Wednesday, December 07, 2022

Indonesian Parliament Unanimously Passes Texas GOP Platform

Ted Cruz must be so jealous:

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

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

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

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

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

Tuesday, December 06, 2022

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

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

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

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

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

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

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

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

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

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

Hertz So Bad

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

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

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

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

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

Friday, December 02, 2022

We Are Not Ready for AI

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 01, 2022

The Judeo-Christian's Junior Partner

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

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

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

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

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

Tuesday, November 29, 2022

An Alum Reaches Out With a Question

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

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

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

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

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

Saturday, November 26, 2022

Will DeSantis Run Against Trump's Antisemitism?

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

Lo and behold, others are having the same idea

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

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

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

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

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

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

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

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

Monday, November 21, 2022

The Era of Conservative Legal Formalism is Over

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

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

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

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

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

Wednesday, November 16, 2022

It's Not (Always) About IHRA

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

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

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

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

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

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

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

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

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

Sunday, November 13, 2022

On The Ease of Having Friends With Political Differences

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

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

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

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

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

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

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

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

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

Friday, November 11, 2022

Why Is Ron DeSantis Such a Marco Rubio?

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

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

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

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

  • The general "reddening" of Florida.
  • 2018 being a worse year for Republicans than 2022.*
  • Incumbency advantage.
Now, of course, all of these could be unpacked further, and potentially in a fashion that gives more individualized credit to DeSantis. For example, maybe Florida is "reddening" in part because of DeSantis' policies or personal popularity (though the trend seems to predate him -- there hasn't been a Democratic Governor in Florida since 2000, hasn't been a Democratic Senator since 2018, and by 2018 Democrats were already down to a single statewide elected official). Or maybe Rubio's performance this time around is attributable to good coattails from running with DeSantis.

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

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

Reading Rosenberg in 2022 Portland

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

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

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

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

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

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

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

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

Wednesday, November 09, 2022

The 2022 Almost-Post Mortem

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

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

  • There was no red wave. It was, at best, a red trickle. And given both the underlying fundamentals  on things like inflation and the historic overperformance of the outparty in midterm elections, this is just a truly underwhelming performance for the GOP. No sugarcoating that for them.
  • If Trafalgar polling had any shame, they'd be shame-faced right now, but they have no shame, so they'll be fine.
  • In my 2018 liveblog, I wrote that "Some tough early results (and the true disappointment in Florida) has masked a pretty solid night for Democrats." This year, too, a dreadful showing in Florida set an early downer tone that wasn't reflected in the overall course of the evening. Maybe it's time we just give up the notion that Florida is a swing state?
  • That said, Republicans need to get out of their gulf-coastal-elite bubble and realize that what plays in Tallahassee doesn't play in the rest of the country. 
  • That's snark, but also serious -- for all the talk about how "Democrats are out-of-touch", it seems that the GOP also has a problem in not understanding that outside of their fever-swamp base most normal people maybe don't like the obsession with pronouns and "kitty litter" and "anti-CRT". Their ideological bubble is at this point far more impermeable, and far more greatly removed from the mainstream, than anything comparable among Democrats.
  • Abortion is maybe the biggest example of this, as anti-choice measures keep failing in even deep red states like Kentucky, while pro-choice enactments sail to victory in purple states like Michigan (to say nothing of blue bastions like California). Democratic organizers should make a habit of just putting abortion on the ballot in every state, and ride those coattails.
  • It's going to fade away almost immediately, but I cannot get over the cynical bad faith of what happened regarding baseless GOP insinuations that any votes counted after election day were inherently suspicious. On November 7, this was all one heard from GOP officials across the country, even though delays in counting are largely the product of GOP-written laws. But on November 8, when they found themselves behind on election night returns, all of the sudden folks like Kari Lake are relying on late-counted votes to save them while raising new conspiracies about stolen elections. Sickening.
  • Given the still powerful force of such conspiracy mongering, Democrats holding the executive branch in key swing states like Wisconsin and Michigan is a huge deal. Great job, guys.
  • For the most part, however, most losing MAGA candidates are conceding. Congratulations on clearing literally the lowest possible bar to set.
  • The GOP still should be favored to take over the House, albeit with a razor-thin majority. And that majority, in turn, seems almost wholly attributable to gerrymandering -- both Democrats unilateral disarmament in places like New York, but also truly brutal GOP gerrymanders in places like Florida. This goes beyond Rucho, though that case deserves its place in the hall of shame. The degree to which the courts bent over backwards to enable even the most nakedly unlawful districting decisions -- the absurd lawlessness of Ohio stands out, but the Supreme Court's own decision to effectively pause enforcement of the Voting Rights Act because too many Black people entering Congress qualifies as an "emergency" on the shadow docket can't be overlooked either -- is one of the great legal disgraces of my lifetime in a year full of them.
  • Of course, I have literally no idea how the Kevin McCarthy will corral his caucus with a tiny majority. Yes, it gives crazies like Greene and Boebert (well, maybe not Boebert ...) more power, but that's because it gives everyone in the caucus more power, which is just a recipe for chaos. Somewhere John Boehner is curling up in a comfy chair with a glass of brandy and getting ready to have a wonderful day.
  • My new proposal for gerrymandering in Democratic states: "trigger" laws which tie anti-gerrymandering rules to the existence of a national ban. If they're banned nationwide, the law immediately goes into effect. Until they are, legislatures have free reign. That way one creates momentum for a national gerrymandering ban while not unilaterally disarming like we saw in New York. Could it work? Hard to know -- but worth a shot.
  • Let's celebrate some great candidates who will be entering higher office! Among the many -- and this is obviously non-exhaustive -- include incoming Maryland Governor Wes Moore, incoming Pennsylvania Governor Josh Shapiro, incoming Pennsylvania Senator John Fetterman. Also kudos to some wonderful veterans who held their seats in tough environs, including Michigan Governor Gretchen Whitmer, Virginia congresswoman Abigail Spanberger, New Jersey congressman Andy Kim, Maine Governor Janet Mills, and New Hampshire Senator Maggie Hassan.
  • Special shoutout to Tina Kotek, who overcame considerable headwinds (and the worst Carleton alum) to apparently hold the Governor's mansion in my home state of Oregon. Hopeful that Jaime McLeod-Skinner can eke out a victory in my congressional district too, though it looks like that might come down to the wire.
  • I also think it's important to give credit even to losing candidates who fought hard races. Tim Ryan stands out here -- not only did he force the GOP to spend badly needed resources in a state they should've had no trouble keeping, but his coattails might have pushed Democrats across the finish line in at least two House seats Republicans were favored to hold. (I hate to say it, but Lee Zeldin may have played a similar role for the GOP in New York).
  • I'm inclined to agree that, if Biden doesn't run in 2024, some of the emergent stars from this cycle (like Whitmer or Shapiro) are stronger picks for a presidential run than the also-rans from 2020. But I also think that Biden likely will get an approval bump off this performance -- people like being associated with winners!
  • On the GOP side, the best outcome (from my vantage) is Trump romping to a primary victory and humiliating DeSantis -- I think voters are sick of him. The second best outcome might be DeSantis winning narrowly over Trump and provoking a tantrum for the ages that might rip the GOP apart. DeSantis himself, as a presidential candidate, is an uncertainty -- I'm not convinced he plays well outside of Florida, but I am convinced that if he prevails over Trump the media will fall over itself to congratulate the GOP on "repudiating" Trumpism even though DeSantis is materially indistinguishable from Trump along every axis save that he's not abjectly incompetent (which, in this context, is not a plus).
  • The hardest thing to do is to recognize when even candidates you really like are, for whatever reason, just not going to get over the hump. This fits Charlie Crist, Beto O'Rourke, and (I'm sorry) Stacey Abrams. It's no knock on them -- seriously, it isn't -- but they're tainted goods at this point. Fortunately, Democrats have a deep bench of excellent young candidates who we can turn to next time around.
  • And regarding the youth -- I'm not someone who's a big fan of the perennial Democratic sport of Pelosi/Schumer sniping. I think they've both done a very good job under difficult circumstances, and deserve real credit for the successes we saw tonight and across the Biden admin more broadly. However, we do need to find room for some representatives from the younger generation to assume leadership roles. Younger voters turned out hard for the Democratic Party and deserve their seat at the table. It says something that Hakeem Jeffries, age 52, is the immediate current leadership figure springing to mind as a "young" voice -- that (and again, there's no disrespect to Jeffries here) is not good enough.

Monday, November 07, 2022

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

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


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

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

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

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

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

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

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

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

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

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

Saturday, November 05, 2022

How Long Will The Second Redemption Last?

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

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

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

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

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

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

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

We can only hope.

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

Tuesday, November 01, 2022

What's the Matter With Nevada?

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

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

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

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

Monday, October 24, 2022

Humility vs. Hate

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

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

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

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

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

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

Friday, October 21, 2022

An Apology

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

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

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

Thursday, October 20, 2022

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 19, 2022

On Loving "Campus Jews" While Hating Campus Jews

It is no revelation to say that Jews on campus experience their share of antisemitism, and deserve our support. But one of the more frustrating aspects of that reality is how that "support" often manifests in a fashion that is almost tauntingly unconcerned with what the Jews on campus actually want. "Support", too often, is not support at all -- it is a way for outsiders to exploit a headline or to ride their own hobbyhorses, and the campus Jews themselves are an afterthought. I do not know if Berkeley Jews wanted Noa Tishby to pay a visit to Sproul Plaza. I am very sure they did not want a Hitler billboard truck parked outside their door.

But those who drive the Hitler truck "in solidarity" do not at all care whether the Jews they "support" find their intervention all that supportive. By golly, Berkeley Jews are going to get this allyship whether they like it or not! And this is hardly an isolated event. Jewish students at the University of Michigan were livid at the Canary Mission putting their campus under the spotlight, complaining that it was making the environment for Jewish students on campus worse rather than better. No matter. Canary Mission's support for campus Jews is cheerfully indifferent to whether campus Jews feel supported.

So we should ask: Why are the actual Jewish students so often an afterthought in campaigns nominally about protecting Jewish students?

Part of the answer goes back to the story I told a few weeks ago, about the man who became furious with me when he found out my experience at Berkeley wasn't the hellscape he insisted it must be. What kind of self-hating Jew doesn't hate it at Berkeley?

Jews on campus are a diverse bunch, and even as individuals often have complicated feelings. They are typically not, contra some very vocal activist groups, a collective of screaming anti-Zionists. They also typically are not eager to spend their collegiate days engaged in ideological trench warfare on Israel's behalf. They do not appreciate "allyship" that forces them into a combative posture they may not wish to take and may not think is warranted or effective under the circumstances.

And the tragedy is that too many of their would-be supporters won't defer to that judgment. No, it's worse than that -- they actively reject it. They are aghast at the university Jews who do not support their form of support. They view those Jews as craven, cowards, or perhaps even (as my troll thought of me) antisemitic sympathizers. Incredulity becomes resentment becomes rage, at these terrible campus Jews who are refusing to cooperate with the best-laid plans for keeping them safe.

At the extreme, the loudest voices outside of campus waging war against campus antisemitism sometimes seem as if they're almost as angry at the Jewish students themselves as they are at the antisemitism the students endure. Those who have invested so much into their identity as protectors of the Jews cannot easily accept the idea that they are, in fact, making Jewish lives worse. Far easier to decide that if one is fighting antisemitism, than the only persons who could have a problem are the antisemites, and if the Jewish students have a problem, then ergo.... 

In this way, the Jewish students become just another enemy -- and an enemy far more vulnerable and easily targeted than the antisemites are. It is another iteration of the theme I wrote about in "On Loving 'Jews' and Hating Jews": the defense of "campus Jews" is a defense of an imagined "campus Jew". If actual campus Jews turn out to be more complicated than the imaginary picture; if they don't want to play the role they've been assigned -- well, love for "campus Jews" very easily can breed hatred for actual campus Jews.

None of this is to say that campus antisemitism isn't real, terrible, and destructive. It creates a toxic environment for Jews at our nation's colleges and universities. But how much more toxic that environment is, when those afflicted by it know that too often the banner of solidarity will actual just generate a new vector of dismissiveness, disdain, or even hatred. Such is the terrible, tragic circumstance of being a Jew on campus.

Sunday, October 09, 2022

The Endless Futile Quest for "Incontestable" Antisemitism

It's never good when "Jews" are trending, the saying goes, and the latest trend has been some pretty nasty antisemitism from celebrity rapper Kanye West. What began with a "White Lives Matter" shirt, continued with a Tucker Carlson interview where he claimed Jared Kushner promoted the Abraham Accords in order to make money, and concluded with a series of social media posts decrying Jewish "control" ("Ima use you as an example to show the Jewish people that told you to call me that no one can threaten or influence me"; "On JEWISH PEOPLE ... You guys have toyed with me and tried to black ball anyone whoever opposes your agenda").

It was obvious antisemitism. And yet, if one wanders around social media spaces, you see plenty of people denying the obvious. All the usual permutations are there -- from the "Full Livingstone" to "false accusations only diminish the true antisemitism" -- to the shock of many Jewish and non-Jewish commentators who cannot fathom how this isn't the clearest of cases.

I think there's an important lesson here, and it's something I talk about in my Epistemic Antisemitism article. As any Jew knows, antisemitism allegations are regularly met with pushback -- claims that the allegations are false, smears, bad faith, or political opportunism. Arguing against such retorts takes up tremendous time and energy, and is deeply depressing to boot. Moreover, the fact of contestation leads to second-guessing and doubt -- is this a real case of antisemitism? Or am I being unfair, too sensitive, too trigger-happy, too censorial. 

Hence, there is a deep desire for incontestable cases of antisemitism -- the cases that everyone agrees are antisemitic and thus will circumvent this pushback. These cases are ones we can be absolutely sure are antisemitic precisely because there is universal agreement about their antisemitism. Said agreement validates the initial judgment and so avoids that process of recrimination and second-guessing that plagues antisemitism discourse generally. By contrast, the fact of contestation is thought to at least potentially raise the specter that the charge is unfair, subject to dispute, and not a fair target for being called antisemitism.

But here's the problem: There are no incontestable cases of antisemitism. From my article:

[W]ith no single agreed-upon definition of the phenomenon of antisemitism itself, no antisemitism allegations can ever be truly “incontestable,” leaving all of them open to accusations that they are in bad faith. Or, put differently, there might be some truly “incontestable” cases of antisemitism—but if they’re actually uncontested then we don’t need any regulative principles governing how to deliberate over them. It is only where there is a dispute, where some people are denying—perhaps passionately denying—the antisemitism claim, that it matters that we “take seriously” Jewish claims (167-68).

The fight against antisemitism has to be willing to call things antisemitic even when others deny it. The fact of contestation cannot be enough to defeat the claim. All antisemitism claims that are the subject of controversy will, by definition, be contested. There are no universally agreed-upon cases, no matter how obvious they might be. Someone will always be there to say its actually legitimate discourse or an arguable point, and that the accusation is unfair, goes too fair, is silencing, or is a slander.

This doesn't mean that every accusation of antisemitism must be accepted on faith either. Rather, it means there is no getting around the hard work -- that to fight against antisemitism means engaging in critical appraisals of antisemitism even in cases where there are very loud voices screaming "HOW DARE YOU CALL THIS ANTISEMITIC." Because that will be all cases. The quest for the incontestable will never be fulfilled.

Saturday, October 08, 2022

Is the ADL Losing Its Liberal Base?

The ADL is America's preeminent Jewish civil rights organization.

That position comes with an inevitable share of gripes. Jews who think the ADL is misusing its position. Non-Jews who don't like the idea of a "preeminent Jewish" (or "civil rights") anything. The day where somebody isn't complaining about something the ADL is doing is a day that doesn't end in "y".

That said, the inevitability and ubiquity of complaints faced by the ADL doesn't mean none of them have merit. Moreover, said inevitability and ubiquity doesn't mean there aren't things to be gleaned from patterns -- who is complaining, how they're complaining, and what they're complaining about.

The latest ADL related flare-up came when chieftain Jonathan Greenblatt seemed to laud Elon Musk's potential takeover of Twitter and compared Musk (positively!) to Henry Ford in the process. Using Henry Ford -- one of America's most notorious antisemites -- as a compliment was bad enough. But Musk's prime motivator for buying Twitter, by his own admission, is that he thinks Twitter has been too heavy-handed in "censoring" or tamping down on hate speech on the platform. This flies in the face of the ADL's social media policy, which has been to this point aggressive in demanding that social media platforms do more to combat hateful speech and conspiracies proliferating on their sites. So why on earth would Greenblatt think Musk's purchase of Twitter is a cause for optimism? The impression many got was that, in an effort to curry favor with the right's new fair-haired plutocrat, Greenblatt was selling out his organization's stated committed to fight extremism and hate online. The right-wing loves Musk, so Greenblatt felt obliged to love him too.

Greenblatt has since apologized for the Henry Ford comparison. He also suggested that what he was really doing was "laying down a gauntlet about what we expect Elon Musk to do," which -- talk about don't piss on my leg and tell me it's raining. Greenblatt was not "laying down a gauntlet," he was very clearly trying to butter up Musk now that Musk has become a right-wing hero. I'd be delighted if he changed course on that. But don't patronize me but pretending you weren't doing what was obvious to all of our eyes.

Again, it must be stressed that Musk has become a right-wing hero because he's sworn to make it easier for the far-right to spread extremism and hate on a major social media platform. The reason this is such a scandal isn't solely or even primarily because of an ill-advised comparison; it is because it seemed as if Greenblatt either no longer had the stomach or no longer had the desire to stand against a truly dangerous development for the safety of Jews online if it meant standing up to a powerful and popular figure on the American right. That failure -- whether of nerve, of will, or of interest -- represents a serious problem for the ADL's credibility.

Now, it isn't at all surprising that the Jewish left would jump all over Greenblatt's miscue. And to the extent that the complaints were coming from the usual "drop the ADL" suspects, there would not be much new to be said under the sun. The source of the critique wouldn't make it wrong (as I like to say, if you fail so badly that JVP can fairly dunk on you, that's a you problem, not a JVP problem), but it would reflect any broader political shift.

But it did seem to me that this latest incident with Musk was evincing a notable and qualitatively different type of response, both in terms of what was being said and who was saying it. Most specifically, I've been seeing a lot more chatter taking the form of (at least consideringcalling for Greenblatt to resign.

Why is that noteworthy? It's not just that it's a relatively drastic demand to make. The bigger story is that resignation calls suggest that discontent with the ADL's direction has migrated over from the aforementioned "usual suspects" to a more moderate liberal tranche. The complaints and frustrations are boiling over not from those who've always hated the ADL and will take any opportunity to stick a knife in, but from those who think the ADL has done and continues to do much good work, but has over the past few months gone badly off the rails.

Simply put, one doesn't call for new leadership in organizations one thinks are intrinsically risible. I detest Mort Klein and ZOA, but I never say "Mort Klein must resign from ZOA". Practically speaking, I don't care who runs ZOA because I think ZOA is at its core a terrible organization. It'd be like me calling for "new leadership" from Hamas. By contrast, I was very vocal in calling for David Harris to resign from helming the AJC because, as annoying as I sometimes find the AJC, they lie on a fundamentally different tranche for me than does ZOA and I do care that about who leads them and what direction they go.

The fact is that the Musk incident is part of a pattern of gaffes and controversies from Greenblatt over the past few months which have infuriated Jewish liberals, virtually all of which have come from attempts to placate or cozy up to right-wing actors. To give a few more examples:

And while I wouldn't characterize it as a "gaffe" per se, all of this has gone hand-in-hand with Greenblatt taking a far more aggressive tone in characterizing anti-Zionism as antisemitism -- a pivot that many observers described as evincing greater "combativeness" by the ADL towards the left. Put it all together, and the pattern from the last few months have been one of a noticeable pivot by the ADL towards the right. And Jewish liberals -- again, mainstream Democrat types, not the far-left -- are noticing this pivot, noticing the associated gaffes, and are increasingly fed up by it.

For their part, the Jewish right has always hated Greenblatt and wanted him to out, and nothing about the ADL's more recent change in practice is going to change that. And the Jewish far-left just doesn't like the ADL, period, and so Greenblatt inherited their disdain. Those polar oppositions perhaps could be taken for granted. But it means that if Greenblatt is also losing normcore Jewish liberals, then his base of support starts to look awfully narrow.

For my part, I take no position on whether Greenblatt should call it quits (in part because I share concern that the ADL's next leader might come from even more conservative quarters). I certainly don't endorse the view that the ADL is an irredeemably flawed or toxic organization; I continue to believe they do much great and necessary work. But I do agree that the ADL has been a ship adrift over the past few months -- making decision after decision that are morally indefensible and practically insulting to the mainstream liberal Jews who have historically comprised the core of the ADL's support base. 

One of the most compelling diagnoses of why Bernie Sanders' failed to secure the Democrat nomination was simple: you cannot be the standard-bearer of a party you despise. It doesn't matter how many loud voices on Twitter laud you, it doesn't matter how many donors shower you with resources. If you're going to lead Democrats, you have to like the average Democrat. The ADL would do well to internalize a similar lesson: you cannot be, and will not stay, the preeminent Jewish leader if you disdain the median American Jew. And the median American Jew is politically left-of-center -- not on the far-left, but a mainstream liberal. That might not characterize who trends on Twitter, and that might not characterize the most profligate donors. But it characterizes most Jews, and the ADL chases right-wing clout at our expense at its peril.

The "good news", as it were, is that this is hardly the first time that the ADL has sold out liberal Jews. Relationships can be mended, courses can be corrected. Nonetheless, there does seem to be a sea change occurring, and patience finally wearing thin. If the ADL doesn't change its trajectory quickly, it is far from clear what the future holds for America's preeminent Jewish civil rights organization.

Thursday, October 06, 2022

Things People Blame the Jews For, Volume LXI: Protests in Iran

A recurrent theme in this series is people "blaming the Jews" for activity that is, in all relevant respects, absolutely praiseworthy. Before the series even launched, for instance, I flagged instances where the dictator of Sudan "blamed" Jews for causing the world to pay attention to the Darfur genocide. I'm dubious we were behind that trend, but certainly it'd be nothing to be ashamed of. Jews helping support worthy causes is a good thing!*

But sometimes, we can't take credit even where credit is extended. And so it is in Iran, where Ayatollah Ali Khamenei has finally spoken out about the roiling protests against gender apartheid that have torn through his nation. Does he know what's driving these demonstrations? You bet he does!

“I openly state that the recent riots and unrest in Iran were schemes designed by the U.S.; the usurping, fake Zionist regime; their mercenaries; and some treasonous Iranians abroad who helped them,” Khamenei said Monday in a speech to police cadets in Tehran, remarks which were later posted in English on his official Twitter account.

As much as I might want to tip my cap in thanks, I don't think there's any basis to assume the Zionists or their "mercenaries" are behind these protests. To say otherwise would disserve the brave Iranian women and girls who really have been taking the lead here.

But if we were involved, there'd be nothing but pride to report. All solidarity to the people of Iran demanding freedom from state repression.

* There is a somewhat serious point here, which is that an impact of antisemitic conspiracy theorizing is to constrain Jews from even valid political participation, as any tangible and/or successful intervention into the political sphere can and will be coded as validating the conspiracy. If there were widespread Jewish efforts to extend resources and support to the Iranian protesters, for instance, it probably would not be viewed as positive solidarity but rather would quickly be leveraged as proof that the protests were a Jewish plot and the protesters Zionist stooges. This can quickly become a double-bind: Jews who don't extend themselves politically are faulted for not being sufficiently solidaristic towards others, those who do are indicted for exerting undue political control and influence.