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.