear objective standard for defining bigotry and for making defensible distinctions based on different circumstances. In fact, every bigot claims that the groups they treat more harshly are deserving of that treatment. All we can do is appeal to the critic to consider whether public health is jeopardized more when Jews gather than when protestors gather, whether yarmulkes interfere with military necessity more than turbans, or whether dual loyalty is more problematic if it involves one country over another. Like the average individual in the general public, we do not see differential treatment in any of these scenarios as defensible. That said, we do encourage the creation of new item pairs that closely correspond to each other and cover a variety of other scenarios so that any observed differences in response patterns can be attributable to whether the item concerns Jews or non-Jews as opposed to any other potential differences across the items.

The first part does not actually confront the criticism I offered. Certainly, one could argue that the paired items are not actually "the same" in relevant respects. But the criticism I'm leveling relates not to how the proposed non-Jewish comparators differ from theirs Jewish counterparts, but between how the proposed non-Jewish comparators differ from potential alternatives that have a more conservative as opposed to liberal cultural-ideological valence. Perhaps it's still the case that, for example, the public health dangers of BLM protests and Orthodox funerals and Evangelical megachurch services are the same, such that the truly virtuous (and public health minded) deliberator should treat them all identically. But if they don't, the reason why most likely relates to a different sort of in-group affinity than antisemitism -- particularly if they are relatively less favorable towards the Jewish case compared to the BLM example but more favorable compared to the Evangelical example. So while I'm heartened to see the authors encourage the "creation of new item pairs" that can drill down on these questions, that doesn't excuse the authors' own failure to construct their study with appropriate care and rigor.

Friday, April 22, 2022

Elevate Your Game (Reconstruction Conference Edition)

I'm in Chicago right now, presenting at a conference on the Reconstruction Amendments back at the University of Chicago Law School. I'm obviously excited to be here -- slightly less excited to have unwittingly been thrust onto a largely-maskless plane thanks to a murder cult judge on an ego trip* -- but I'll leave off on more until after the conference is over.

Rather, I want to talk about my hotel's elevators.

I'm staying at The Study at University of Chicago, which apparently just opened this past October. Overall, it seems nice, and I'm having a pleasant stay. However, there's something weird about the elevators. 

They have one of those sensors where you need to scan your room card to go to your floor. That's normal. What's not normal is that the sensors are approximately 18 inches from the ground. I'm not especially tall, but I have to bend way over just to reach them. They could not be placed in a less convenient spot unless they were on the elevator ceiling.

The reason this baffles me as that elevators-in-hotels-with-sensors are not a new concept. I'm not going to say we've utterly perfected the genre, but they're hardly uncharted terrain. Elevator manufacturers have been building these things for quite some time, and have long since learned (if there was ever any doubt) to place the sensors at a convenient arm-accessible height. That's definitely already the default option. So what possibly prompted this UI disaster? It feels like it must have been a conscious choice by someone, but I cannot for the life of me figure out what prompted it. It's like if, decades after manufacturers started putting radios in cars, one car came out with the radio controls placed inside the glove compartment. Why? Just, why?

Anyway -- as inconveniences go, this is very minor. The rant is not so much because I'm upset by this, but again, because I'm just flummoxed as to how it happened.

* My view on masking on airplanes is relatively straightforward. On the one hand, I get why people would rather be unmasked and are happy to no longer where them. On the other hand, I also do not get how or why wearing an extra scrap of fabric on one's body -- even one that you'd rather not wear! -- has become the greatest sacrifice and deprivation of human liberty since slavery. Ultimately, I believe the decision on when masking should end in a pandemic should be made by medical experts, not random district court judges in Tampa embodying pilpul.

Wednesday, April 20, 2022

"Vulgar Intersectionality" Doesn't Strike Again

For the past few months, I've been following the story of Daniel Pollack-Pelzner, a Jewish professor who was summarily terminated from his tenured position at Oregon's Linfield University after whistleblowing about sexual assault allegations against members of the university's board of trustees (Pollack-Pelzner was the faculty delegate to the board). Pollack-Pelzner also had complained of antisemitic language used by the university President.

The AAUP has just released its investigation and report into the incident, and it is blistering in condemning the university and its treatment of Pollack-Pelzner. The report is about 20 pages long, and is absolutely unsparing -- definitely worth reading if you want a thorough account of what happened here. One would struggle to find a more vicious (and frankly petty) abuse of power by a university administration against one of its tenured faculty than is presented here.

Here, I only want to add one thing. The President of the University (whom Pollack-Pelzner had accused of using antisemitic language) is African-American, and as the allegations against him and other high-level university leaders began to pick up steam in the media, he started to complain that the backlash against him was racist in character -- even enlisting the NAACP to conduct its own investigation. That investigation, in turn, inveighed against groups like the ADL and other Jewish organizations who had vigorously backed Pollack-Pelzner, and characterized the allegations against the President as "what systemic and institutionalized racism looks like in Oregon."

I do not venture an opinion as to whether the university president has faced disproportionate scrutiny on account of his race. Clearly, such treatment would in no way justify the inexcusable fashion he and Linfield had treated Professor Pollack-Pelzner.

However, I flag this because of what it tells us about a certain alleged trend that we are often told is ascendant if not unchallengeable in spaces like education and academia. Sometimes dubbed "vulgar intersectionality", this is the claim that in putatively progressive spaces the only factor that is functionally considered in cases of controversy or conflict is a sort of crude ranking of oppressions, one where (we are told) Jews are slotted in with privileged White folks (and accordingly ignored) while groups like African-Americans are giving immediate and unquestioning deference -- facts be damned.

If this thesis were true, it would suggest that in this case -- where a White Jewish man (alleging, among other things, antisemitism) was in conflict with a Black man (making a counter-allegation of racism) -- a group like the AAUP would have unquestionably backed the university president and vilified Pollack-Pelzner. This, we are told, is the hegemony of vulgar intersectionality: Jews are at the bottom (or top, depending on your point of view) of the totem pole, and so are unworthy of support when victimized or wounded -- still less, when the perpetrator is a member of the "favored" (to the intersectionalists) class.

But of course, this is not what happened. This is not even close to what happened. The AAUP conducted its investigation, assessed what happened, and again, backed Pollack-Pelzner to the hilt. It specifically condemned any effort to use claims of racism "to invalidate or distract attention from other allegations" of discrimination, such as those here. Simply put, the report's approach could not have been further from that predicted by the "vulgar intersectionality" thesis -- a thesis which always relied more on social panic than empirical observation.

I am pleased, of course, to see Professor Pollack-Pelzner vindicated. I hope that he his restored to his position at Linfield (if that is his desire), or gains whatever recompense or remediation he believes is his due. And I hope the Linfield administration listens to the robust consensus of its faculty and students (who have loudly rallied behind Pollack-Pelzner and the community members he had been supporting as a whistleblower) and shifts course away from these sorts of abuses and towards the ideal of academic freedom and shared governance.

Thursday, April 14, 2022

Intra-Jewish Antisemitism

The New York Jewish Week has an interesting story about a clump of fringe Satmar Hasidic Rabbis in New York who are urging their followers not to accept food donations from "Zionist" organizations, which in this case means umbrella communal organizations like the Metropolitan Council on Jewish Poverty. The Rabbis are "playing to the crowd" here, since as the article makes clear both they and their followers almost certainly are accepting donations from the Jewish groups they detest, they just are lying about it. So practically speaking, it is not changing anyone's behavior.

Nonetheless, it is interesting. There is, of course, the superficial irony of a group of Jews trying to shun the mainstream Jewish community by yelling about "Zionism", but from the right -- many will no doubt observe that this sort of rhetoric and conduct would, if done by (to pick a random example) some Reconstructionist congregation in Chicago, be immediately lambasted as a form of extreme antisemitism. But since it is the Satmar, it gets a pass.

Yet I actually do think there is more that has to be said beyond just the usual charges of hypocrisy. I do think it is true -- indeed clearly true -- that Jews can engage in antisemitism (though of course we should be extra-cautious about applying that label in reference to intracommunal debates and conversations). One example often given is certain behaviors by far-left anti-Zionists; another we could reference is some secular Jews joining with non-Jewish neighbors in raising hostile and conspiratorial complaints about Orthodox Jews who might be moving into their community. It's antisemitic when non-Jews do it, and it's antisemitic when, sadly, Jews do it too. The term "self-hating" Jew is deeply misleading and doesn't capture to phenomenon -- the persons who engage in this sort of behavior are very often quite proudly Jewish in other contexts. Rather, it is intra-Jewish antisemitism -- antisemitism from one faction of the Jewish community directed at another.

And, in addition to the examples I just gave above, one iteration of such intra-Jewish antisemitism that we need to start talking about is antisemitism emanating from the Orthodox community targeting their less traditionally observant brethren. As the NYJW article makes clear, the statement by these Rabbis targeting the umbrella New York Jewish organizations is part of a broader movement occurring within highly religious Orthodox Judaism that is -- and there is no other way to put it -- stirring up hate and antagonism towards non-Orthodox (particularly Reform) Jews. The story refers to articles in Satmar newspapers spreading stories about how Reform Jews, whom they characterize as "criminals and infidels" are "infiltrating" the community. It expresses outright horror at the prospect that they "build bridges and to unite the communities of the non-believers and Haredis in New York." If ever there were a case where "Zionist" didn't really mean "Zionist" but rather was a stand-in for "[Reform] Jews", this is it. The statement is motivated by, and an expression of, a deep, abiding hatred of a huge swath of the New York Jewish community.

And unfortunately, this not a problem that can be limited to a few fringe hot-heads amongst the Satmar (though if the Satmar's anti-Zionism is the hook that causes the broader community to finally recognize it as a problem, so be it). Four years ago I raised the terrible prospect of an out-and-out schism in Judaism where Orthodox Jews simply cease recognizing other Jews as Jews (this was prompted by an Israeli MK who blamed Reform Jews for causing earthquakes), and it does not feel as if things have improved since then. For example, anyone watching Jewish Twitter cannot help but notice the regular and repeated dismissal and denigration of the validity of non-Orthodox Jewish Rabbis -- especially women -- "Rabbi" placed in quotation marks, sneers about their ordination, and so on. It is behavior that, were it coming from non-Jews (and to be clear -- it often does) we would never have any trouble labeling it as antisemitic. More broadly, one could very easily categorize all the debates over permitting women to pray at the Western Wall, or the non-recognition of non-Orthodox streams of Judaism in Israel, as a form of antisemitism directed at non-Orthodox Jews.

It is terrible disgrace that part of our conversation about rising antisemitism has to include antisemitism that is promoted by Jews, and it is a further disgrace that "antisemitism promoted by Jews" comes with multiple subcategories. Some of these are political -- far-left Jews cheering on the ostracization and shunning of their "Zionist" brethren, or reactionary right-wing Jews bolstering conspiracy theories about George Soros or "cultural Marxism". Others have religious overtones, such as when secular Jews try to obstruct or block their Orthodox peers from moving to their towns. And, sadly, another in that category is open, seething disdain by some Orthodox Jews directed at the non-Orthodox -- viewing them with hate, viewing their religious practices with disdain, in some cases refusing to view them as Jewish at all. It is, as I said, disgraceful -- and it's not easy to talk about. But talk about it we must. This is not a problem that is going to go away on its own.

Wednesday, April 13, 2022

The Feast of the Baby Heads

Upon Virginia Governor Glenn Youngkin's inauguration, I made an observation about how wonderful it is to be Republican in purple-state America. Namely, that so long as you hold off on biting off a baby head during the campaign, the media will declare you the very essence of sobriety and moderation, and dismiss anyone who tries to tell otherwise. Then, once you enter office, you can bite as many baby heads as you want -- shocking the professional punditocracy (and gullible "independent" voter) who was ever-so-sure you were actually quite reasonable!

I made that observation upon Youngkin's opening gubernatorial salvo designed to help COVID be even more lethal. But it also applies to his latest round of petty partisan vindictiveness, vetoing widely popular bipartisan initiatives that passed the legislature by overwhelming margins for no other reason than that they were sponsored by Democrats. After "earning" the title of a moderate for, as best I can tell, no other reason other than that he wears fuzzy fabrics, Governor Youngkin has in his first few months been gorging himself on the baby heads that he temporarily deprived himself of on the campaign trail -- governing as a virulent right-wing extremist in a state that remains purplish-blue. The best analogy I can think of is if a Democrat manages to sneak into the Missouri governor's mansion in an off-year election and immediately abolishes the police. It's simultaneously unfathomable and yet exactly what one gets from these so-called "moderates".

The reality is that there are, functionally speaking, no more moderate Republicans -- a fact which does not remotely seem to dampen the media's willingness to be duped into believing that this Republican will be a moderate. We went through this a few years back with Cory Gardner -- the Denver Post endorsed him in 2014 against then Senator Mark Udall, saying it was "unfair" to label Gardner an "extremist" and predicting he'd be a fresh and independent voice in the Senate, only to shame-facedly admit its mistake when it turned out he was an utterly bog-standard right-wing hack. Who could have predicted? Answer: everybody! And so it is too with Youngkin. But alas, we didn't learn the lesson then and we certainly won't learn it now. Instead, we're doomed to repeat this dance every single election cycle it seems.

Wednesday, April 06, 2022

What Does "Reading the Opinion" Tell You?

In a speech the other day, Justice Barrett had a request of persons criticizing the Court for decisions they claim are politically- or results-driven: "read the opinion".

"Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don't agree with, to determine what the Constitution and precedent requires?" she asked.

Americans should judge the court — or any federal court — by its reasoning, she said. "Is its reasoning that of a political or legislative body, or is its reasoning judicial?" she asked.

I am not the first to point out the irony of this request in conjunction with the Supreme Court's increasing propensity to issue "shadow docket" rulings, nearly always in tandem with the court's ideological preferences, rarely in the context of any actual emergency that might justify expedited decisionmaking (unless one views "too many Black people voting" as an emergency -- which, in fairness, the current Court does seem to treat as a five-alarm fire). Just today, the Court issued yet another one of these decisions staying a Clean Water Act ruling with no substantive opinion whatsoever for us to "read" and assess!

Still, in concept I think Justice Barrett's plea is a fair one. We should look at the actual reasoning of decisions to determine if they're legalistic or not; and that determination should not collapse into political agreement or disagreement with the outcome. For example, I disagree with the outcome of Boy Scouts of America v. Dale, and I also think that Justice Stevens ultimately gets the better of the legal issue in his dissent, but I don't think the majority there wasn't engaged in a good-faith effort "to determine what the Constitution and precedent requires."

By the same token, when one reviews the Supreme Court's recent decision to invalidate the OSHA vaccine mandate in defiance of crystal-clear statutory text on the basis of a concocted "major questions" doctrine which still shouldn't have militated against the plain language of the statute, I absolutely think it reads "like something that was purely results driven and designed to impose the policy preferences of the majority" and that's exactly how it should be treated.

(That's the thing about rhetorical questions: sometimes, you get the other answer.)

But there's a deeper point worth making here. One of the first legal research projects I ever embarked upon dealt with how southern courts dealt with challenges by Black litigants in the Jim Crow era -- most notably, in the Scottsboro cases. From our 21st century perch, we understand the rulings of the Alabama judiciary in those cases as little more than an extension of White Supremacist inclinations -- a "legalized lynching" that happened to have the trappings of a judicial proceeding. And I think that understanding is by and large correct .However, as I point out in my Sadomasochistic Judging article, that quality is very much not immediately apparent just from "reading the opinion". The Scottsboro opinions look, in terms of stylistic presentation, absolutely normal in the way they address precedents, make legal arguments, and so forth. If they are best explained as a reflection of Alabama's "policy preferences" of White Supremacy, there nonetheless is little about them that observationally distinguishes them from a "purely" legalistic endeavor.

The presupposition of Justice Barrett's request is that one who "reads the opinions" will be able to immediately spot the difference between contestable but nonetheless legalistic judging compared to pure results-driven hogwash. This presupposition is almost certainly untrue. That's not the same thing as claiming that all judging is results-driven. It means that whatever differences there are between results-driven and legalistic judging, those differences will not necessarily be facially apparent just by reading the opinions. Indeed, any judge worth their salt should be fully capable of dressing up their results-oriented logic in the trappings of legalistic language. Sometimes they do a better job of it than others (see, again, the OSHA case). But on the whole, it is far more myth than reality that even rancid lawlessness by the court will be "marked on the body of the text."

Tuesday, April 05, 2022

Israel Exists. That's Reality. What Next?

"Reality is that which, when you stop believing in it, doesn't go away." -- Philip K. Dick

Israel exists. It is not going anywhere. It is not going to allowed itself to be wiped off the map, it is not going to be pushed into the sea, its denizens are not going to go "back to where the fuck they came from". Israel exists. No matter how many quotes or asterisks or decapitalizations you put in its name, no matter how much chanting and chest-thumping you might hear about how the Zionist entity's days are numbered and its collapse is imminent and Israelis better start learning "how to swim", Israel's existence is a reality. Refusing to believe it doesn't make it go away.

This fact -- the reality of Israel, the fact that it is there and is not going away -- is often cited against those chest-thumpers who every day boldly predict anew Israel's demise. It is a gesture of defiance, a nyah-nyah to those who have since 1948 promised the destruction of Israel will be any day now, just you wait. It tells people who still dream of rolling back the clock to before 1948 that they are only dreaming, and they need to snap out of their nightmarish fantasizing.

I certainly don't have any objection to this usage, but there is another implication of understanding Israel's existence as a reality that I think doesn't get the attention that it should.

If Israel's existence is reality, such that other people refusing to believe it so will not make it go away, then many of the more existential questions that sometimes loom large in discourse about Israel no longer seem as salient. When we debate, for example, the proper response to Israel's occupation of the West Bank, or the legal rights and entitlements of its non-Jewish citizens, or the valid claims that non-citizen Palestinians could legitimately have vis-a-vis the Israeli state in the event that it ends up establishing permanent formal sovereignty over the West Bank and/or Gaza, we are not having a debate about whether Israel "exists", now or into the future. Israel does exist, and, as we've stipulated, that isn't going to change. So the actual issue at stake in all these questions is not "should Israel exist", but rather "what should the state of Israel, which by stipulation absolutely does exist and will continue to exist, do in the course of living out its existence?"

It is no response to note the many, many people who continue to loudly and angrily deny Israel's existence, or who kick up dust challenging its "right to exist", or who brashly predict its forthcoming dissolution. If one actually does believe that Israel's existence is reality, then their beliefs, however passionately held, do not change reality; reality is that which, when one stops believing it, doesn't go away. Israel has not and will not go away in the face of these non-believers, this is the whole point of asserting that Israel is a reality. 

So for my part, I say let's leave the non-believers to their fantasies. The rest of us can live in the real world. This is a world where Israel exists, and will continue to exist, and so our primary salient questions are how this extant state will behave as a state today, tomorrow, and outward into the future.

The Virtues of Remembering Extremists, Near and Far

Sometimes I think the most important thing we can do keep ourselves politically healthful is to remember the existence of extremists -- both near and far from our own positions.

It's important to remember the extremists whose positions are (relatively) near one's own -- that is, persons who take the extreme version of your "side" of a given political contest -- in order to guard against the allure of purism. Being pro-Israel for example, one ignores or downplays the existence of pro-Israel extremists at one's own peril. It important to remind oneself that it is not better to adopt ever-more fundamentalist or uncompromising iterations of one's own position, and you are not a failure or a traitor for refusing to fall onto that path. Recalling and recognizing those who speak under your banner but do so in a destructive or harmful way can help dissipate some very dangerous temptations and forestall one from excusing things that are fundamentally inexcusable.

It is also important to remember the extremists whose positions are on the far side from one's own -- if only so one is not surprised by them when they inevitably do emerge. Particularly if one is feeling frustrated with one's own camp, there can be the temptation to romanticize one's opposition; going beyond the (important and correct) refusal to generalize and demonize and instead allowing oneself the delusion that there is no dangerous politics on the other side of the rainbow. The delusion is bad enough, but the real damage comes when one is forced to confront the reality -- if one isn't prepared, it is a shock of cold water that can quickly trip the unwary into spiraling down their own path of extremism. I can't tell you how many videos and screenshots I've seen from "pro-Israel" Twitter displaying the worst of terribleness from various pro-Palestinian rallies or protests, all of which style themselves as trying to shock complacent Jews out of their purported stupor. And indeed, if one hasn't prepared yourself to encounter it, it is quite a bracing sight to behold. But for my part, since I've never deluded myself that this sort of anti-Zionist extremism did not exist, I was never unduly shocked when confronted with its manifest existence. 

Keeping these things in mind allows one to keep one's head on a little straighter. Instead of retreating to pathetic denials that this sort of abhorrent politics is present, or opportunistic romanticism of why it's actually permissible or just, remembering and acknowledging the genuine existence of extremism allows one to keep a sense of perspective. Being able to name and recognize extremism as part of the story also allows one to keep a sense of proportion that it is not the entire story. 

Lesson #2 of the internet:

No matter your ideology, there will always be someone profoundly idiotic who largely agrees with you, and someone profoundly idiotic who largely disagrees with you. Neither fact should be unduly weighted.


Thursday, March 31, 2022

The Abraham Accords and The Prospects of Israeli/Palestinian Peace

I am a booster of the Abraham Accords. I consider them an unadulterated good. In a region of the world that has been beset by tension and conflict, anything that is a step towards collaboration and cooperation is a good thing, and I have no problem saying so.

Some have suggested that the Abraham Accords makes an Israeli/Palestinian peace accord less likely, and oppose them on that basis (or purportedly on that basis). I am not sure whether that's true, but I do think it's worth thinking about how the Abraham Accords interact with a common narrative about the viability of an Israeli/Palestinian peace process -- the idea that an Israeli/Palestinian accord will only come into being if it is attached to a wider regional deal. How do the Abraham Accords affect that narrative?

One way one might think about it is as follows: Israel has, from its founding, labored under a genuine risk of existential destruction that has understandably colored all of its security determinations. The idea that the West Bank (particularly the Jordan Valley) is necessary as a "buffer" in case of attack in an example: something that at face value is an Israeli/Palestinian matter is inextricable from Israel's region-wide security posture. If this is one's view, then the Abraham Accords are a net positive for the prospects of peace insofar as they represent a significant diminishing of existential military threats Israel faces from its neighbors. This, in turn, allows for Israel to relate to the issues of occupation of Palestine qua Palestine, as opposed to re-situating the occupation as part of larger regional security issues (where the existential threats to Israel's safety have, historically speaking, been more salient).

Now to be clear, "diminishing" the existential risks that come from hostile neighboring military powers is not the same as "eliminating" them. Not counting Palestine, two of Israel's four bordering neighbors (Syria and Lebanon) retain a highly belligerent, aggressive posture toward Israel, and that doesn't even get into Iran. Still, there is a marked difference in Israel's existential situation when it was genuinely all alone in the region compared to when it is increasingly aligned with a significant regional bloc. If one has been cynical about or excusing of (choose your favored verbiage) peace prospects because Israel is "surrounded by enemies who want to destroy it", then the breaking of that proverbial (and sometimes not-so-proverbial) siege should be heartening (or take away the excuse).

But there's another line on this that I've sometimes heard. Some people are arguing that the Abraham Accords prove that Israel doesn't need to make peace with Palestine in order to make peace with its neighbors. These people style themselves as responding to hectoring leftists who insisted that if Israel wants to be an integrated member of the Middle East community of nations it would have to resolve the occupation of Palestine first. The target of said hectoring are those members of Israeli society who very much desire the former but have little interest in pursuing the former; the idea is that the former is the leverage necessary to stop foot-dragging on the latter.  But the Abraham Accords falsified the premise, so now these Israelis are celebrating being able to have their cake and eat it too -- they got what they want (regional integration) without ever having to compromise on Palestine at all. For these people, the Abraham Accords are a net negative for the prospects of a peace accord with Palestine; they feel more emboldened that they needn't take a step they do not want to take because a potential cost now appears to have rendered moot.

All of this is a long-winded way of saying that, for Israelis who genuinely want a peace deal with Palestinians and an end to the occupation, the Abraham Accords make it easier for them to say "yes"; and for those who at root wish to thwart such a deal, the Abraham Accords make it easier for them to say "no". For those of us on the outside, and particularly those of us who are cheerleaders for the Abraham Accords, it is important that we stress the narrative that bolsters the former framing. In particular, it means starting to lay off some of the well-worn, historically reasonable but perhaps now dated, rhetoric about Israel being "surrounded by enemies". The reason we celebrate the Abraham Accords is precisely that it represents a break from that history; but we cannot return to it at convenience in order to justify more hesitation and foot-dragging on robustly and vigorously supporting an end to the occupation.

Sunday, March 27, 2022

Why is Ukraine Different?

Why has the Russian invasion of Ukraine grabbed and held international attention? It is not, sad to say, the only example of armed conflict right now or in recent years. And Americans, in particular, are not known for being gripped by foreign affairs. So what makes Ukraine different from other conflicts? Here are a few (non-exclusive) potential explanations.

First, Ukraine is a European country being invaded by another (coded-as) European country. That, for better or for worse, makes a difference, though I don't have much more to add to it.

Second, it's a (relatively) evenly matched hot war conflict between two (relatively) modern and modernized military powers. Most of the major military confrontations involving modern militaries in recent years have been cases where one party is far more powerful in conventional terms than the other (e.g., either of the Gulf Wars). The traditional "war" part of the conflict was pretty much a walkover; any difficulties came later in reconstruction and/or insurgency. Here, neither side has the ability to decisively demolish the forces of the other in the short run even as we remain in a phase of traditional battlefield confrontation as opposed to guerilla resistance and insurgency/counterinsurgency.

Third, the war here involves a relatively stable, relatively liberal democracy on the defensive, being invaded in an existential threat to its existence. That is quite rare in my lifetime. Cases where, say, America has been attacked by illiberal forces tend to be sporadic and asymmetrical terrorist events; America certainly hasn't experienced nor has been at any substantial risk of an invasion in decades, or any other assault that poses a genuine existential risk of seeing the country dissolved. That's been true of most of our European allies as well; ditto countries like Japan or Australia. To see the liberal democratic camp on the defensive like that is, I think, quite shocking.

Other factors I might be missing?

Thursday, March 24, 2022

Levin and Stevens Talk to Michigan's Jews

Michigan Reps. Andy Levin and Haley Stevens -- Democrats thrown into the same district following redistricting -- had a candidate's forum today hosted by the Jewish Democratic Council of America, which Ron Kampeas was helpful enough to livetweet. Levin (who is Jewish) is known as a strong progressive, while Stevens (not Jewish) usually presents as more of a moderate, so it was interesting to see how they pitched their message in this particular forum.

My takeaway -- and this is just from following Kampeas' tweets -- is that they actually didn't sound too different from one another. A lot more agreement than disagreement. There was some distance on issues like Israel and the Iran Deal -- Levin favored the Iran Deal and has spearheaded efforts to reinvigorate the two state solution, which has earned him the ire of AIPAC, while Stevens tends to take more modest and AIPAC-friendly line on these issues -- but they weren't wildly apart. And their rhetoric on domestic policy was pretty similar, and pretty progressive -- which is to say, it seemed like in front of this audience, Stevens was tacking closer to Levin than vice versa.

What does this mean? While I tend to think many intra-party divisions amongst Democrats are overstated, particularly when they're presented in flatly apocalyptic terms, that doesn't mean I think Levin and Stevens are basically interchangeable. Levin really is a more progressive option than Stevens is, rhetoric from this debate notwithstanding. And moreover, I suspect that in other venues Stevens may do more to accentuate her "moderate" credentials -- I don't think this is necessarily symbolic of how she'll run her entire race. What is interesting is that both Levin and Stevens apparently came to the conclusion that the way to appeal to the Jewish audience, specifically, was to emphasize their progressive bona fides. In contrast to some narratives of "Jexodus" or "Jexit" or whatever portmanteau neologism is being pushed this week, the betting line on how to talk to Jewish Democrats is to emphasize that you are a progressive Jewish Democrat. That's heartening to see.

Monday, March 21, 2022

What Can "Objectively Reasonable" Do For You?

A new study (summarized here, published and paywalled version here) explores how the phrase "objectively reasonable" -- a very important phrase in the law surrounding assessments of police misconduct -- changes American perceptions of police officers. The core finding is that "objectively reasonable" makes listeners -- and particularly racial minorities -- think more favorably of the officer so labeled (compared to saying something like "the average police officer").

It's an interesting study, though my initial instinct is that the takeaway from it may be exactly opposite of what the authors imply. The authors suggest that the use of "objectively reasonable", since it is associated with more positive perceptions of the police, primes listeners (such as jury members) to think of the police more favorably than they otherwise would. But I think the effect may be the opposite: by asking jurors whether a given officer acting as an "objectively reasonable" officer would, the fact that "objectively reasonable" brings to mind higher levels of professionalism and conscientiousness means that the actual flesh-and-blood officer being judged is effectively being held to a higher standard than he or she otherwise would have.

Consider a jury deliberating over whether an officer accused of misconduct violated the legally-relevant standard of behavior. If that standard is that of the "average officer", the juror might think "well, their conduct wasn't great -- but then, the average officer isn't that great either. Can I really say that this guy performed worse than average?" But if "objectively reasonable" calls to mind more conscientious behavior, that same juror might conclude that the officer in front of the court did not meet that more idealized conception of how an officer should behave. So telling the jury that the officer they're evaluating must have acted as an "objectively reasonable" officer would cause them to more rigorously scrutinize the officer's conduct.

In other words: an officer whom we've already stipulated is "objectively reasonable" will be viewed more favorably than one who we only stipulate is "average". "Objectively reasonable" is better than "average" (at least for non-White respondents). But for that very reason, an officer whose performance we are trying to assess on a blank slate should be less likely to surpass the standard of "average" than the standard of "objectively reasonable", since the latter appears to be a higher bar than the former. So insofar as jurors are instructed to ask whether an officer behaved in a manner that comports with an "objectively reasonable officer", that should make them less likely to answer "yes" compared to if their standard was that of the "average" officer.

On Comics and Speakers Who Bomb

Suppose you attend a stand-up comedy performance. You're excited to listen and giggle and laugh. But unfortunately, the comic in question -- let's not mince words -- bombs. The jokes don't land, or worse, they're outright offensive. The crowd, which started with a few half-hearted chuckles, starts to turn stony, and eventually downright ugly. Eventually, halfway through the set, the boos set in. Ultimately the comic is booed all the way off the stage.

Most of us, I think, would not view this as a successful evening -- either for the audience members or the comic. But would we say the comic's free speech rights have been violated? I doubt any of us would go that far. Free speech by no means guarantees a favorable reception.

Yet many of us -- myself included -- think things are quite different in the case of an invited university speaker who is "shouted down" by protesters in the audience, such that they cannot finish their talk. This is thought to represent a free speech threat. But what -- and I ask this question earnestly -- marks out the difference between this and the comic?

The answer typically given for why drowning out of the university speaker is wrongful is that it deprives those members of the audience who did want to hear the talk of their ability to do so. I do find this a compelling argument generally, but it doesn't to successfully distinguish the comic's case -- it is easy to imagine that somebody in the comic's audience also wanted to see how the set would have ended.

Another possibility is that the audience for the comic did not come to the show with the intention of blocking the performance. Their anger was unplanned and organic, in contrast to the university protesters, who we suspect came to the talk knowing from the outset that they wanted to disrupt it. If this is our distinction, it suggests that there is no foul in "shouting down" a university speaker some stanzas deep into their talk, if it is the result of genuine on-the-spot negative reactions rather than a planned disruption (though how one could tell the difference, I don't know).

Still another possibility is that a comic performance is only valued insofar as it pleases the audience, and so where the crowd turns against the performance there is no particular interest in the comic being able to continue performing. A university lecture at least nominally is not quite so hedonistic in its assessed value, and so we feel it is important that such talks be allowed to proceed notwithstanding the fact that the audience does not like what they hearing. This makes some intuitive sense to me, though it gets blurry with intentionally political stand-up comics, or university talks that are more performative than educational. I also struggle with how this accounts for a permutation of the hypothetical where a political speaker is speechifying on a public square soapbox and the crowd (while not violent) reacts deeply negatively to his speech, in a way that effectively drowns out the speaker. There, even though the talk is as "political" as a university speech, I do not tend to think there is a violation of free speech norms if the speaker ends up being drowned out. But why not?

Perhaps the answer is a lot more contingent than we might otherwise like to admit: certain spaces and events, like talks by invited speakers at universities, are ones where we stipulate heightened valuation for rules which allow for speeches to be given relatively uninterrupted in a fashion where they can be heard by any who care to listen. This is not a general rule of "free speech"; there are many other spaces where it does not apply -- but the very fact that there are many other spaces where the rules are different and responses can be more "raucous" (if you will) actually serves to further justify the importance of the validity of having a space with this sort of rule. It's good to have some known space where we can stipulate in advance that the speaker will be able to "complete their set" notwithstanding a possible hostile audience, and the fact that there are many other spaces where people are allowed to be more immediately expressive in their disdain mitigates the burden of foreclosing or limiting that sort of expression in this particular space.

Anyway, I don't have firm conclusions here, but this is a puzzle that I had been wondering about for awhile so I figured I'd sketch some preliminary thoughts here as I work through it.