Sunday, May 28, 2023

If You Add an "e" and Take Away "alist" That Spells Globe!


If you asked me to write a parody of what folks bleating on about DEI indoctrination sound like, I couldn't do a better job than how Georgia Republican Kandiss Taylor's rants about "globes".

No, not "globalists". Globes. As in, the earth being round. Seriously:

“All the globes, everywhere” Taylor said later in the discussion. “I turn on the TV, there’s globes in the background … Everywhere there’s globes. You see them all the time, it’s constant. My children will be like ‘Mama, globe, globe, globe, globe’ — they’re everywhere.”

“That’s what they do, to brainwash,” she added. “For me if it’s not a conspiracy. If it is real, why are you pushing so hard everywhere I go? Every store, you buy a globe, there’s globes everywhere. Every movie, every TV show, news media — why? More and more I’m like, it doesn’t make sense.”

Listen, she just wants to have a debate. What are they afraid of? 

The Debate Link: Origins

This blog is called The Debate Link.

That's no accident.

I started this blog when I was eighteen, just after graduation, when debate was the activity that most defined my high school experience. It was something I did nearly every weekend for four years, travelling all across the country. I was nationally-ranked. I won tournaments at both the local and national level. I wasn't just a "debater". I was, if I do say so myself, a pretty elite debater.

This blog was in many ways a continuation of that experience, and an attempt to fill its void. Its initial tagline was "The arguments, made by and for the debating public." In fact, here's my very first post, from way back in 2004:

Hey everyone! My name is David, and I am an ex-debater from Bethesda MD. My 4 years of debate has given me a healthy appreciation of the issues that concern America, and a desire to share some of the better arguments on some those issues I've come accross during those years. So hopefully, whenever I come up with a good idea (or stumble across someone else's), I'll post it on here.

See you soon,


(How adorable was I? Seriously.)

It is impossible to overstate the degree to which high school debate was formative in my life. It taught me how to think. It taught me how to write. It generated friendships that persist to this day. It even, indirectly, made me realize I wanted to be a law professor. There are few facets of David Schraub 2023 that are not in some way traceable to David Schraub, high school debater.

High school debate is having a moment in the news, prompted by this article by James Fishback chronicling an alleged takeover of the events by the radical left. I want to comment on his piece and his allegations, as well as on some commentary given by Kristen Soltis Anderson, who I knew and competed against in my generation of debate.

There are few reasons to read Fishback's account with grains of salt, beyond the obvious fact that he is at the helm of an insurgent competitor to the established National Speech and Debate Association (formerly known as the National Forensics League) and so has a vested incentive in undermining it.

First, whenever I read accounts like this about craziness allegedly afflicting student-centered activities, I always ask myself "what are the students saying?" Do the actual students involved share the perception that high school debate is rotting from the inside out? Or is their view that these accounts are misleading, exaggerated, and not reflective of what's actually happening on the ground? I certainly remember from my student days how frequent it was that I'd read breathless accounts about "what was going on" at my school or in my club or on my campus that bore zero relationship to what I actually saw. Once I was no longer a student, I still tried to remember that experience -- how many times have the "adults" parachuted in to "solve" problems at schools or on campus in cases where the actual putative victims have been screaming "you are not helping!" The older I get, the harder it will be to remember that instinct, but for the moment I can still rage against the dying of the light. And to that end, it is notable that Fishback's post contains very little in the way of contemporary student commentary or support indicating that they share his view about either the gravity or ubiquity of the problems he identifies -- a failure which makes me profoundly skeptical of whether he's accurately describing the underlying reality.

Second, I also remember to beware of apocryphal anecdotes. I doubt there has ever been a generation of debaters that didn't have stories about the lurid, ridiculous, extreme-performative arguments that supposedly were winning rounds left and right. In my generation, I distinctly recall a story circulating about a debater who simply wrote "Rwanda. Rwanda. Rwanda." on the board over and over again in their first speech (on any topic) as some sort of commentary on the moral intolerability of engaging in regular debate in the face of genocide. Trading the story across the lunch table, that debater cleaned up at elite tournaments. In retrospect, I can't say I ever recall actually seeing a round that was anything like that -- and I both witnessed and participated in many elite-level debate rounds. Stories are stories.

All of that said, I can't fully accuse Fishback of nutpicking. The "Marxist-Leninist-Maoist" judge that opens his story was a collegiate debate champ, and so can't be dismissed as a complete non-entity. For recent graduates who are looking back on their competition-days, it is very, very easy to miss "having the ball in your hands"; to think on the arguments you would have made now that you're (slightly) older and (arguably) wiser, and live out that saudade for being a competitor by turning the act of judging into "what would I have argued." It's easy, but it's not good, and it takes the event away from the people who are actually competing in it. There's no such thing, in my view, as a debate where only one side is allowed to show up, and judges who functionally make that demand are toxic to the enterprise.

At the same time, the problem in debate of bad judges is an eternal one. And I have sympathy for the NSDA here, because it's actually a really difficult problem to regulate. It's unfeasible for the NSDA at a national level to actually police the judging styles and capacities of hundreds if not thousands of judges at tournaments across the country (which is one reason why the norm has shifted to disclosure -- we can't control if your judge is good, but you can at least know what their paradigm is). And for obvious reasons, the NSDA does not want to open the door to ad hoc challenges of particular judging decisions on general claims of "unfairness" -- that way lies anarchy (particularly when you're dealing with debaters, who always can come up with reasons why their losses are unfair!). In reality, much like Supreme Court ethics rules, there's probably not much that the NSDA can do other than vaguely promote norms of fairness and hope for the best.

Indeed, in many ways the problem with debate judges is not so different than the problem with Article III judges. There's little that's more frustrating than the sense that the judge in front of you has rigid ideological commitments that will prevent them from fairly assessing your arguments no matter what you do. That frustration is multiplied by the fact that, if they do act in that abusive fashion, there's little in the way of recourse -- we can't get rid of bad, biased Article III judges and, practically speaking, we can't get rid of bad, biased debate judges. The same mechanisms that ensure an independent judiciary and facilitate the orderly administration of justice by not allowing every unpopular decision to be second-guessed also provide a near-impenetrable suit of armor for hacks and incompetents alike if they do manage to get through the door. That is, to reiterate, insanely frustrating. But there's no straightforward resolution to it.

The reality is that the political demographics of both the most common participants in debate (publicly-engaged 14-18 year olds) and the most common judges of those debates (publicly-engaged 18-24 year olds) means that debate will almost inevitably slant to the left. Again, that's not something that can easily be fixed short of manually changing people's political opinions. We hold our opinions because we're persuaded by them; so it's inevitable that the arguments we tend to find persuasive are more likely to be the one's resonant with our opinions. That tendency can be checked, but it probably can't be overcome entirely. 

But to some extent, the focus on "liberal" versus "conservative" ideas in high school debate to my mind reflects a fundamental misunderstanding of what debate is -- and overlooks one of its most valuable features. 

It's natural for an outsider to think that high school debate, insofar as it touches on politically salient issues, naturally divides itself into contemporary liberal and conservative divides. If the topic is a resolution on, say, foreign aid, one participant will lay out roughly what you might hear on the subject from a Democratic Senator, the other, from a Republican House member. But, at least when I was competing, this was rarely what happened. Debate tackled issues from a multitude of different perspectives and angles that rarely, if ever, neatly tracked contemporary partisan divisions. Despite the seeming binary imposed by pro/con, affirmative/negative, the lived reality of debate transcended these narrow divisions.

And this is a good thing. The purpose of debate is not to give competitors a working understanding of and fluency in what arguments are currently circulating in the halls of Congress. Debaters are not there to parrot the arguments that one most commonly hears on CNN or Fox News. The purpose of debate is to give competitors the tools to think creatively about their own arguments, to try to make those arguments as strong as possible, and to assess and defend them against any range of potential responses. It is perhaps a sad commentary on politics that a focus on strong arguments means that the resulting product will typically have little bearing on the actual contemporary disputes over liberal versus conservative politics. But that's how it goes. Moreover, it is entirely possible to have a productive, valuable debate round where both competitors basically accept liberal, or conservative, or Marxist priors and then argue "what's the best way of doing X from within that framework?" That sort of debate also teaches people how to critically assess and defend positions, just as effectively as debate rounds that more expressly cut across classic ideological paradigms. It is far too narrow, and constrains the vision of young debaters, to try to limit them to thinking purely within the well-worn grooves of American party politics.

And that brings me, in conclusion, to some of Kristen's comments. Kristen admits that, in contrast to Fishback's presentation, it does not seem like (in her recent experience) conservative ideas have been locked out of high school debate. And even when it comes to the specific conservative bugaboo of the day -- DEI initiatives -- much of the content the NSDA is promoting is entirely reasonable and salutary. Kristen remembers judges criticizing her and other female competitors for their "shrill" or "squeaky" voices; I remember a major tournament official repeatedly and openly -- as in, when making public announcements of awards -- engaging in homophobic taunting of one of my friends (he would repeatedly mispronounce the name of the student -- who was a regular top-tier competitor and absolutely known to the organizer -- so one of the syllables in his name was spoken as "gay", when the syllable in question was pronounced "guy"). If those sorts of practices are being arrested, it's all for the better.

But Kristen is concerned about some of the things that are listed as potential examples of DEI-related debate topics (inside the NSDA website's section on inclusivity). To be clear, it seems evident that the NSDA is suggesting that tournaments include some of these topics as part of the tournament's overall package, not to exclusively draw from them. But within this subcategory, Kristen thinks that the questions possess a liberal slant -- a problem even if (as is naturally the case in a debate context) people will inevitably be encouraged to take both "pro" and "con" positions.

Reading these topics, I understand why they're thought to be coded as liberal. At the same time, for at least a good quotient of them, it makes me sad that they are coded as liberal. Consider the question "Why are there so few startups founders who identify as women in the United States?" On the one hand, I get why this question seems to be "liberal". On the other hand, why is this question coded as liberal? Can it really be the case that conservatives don't have thoughts on this matter -- or at least thoughts they're not embarassed to share? When did conservatives decide that the only thought a conservative is permitted to think on this sort of question is "don't ask it"?

The students who answer this sort of question are not, overwhelmingly, thinking in terms of "how do I slot this in to a liberal or conservative ideological frame." They're going to be thinking practically about what sorts of factors or conditions lead to disproportionately fewer women founding startups. The reason why this codes as liberal, though, is that the very act of thinking through a question like that with any degree of seriousness (i.e., not just smirking "it's because women are for making babies!") has been coded as something that only liberals do. That, to my mind, is tragic -- but that's not a DEI problem or a NSDA problem, that's a conservative problem. Conservatives absolutely should have thoughts on why there are relatively few women founding startups. They also should have thoughts on questions like "How can the federal government do more to promote Latino/a/x entrepreneurship?" and "How can the US government increase participation rates of gender minorities in STEM fields?" These are important social problems which all of us should be tackling. Perhaps those thoughts will be radically different than what liberals have to say. Perhaps they'll be surprisingly resonant (think about cross-ideological coalitions forming around YIMBY zoning reform, or relaxing occupational licensing requirements). But to the extent that even trying to work through "how can we increase the representation of underrepresented minorities" is viewed as an inherently liberal endeavor; well, I think that's a tragedy.

More broadly: the point, again, of high school debate is not to give teenagers the opportunity to parrot the shibboleths of Democratic or Republican talking heads, and so high school debate does not fail when it forces a student to develop thoughts on a question that Democratic or Republican talking heads don't have thoughts on. So ultimately, I think it's a mistake -- and not reflective of high school debate as I remember it -- to ask whether or not students are presenting "liberal" or "conservative" views on a given question. Overwhelmingly, that entire framework is a projection by adults; it is not the approach taken by the competitors, nor should it be. Institutionally-speaking, debate should be about prompting students to think about interesting questions. The answers we get rarely will fully map on to contemporary political factions -- and that's a very good thing.

Friday, May 26, 2023

Being Perpetually at the Mercy of the Arbitrary Negligence of the State is a Punishment

At the moment, we're seeing two somewhat orthogonal trends developing in conservative legal jurisprudence, both lawless, but in distinctive ways.

The first is an increasing indifference to textualism -- being perfectly happy to manipulate or flatly ignore statutory or constitutional language in order to achieve desired results. Yesterday's Clean Water Act ruling, where the Court held 5-4 that "adjacent" doesn't mean "adjacent" because, well, they don't want it to, is a prominent example. The "major questions" doctrine is another, including the invalidation of OSHA's COVID vaccine-or-test mandate despite the fact that it fell cleanly into the clear statutory language, is another. The Court's recent voting rights jurisprudence, featuring Shelby County's entirely-invented "equal sovereignty of the states" rule, is another. The Court's recent Second Amendment jurisprudence, which has functionally decided the first half of the Second Amendment's text may as well not exist, is a yet another.

The second, by contrast, is a sort of hyper-literal textualism that zooms in so tightly on individual words that it ends up blitzing past how people actually read texts. The opinion striking down mask mandates on planes is one example here; some of the opinions striking down the eviction moratorium fit as well. Though styled as "textualism", this sort of analysis really is a dangerous confluence of putative textualists being bad at reading texts.

Slotting into the latter category is a concurring opinion by 11th Circuit Judge Kevin Newsom in Wade v. McDade, arguing that the Eighth Amendment does not forbid any level of "negligent" treatment of prisoners by prison staff --  not negligent, not gross negligence, not even criminal recklessness.  Judge Newsom's argument is deceptively simple: the Eighth Amendment forbids cruel and unusual punishments. But a punishment, he says, can by definition only be imposed intentionally. There's no such thing as a non-intentional punishment. And negligence, in all of its species, is something less than intentional. Hence:

The undeniable linguistic fact that the term “punishment” entails an intentionality element would seem to preclude any legal standard that imposes Eighth Amendment liability for unintentional conduct, no matter how negligent—whether it be only “mere[ly]” so or even “gross[ly]” so.... So on a plain reading, the Cruel and Unusual Punishments Clause applies only to penalties that are imposed intentionally and purposefully.

At one level, I appreciate Judge Newsom for saying the quiet part out loud here, because normally I'd spend time pointing out that Judge Newsom's position would warrant even the most grotesque acts of wanton disregard for the lives and wellbeing of prisoners. But Judge Newsom is quite happy to endorse (further) converting our prison system into a miniature gulag archipelago, so I guess I can skip that part and move to the textual question: is Judge Newsom's interpretation an "undeniable" inference from the term "punishment"?

And the answer, I think, is clearly "no".

At the outset of his opinion, Judge Newsom analogizes the negligent treatment of prisoners to that of parents and children: "Just as a parent can’t accidently punish his or her child, a prison official can’t accidentally—or even recklessly—'punish[]' an inmate." But in law, "accidental" and "intentional" are not an exhaustive binary. The whole purpose of the negligence and recklessness categories is to account for cases that lie between the pure accident and the specifically envisioned and desired consequence. And that makes sense, because while law contains different levels of "intent", legal fact patterns nearly always blend several of them together. 

Take a case where a speeding driver strikes a pedestrian with his car. Did the driver act "intentionally"? On one level, he was likely intentionally speeding (his foot wasn't literally glued to the gas pedal). On another level, he likely did not intend to hit the pedestrian (he did not seek to mow him down). Negligence captures the interstitial position where the driver intentionally acted in a fashion which foreseeably placed the pedestrian in danger (even if converting the danger into reality was not the driver's motivation). In this, negligence is very different from the pure accident not because it lacks intention, but precisely because of its intentionality.

Swap back to punishment. Imagine a more pre-modern society where we outsource punishment to private actors. I catch you stealing tools from my garage. As a consequence, I strip you of your clothes, take all the possessions you have on you (to make sure you have nothing you could attack me with), and drop you off in the middle of the woods without food or water which I can't be bothered to acquire for you, safely away from my house. You tell me "my pills are in my bag; if I don't take them each evening I might die!" I say "I don't care if you live or die. Oh, and watch out for the forest-dwellers -- they aren't always friendly." You do, in fact, have a seizure overnight and die. Are the actions I took "punishing" you?

Plainly, it seems the answer is yes. And this is so even if I genuinely was apathetic to whether you lived or died. Like the driver striking the pedestrian, my conduct is a mix of the purely intentional (I took your possessions, I dropped you off in the woods) and negligent/reckless (I do not care whether you have a stroke, I do not care if the forest-dwellers attack you). Being intentionally placed in a position where one's custodians do not care whether you live or die is obviously a punishment. Indeed, the fact that it's a "punishment" is the only thing that distinguishes it from pure sadism, abuse, or kidnapping. The fact that the seizure was not specifically intended doesn't change the fact that what happened to you in no way could be described as an "accident". It was the result of intentional actions, and the reason I acted in the way that I did -- with reckless disregard for your life or safety -- was very much tied to my desire to punish you.

In most prison litigation cases, there is similar "intent". The failure to, e.g., give a prisoner necessary medication isn't a wholly-accidental whoopsie-doodle (and if it is, then there isn't even negligence). It is an intentional choice. Indeed, a large part of what prison is, and what makes it such a terrifying prospect, is that it is a place the state sends you where the people who have control of your life do not and perhaps need not care if you live or die. Everything about that is intentional. Or put another way, the pervasive, heartless lack of intention is the intention -- being placed in such a situation is entirely the product of intentional choices at every step of the process.

There's a lot to dislike about the "deliberate indifference" standard which has taken over prison abuse litigation, but one thing it gets right is that indifference is absolutely a choice, not an accident. To fail to treat a person in your custody with requisite care is a choice, and it doesn't stop being a choice just because its foreseeable consequences were not expressly desired.

So what makes Judge Newsom go astray here? He seems to think we should chop up "punishment" into each potential negative experience one might have in prison. Being locked up, and being restricted from the yard, and being deprived of medication, and being placed in solitary, and being put into a cellblock with white supremacists liable to stab you -- each of these are separate (potential) "punishments" whose status as a "punishment" must be assessed atomistically. But this approach defies common sense. When someone is sentenced to prison for a crime, we don't think of it as a loose cluster of twenty or so discrete "punishments". It's one punishment. The punishment is being a prisoner and being subjected to the prison experience. Everything that happens in prison is part of the overall context of being punished. There is no need to parcel out individual moments and ask "but is this particular action a separate punishment", any more than we need to ask whether swinging bats in the on-deck circle or jogging out into the outfield is part of "playing a baseball game." It's all part of the game, and the hyper-zoomed-in focus on each discrete moment misses the forest for the trees.

In other words, while it may be true that something must be a "punishment" to fall under the auspices of the Eighth Amendment, all prisoners by definition are being punished. They pass that threshold categorically; none of them have been placed in jail by accident. At that point, the relevant question is whether the set of challenged actions or behaviors or what have you suffices to make that punishment into a "cruel and unusual" one. And certainly, being put in an Arkham City terrordome should qualify even (especially!) if the overseers assiduously do not care if you live or die. Perpetual, ongoing, systematic negligence (to say nothing of recklessness) towards persons who are helpless and in your care is one of the cruelest acts imaginable. Where that is part of the punishment, the punishment is cruel and unusual.

Judge Newsom concludes his opinion with the following:

Maybe it makes sense to hold prison officials liable for negligently or recklessly denying inmates appropriate medical care. Maybe not. But any such liability, should we choose to recognize it, must find a home somewhere other than the Eighth Amendment. We—by which I mean the courts generally—have been ignoring that provision’s text long enough. Whether we like it or not, the Cruel and Unusual Punishments Clause applies, as its moniker suggests, only to “punishments.” And whether we like it or not, “punishment[]” occurs only when a government official acts intentionally and with a specific purpose to discipline or deter.

This "whether we like or not" language is reminiscent of my Sadomasochistic Judging article. Judge Newsom seems to recognize the cruelty inherent in his position. But he leverages that cruelty into an argument for textual fidelity; the avoidance of cruelty is the hint that his colleagues have been led astray from the strictures of law. As I've demonstrated above, this isn't true; the text does not demand the cruelty Judge Newsom ascribes to it. But the pleasure of the pain of causing pain is too tempting to pass up. It's not good textualism that's motivating Judge Newsom. It's the ecstasy of bad textualism leading to bad results, whose badness is paradoxically metabolized as the purest and most faithful instantiation of textual loyalty.

Getting Out in Front on Antisemitism

A few weeks ago, when the New York City Council was debating a resolution combating antisemitism, we had a bit of awkwardness when various lefty groups (and a few lefty councilmembers) expressed concern about aligning themselves with the undeniably right-wing actors who were the primary movers behind the underlying campaign. Six councilmembers ultimately declined to vote for the resolution, resulting in some absolutely expected negative headlines and bad press as the right seized the opportunity that fell into their laps.

In response to that own-goal, I wrote the following:
Look: Brooke Goldstein is an undeniably toxic actor. I totally get why a progressive wouldn't want to touch anything she's within ten feet of. But here's the thing: you don't *have* to wait for her to draft an anti-antisemitism resolution. You can draft your own!
NYC progressives have nobody to blame but themselves that they let Goldstein get out in front of them. If you don't want to vote for "her" res, write and submit your own first. Who knows, maybe [Republican city councilwoman Inna] Vernikov will pale at associating with you and you can turn the screws on her a bit!

But if you aren't writing these resolutions and you aren't frontloading the fight against antisemitism, you can't get too chippy that other people fill in the gap you've left. It's a problem entirely of your own making. 

As the day of the Biden administration's big antisemitism action plan rollout comes to a close, doesn't it feel nice to be on the right side of that lesson?

The Biden administration didn't wait on antisemitism. It didn't hold back, it didn't stay quiet and do nothing until some Matt Gaetz style yahoo created a "plan to fight antisemitism" that they had to reject while awkwardly insisting that of course they oppose antisemitism but they just can't oppose it this way.

The Biden administration wrote their own plan, on their own initiative, in their own words. And what was the result?
An array of Jewish organizations from the left to the center-right echoed those sentiments in welcoming the plan with enthusiasm, marking a change from recent weeks in which they had been split over how the plan should define antisemitism. Still, a handful of right-wing groups blasted the strategy, saying that its chosen definition of antisemitism diluted the term.
The Jewish left seems happy. I've seen naught but praise from groups like the JDCA, J Street, JFREJ, and so on. The Jewish center seems happy. The ADL and AJC clearly are taking this as a win. The Conference is happy. Groups like JIMENA are thrilled that the document expressly acknowledges and represents Sephardic and Mizrahi Jews. A rapid consensus has already emerged across a broad swath of the American Jewish community that this document is an example of true allyship from the White House.

And the right? Well now it's their turn to feel uncomfortable. They're still trying to stomp their feet about Nexus getting 15 words of modest praise. They're awkwardly trying to figure out how handle MAGA darling Rep. Lauren Boebert (R-CO) calling the proposed campaign against antisemitism a means of "go[ing] after conservatives" and comparing it to Soviet repression. They're on their heels, reeling from the fact that the biggest national program to fight antisemitism is being conducted and they're struggling to even board the train.

Right now, the fight against antisemitism is a coalition of left and center, with the right bickering on the sidelines. It's not just a win for the Jews (though it is), it's a great political coup as well. And it's all because the Biden administration took the very simple step of getting out in front.

Learn that lesson, and learn it well.

Thursday, May 25, 2023

Biden Admin Releases Ambitious Strategy To Fight Antisemitism

The Biden Administration has released its long-awaited document outlining an ambitious national strategy to combat antisemitism. "This strategy," the document concludes, "represents the most comprehensive and ambitious effort to counter antisemitism in American history."

Mostly, I want to give immense praise to the Biden administration for putting this document together -- not just talking the talk, but walking the walk. It is no revelation to say that many Jews sometimes feel like the fight against antisemitism is an afterthought -- a fact that document acknowledges expressly ("One  report found that 91% of Americans believe antisemitism is a problem for everyone, and yet, in  many instances, Jews feel as though antisemitism is ignored, discounted, or not taken as  seriously as other forms of hate and bigotry."). With this strategy plan, the Biden administration is taking Jewish concerns seriously in a way that no other administration has. It has my thanks for that.

Given the discourse of the past few days, one might expect that I'd want to focus on the inclusion of the "Nexus" antisemitism definition in the document text. Several commentators, insisting on a fundamentalist version of sola IHRA scriptura, tried to curtail this inclusion by insisting that any discussion on antisemitism that goes beyond IHRA will necessarily be diluted or "confusing".

The snarky part of me wants to extend my sincere condolences to these critics, given that final document is 60 pages long, virtually all of which comprising of words other than "IHRA". Turns out, there were more things to say. More to the point, here is the sum total of the document's treatment of this roiling controversy:

There are several definitions of antisemitism, which serve as valuable tools to raise awareness and increase understanding of antisemitism. The most prominent is the non-legally binding “working definition” of antisemitism adopted in 2016 by the 31-member states of the International Holocaust Remembrance Alliance (IHRA), which the United States has embraced. In addition, the Administration welcomes and appreciates the Nexus Document and notes other such efforts.

That's what we've been obsessing over? Seriously? An unadorned mention, following the document's "embrace" of the IHRA definition, that it also "welcomes and appreciates" Nexus?

I will say that, in the veiled language of diplomacy, this is quite the swipe against JDA. The document "embraces" IHRA. It "welcomes and appreciates" Nexus. And as for other, unnamed definitions? Yes, we note their existence. It's kind of like how I described the 2020 Democratic primary: "There are many great candidates running for the Democratic nomination, and also Tulsi Gabbard."

But that's me being petty again. I'll just one of other thing here. In the paragraph before the one I just quoted, the document describes antisemitism as follows:

Antisemitism is a stereotypical and negative perception of Jews, which may be expressed as hatred of Jews. It is prejudice, bias, hostility, discrimination, or violence against Jews for being Jews or Jewish institutions or property for being Jewish or perceived as Jewish. Antisemitism can manifest as a form of racial, religious, national origin, and/or ethnic discrimination, bias, or hatred; or, a combination thereof. However, antisemitism is not simply a form of prejudice or hate. It is also a pernicious conspiracy theory that often features myths about Jewish power and control.

The first sentence of this is clearly adopted from IHRA, albeit modified -- IHRA says that "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews." The Biden administration's formulation is clearly better (what is a "certain perception"), which already demonstrates that blind adherence to IHRA's text is neither necessary nor desirable.

But the following sentences go beyond anything in IHRA. Discussing antisemitism as not just a perception, but also discrimination and other actions, is closer to the language one finds in the Nexus definition: "Antisemitism consists of anti-Jewish beliefs, attitudes, actions or systemic conditions."

When you look at the above paragraph, and the portions that go beyond that first sentence, are you "confused"? Does it feel "diluted" or "counterfeit"? No. The inclusion of those iterations of antisemitism make the document stronger, not weaker.

IHRA is an important and valuable component of the national antisemitism strategy. But it couldn't shoulder the burden alone. Fortunately, it didn't need to. IHRA and Nexus are strogner together. And while I sincerely hope that this "debate" fades into the far, far periphery of future discussion over this document, for now the Biden administration deserves tremendous praise for understanding that the fight against antisemitism is too important to leave tools on the table. 

Wednesday, May 24, 2023

F-ing Banned Roundup

 Ron DeSantis' botched campaign rollout includes the following hats.

Anyway, my browser needs clearing, so today you get a roundup.

* * *

Texas Republicans set up a bespoke center at the University of Texas to promote a conservative ideological vision. Texas Republicans also look set to wreck tenure. Turns out the latter poses a recruitment problem for the former.

The Fourth Circuit upholds race-neutral admissions standards at Thomas Jefferson High School in Virginia against a challenge that they discriminate against Asian-American applicants. Ilya Somin objects here; I may have my own comments later.

Now that he's running, JTA runs down all the Jewish things you need to know about Ron DeSantis. He loves Israel. Also, his campaign against wokeness has resulted in banning books on the Holocaust, and neo-Nazis are flocking to the state.

Rep. Rashida Tlaib (D-MI) admits she "struggles" with the idea of removing Israeli settlers from the West Bank, suggests they have the right to stay where they are. I've said it before and I'll say it again; one need not like or even fully credit Tlaib's putative commitment to "one state with equal rights for all" to admit that it's clearly better than the many, many politicians whose position is "one state that does not even pretend to provide equal rights for all."

Texas forces a woman with an unviable pregnancy to stay in the hospital until she gives birth to her stillborn fetus (or becomes sick enough to potentially die) by threatening her with criminal prosecution if she tries to leave.

If we don't raise the debt ceiling, it seems we have to triage who gets paid. I've seen many proposals on how to do this. But Kevin Drum raises the possibility that our treasury system isn't built to allow for any "choosing", and so we'd be forced to basically just arbitrarily pay whoever comes to the door first.

The Most Important Voter is the Uninformed Voter

For the first time in awhile, my representative in Congress is a Republican -- Lori Chavez-Deremer.

One of the very few bright spots of that fact is that I can call my congressperson to complain about Republican shenanigans without it feeling moot or preaching to the choir. Telling Barbara Lee that I oppose this or that GOP abuse felt a little pointless. But Lori Chavez-Deremer is a Republican in a swing district -- I can help put a bit of well-earned fear of god into her.

Anyway, today I decided to ring up her office to talk about raising the debt ceiling. But before I did, I had a thought: would it be better to play a little dumb?

Maybe I'm overthinking this. But my logic was that if I came out loaded for bear with facts and talking points and analysis, it'd be pretty clear I'm a high-information voter with strong views on the subject. And if I were the representative's staff (and the person I spoke to, for what it's worth, was perfectly polite and seemed quite intelligent), I'd correctly deduce that I'm probably not talking to an actually-persuadable voter. Even in swing districts, Rep. Chavez-Deremer is no doubt aware that there are plenty of voters who didn't vote for her before and are never going to vote for her in the future, and so their existence and their votes for her 2024 opponent are already baked into the cake. That someone like that is unhappy with her isn't really germane information.

By contrast, if somebody who doesn't seem to know a lot about the issue calls with concerns, that suggests that there's a problem seeping into the soft mushy center of low-information independents. And those voters absolutely are persuadable, which means if they get it in their head that the Congresswoman is causing a problem, that absolutely can make difference in 2024. If I was Chavez-Deremer's staff, I'd be far more concerned if uninformed voters who sound like they just read a couple of Facebook memes started complaining about her conduct than if informed voters did.

So I decided to go with that. I spoke in general terms about things I had "heard", I fretted about how "reckless" it seemed to be to just decide not to pay our bills, I worried about the effect this chaos would have on my retirement accounts, I insisted that the issue seemed simple (just raise the debt ceiling! Why is she making this more complicated than it is?), and I finally said that if we do drive over this cliff I won't blame Biden for it, I'll blame Chavez-Deremer.

I don't know if I make the most convincing uninformed voter. But it was a kind of fun, getting to be ignorant and obstinate and just go down the "I am constituent and I'm mad and you need to fix this" road. Life's little pleasures.

What Does "Disproportionate" Look Like?

There was a little chatter this week that the Biden Administration, as part of its initiative to combat antisemitism, might give a positive mention to the "Nexus" document. Little ol' Nexus! Who knew!

This news has generated pushback from the rightward elements of the Jewish community, including -- this is a right-wing campaign in 2023, after all -- comparing Nexus to Chinese authoritarianism and spuriously tying us to pedophilia.* What fun.

I might weigh in on this broader controversy. But this post is more about a sidebar to the debate.

One prominent portion of Nexus that has been flagged in these conversations is how we treat "double standards". Nexus, unlike JDA, does not say that it is okay to hold Israel to a double-standard. However, it says that the mere fact of "disproportionate attention to", or differential treatment of, Israel, is not per se proof of a problematic double-standard. People pay "disproportionate attention" to Israel for all sorts of reasons, and many times its completely benign. There certainly are cases where that attention is problematic; but there are in many cases, where said attention in no way justifies drawing an inference of a problematic double-standard.

AIPAC, ZOA, NGO Monitor, APN, Adalah, the American Task Force on Palestine -- all of these focus on Israel more than other countries, and that's their prerogative. It is neither weird nor sinister for a Jewish or Palestinian organization to devote more attention to human rights issues in Israel compared to China or the Crimea or Zimbabwe, and nobody actually thinks otherwise. One can, I think, fairly contrast the case of AIPAC or Adalah with, say, the UNHRC -- a body which would struggle to articulate a neutral reason for focusing overwhelmingly on Israel but does so anyway. There the antisemitism objection carries significantly more force. Again, the Nexus document provides additional gloss and detail that can help fairly instantiate the IHRA rule, avoiding opportunistic deployments where the mere fact that a Palestinian organization is talking predominantly about Palestinian issues is held out as an antisemitic "double-standard".

In short, Nexus observes that it's not the attention alone that proves a double-standard; something more than that is required. This argument is pretty hard to gainsay, in my view, and it's been amusing to watch some folks on Twitter jackknife wildly between being enraged at how "clearly wrong" Nexus is for saying that disproportionate attention is not per se proof of antisemitism to, when given the example of AIPAC or the Kohelet Forum (which is disproportionately criticizing Israel's judiciary setup far more than it attacks those of other countries), being enraged at how clearly right Nexus is.

But all of this raises the question: what does disproportionate attention even look like?

For example, one of my interlocutors last night gave three examples of human rights groups whose Twitter feeds evinced what he deemed a clearly antisemitically-disproportionate concentration on Israel: Human Rights Watch, Amnesty, and Ken Roth's personal feed.

This is something I hear a lot, and I've often wondered about. It is certainly possible that such groups really do focus on Israel to a wildly excessive degree (I'm familiar enough with the practices of the UNHRC -- which regularly is passing more resolutions about Israel than all other countries in the world combined -- to feel comfortable saying the charge fits for them, for instance). But it's also plausible that certain observers who care primarily about Israel -- pay disproportionate attention to it, we might say -- will only notice a group like HRW talking when it's talking about Israel, in which case, yes, it will seem like it does nothing but talk about Israel. But that's a function of one's own attention span, not HRW's conduct.

So last night, I actually went through these three Twitter feeds -- @HRW, @Amnesty, and @KenRoth -- to see what "disproportionate" looked like. Here's what I did:

  • For HRW and Ken Roth, I looked at all their tweets this week up until about 3 AM last night. For Amnesty, which tweeted less frequently, I looked at all their tweets for the month of May.
  • For each tweet, I marked which country was primarily being criticized (virtually all the tweets were critical, there were few if any instances of a country being praised). If multiple countries were being criticized in roughly equal forms ("Keep X and Y off the Security Council"), I coded the tweet as criticizing both. But if the tweet was primarily about one country, with a second country being more background, I only coded the former (e.g., a tweet about US border policies that mentions Mexico still would only be coded as the US).
    • Total number of tweets may be slightly inaccurate given some tweets covered multiple countries.
  • I also separately noted tweets that didn't focus on any country, but rather a specific issue area (like the death penalty).
  • Finally, I counted threads as a single tweet. But multiple tweets in a row about a single country (unthreaded) were each counted separately.
Here's what I found:

Human Rights Watch:
  • HRW had about 60 tweets/mentions in the relevant time period, which criticized 31 countries. 
  • Of those tweets, 1 was primarily about Israel.
  • The most commonly targets in this time period were Indonesia, Poland, and Belarus, each of which had five mentions. 
  • Other multiples include Vietnam (3), Afghanistan (3), Myanmar (3), Pakistan (3), the UAE (2), and Egypt, (2).

Ken Roth

  • Ken had about 80 tweets/mentions in the relevant time period, which criticized 31 countries.
  • The most common target for Ken were China and Russia, with 13 mentions each.
  • Israel was the third-most common target, with seven mentions.
  • Other multiples included India (6), Sudan (4), Belarus (3), Syria (3), Myanmar (3), Saudi Arabia (2), Ethiopia (2), Greece (2), Turkey (2).
  • Amnesty had about 63 tweets/mentions in the relevant time period, which criticized 16 countries (keep in mind that, because Amnesty tweeted less frequently, its time period was longer -- the entire month of May).
    • For what it's worth, had I looked at Amnesty's tweets just for this week, it would have had only eight, none of which were about Israel.
  • Amnesty was far more likely than HRW and Ken to tweet about general issues rather than country-specific incidents and policies. Sixteen of its tweets were about general policies, including six on the death penalty, four on LGBTQ rights, two on press freedom, two on social security, and one each on women's rights and climate change.
  • Amnesty's most common target was Israel, with 16 mentions. The next-most common target was Iran, with five.
  • Other multiples included the USA (4), Sudan (4), Pakistan, (4), Uganda (3), Peru (3), Kenya (2), and Russia (2).
So what do we draw from all of this -- assuming for sake of argument that the time period I drew from was representative? Are these groups actually paying disproportionate attention to Israel, or is it an artifact of the relevant observers only caring about them when they talk about Israel?

I would say the results are mixed. For Human Rights Watch, where just 1/60 mentions were about Israel, I think it is pretty hard to maintain that Israel is being subjected to some sort of unfair "double-standard" based on the amount of attention it received. Notice, though, one still could argue that it is receiving "disproportionate" attention -- there are 195 countries in the world, and yet Israel received 1/60th of the attention! Or one could say that giving Israel equal attention to Russia (which also had one mention), or the lack of a mention for China in this time period, is "disproportionate" given Russia and China's graver current offenses (though if that's the argument, how much more of a basis of complaint do the Poles, Indonesians, and Belarussians have!). 

Still, to the extent that this sort of treatment is what's being deemed "disproportionate", I think Nexus is clearly correct in rejecting the notion that there's anything per se antisemitic about it. And to the extent that some persons perceive HRW as focusing "obsessively" about Israel to the exclusion of other countries, that seems (again, assuming this period was representative) almost certainly attributable to those observers only paying attention to HRW when it talks about Israel.

For Amnesty, by contrast, 16/63 mentions were about Israel -- 3x more than the next closest rival of Iran. Here, I think the claim of genuinely problematic "disproportionate" attention is at least more colorable. While we can argue whether this is antisemitic or not, with Amnesty it does seem like the perception that it focuses disproportionately on Israel in a potentially problematic way does seem like it is warranted -- it isn't just an artifact of the listener's own slanted priorities. I will note, though, that in terms of "disproportionate attention", even Amnesty lags behind the UNHRC, which again has historically targeted in Israel in more than half of its entire body of work! Amnesty's 16/63 -- roughly 25% -- looks positively charitable in comparison!

Finally, Ken Roth is somewhere in the middle. Israel is the focus of his attention more than many other countries, but not all of them -- it stands behind both Russia and China. Is this a case of a problematic "double-standard"? It doesn't seem so -- Israel doesn't "stand out" alone on a precipice like it does for Amnesty, it is treated similar to other countries that Ken also thinks are human rights violators. One could again cherry-pick and say "well, what of Cuba -- Ken didn't talk about them at all in this period -- and they're a human rights violator too!" But this is not actually a workable standard -- political discourse simply does not work like this, where every commentator is talking about every potential token of injustice in complete equal proportion.

Relatedly, I've definitely heard the claim that given how much worse Russia and/or China is than Israel, it is "disproportionate" to focus on Israel even equally (or here, considerably less than equally) to those countries. But that sort of argument seems almost impossible to operationalize in practice, in part because it's subjective, in part because it's clearly not the case that there either is or should be a 1:1 correlation between some sort of universalist rubric of gravity-of-offense and attention paid. That's not how political discourse works, and it's not how it can possibly work. Indeed, I daresay that few think of applying that sort of standard in any case but Israel's (and even here -- does anyone say that any attention paid to Palestinian terror is prima facie "disproportionate" if it is not dwarfed by attention paid to far greater atrocities like the Myanmar genocide? Again, this just isn't workable). This, again, ratifies Nexus' instinct to not let "disproportionate" alone suffice; as the sort of conduct that is being called "disproportionate" is not actually behavior that can reasonably be indicted as problematic.

In all these cases, of course, it could be that the relevant coverage is antisemitic for other reasons ("disproportionate" is not the only basis for calling something antisemitic, after all). But to the extent one wants to argue that the allegedly "disproportionate" coverage of these groups validly generates an inference of antisemitism, that's hard to warrant at least for HRW and Roth, though it may be for Amnesty. Perhaps unsurprisingly, there is both some truth to the notion that some groups focus on Israel in an obsessive or wildly off-kilter fashion, but it is also true that this belief has caused some observers to assume that this sin is more widespread and ubiquitous than it actually is, and make accusations of problematic disproportionality in cases where it can't really hold together.

* Lest you think the latter is some egg-profile Twitter account with 54 followers and a shiny new blue checkmark, it actually came from Shmuley Boteach. So not too far from an egg-profile Twitter account with 54 followers and a shiny new blue checkmark.

Saturday, May 20, 2023

Things People Blame the Jews For, Volume LXIV: Al Sharpton

Among the more prominent fusions of antisemitism and racism is the idea that Black political leaders are really just mouthpieces of the Jews. It combines a belief in Black inferiority (obviously, they can't think for themselves) with a belief in Jewish conspiracy (they're pulling the strings behind the scene).

I pulled this tweet -- a beneficiary of Elon's "blue check" destruction -- not just because it's a sterling example of the genre, but because its choice of example is positively baffling:

(I don't even know what to make about concluding with the motto for "Survivor". So we'll just move along....)

Again, the core allegation here is not unique. But specifically citing Al Sharpton as the template -- that's a decision. To be sure, I don't think in the year 2023 it's useful to reduce Rev. Sharpton just to his role in the Crown Heights riot. But certainly that rather specific history Sharpton has with the Jews makes him an odd choice to hold out as your paradigm case of a Black voice under Jewish control.

What I'm saying is that racists need to learn better history. Among other things they need to learn.

(Hat tip)

Sometimes It's Who You Most Suspect

A former writer for Mintpress News -- a notorious conspiracy website infamous for antisemitism, Assad-apologism, and overall tankie-ism -- has been arrested after allegedly vandalizing a synagogue and planning to pin the blame on the Azov Battalion.

Apparently, she had been arrested for trying to set fire to a church, was released on bail and given an electronic tether to wear, which she cut off the next day prior to her escapade at the synagogue.

She confessed to the crimes at the synagogue in Royal Oak, police said, and further told them she also painted a swastika on a child’s stroller and on a car at a synagogue in Oak Park. As of Friday no charges had been filed against her in Oak Park’s 45th District Court.

“She said she planned to do as many hate crimes as possible and blame them on Azov,” Royal Oak Detective Dan Pelletier testified at Nord’s arraignment in Royal Oak.

The purpose of the hate crimes was aimed at undermining the U.S. support for Ukraine after the country was invaded by Russia.

Say this for the Mintpress folks -- they don't lack for dedication. 

Tuesday, May 16, 2023

The Lawlessness is the Point, Part II

The panel of Fifth Circuit judges who will hear the appeal of the bonkers Texas decision that purported to outlaw mifepristone has been announced. Judges Jennifer Walker Elrod, James Ho, and Cory Wilson will hear the case. (In case you're a bit confused: the Supreme Court put the district court decision on hold while the appeals process played out, but did not issue a final ruling; hence why we're still getting a stage before the Fifth Circuit).

From the vantage point of reproductive rights defenders, it's tough to imagine a worse panel draw than this -- and that's saying something, given that there aren't a lot of good panels to be drawn on the Fifth Circuit. But Judges Elrod, Ho, and Wilson are all right-wing reactionaries and anti-abortion extremists who made no pretenses at respecting rule of law in this subject even when Roe still was the law of the land. And without even the presence of a more moderate voice on the panel who could act as a break, we're likely to see a runaway train of ideological one-ups-manship where all three judges push each other to be as aggressive and extreme as possible.

So what will happen here? One possibility is that the panel will accept the signal offered by the Supreme Court in its stay, and reverse the decision (that is, preserve mifepristone's legality). This strikes me as highly unlikely. One enduring quality of the Fifth Circuit in general and these judges in particular is that they do not hesitate to shoot their shot. Their philosophy has consistently been to throw up the most radical, results-oriented conservative fantasy decisions they possibly can, and then dare the Supreme Court to reverse them. Given the composition of the Supreme Court, after all, it's hardly a bad bet. And hey -- you miss 100% of the shots you don't take!

Okay, so "dutifully obeying the law" is probably out. What else? Basically, I think there are two realistic options for what we might see. Possibility one is that the judges try to "write the brief" to the Supreme Court to convince (at least five of) them to ban mifepristone. This could include filing off some of the rougher edges of Judge Kacsmaryk's original opinion, maybe soft-playing some of the more radical insinuations (like with the Comstock Act), purport to address the lower court ruling's disdain for administrative law or standing principles while functionally just replanting it, and basically try to create a fig leaf that, with time and distance, five members of the right-wing supermajority on the Court think  will be large enough to shield the obvious fact that they're imposing their policy preferences and calling it law.

Possibility two is that the judges will not even try to reframe the issues in a way that looks more palatable or reasonable. Forget the fig leaf; they're let it all hang out in naked splendor -- a "eugenics" references here, a twee comparison of President Biden and/or the FDA to King George III there -- and just completely bulldoze any semblance of adherence to the governing legal rules and precedents that govern this case. Wild theories of standing or administrative law review will be asserted with not a care in the world for how they interact with past precedents or the judges' own putatively-held legal principles. The opinion will be a flat "because we can" declaration of unfettered judicial might.

One might think the former choice is more likely. There's a real opportunity here for conservative judges to further shear off the rights of women over their own bodies -- a huge priority for them -- that's more likely to meet with success if they don't let their eyes get bigger than their stomachs. Don't oversell, trim the sails back a bit, and take what would still be a huge W for them (and a huge L for women).

But I think the latter is more probable, and it goes back to the theme I've been hitting on in prior posts: the lawlessness is the point. Critical to the practice of conservative judges in this era is openly asserting and living out the proposition that they are unbound by law. That a given judicial opinion reads as lawless is not a problem, it is a feature; it is a means of demonstrating this freedom from constraint. It is precisely because Judge Kacsmaryk's decision was so universally panned by legal experts that it needs to be affirmed and, if anything, expanded upon -- judges (or at least these judges) assert their power and legitimacy as far as they demonstrate they are not bound by the strictures of professional norms or public commentary. The more one deviates from the professional consensus, the more one demonstrates judicial supremacy. And bizarrely, I don't think being reversed by the Supreme Court really upsets them. What matters, oddly enough, isn't the tangible outcome of the case. What matters is showing that they, personally, have flamboyantly demonstrated how they soar above the mewlings of their lessers.

Judges Elrod, Ho, and Wilson are among the prime instigators of this style of judging on the Fifth Circuit -- jurists completely drunk on their own power, who revel in demonstrating that what was thought to be law will in no way binds them from imposing their will. I predict that their decision in the mifepristone case will be another venue for them to make this point. Yes, it will be lawless. And yes, that's the point.

Monday, May 15, 2023

Who's Afraid of the NoVa Jews

The Jewish Community Relations Council of Greater Washington has put out a voter's guide for Virginia's upcoming 2023 state legislative primaries (concentrating on races in Northern Virginia). There's nothing too remarkable in it -- the candidates give pretty generic boilerplates about how they'll work hard for the people of Virginia etc. etc., and then link to their websites. Basic stuff. 

But I did notice something interesting.

The guide appears to have solicited statements from candidates in all contested primaries (they did not ask candidates who were running unopposed in the primary). In the Democratic races, all but two candidates dutifully replied with statements to the JCRC.* By contrast, in the Republican races, none of the candidates participated in the Jewish community voter guide.

Now, to be sure, Northern Virginia has shifted decisively blueward in recent years. So unsurprisingly there are a lot more active Democratic races than Republican contests. Republicans only had active primaries in three races -- SD-29, SD-30, and HD-21 -- compared to 14 contested primaries amongst the Democrats. But, at least judging by a quick perusal of their campaign websites, the Republican candidates in these races seem to be actively running and not complete-nobodies. They could have responded to the voter guide. They just chose not to -- apparently deciding that Virginia's Jewish community was not a constituency that was worth their time to appeal to.

* The Democratic no-shows were Saddam Salim (SD-37) and Sreedhar Nagireddi (HD-26). In both of these seats, there was another Democrat running who did participate (Chip Petersen and Kannan Srinivasan, respectively). Hell, even Ibraheem Samirah (running for Senate in the SD-32 after being ousted from his House of Delegates post last cycle) participated, and he has an ugly history with the DC-area Jewish community that includes calling for the expulsion of Jewish groups from progressive organizing coalitions (he didn't, unfortunately, address those comments in his statement). Samirah also has a primary opponent, current House Delegate Suhas Subramanyam.

Friday, May 12, 2023

You Have To Actually Do the Journalism Part

No doubt you've heard about the CNN-hosted Trump "town hall" (in a "town" that only includes Republicans and Republican-leaners, naturally). You know, the one where CNN set the ground rule that only applause, but not booing, was permitted?

Many people argue that Trump, given his egregious lies, should not be given this sort of prime media platform. And a common defense to that charge is that it's better to give Trump a platform and subject him to "tough questions" than it is to let him roam the earth unchallenged. Isn't that what journalism is? Here's CNN chairman Chris Licht, for example:

“I absolutely, unequivocally believe America was served very well by what we did last night,” Mr. Licht added. “People woke up, and they know what the stakes are in this election in a way that they didn’t the day before. And if someone was going to ask tough questions and have that messy conversation, it damn well should be on CNN.”

As it happens, I was perusing my archives the other day and came across this oldie shot/chaser, involving Jerusalem Post editor Jacob Katz defending his decision to host Sebastian Gorka at a conference while Gorka was under a cloud of controversy for his ties to neo-Nazis. Here's the shot:

[Katz said that] "We decided that ... he would be interviewed by me on stage while knowing that I will confront him with tough questions, including about the various allegations that have been reported in the press."

And here's the chaser:

Sitting on stage in an interview setting, Gorka was not pressed by Jerusalem Post editor Jacob Katz to provide any substantive explanation of his involvement with Vitezi Rend order in Hungary. Although he has denied being a formal member of the group, Gorka has repeatedly expressed support for the far right wing organization that the U.S. government says was under the control of the Nazis during World War II.

Katz allowed him to change the subject to his preferred topic of the threat of radical Islam.

This is the thing. It's one thing to defend platforming bigots and liars by saying "when these people are in the public eye, it's our job as journalists to ask the tough questions and hold their feet to the fire." But then you actually have to, you know, do it. What we seem to get more often is the conceptual promise of "asking tough questions" used to defend an actual practice of creampuffing.

Wednesday, May 10, 2023

Pardon the Insurrection

If Donald Trump is elected president in 2024, there is a near-100% chance he will pardon the January 6 insurrectionists. I think that is effectively beyond contestation. Here are my two questions:

1) If a different Republican (e.g., DeSantis) is elected in 2024, what are the odds that he pardons the insurrectionists? I'd say it's less likely than the near-certainty that Trump would do it; but is it even below 50%? Below 10%?

2) If Trump is elected in 2024, what are the odds that he tries to prosecute at least some of the Capitol police officers who resisted the January 6 insurrectionists (here he is calling one such officer a "thug" and Ashli Babbitt a "hero")?

Scary thoughts.

Enough With The Horse Racing

No, this isn't about the Kentucky Derby. This is about the jury that just found that former President Donald Trump sexually abused and defamed E. Jean Carroll. The jury did not find that Trump raped Carroll.

Shakezula found a particularly egregious example of a common media response to this ruling, and indeed, this entire lawsuit: framing it entirely in terms of the impact on Trump's political future. Will it hurt him? Help him? All be a wash?

How's this for a comment: it doesn't matter. I mean, obviously, it should matter in the sense that "a man whom a federal jury just found is a sexual predator and liar should have no political future, and it's appalling if that isn't the case." But beyond that, the idea that political calculations should play an iota of a role in terms of whether this case should have been brought, or how we respond to it, should appall us all.

The simple truth of that matter is that if E. Jean Carroll was sexually abused by Donald Trump, and then defamed by him, she deserved justice. A jury found that Trump did both of those things, and has now awarded her some measure of compensation and vindication. If it redounds to Trump's political advantage, it was worth it. If it redounds to Democrats' political advantage, it was also worth it. The political implications mean absolutely nothing in the face of ensuring that Ms. Carroll received the due a jury of her peers determined she was owed for being preyed upon by Trump. That's all there is to it.

Saturday, May 06, 2023

In Shocking Twist, Republicans Consider Expelling Legislator For Actual Misconduct

We're all by now familiar with the scandals in Tennessee and Montana, where Republican-controlled legislatures sought to expel or otherwise silence Democratic colleagues for the crimes of having opinions while Black and trans (respectively). Now there's news of another proposed expulsion coming from a red state -- but in a shocking twist, Republicans are experimenting with using it to address actual misconduct!

A House committee has recommended the expulsion of Republican state Rep. Bryan Slaton after finding he had engaged in inappropriate sexual conduct with an aide, then acted to thwart an investigation into the matter.

A scathing report by the House General Investigating Committee, distributed to House shortly after noon Saturday, found Slaton did not dispute allegations that he had sex with the 19-year-old woman and provided alcohol to her, nor did he express regret or remorse for his conduct. Instead, the report said, Slaton’s lawyer argued the complaints should be dismissed because the behavior occurred in Slaton’s Austin residence, not the workplace.

That summary barely scratches the surface -- the report strongly suggests that Rep. Slaton raped his aide (the aide was reportedly sufficiently intoxicated that she "could not effectively consent to intercourse and could not indicate whether [Slaton’s conduct] was welcome or unwelcome" -- the word for that is rape) and then threatened her (showing her a message reading "nothing would happen as long as her and her friends keep quiet").

Rep. Slaton entered office after ousting a more moderate Republican with backing from a pair of far-right petro billionaires. And what was his signature issue? You'll absolutely guess:

Last year, he called for a blanket ban on minors at drag shows, saying it was necessary to protect children from “perverted adults.”

Of course.

Anyway, kudos to Texas Republicans for considering using expulsion as a tool to punish actual misconduct as opposed to as a political stunt to disenfranchise minorities.

Friday, May 05, 2023

Making the Grade Roundup

It's grading season at Lewis & Clark. I have the entire 1L day class this semester across two sections of Con Law I, so it's a bit of a bear. But I'm almost halfway done!

You get a roundup.

* * *

As a professor, I cannot fathom the hubris it takes to see one of your papers rejected from a journal -- the most normal possible experience for an academic -- and decide to parlay it into an entire New York Times column decrying "wokeness".

Florida is set to legalize kidnapping trans children from their families. But don't worry -- they'll only do it if the families love their kids and provide them with healthcare. Family courts in other states better start boning up on asylum law, because the phrase "well-founded fear of persecution" is going to become increasingly germane in cases where there's a possibility of the child being sent to Florida.

Local elections in the UK are seeing the Tories getting absolutely stomped. Over a thousand seats lost by the party, most of which are going to Labour and a healthy chunk of which are going to the LibDems and Greens. It's amazing what Labour can do when it isn't being led by a wildly unpopular antisemitic extremist!

Princeton under fire for hiring prominent BDS activist to a fellowship position. The twist? The activist is a member of the Israeli far-right. But the BDS thing is real -- he supported a divestment campaign against Ben Gurion University in retaliation for its allegedly "anti-Zionist" tilt.

The UAW has new leadership (I had half an eyeball on this, since I technically was a UAW member in my capacity as a UC-Berkeley graduate student instructor), and they're playing hardball against the Biden administration demanding compensation for how new electric vehicles may reduce the number of autoworker jobs.

Wednesday, May 03, 2023

A Local Shooting in SW Portland

Two people are dead after a reported shooting at a SW Portland strip mall approximately five minutes from my house.

I've been to this strip mall. I've eaten at the cafe where the bodies were reportedly found. The UPS store across the street is where we go when we need to send a package. This part of Portland is in my normal orbit.

Contrary to what you've heard, Portland is actually a relatively safe city. Our crime rates are remarkably unremarkable -- a recent survey ranked us 21st out of 40 major cities when it came to violent crime. And my neighborhood is almost certainly safe than the city as a whole. This shooting is not, I think, reflective of any trends. If anything, it is in defiance of a national downward trend in violent crime.

Nonetheless, it's sickening that this is even a tertiary part of my -- or anyone else's -- life. And it's infuriating that the Supreme Court has essentially decided that people like me must, as a matter of inviolable constitutional law, live under the scourge of infinitely proliferating guns forever. It's terrible to know that if my elected representatives ever tried to do anything substantial to stem the tide of gun proliferation, the Supreme Court would be on the case to wag a finger and say no.

By the same token, the Republican Party's response to gun violence is, of course, to promote more guns (and to teach eight-year olds battlefield trauma techniques). "The only way to stop a bad guy with a gun is a good guy with a gun". When you strip away all the window dressing, what this boils down to is saying the solution is getting into a shootout. But I don't want to get into a shootout! I don't want to shoot anyone, and I should be able to get a cheese omelet at a local diner without committing to reliving the OK Corral. That's not a solution, that's a capitulation -- gun violence accepted as a forever-scourge, and you're either dishing it out or you're the victim.

It doesn't have to be that way. In most developed countries, it isn't that way. That it is that way here is not an inevitability. It is a policy choice, imposed by a radical judiciary whose contempt for the people it rules is becoming increasingly more brazen.

Tuesday, May 02, 2023

The Intolerance of Being Unhappy When Extremists Succeed

There's an emergent line I'm seeing from the nationalist-conservative right, complaining about how, as their practical power increases, they and their ideas are no longer looked upon with the same degree of affability as when they were fringe activists chirping at the margins. Adam Mortara put it as follows after he and Jonathan Mitchell, architect of Texas' SB8 and some of the most radical anti-abortion pushes in the country, received an (allegedly) chilly reception by a liberal former mentor.*

“It was hurtful . . . and eye-opening,” Mortara said. “You’re fine when you’re just a yappy little dog that can’t bite. But, if you grow up to be a big dog that can actually do stuff, then you’re probably going to be put down.”

Justice Alito said something similar in his whine-terview in the Wall Street Journal last week -- he alleged that he's really no different than Antonin Scalia, but Scalia was tolerated by liberal elites because he was mostly in dissent. Now that Justice Alito commands a majority, things hit different.

"When you're in dissent," Justice Alito observes, "well, his ideas were amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn't a threat, because those views were not prevailing on issues that really hit home."

This line is presented as some sort of gotcha to the liberals. "Oh, you tolerated us when our ideas were basically just fascinating thought experiments, but now that we're winning it's dangerous." To which I say: yes! That's how it works! 

The whole point of liberal free speech commitments is that there is a sizeable gap between "views one is willing to consider and debate" and "views which it would be good, or even acceptable, to prevail in political life." We don't limit our consideration only to those positions which we're willing to endorse on-the-merits; which means that there is no conflict between engaging in such consideration in the abstract and being appalled when certain views actually start winning the day in "real" politics. The "gotcha" completely misunderstands the point of what liberal tolerance in the context of an abstract intellectual discussion is supposed to signify, or commit to.

For example, it is entirely plausible that one might assign, in a political theory class, works by Lenin, and consider/debate them in the classroom context. That's perfectly appropriate. But if the Leninists actually start seizing political power and instituting the purges, that would be bad! And if they said, "Oh, it was fine to debate our ideas in the classroom, but now that we're actually in charge and establishing gulags you have a problem with it," well, yeah, I do! Clearly! And I can think the same thing of compulsory pregnancy and forced childbirth. As a professor, it is important to debate these questions. But the actual political reality of it is catastrophic, and it's fine to say so.

It is not a failure of liberal tolerance to be unhappy when illiberal authoritarianism is on the march. A willingness to debate and consider these views as abstract intellectual exercises does not make said unhappiness hypocrisy. This isn't that complicated.

* Full disclosure: the mentor in question was David Strauss, who was my mentor in law school as well. I also got to know Mitchell when I was a law student, and can attest that he is a personally very pleasant person to interact with in addition to possessing a formidable intellect. Anyone who knows Professor Strauss is well aware of his commitment to nurturing and supporting law students from a range of different ideological backgrounds, and so I have no doubt he is genuine in feeling hurt that Mitchell has used his prodigious legal talents in service of dangerous, even lawless, public initiatives.

Friday, April 28, 2023

The Lawlessness is the Point: On Alito and Judicial Illegitimacy

"The Supreme Court," the old saw goes, "is not higher because it is right. It is right solely because it is higher."

The idea behind this aphorism is simple: while practically speaking we must have some actor with buck-stops-here final authority to interpret the law, that the nine justices of the Supreme Court occupy that position in no way suggests that they have some special insight or knowledge about the law that goes beyond that held by the average J.D.-holding-Joe. It is mostly a matter of happenstance that the sputtering machine of our constitutional order happen to spit out these nine in particular. There are any number of lawyers and legal professionals who could do as well or better at the task. 

When Ilya Shapiro infamously said that any nomination short of Sri Srinivasan to the Supreme Court would necessarily be one given to a "lesser Black woman" he was -- beyond the obvious racism -- making this mistake. The idea that there is some unified ordinal ranking we can give of all lawyers and judges, such that we can say with confidence this person is the "best" candidate to be a Supreme Court Justice, is fanciful. The idea that if such a ranking were possible, these nine individuals would rank #1-9 is even more facile.

I thought about this when reading an interview Justice Alito recently did with the Wall Street Journal, which broadly tackled the question of the Supreme Court's declining legitimacy, framed around the cavalcade of unpopular right-wing rulings that have been de rigueur for the Supreme Court over the past few years. In his inimitable style -- nobody can match his combination of sneer and self-pity -- Justice Alito laid blame for the Supreme Court's legitimacy crisis on everybody but him and his faction. It's the media, it's the Democrats, it's the legal community writ large. It has nothing to do with the content of the decisions. It's a wide-ranging conspiracy depriving them of their just public adulation.

At one level, this is little more than Alito reflecting the ideology of his tribe. Nothing unites the contemporary right more than the complete abdication of personal responsibility. It's always someone else's fault. They are but helpless atoms, involuntarily reacting to the jostlings of the universe.

But I particularly want to zero in on his complaint that the broader community is not coming to the Court's defense:

"And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense." Instead, "if anything, they've participated to some degree in these attacks."

This discussion, again, is framed around the Court issuing repeated unpopular decisions. Certainly, it is the case that sometimes judges are obligated to hand down rulings they know will be unpopular. An unpopular rulings is not, on its own, a marker of illegitimacy. That said, in my Sadomasochistic Judging article I observed that it's too easy for judges to swing out to the other extreme, and begin viewing their unpopularity as a marker of legitimacy -- they know they're right by how much they're hated. If good judges sometimes have to do unpopular things, then a judge who's always doing unpopular things must be a great judge! Who can argue with that logic?

Nonetheless, I don't disagree that among the duties of the bar is, where appropriate, to remind the public that judges sometimes have to issue decisions that they know will be unpopular but which are legally correct. And, as Justice Alito alludes to, historically, the bar has fulfilled that obligation and offered those explanations.

Which might be taken to suggest that, if these defenses are not on offer today, it's because the bar today does not see what's going on at the Supreme Court as unfair attacks stemming from a few unpopular rulings.

Indeed, it's noticeable that the criticism of the behavior of the judiciary isn't just stemming from the highest-profile, hot-button issues. There are increasingly dire complaints from specialists in the more "boring" sectors of law -- administrative law, standing doctrine, remedies -- that things are getting out of control, that the Supreme Court (and some lower court wannabes) are blowing past longstanding doctrinal principles in service of results-oriented judging in service of right-wing extremism. The era of conservative legal formalism is over. The stampede of cases come from every quarter and every issue -- guns, abortion, voting rights, religious freedom, gerrymandering, racism, environmental protection. And what unifies the conservative faction's voting pattern in those cases isn't textualism, or originalism, or precedent, or prudence, or deference to democracy, or professional consensus. The best -- not perfect, but best -- way to predict what the Court will do in nearly any legal arena is to ask "what do Republicans want."

The legal community, as Justice Alito says, may be obligated to defend the Court from unfair attacks. It is under no similar obligation to defend the Court from attacks it thinks are entirely fair.  The most consilient explanation for why the bar is withholding defenses it has historically proffered in circumstances of mere political unpopularity is that it does not identify the problem as political unpopularity; it has judged that the Court really is deviating increasingly sharply from basic rule of law principles in service of sloppy, results-oriented right-wing caprice.

A modest Court would take this reaction from the bar as a warning. Recognizing that it does not have a monopoly on, or even a superior vantage towards, legal truth, it would take very seriously indications that its peers in the legal community think it is going astray. By design, the Court has few formal guardrails that prevent it from simply becoming a blunt instrument of factional caprice. The collective feedback of the legal community is an informal mechanism for assessing the risk. When the bar is generally saying "look, we understand people might disagree with this decision, but sometimes unpopular decisions are part of a functioning legal system", that's a sign things are healthy. When the bar no longer feels capable of credibly making that apologia, that's a sign of rot. And in that register -- the register of professional assessment -- the Court cannot lay claim to special prerogatives because it is "higher". The Court is not necessarily right just because it is higher, and should take a long and deep pause if its professional peers are increasingly emphatic about how wrong it is.

But this Court is not modest. If the bar no longer has confidence in judicial legitimacy, then it's the bar children who are wrong

One can, of course, explain all of this away by deciding that the entirety of the federal bar has suddenly and en masse decided to abandon its historic commitment to American legal institutions in favor of blinkered ideological partisanship. But every bit of political theory and common sense we possess suggests that we're seeing the natural results of six individuals with life tenure and virtually nothing in the way of formal checks on their authority becoming power-drunk. 

It is among the prerogatives of that drunken, unfettered power that Justice Alito does not need to be "popular" to continue to impose his personal will onto society. Formally speaking, the bar can scream as loud as it wants that what he's doing is not normal, and is not compatible with the professional consensus on what the law is. Indeed, at one level, I think that -- protestations notwithstanding -- the lawlessness is the point. Judges are specialists masquerading as generalists; there might be a few issues where they really do know more than the rest of us, but most legal cases turn on doctrines that judges know virtually nothing about until the minute they open the first brief. But if one holds the legal community in the sort of open contempt that Justice Alito clearly does, there is a sort of thrill in defying of them -- of making it painfully clear that you do not care and it does not matter what the legal community say the rules are in a given case. L'etat, c'est moi. I decide what the law is.

It is the hallmark of an abuser, though, that they simultaneously thrill in degrading their victims and demand their victims consent to the abuse. For all that he enjoys gleefully soaring beyond the confines of legal professionalism, Justice Alito also insists that the legal profession owes him supplication. It's not enough to obey if we don't also recognize that he's right to do what he does to us. In this way, the aforementioned "thrill" is something of a lie Alito tells to himself. He does care and it does matter that the legal community thinks that he's a hack. I'm not saying it'd be better if he truly didn't care. But he does care. He's livid about it.

What Justice Alito wants is a contradiction -- he wants to bludgeon the legal community into freely accepting his preeminence. It's not enough for them to recognize him as higher, they have to recognize that he's right, and the beatings will continue until the morale improves. But this sort of "consent" -- recognition that the Court is right in what it says -- is not one the Court is entitled merely because it is "higher". The people -- whether the people of the United States as a whole or the legal community in particular -- may have to obey the Supreme Court. We do not have to like the Supreme Court. And if it is to be viewed as more than the capricious whims of six radical in robes, that is a public perception it must earn; it is not an entitlement.