Saturday, June 17, 2023

The Most Dangerous Threat To Jews Are The People Threatening To Kill the Jews

Yesterday, June 16, 2023, a federal jury officially convicted Robert Bowers, the White supremacist whose 2018 mass shooting at the Tree of Life synagogue in Pittsburgh, Pennsylvania that was the deadliest antisemitic incident in American history.

Also yesterday, a man in Michigan was arrested on charges he plotted to conduct his own mass shooting at a synagogue in East Lansing. Like Bowers, Seann Patrick Pietila was also a far-right White supremacist, though it appears his immediate inspiration was the Christchurch Mosque massacre, on whose 5th anniversary he planned to launch his own killing spree.

There is a line one increasingly hears in conservative Jewish circles that insists that Jewish fears over right-wing antisemitism are naught but a ginned up panic. Just a few weeks ago, Jonathan Tobin had the gall to claim that "It isn’t going too far to assert that Soros is endangering far more American and Jewish lives than stray marginal extreme right-wingers." To say that at a moment when the Tree of Life survivors are forced to relive a massacre perpetrated by one of those "stray marginal extremists", one whose violent hate was inextricably bound up in the fever swamp of antisemitic conspiracies for whom George Soros is a central figure and which the likes of Tobin are now trying to render Kosher, is sickening.

The most dangerous threat to American Jews is not liberal Jews supporting policies supported by most other American Jews. The most dangerous threat to American Jews is, and continues to be, the people trying to murder Jews, right alongside the people ginning up, spreading, apologizing for, or horrifyingly endorsing the conspiracies that justify those murders. It's not that complicated. But apparently it still needs to be said.

June 16, 2023, in some ways represents the ongoing circle of antisemitic death, closed in on itself. One antisemitic mass murder reached "closure" (if such a thing is possible). Another was thankfully averted, due to the vigilance of law enforcement who fortunately did not take Tobin's unsolicited, misguided, politically opportunistic, and downright dangerous "advice" that right-wing antisemitism is non-threat.

They know it. We know it. The Tobins of the world, trying to deny it, are absolutely and utterly beneath contempt.

Friday, June 16, 2023

In the Image of God

A recent study found that Jews are the demographic group most accepting of trans individuals in the United States.

When certain Christians assert a religious freedom right to discriminate against trans individuals -- particularly, a right to misgender them -- their argument typically proceeds something along these lines:

1. They believe every individual is created in the image of God.

2. Part of that image is the person's sex (and by extension, gender).

3. In particular, a person's sex/gender is inalterably assigned by God from conception.

4. They are forbidden from lying or falsifying God's choice.

Therefore, they say, they are religiously obligated to refer to people by their chromosomal sex, regardless of how they identify or publicly present. This religious duty, in turn, is used to press against rules and policies which require respectful treatment of trans individuals (including refraining from deliberately misgendering them, deadnaming them, and so on).

What's interesting about this framework is that a lot of it actually resonates with how I view the relationship of my Jewish faith and trans individuals -- with some crucial alterations. To wit:

1. I believe every individual is create in the image of God.

2.  Part of that image is the person's sex (and by extension, gender).

4. I am forbidden from lying or falsifying God's choice.

The major distinction, of course, comes in prong 3:

3. A person's sex/gender is not necessarily or inalterably assigned by God from conception, but rather can be part of a person's own process of discovering who they are. Where such self-discovery leads to a person to conclude they are trans, non-binary, or any other identity that departs from the sex they were assigned at birth, they are not deviating from God's plan. They are uncovering their authentic self as God has created them.

The result of this process is part of God's image. Those who refuse to accept it are not cleaving to God's image, they are rejecting it.

God's process of creation is not, in my understanding of Judaism, a set-and-forget sort of deal. It is not a matter of passively being puppeteered by a divine hand. It something we do together -- we are partners in creation. To deny the results of that partnership is, for me, a denial of God's plan and practice just as much as it is for adherents of other religious views who adhere to a more static and calcified notion of the role of the divine.

And so for me, and I suspect for many Jews, the religious freedom obligation pushes in the other direction. Many conservative states have, or are considering, laws which require (at least in certain contexts) non-recognition of trans identity. For Jews (and others) who share my religious precepts, these laws would force me to deny -- to bear false witness to -- a key attribute of how God created some of my peers. I do not believe -- and this is a deep, fundamental commitment -- that God's "image" of trans persons was for them to be locked in a body or sex or gender identity that clearly is not authentically theirs. When they find their full self, they are equally finding God's image of themselves.

Consistent with my lengthily expressed feelings on the subject, I suspect that what's good for the goose will not be good for the gander. Despite the clear parallel, liberal Jews who assert religious liberty rights to be exempted from laws seeking to enforce by state mandate a transphobic agenda will not meet with the same success enjoyed by their Christian peers.

Nonetheless, there is value in promoting this sort of framework, and in unashamedly asserting Jewish independence from hegemonic conservative Christian notions of true religiosity. It is not woven into "religion" that God's image requires rejection of trans individuals' full selves. That is a choice, an interpretation of some religions or of some who call themselves religious. Other religions, other religious persons, have a different interpretation of how to respect and dignify the facet of God that is in every one of us.

Thursday, June 15, 2023

Thomas and Alito: The Anti-Gorsuchs on Tribal Rights

In the wake of today's blockbuster decision in Haaland v. Brackeen (upholding the Indian Child Welfare Act against constitutional challenge), and somewhat-less blockbuster decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (holding that tribal sovereign immunity is abrogated by the bankruptcy code), Josh Blackman observes that Justice Gorsuch appears to have ruled in favor of tribal parties in every case he's heard while on the Supreme Court. There's one case on that list that is arguably a bit dicey -- Yellen v. Confederated Tribes of Chehalis Reservation -- but by and large Justice Gorsuch's strong affinity for Indian tribes and tribal rights is very well-known.

Blackman thus asks whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member?" It's an interesting question. But reading Blackman's list, I noticed that in every case where Gorsuch ruled in favor of tribes, Justices Alito and Thomas were on the opposing side. He even recognizes that Gorsuch "is consistently on the other side of Justices Thomas and Alito" on these issues. Gorsuch has never written a unanimous opinion on a tribal rights question because in every case (at least) Thomas and Alito have voted against the tribes. Just as Gorsuch has apparently always voted on the side of tribal interests, it appears that, at least during Justice Gorsuch's tenure on the Court, Thomas and Alito have never voted in favor of tribal interests.

This is a striking streak -- maybe even more so than Gorsuch's 1.000 batting average. Obviously, Alito and Thomas don't have any general negative view towards Gorsuch's jurisprudential outlook -- they're aligned most of the time. And, whether you agree with Gorsuch or not, it's hard to gainsay that he is the foremost subject-matter expert on Indian law on the Supreme Court. So it's surprising that Alito and Thomas have never been willing to sign on to one of his opinions. When I was on the Eighth Circuit, my Judge (the late Diana E. Murphy) was generally recognized as one of the court's Indian law specialists, and so would typically get some amount of deference from her fellow judges on those questions -- not always, and not blindly, but it was there. Yet despite general ideological concurrence, and despite specific reasons to know that Gorsuch is the Supreme Court's Indian law specialist, Alito and Thomas have nonetheless been as implacable foes of tribal rights as Gorsuch has been a friend.

So again, asking whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member" is an interesting question. But still, I think there's also a corollary question to Blackman's. "When is the last time (if ever?) that Alito or Thomas have written an opinion ruling for an Indian Tribe or Member?" Thomas and Alito have been on the Court longer than Gorsuch has, so their record stretches back further than his tenure. But if we wonder as to why Gorsuch is so friendly to tribes and tribal interests, we perhaps should be equally curious as to why Thomas and Alito are so hostile to them.

Happy Blog Birthday!

Happy blog birthday! The Debate Link turns a ripe old 19 today! And this year is the cross-over year -- as of now, I have been blogging on this site for the majority of my life. What a thought.

Sunday, June 11, 2023

Loose Cannon

Judge Aileen Cannon has been assigned to oversee the criminal prosecution of Donald Trump.

I've seen enough high-profile political cases to be familiar with a very specific script that gets written about the judge assigned to the case. Pretty much without fail, you'll get a passage that reads something like the following:

Judge Smith is a veteran judge who ascended to the bench after fifteen years in the U.S. Attorney's office. He has a reputation for being no-nonsense and demanding a tight ship at trial that includes rigorous questioning of attorneys on both sides.

"He doesn't tolerate a lot of guff," said one attorney who had practiced before him for many years. "You won't agree with all of his rulings, but he's universally respected."

This template is so common I've begun to wonder if it's reflex (not every judge can be "no-nonsense"!). Which makes it all the more striking that nobody -- nobody -- is writing lines like this about Judge Cannon. They weren't writing them even before she went 100% YOLO in trying to block the Mar-a-Lago investigation; they certainly aren't writing them now.

Since the news broke, I heard folks suggest that Cannon was only assigned to the preliminary aspects of the case, which appears untrue. Then I heard other folks assert that Cannon likely will be forced to recuse herself from the case. And honestly, I'm dubious about that too. 

To be clear: Judge Cannon absolutely should recuse. Her conduct in the Mar-a-Lago case suggests that she's so completely in the tank for Trump that there's no possibility that she'll be perceived as impartial. But if she was the sort of person who could be shamed into recusing just because it's the right thing to do, it wouldn't be as much of a problem if she didn't recuse.

The fact is our judicial system is not well-equipped to handle a problem like Cannon. The problem is not that she was nominated by Trump -- two of the three 11th Circuit judges who bench-slapped her Mar-a-Lago catastrophe into oblivion were Trump appointees. The problem is that Cannon, specifically, is a complete hack who's decided that her job as federal judge is to be Donald Trump's offensive line.

For very good reason, our judicial system starts with a healthy presumption of impartiality on the part of its judges. We don't let either party force out a judge just because they don't like their lean. Recusals are easiest to justify when the judge has a direct financial stake in a given controversy, or when they're close personal friends or associates with a party. These sorts of connections give everyone a face-saving option -- the problem isn't actual bias, but the appearance thereof; one could be as pure as driven snow and still agree that it is a sound policy to not preside over a case where your best buddy is being charged with a serious crime.

Unfortunately, other than the fact of her nomination Judge Cannon doesn't have those concrete ties to any party here, which means that there's no hiding the actual issue on the table. Judge Cannon needs to recuse because Judge Cannon is, in relevant respects, incompetent. I say incompetent not to suggest that her mistakes stem from ignorance rather than malice; rather, an important part of Judge Cannon's job is to administer the law fairly and impartially, and she has demonstrated herself to lack competency in that dimension of the judicial role. Hence, she cannot be trusted and is not qualified to preside over a trial like this one, with a defendant for whom she's already shown herself to be incapable of adjudicating impartially.

But once again, if Judge Cannon was the sort of person capable of recognizing that shortcoming, she likely wouldn't have it. There's no clear face-saving out where one can disclaim actual bias but recuse for prudence's sake, and there's no universe in which Judge Cannon agrees "I was so egregiously wrong in the Mar-a-Lago case that one can't help but infer I was biased." Which means it is up to an appellate court to make that determination for her, and needless to say, that's a very awkward proposition which appellate courts are going to be loathe to undertake. 

Appellate courts are not prone to saying "this case must be stripped from this district court judge because this judge is in general too biased to handle it." The closest one sees to that sort of ruling is when a case is stripped from a lower judge after repeated obstinance in refusing to implement appellate orders, and that is exceedingly rare. Even assuming that the Mar-a-Lago reversal should count towards such a showing in the criminal case, the problem with Judge Cannon's ruling there wasn't really that of repeated lower court disobedience of superior court mandates. It instead stands out because of Judge Cannon's absolute, rancid lawlessness. But again, our system is not well-built to account for the possibility that an Article III judge might as a general matter -- not due to financial stakes or personal connections, but purely as a matter of ideology -- be congenitally incapable of ruling in accordance with the law.

It's a similar problem to the situation with those single-division Texas judges. The thing everybody knows and everybody is thinking -- that the problem is that these judges are utterly and completely in the ideological tank such that law simply doesn't matter for them anymore -- can't be uttered out loud, at least not in a formal proceeding. On the outside, everyone knows that's the problem. But in a filing, you can't come out and say "judge, our basis for recusal is that you're a lawless hack." And since that is, at the end of the day, the problem, whatever alternative basis you try to hang your hat on will ultimately be a poor fit that probably won't end up justifying recusal. The structure of Article III life tenure means that placing a hack like Cannon on the federal bench is an irreversible mistake.

So count me skeptical that Judge Cannon will recuse herself, and count me skeptical that any superior court will force her recusal, at least immediately. Unfortunately, the reality is we're likely stuck with Judge Cannon and whatever hijinks she comes up with to justify torpedoing this case -- at least for the foreseeable future.

How To Train Your Writer

Right now, on a purely technical/stylistic level, ChatGPT is an okay writer.

It's not great. But it's not bad, either. It's better (and again, we're talking purely technical here -- leaving aside factual hallucinations and the like) than some of my students, and I teach at a law school. Of course, even when I taught undergraduates I was inordinately concerned that many of my students seemingly never learned and never were taught how to write. So there has always been a cadre of students who are very smart and diligent, but just didn't really have writing in their toolkit.  And I'd say ChatGPT has now exceeded their level.

The thing that worries me most about ChatGPT, though, isn't that it's better than some of my law students. It's that it will always be better than essentially every middle schooler.

Learning to write is a process. Repetition is an important part of that process (this blog was a great asset to my writing just because it meant I was writing essentially every day for years). But part of that process is writing repeatedly even when one was is not good at writing. Writing a bunch of objectively mediocre essays in middle school is how you learn to write better ones in high school and even better ones in college.

ChatGPT is going to short-circuit that scaffolding. It is one thing to say that an excellent writer in, say, high school, can still outperform ChatGPT. But how will that kid become excellent if, in the years leading up to that, they're always going to underperform a bot that could do all their homework in 35 seconds? The pressure to kick that work over to the bot will be irresistible, and we're already learning that it's difficult-to-impossible to catch. How can we get middle schoolers to spend time being bad writers when they can instantly access tools that are better?

There might be workarounds. I've heard suggestions of reverting to long-hand essay writing and more in-class assignments. There might be ways to leverage ChatGPT as a comparator -- have them write their own essay, then compare it to a AI-generated one and play spot-the-difference. I think frankly that we might also be wise to abolish grading, at least in lower-level writing oriented classes, to take away that temptation to use the bot. I don't care how conscientious you are, there aren't a lot of 14 year olds who can stand putting in hours trying to actually do their homework and then getting blown out of the water by little Cameron who popped the prompt into an LLM and 45 seconds later is back to playing Overwatch. And again, that's going to be the reality, because ChatGPT's output just is better than anything one can reasonably expect a young writer to produce.

In many ways, large language models are like any mechanism of mass production. They displace older artisans, not because their product is better -- it isn't, it's objectively worse -- but on sheer volume and accessibility. The art is worse, but it's available to the masses on the cheap.

And like with mass production, this isn't necessarily a bad thing even though it's disruptive. It's fine that many people now can, in effect, be "okay writers" essentially for free. It's like mass-produced clothing -- yes, most people's t-shirts are of lower-quality than a bespoke Italian suit, but that's okay because now most people can afford a bunch of t-shirts that are of acceptable quality (albeit far less good than a bespoke Italian suit). The alternative was never "everyone gets an entire wardrobe of bespoke Italian suits", it was "a couple of people enjoy the benefits of intense luxury and most people get scraps." Likewise, I'm not so naive as to think that most people in absence of ChatGPT would have become great writers. So this is a net benefit -- it brings acceptable-level writing to the masses.

If that was all that happened -- the big middle gets expanded access to cheap, okay writing, with "artisanal" great writing remaining costly and being reserved for the "elite" -- it might not be that bad. But the question is whether this process will inevitably short-circuit the development of great writers. You have to pass through a long period of being a crummy writer before you become a good or great writer. Who is still going to do that when adequacy is so easily at hand?

I'm not tempted to use ChatGPT because even though my writing takes longer, I'm confident that at the end my work product will be better. But that's only true because I spent a long time writing terribly. Luckily for me, I didn't have an alternative. Kids these days? They absolutely have an alternative. It's going to be very hard to get them to pass that up.