Monday, July 08, 2024

"Us Too-ism" Turns Off the Normies

You may have heard that a group of Columbia University administrators were sacked after someone posted screenshots of text messages where they were snarking at a panel on campus antisemitism they were in the audience for.

When that story broke, I was (and largely remain) of two minds on this. On the one hand, all of us have snarky texts that ripped out of context probably look pretty bad -- this sort of policing really doesn't end well for anyone. On the other hand, university administrators have a pretty grim reputation right now of treating antisemitism claims as trivial annoyances by bad faith actors, and these messages fit into that paradigm. There's a fundamental trust problem: many Jews do not trust that Columbia administrators are interested in seriously tackling antisemitism, and see these texts as verifying that disdainful dismissal; many academics do not trust Columbia's leadership to respond to antisemitism complaints with anything but reflexive brute force, and see this response as yet more kowtowing to an unappeasable media feeding frenzy. Both camps, in all honesty, have reasons for their mistrust.

But that's not what I what to concentrate on here, exactly. Rather, I want to take stock of one response in particular -- that of Kevin Drum. I'm a longtime fan of Drum's writing, which I think is a good exemplar of reasonably thoughtful and well-informed center-left "normie" politics. Seeing how he was responding to Israel's Gaza campaign was a good barometer of what people not in the hothouse of terminally-online left politics were thinking; in particular, it suggested that the belief that the current Israeli government is a fundamentally bad actor is not one confined to the "usual suspects" on the far-left.

In any event, one component of the Columbia controversy was the claim that the administrators themselves indulged in an antisemitic "trope" -- the suggestion that the panelists were hyping up instances of antisemitism as a "fundraising" opportunity allegedly feeding into claims about Jewish greed and/or perfidy. To this, Drum gave the textual equivalent of a giant eyeroll. He explained that he's long been suspicious of the word "tropes", which he said "in practice [is] used exclusively to imply someone has said something vaguely offensive without having the receipts." And this case, for him, fell squarely into that category:

I took a look at these text messages a couple of weeks ago and came away believing there wasn't much there. Since then the entire text conversation has been released, but it doesn't change things. During a panel discussion about antisemitism, the three deans in question shared private texts that you could fairly describe as snarky or irreverent. But that's about it.

To the Columbia administration, however, which was under siege from outraged alumni demanding that the three deans (plus a fourth) be fired immediately, the texts conveyed "a lack of seriousness about the concerns and the experiences of members of our Jewish community."

This is precisely backward. What the deans did was fail to show unconditional earnestness and obeisance toward every last grievance lodged by a particular community, no matter how ridiculous or overstated. This is apparently the price of admission to progressive society these days.

This whole thing is bonkers. The grievances of specific communities deserve to be given fair consideration, but they don't automatically demand absolute deference. In this case, the deans privately exhibited moderate skepticism toward a few of the claims from the panelists, some of it expressed a little bit caustically. None of it could reasonably be called antisemitic, and at most they deserve a verbal reprimand. Instead they're all out of jobs.

Drum thinks that antisemitism allegations here are thin gruel. Maybe you disagree. But one argument I've often heard, as against the claim that Columbia is overreacting here, is to say in essence "maybe so, but that ship has sailed -- every other group gets this sort of response when they claim to be the victims of discrimination, so it's only right that we the Jews do too." It's a version of what I've termed "us too-ism", and I've already outlined many of its pitfalls, not the least of which is the fact that the perception of what "every other group gets" is often not matched by reality. 

But Drum's reaction illuminates yet another problem: for many of the people who do perceive that this is what colleges "normally" do, they don't view that as a good thing. They view it as a bad, toxic practice they at best generally roll their eyes at. Indeed, I suspect most of the "normie" center-leftish Jewish commentators take that general perspective: when we're not talking about antisemitism, they view this sort of heavy-handed administrative response as indicative of wokeness gone wild, which is why when we are talking about antisemitism they defend similar behavior not on its own merits but rather via the us-too bank shot of "well, it's what everyone else gets." The problem is that when non-Jewish normies see this happening, they don't think "aha -- now the chickens have come home to roost, for the Jews also get to claim this bounty!" They think "oh great, yet another instance of overzealous activists peddling a grievance scoring one for cancel culture," and just slot Jews and anti-antisemitism politics into their mental category of "minorities who face some genuine discrimination but are taking things too far."

Again, all of this is aside from whether Drum is right "on the merits" to dismiss the antisemitism angle here. The point, rather, is to emphasize yet another problem with the "us too" argument -- more often than not, its reception outside the Jewish community is not going to be "well, fair is fair"; it's going to be to associate Jews with whatever malformed and exaggerated perception of identity politics gone wild already prevails within the broader public. It still might be a hit worth taking if one genuinely can defend the practices and arguments in question on their own merits, without relying on the crutch of what other groups are imagined to get. But if one's main basis for trying to draw blood is simply the "us too" entitlement, then it's definitely a fool's errand.

Thursday, July 04, 2024

The Corbynification of the GOP Continues

Just before the 2022 midterms, I wrote a column in Haaretz about the Corbynification of the U.S. Republican Party. For all the harping and wailing about the imminent rise of Corbyn-style politics amongst Democrats, it really was the GOP that displayed all of the worst qualities of Corbynism. In fact, I had been drawing Trump/Corbyn parallels as early as 2015! But seriously -- check out the overlap:

  • Penchant for conspiracism? Check.
  • Motivated by an endless abyss of grievance politics? Check.
  • Base comprised of extremely online bigoted trolls? Check.
  • Blind adoration of the One True Leader? Check.
  • Major antisemitism problem? Check.

With the one unfortunate divergence that the American GOP is capable of winning elections, the commonalities are astounding.

Anyway, today's Labour Party has ousted Corbyn and is poised to absolutely curb-stomp the Conservative Party into oblivion, a result that could not fill me with more ecstatic delight. Meanwhile, a sitting Republican Congressman -- Rep. Scott Perry (R-PA) -- just posted and deleted an antisemitic image ... one of the very same ones that Corbyn promoted and became a keynote example of his antisemitic bent.

Nothing like watching history's rhyming rhythm. Though the little trading places thing we're doing with the UK -- they get sensible center-left government, we get resurgent mainstream antisemitism and rule by the divine right of kings -- isn't exactly making for the greatest of July 4th celebrations.

Wednesday, July 03, 2024

Losing Your Chevrons

Somewhere, an environmentalist wished upon a star: "I hate big oil. It's a blight on the universe. If only Chevron would disappear forever!" and a monkey's paw curled once.

I was steeling myself to write about Loper Bright and my official welcome on behalf of the Con Law professoriate to the Admin Law professors joining the "burn all your lecture notes and start from scratch club", and then Trump v. United States came down. Even though the latter is a more immediate big deal and is closer to my expertise wheelhouse (I've fielded far more inquiries from former students asking "what is going on!" with respect to the Trump decision than any ruling in my entire career, Dobbs included), I really don't have all that much to say at this moment. That may change -- in fact, it almost certainly will, as I try to work this blog post into an essay -- but for now I'm going to lay off and just write what I planned to write about the demise of Chevron.

My short version take is this: in many, many cases, we'll see little difference between before and after. This prediction, however, should not be confused with sanguinity. Rather, it is a recognition that judges are human, with the normal assortment of human interests, talents, and vices. 

In most deep-weeds administrative law cases, where judges neither know nor care about the difference between, say, nitrogen oxide and nitrous oxide, they aren't going to actually do a deep dive review of the law from scratch. These issues are hard enough for a team of subject-matter experts with Ph.Ds in the hard sciences grinding away for months. For a judge with a J.D. from Hofstra who last took a statistics class in 11th grade? Forget about it. In practice, no matter what the doctrine purports to demand or what they claim to be doing on the opinion pages, judges will end up deferring to reasonable agency interpretations of the law unless they're howlingly off-base -- which, of course, is why we ended up with Chevron in the first place. Any objective observer of courts sees this sort of thing from judges all the time -- there are all sorts of cases where nominal "de novo" review is the furthest thing from, because judges simply find the topic boring, repetitive, or impenetrable (you can usually spot these cases by their use of the phrase "after careful review ....").

This will be what happens for many if not most cases on obscure rules in unremarkable issue areas. What will change is in those administrative rules on hot button issues of high-salience. Here, Loper Bright doesn't make judges any smarter, but does give them a green light to start substituting their judgment for expert agencies who at least have some measure of accountability to the political process. In other words, Loper Bright won't universally result in the substitution of inexpert judicial policymaking for the judgments of administrative agencies; rather, it will result in that substitution on an ad hoc and arbitrary basis whenever the judge who happens to be draw the case has an idiosyncratic or ideological hobbyhorse to ride. The administrative state will be able to carry on, with a cutaway for partisan judges to meddle more openly whenever partisan proclivities instigate an urge.

So there's your consolation about the end of Chevron. Feeling better? I thought so.

Wednesday, June 26, 2024

Bow(man)ing Out

As you've no doubt seen, George Latimer has ousted incumbent Rep. Jamaal Bowman in the Democratic primary for New York's 16th congressional district. The margin -- approximately 58-41 -- is similar to Bowman's own primary victory over longtime district Rep. Eliot Engel in 2020 (that was a 55-41 victory).

Of course, we all know the cardinal rule about ousting incumbents in primaries: My challenge is an authentic expression of popular rebellion, your challenge is an astroturfed manipulation by special interest and rabble-rousers.

The reality is that one shouldn't read too much into this result. I think it tells us a lot less about the state of "Israel politics" in the Democratic Party than anybody would like to admit. Yes, AIPAC dumped a truckload of money into this race. But Bowman made plenty of missteps that made him vulnerable; first and foremost being seemingly completely uninterested in connecting with his district once lines were redrawn after the census. Part of what haunted Engel was the sense he had grown distant from his district, but Bowman quickly fell victim to the same sentiment (particularly in contrast to Latimer, who had extremely deep connections and a reputation as an outstanding retail politician). When your closing rally cry is a promise to show "AIPAC the power of the motherfucking South Bronx", and none of your district actually includes the South Bronx, that's not awesome.

All of which raises the question of how much difference AIPAC's money actually made. A colleague of mine described their intervention as "feasting on a corpse", and while I think that's exaggerated, there's little question that AIPAC knows how to pick its spots and is happy to claim credit for backing a winning horse. AIPAC's backing might have given him some extra oomph, but Latimer was already an unusually high-profile challenger given his long run in Westchester politics. Right now, both sides have an incentive to talk up AIPAC's influence -- Camp AIPAC to gain the aura of deterrence, Team Bowman to provide a face-saving excuse -- but for my part I'm doubtful that AIPAC's dollars made much of a difference (or at the very least, the diminishing returns after the first infusion accelerated rapidly). As obnoxious as the glut of money sloshing around American politics might be, it just isn't the case that a truckload of money can simply buy a congressional seat (ask David Trone, or Carrick Flynn). Bowman may have been outspent, but he had plenty of resources (tangible or not) in his corner; he was hardly hung out to dry. And meanwhile, as much as AIPAC wants to crow that "pro-Israel = good politics", it remains the case that most of its advertising in Democratic primaries studiously avoids talking about Israel, suggesting it isn't as confident in its message as its bluster suggests. 

In fact, I'm mostly tired of how the Israel thing completely overwhelms and distorts how we talk about all the relevant players here. Bowman's 2020 victory over Engel was framed as an ousting of a "moderate", but that label almost exclusively played on Engel's pro-Israel voting record -- in reality, he was a reliable progressive vote through his entire multi-decade tenure in office. And Bowman, too, is disserved when people act like the only thing he did in office was yell about Israel. He was a passionate voice for the interests of working class Americans and that passion was an inspiration to many. I have no desire to dance on his grave, any more than Engel's. And, for what it's worth, I suspect Latimer too will be a generally reliable liberal voice in Congress (indeed, my understanding is that New York progressives generally had warm feelings towards Latimer up until the ugliness of this race). The real moral of this story is that while in highly-activated online circles Israel (pro- or anti-) might matter uber alles, that's not what's happening on the ground.

These posts aren't what anyone enjoys reading -- people want to crow at a Squad member being laid low or they want to fulminate over AIPAC bulldozing American democracy. But the reality is that most of the political dynamics in play here are considerably more prosaic. If Cori Bush loses her primary in a few weeks, the same will be true -- she's also facing a strong challenger and she also has had some bad headlines dragging her. And likewise, there's a reason why AIPAC has largely left folks like AOC or Rashida Tlaib or Summer Lee alone -- they haven't shown the same vulnerabilities. There's no unified narrative, save perhaps that there is a lot more political diversity amongst even committed, partisan Democrats right now than there is amongst Republicans.*

* Yet even these stories can be overstated. The linked article uses, as one of its examples of "moderates" prevailing in Democratic primaries, my own congressional district where Janelle Bynum beat 2022 nominee Jamie McLeod-Skinner. Yet I highly doubt that this result has much of anything to do with Bynum's "moderation". McLeod-Skinner was badly damaged by stories that she was abusive towards staff, but more importantly she ousted an incumbent Democrat in 2022 and then lost the seat to a Republican, which I think for many Democrats was an unforgivable failure. There are times when it's worthwhile to dislodge a rooted Democratic incumbent, but if you do it in a swing district you damn well better close the show, and McLeod-Skinner didn't. McLeod-Skinner's track record, coupled with Bynum's own history having defeated the Republican incumbent in a local race before, were I suspect far more decisive than notions that Bynum cut a distinctively "moderate" profile (I think she, like Latimer, will be a decidedly "normal" Democratic representative in Congress).

Friday, June 21, 2024

"I'm Not Owned! I'm Not Owned!" Originalists Continue To Insist as They Slowly Shrink and Transform into a Corn Cob

The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").

The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.

But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.

Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.

I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.

The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed  were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all". 

Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.

Wednesday, June 19, 2024

Israel Threatens New Settlements in Retaliation for Palestine Recognition

CNN ran this story a few days ago, detailing statements from some Israeli government officials promising expansion of West Bank settlements in response to the decision by several European nations to recognize Palestine as a state.

Israel’s government says it is looking to “strengthen” Jewish settlements in the occupied West Bank after several countries unilaterally recognized a Palestinian state.

In a statement issued on Sunday, the Prime Minister’s Office said all of the proposals for strengthening settlements in what Israel biblically refers to as Judea and Samaria would be voted on at the next Security Cabinet meeting.

Norway, Ireland, Spain and Slovenia have each recognized an independent Palestinian state in recent weeks, a move motivated at least in part by Prime Minister Benjamin Netanyahu’s open refusal to commit to a two-state solution.


Israel’s far-right finance minister, Bezalel Smotrich, said in May that Israel should approve 10,000 settlements in the West Bank, establish a new settlement for every country that recognizes a state of Palestine, and cancel travel permits for Palestinian Authority officials.

At the top level, this is another data point for an already-complete illustration showing that the Israeli government has quite a few far-right expansionist extremists in positions of alarming power and influence. Not new, but still essential to flag.

But there is another point worth mentioning, which also is not especially novel but does need to be pointed out. It is common to argue that Israel's brutal, hyper-aggressive assault on Gaza is persisting because other nations (particularly, but not exclusively, the United States) haven't taken sufficient punitive action against Israel to punish it for its misdeeds. Diplomacy is a function of carrots and sticks, and we've left the "stick" part out of our repertoire for too long. Had we utilized sticks more robustly, then maybe much of the current crisis could have been averted or at least ameliorated.

Perhaps. But as the above story illuminates, it's not necessarily the case that diplomatic "sticks" always serve to bring their targets to heel, or even arrest their bad behavior. Sometimes, particularly over the short-term, they can instead accelerate it. For obvious reasons, states have a very strong incentive to not give the impression that hostile action (or actions they perceive as hostile) against them will yield positive results. To the extent Israel doesn't want other countries to recognize Palestine, it's very predictable that its next move in the game will be to take actions that suggest "doing this has led to X Y Z bad consequences you don't want to see repeated." Countries that feel isolated or as if they can only rely on themselves often are more aggressive or reckless than those enmeshed in thick webs of relation, precisely because they believe that even a single mistake or miscalculation could be their ruination. As awful as it can seem to feel complicit in another nation's bad behavior because one is seemingly continually coaxing and pleading and appeasing rather than just putting a foot down and saying "no", the latter approach often runs the risk of being triggering terrible backlash with devastating immediate consequences.

This isn't to say sticks are never warranted at all. Sometimes the stick-like action is important enough for its own sake to absorb the immediate negative reaction. More broadly, the stick-wielders also have good reasons to communicate that where a given actor crosses certain redlines, they'll endure consequences they won't enjoy.

All of which is to say that diplomacy is a delicate dance, and there are more moving parts than many would care to admit. Sometimes it's worth swallowing an immediate bad consequence to set a broader precedent or to secure a long-term goal. But sometimes there are good reasons to think that the stakes of the immediate backlash demand swallowing one's pride and continuing to take what to an outsider may seem to be a maddeningly light-touch approach. The fact is that in all diplomatic relationships there are multiple players in the game, and it is rare that anyone -- even a hegemon like the United States -- can simply fiat someone else into compliance (I thought this old post from Cheryl Rofer on the term "deterrence," and how the term purports to "transfers agency to the deterrer" while obscuring that the "deterred" has agency too and won't necessarily react how you want them to, raised similar points).

Am I saying recognizing Palestine is a circumstance where countries should have backed off to avoid the Israeli reaction? No -- in fact, I think there are some very good reasons why here it was reasonable for the countries in question to bite the cost and go through with recognition. Again, sometimes absorbing the immediate backlash is worth it. But we should be clear-eyed about the trade that may have been made: recognition of Palestine for increased and accelerated settlement activity in the West Bank.

Is it fair that this is a "trade"? No. But diplomacy isn't about what's fair. And the broader lesson is one that's important to remember -- regarding Israeli and Palestinian actors alike. Too often, too many of us are seduced by the notion that it is possible to simply bludgeon the bad guy into obedience. The reality is that often, the project of avoiding the worst outcomes means making nice and doing nice things to actors who are doing, have done, and will continue doing all sorts of unlovely activities. If you can't accept that, you might want to find a different field to commentate on.

Monday, June 17, 2024

Carleton Reunion Protest Report

I attended my college reunion this week (my 16th, my wife's 15th). It was, as always, a lot of fun to see old friends and old professors and old hangouts. 

Going in, I was curious about how much protest activity there might be (reunion is a huge event at Carleton, to the point that other schools send observers to see how we do it). Despite being on campus these past few months, I've actually been relatively insulated from major protest events: Lewis & Clark has been a lot quieter than other Portland campuses -- compare Portland State (where the library was absolutely trashed) or Reed (where a Jewish student was hit with a rock) -- and what protest activity has occurred centered on the undergraduate campus. I knew Carleton had an encampment at one point, but hadn't heard anything else about it, and my general rule of thumb on this subject has been "no headlines = good news."
Anyway, the answer to my question of how much protest activity would be found at reunion was "some, but not too much." There were a few alumni wearing pro-Palestine t-shirts -- I probably saw 3 or 4 over the course of the weekend. The major action item seemed to be a pledge to withhold donations "until divestment". I saw a handful of buttons to that effect, but it didn't seem to be very effective (relatively early in the weekend the reunion organizers announced that my wife's class had already blown past its fundraising target). On the last day, about a dozen alumni protested in front of a campus center, which to me just honestly looked boring -- standing in a line on a hot day chanting the same few phrases in unison? Subject matter aside, it's clear that protests just aren't for me. But it didn't really disrupt anything or cause any problems, so they can say what they want. And that was my general take on the whole weekend as well: there was a visible pro-Palestine presence, as was their right. It was a pretty small sliver of the overall attendance, and didn't materially impact the weekend. I won't go so far as to say one wouldn't even have noticed them without being on the lookout, but it was not some overwhelmingly or inescapable presence by any means.

As it happens, one my favorite professors at Carleton is an expert on protest politics, so it was fun to pick her brain as to what had happened on campus over the course of the year. Her take was that the student protesters, while "enthusiastic", were not especially good at protesting and lacked any robust theory of change. The encampment was mostly let alone and neither caused nor was subjected to significant trouble. The biggest "event" came when a group of about two dozen students decided to stage a sit-in inside a campus administrative building. The college responded to that by locking and evacuating the building, but a sympathetic faculty member arrived to ostentatiously unlock the building and allow the protesters inside. The administration set a deadline for the students to leave or face disciplinary action; about half left, half didn't, and the latter were put on disciplinary probation.

In terms of what the protesters were asking for, some of the major demands were (1) divestment and (2) termination of a scholarship program supporting students studying in Israel. The latter was never going to happen. The former was, in my professor's estimation, "ill-formed", mostly because Carleton has little, if any, direct investments in arms manufacturers of any sort and so the protesters were left trying to fit round pegs into square holes. As with most colleges, Carleton's endowment is primarily in funds with relatively opaque portfolios, so it's unknown who have holdings in, and it took some serious stretches to find problems with the known companies. For example, they found one company Carleton is invested in that sells, among other things, some form of air traffic management software that can have military applications and which has sales in the Middle East. The sales figures aren't further broken down by country, nor are civilian and military uses disaggregated, but by assuming that all the Middle East sales are to Israel and all the Israel sales are military, voila -- Carleton is killing kids. The level of attenuation made it hard for the college to take this seriously as an actual demand as opposed to a slogan, and so the divestment call also seems likely to be a non-starter.

I also read over how the Carleton administration had responded to campus protests over the course of the academic year. Again, the overall impression was that things were handled quite well -- there was no significant signs I saw of violence or aggressive police responses. One thing in particular that the college President did that I thought was extremely effective was that she maintained lines of open communication with the protesters, but was emphatic that these meetings and discussions were not some sort of "concession" to be extracted:
The reason I have made a point of offering meetings up front, before any sit-in or impasse, is to establish that I see communication as a given, not a negotiating tactic. I was, and am, willing to meet with you — not as a result of threats or demands, but because you are deeply committed Carleton students whose views are important to the institution and to me. 

This, to me, is exactly correct. On the one hand, it is a very bad thing when college decisions are made simply by reference to whomever is yelling the loudest. At other schools where encampments and protests had been successfully "de-escalated" by promises that the college would hear and listen to various pro-Palestine pitches, there was some measure of frustration by Jewish students who did not feel like they were given the solicitude and avenues of access and basically wondered whether the only way they could get a hearing would be to occupy a building. That's a toxic dynamic. At the same time, it is part of the Carleton President's job to listen to and be attentive to student concerns. The President should hear what the protesters are saying not because she is forced to, but because that's part of her job description. The submission is not, or should not be, the point.

The final thought that pinged around my head related to the "no donations until divestment" campaign.  Again, it does not seem like this is making a material dent in Carleton's donations. Nonetheless, we are of course seeing many cases of donors publicly withdrawing contributions to various colleges and universities unless and until they adopt or alter this or that campus policy -- consider Bill Ackman and Harvard as an especially high-profile example. These initiatives I find a bit difficult. At one level, donors of course aren't obligated to give anybody money; if something about Harvard or Carleton or wherever renders it a place they're not comfortable supporting, that's their business. On the other hand, amongst academics it is generally viewed as a very bad thing when a university does in fact alter a policy or practice due to donor demands -- they shouldn't bow to outside pressure (and I think that this belief in institutional independence is at least somewhat severable from underlying opinions about the substantive merits of the underlying demands). So we're left in this weird space where we all agree that donors are absolutely entitled to withdraw their contributions in protest, but we also think that said protests should systematically fail.

In any event, on the whole I was pleased with how things played out at Carleton, and I'm glad that most stakeholders for the most part have comported themselves in a manner that allowed for that happy and peaceable outcome.

Tuesday, June 11, 2024

From Scarsdale To Dearborn, Enough with the Dogwhistles Already

Incumbent Rep. Jamaal Bowman (D-NY) is facing a tough primary challenge from fellow Democrat George Latimer. Much of the heat in the primary has centered around Israel (Bowman is a harsh critic; Latimer has AIPAC backing), and in that context Latimer claimed in a public debate that Bowman's constituency is not the local residents of New York, but rather "Dearborn, Michigan" (and "San Francisco, California"). Dearborn is well-known for its large Arab and Muslim population, and so Bowman quickly called him out for the racist "dog-whistle".

I, of course, immediately harkened back to not-so-fond memories of Antone Melton-Meaux's 2020 primary challenge to Ilhan Omar,* where Omar's campaign sent out a mailer highlighting her challenger's donor support, singling out one from the heavily Jewish suburb of "Scarsdale, New York" (all of the named donors in Omar's mailer were also Jewish). This, too, was pounced on by Omar's opponents and said to be an antisemitic dog-whistle.

Latimer's defenders say he was merely highlighting Bowman's lack of local support. Omar's defenders likewise contended she was being unjustly smeared as a critic of Israel.

So, is this sort of attack a dog-whistle? Quick -- everybody switch sides!

In all seriousness, if you condemned the Omar campaign for its "Scarsdale mailer" you don't get to give Latimer a pass on this. And likewise, if you poo-pooed the Scarsdale mailer as a ginned up controversy over nothing you can sit right down in your high dudgeon over the Dearborn remark.

(My answer: Both instances were shady and both politicians deserved to be called out on it.)

* I'm bemused to rediscover that my blogpost on this controversy was titled "I Have To Talk About Omar and Melton-Meaux, Don't I?", which really captures a certain mood, doesn't it?

Saturday, June 08, 2024

The Redemption of Noa Argamani

The Israeli military announced today that it had successfully rescued four hostages from Hamas captivity, including Noa Argamani. Argamani was a particularly high-profile hostage because video of her abduction was one of the first pieces of footage Hamas released after October 7, showing her pleading with her captors "don't kill me!" as she was taken from the Nova music festival massacre and separated from her boyfriend (whose whereabouts remain unknown).

The Israeli operation which freed Argamani and her compatriots also reportedly killed approximately two hundred Palestinians, according to Hamas figures. These, as always, do not distinguish between civilian and military casualties; we can safely assume there is plenty of both (it is apparent that there was a significant military presence guarding the hostages).

Two days after October 7, I quoted Noa's father Jacob saying the following:

Let us make peace with our neighbors, in any way possible. I want there to be peace; I want my daughter to come back. Enough with the wars. They too have casualties, they too have captives, and they have mothers who weep. We are two peoples to one Father. Let’s make real peace.

That quote came at the bottom of a post titled "What Will You Say 'No' To?" It was a warning to Israel supporters that they needed to decide, then and there, what sort of response or retaliation would not be justified in the wake of Hamas' attack, citing specifically Yoav Gallant's threat to starve out Gaza's population. There's plenty that Israel justifiably could do in response to Hamas' attack, but what would we not support Israel doing? What is too far? What must be taken off the table?

Was it not unfair to level that demand mere days after October 7? Maybe it was, though if Jacob Argamani could think along the above lines, then I'd argue so could anyone. Unfair or not, however, I said that we had to think about those questions then, because 

we just witnessed in real-time a catastrophic failure to grapple seriously with this question on the part of those who've pledge to stand with Palestinians and Palestine. Suddenly forced to decide whether, in the wake of occupation and besiegement, a Palestinian response of "a systemic campaign of house-to-house kidnappings, rapes, and executions" is a valid one, we saw far, far too many individuals unable to say "no" (or at least, say it with any level of decisiveness). This failure stems directly from the tempting broth that assures us that, if the provocation is severe enough and the injury severe enough, no amount of "response" could ever be disproportionate. And so we see that, if you refuse to let yourself think that anything could be "too far", there's no end to the depths of hell you may find yourself apologizing for.

Eight months later, that post is deeply embittering to read. None of this had to happen. Most obviously, October 7 didn't have to happen and the hostages didn't need to be taken. Yet even now, writers like Adam Shatz cannot help themselves in describing the "exuberance" over October 7 as a "prison breakout," "a daring assault on Israeli bases that devolved into hideous massacres" (it did not "devolve" into anything; the sowing of terror and death amongst Israel's civilian population was the primary tactical goal of the operation -- there is essentially no evidence that the primary or even significant targets of Hamas' operation were military bases). Likewise, the warnings to the Israelis that their righteous fury over October 7 did not license the imposition of an indiscriminate siege and turning the entire Gaza Strip into a free-fire zone fell on deaf ears, and now the entire nation is on trial for genocide.

Nobody paid heed, and nobody has seemed to have learned anything. In the months that followed October 7, there were innumerable opportunities to turn off this path, with plenty of blame to go around for why we didn't, but the main culprit is simple: both Israel and Hamas want this war to keep going. Obviously there are some conditions where they'll accept peace; but those conditions are quite far apart, and so for the most part they're both happy to keep the war going rather than deal with the fallout of an actual deal

So now tens of thousands of people are dead, and for what? Noa Argamani is home, but Noa Argamani started at home! Noa Argamani being home was the world on October 6! We're back to where we began, except with unfathomable death and destruction and trauma for uncountable numbers of people.

I'm happy and relieved and overjoyed that Noa Argamani has returned home -- the redemption of Noa Argamani is an unqualified and unadulterated good. But that joy is tempered by the fact that none of this had to happen at all. We could have lived in a different world.

Wednesday, June 05, 2024

A Jewish Studies Purge at UC-Irvine?

There's a brewing controversy bubbling up at UC-Irvine, where Jewish students are protesting the decision to terminate the contract of a popular lecturer who had been teaching a class on Jewish Texts under the auspices of the campus' Center for Jewish Studies. The lecturer, Daniel Levine, is a Rabbi affiliated with the campus Hillel chapter. There are two open letters currently circulating in support of Levine and condemning his termination, you can read them here and here.

There are a lot of moving parts here, and situations like this almost always have lots of little nooks and nuances that can be hard for an outsider like myself to spot. But here's my best attempt to summarize what appears to be going on.

The Center for Jewish Studies is not an independent department at Irvine. It is run as a minor out of Irvine's humanities division and is specifically overseen by the Department of History. Levine is not a permanent member of the faculty, but he was by all accounts a popular teacher who was well-liked and respected by the campus' Jewish community. The official rationale for his non-renewal is that two new tenure-track hires with interests in Jewish Studies mean that his course can be taken over by permanent faculty members, offered every other year. The Jewish students counter that the new faculty members' specific subject-matter expertise does not seem tailored to the Jewish Texts course; further, they believe that Rabbi Levine would have been able to maintain teaching the class on a yearly (rather than biannual) basis.

But there's a bigger issue lurking. Among the demands of UC-Irvine pro-Palestine protesters has been for the university to cut ties with "Zionist" organizations and individuals. The chair of Irvine's history department, Susan Morrissey, is part of the Faculty for Justice in Palestine group which has endorsed these demands. The suspicion amongst the Jewish students is that Rabbi Levine was ousted from his position as a backdoor means of instantiating these demands. This fear is amplified by the fact that both of the new hires appear to be, at the very least, very sharp critics of Israel -- one was a leader of Jewish Voice for Peace at UCLA, and both are signatories to a letter written three weeks after the October 7 attack demanding (among other things) "the end of all U.S. funding to Israel immediately." In essence, the students believe that Morrissey effectively instituted a purge -- replacing a Jewish Studies lecturer who was embedded in the campus Jewish community but (or perhaps, and therefore) was tainted by his association with Hillel and "Zionism" with alternatives who would be less effective in serving the Jewish community (and the community of students interested in the Jewish Studies minor) but were more ideologically congenial and aligned with the political demands of Prof. Morrissey and the pro-Palestine protesters.

None of the above is incontestable. The public explanations from the powers-that-be at Irvine might be entirely on the level. It is far from uncommon that the sorts of considerations that drive faculty hiring and teaching assignments (particularly at a large research university) do not align with what undergraduates believe or expect should motivate who ends up in the classroom. Other than the tidbits identified above, I have no specific knowledge regarding either of the two new tenure-track hires at Irvine; they may be able to cover Levine's class with aplomb. And certainly, there is nothing intrinsically odd about replacing an external part-time lecturer with a tenure-line faculty where possible.

Nonetheless, it is abundantly clear that the Jewish Studies contingent at Irvine has ample reason for both mistrust and discontent. From their vantage, they're losing a great teacher and community member with inadequate replacement, for reasons that seem inscrutable, in a context where their very discipline and their broader standing in the Irvine community seem to be threatened by powerful forces, including the very campus leaders who made the decision at issue here. When a powerful university actor says they support doing a thing (here, cutting ties with the "Zionists"), and then that actor does something that is to say the least compatible with that thing (terminating Levine's appointment), observers are entitled to infer that the thing happened for the reasons that the actor publicly articulated. That isn't dispositive, but its certainly probative, and nobody can or should fault the students for not buying that Morrissey is acting for neutral and purely professional reasons.

In essence, Morrissey put herself in a position where she lost the presumption of trust that might normally accord to decisionmakers in her role. No matter what the "truth" is (which may be unknowable), we have a situation where deep damage has been done to the Jewish Studies minor and the relationship between its overseers and the community it purports to serve. It is clear that, to say the least, the Jewish Studies community does not feel as if the powers-that-be who made the decision to terminate Levine and who are guiding the new direction of the Jewish Studies minor are receptive and responsive to the views of the most-affected stakeholders (maybe if they occupied someone's office? But alas, the hypocrisy trap....).

In any event, at minimum, the Jewish Studies students and the broader Jewish community at Irvine are entitled to more receptivity from Professor Morrissey; to believe that her orientation towards them is not one of hostility and that she views them as a stakeholder to be engaged with, not an obstacle to be overcome. If she cannot restore that relationship of trust, then it may indeed be better if the Center for Jewish Studies be moved into a different portfolio, with leadership that can do the job that she cannot.

Tuesday, June 04, 2024

The Exceptions Aren't Exceptional, They're Just Bad

Today, the Columbia Law Review website is down, reportedly due to the publication of an article by a Palestinian legal scholar on the "Nakba" that occurred in the wake of and as part of Israel's war of independence and its establishment as an independent state. We're still getting details, but the word is that the law review's board of directors (comprised of faculty and alumni) sought to overrule student editors who wished to publish the piece and, failing to do so, took down the website.

I've really found valuable and thoughtful Paul Horwitz's comments on cases like this, and so too here. In particular, I agree with him that it's not right to refer to the Columbia incident as part of a Palestine "exception" to free speech or academic freedom, not because it isn't a breach of academic freedom norms (it certainly seems to be), but because it isn't especially exceptional -- whether we're focused narrowly on Israel and Palestine (as the Minnesota case, above, illustrates) or more broadly on "controversial" topics and issue areas.
I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception.

It is quite clear that speech that is harshly critical of Israel quite regularly faces sanction and obstruction that does not comport with free speech or academic freedom norms. But that's not an exception, that's an instantiation of a larger part that free speech and academic freedom norms have many fair-weather friends and so find themselves under serious pressure on the regular. This isn't to say that they don't do important work -- they do, and a lot of speech that probably would be suppressed ends up being permitted because these free speech principles do carry a lot of weight. But the notion that they are impenetrable juggernauts who only rarely and idiosyncratically find themselves challenged is just not true. One reason I try to defend these norms so vigorously is precisely because I recognize that their fragility is the norm, not the exception.

In general, I think I have a more positive outlook towards student-edited law journals than Paul does, and so generally take a dim view of any sort of faculty or administrative meddling in journal affairs (the notion that a faculty or alumni-comprised committee has any role beyond, perhaps, the most soft-touch advisory capacity, in determining what articles the Columbia Law Review does or doesn't publish is absurd to me). So it should come as no surprise that I also strongly agree with Paul that even if there were reasons to think that the student editors acted in a fashion that departed from their own normal rules or processes in accepting this article (which may or may not be true), any interventions that hypothetically might have been justified cannot take the form of an ad hoc, last minute decision to pull the piece from publication altogether.

Indeed, assuming that this article is slated to be part of CLR's print volume, I'm not sure what the board of director's end game is here -- are they going to pulp the entire issue? Even if the article is bad, wrong-headed, offensive (and I haven't read it, so it may be none or all of these things), I see no reason why any of those (for better or worse not especially exceptional) sins cannot be addressed via the normal mechanisms of academic inquiry and response. Prior restraint is not the right move. And if the Columbia board did what it is alleged to have done here, it is shameful and outrageous -- no less so if it is not "exceptional".

UPDATE: The Columbia Law Review board has issued a statement explaining why it took down the website. On my read, nothing they say justifies the decision. The only thing that's potentially eyebrow-raising is the claim that the piece was not selected via the normal article-selection process. But this probably (though not certainly) has less than meets the eye: it is hardly unheard of for a law review to solicit a piece outside the normal article-selection channels, which easily could be (but really shouldn't be) called a departure from the "usual processes of review or selection." For example, when I was a law review editor most pieces went through the articles committee (which I was on), but our book review editor had essentially carte blanche authority to solicit book reviews on his or her own initiative. While there might be some valid basis for complaint if this article was unusually sequestered from (actual, extant) norms and practices of how articles move through the CLR process, such problems do not to my mind justify the extraordinary remedy of taking down the website. The short version is that even if (and this not clear) there are valid process-based objections to what (some members) of the Columbia Law Review did here, that does not mean that taking down the website is an appropriate remedy. As Alexandra Lahav wrote in a thoughtful thread, sometimes events transpire such that there just isn't a way to "preserve the status quo ex ante."

One thing that hasn't been mentioned but which I think may be lurking in the background here is the recently announced boycott of Columbia University graduates by a suite of right-wing judges who've made very clear their intention to inflict collective punishment on the Columbia community for (real or perceived) bad behavior by particular actors. Threats like this understandably could make members of the Columbia Law Review who were not part of (and were not given the opportunity to be part of) the publication decision especially sensitive -- they have reasonable basis to fear they will be held responsible and retaliated against for choices they did not make and might not have even been aware of. I'm sympathetic to those students, but ultimately, the people who have put them in that position are the judges and other actors who have decided to endorse indiscriminate academic blackballing as a political tactic. As much as these students are being put in an unfair position -- and they are -- the board should not have cowered in the face of this blackmail. The principles of academic freedom are too important to be allowed to yield even in the face of a credible threat of external retaliation -- this is true when the boycotters are right-wingers furious about pro-Palestinian advocacy, and it's true when the boycotters are left-wingers livid about Israeli inclusion.

Sunday, May 26, 2024

Contested Presuppositions in Classroom Assignments

This is a pedagogy question for my fellow professors.

While not necessarily completely unavoidable, an essay prompt will often encode certain presuppositions into a writing assignment. In a class on the Holocaust, an assignment asking students to "explain how Nazi propaganda dehumanized Jews" builds in an assumption that Nazi propaganda did dehumanize Jews (we take that it did for granted, and ask only for the process to be explained).

That example is, I think reasonably innocuous -- few (I think) would view such an essay prompt to be out-of-bounds even if we could imagine a perhaps still-broader question ("evaluate the degree to which Nazi propaganda dehumanized Jews" -- but query whether that question actually necessarily will yield the same pedagogical results as the original). 

But I've written before on the dangerous power of presuppositions, and we can of course imagine other encoded presuppositions that are considerably more problematic. Consider in an American politics class: "Explain how the election of Donald Trump in 2016 damaged the American political fabric and weakened our constitutional democracy." This, I think, would be an inappropriate essay prompt (even though I happen to agree with the encoded presuppositions: Trump's election did damage our nation's political fabric and did weaken our constitutional democracy). The presuppositions are ones under active political dispute; it feels unfair and biased to structure the assignment so as to prevent (or at least significantly obstruct) a student from contesting the premises. And this isn't necessarily just a problem with individual assignments either -- entire classes can struggle with what they presuppose.

One might think the answer is that teachers should try to avoid contested presuppositions altogether. As it happens, my assignments I think do largely (albeit unintentionally) avoid this problem: my large class exams are issue-spotters based on invented fact patterns, and my seminar writing assignments are extremely open-ended research and reaction papers. Nonetheless, I recognize that for many teachers and classes there is value in being more specific, and stipulating certain presuppositions can be necessary as a means of diving deeper into a given domain. Returning to our Holocaust class, one can absolutely see the value of an assignment like this: 

"Nazi Party propaganda played an important role in dehumanizing Jews in the German imagination. Read the attached Der Sturmer article, identify three dehumanizing tropes it employs, and explain why they may have been effective in successfully dehumanizing German Jews."

Again, this assignment builds in a host of presuppositions -- that Nazi propaganda dehumanized Jews in general, that this particular article did so as well (in at least three different ways) -- and it somewhat demands that students "pick a side" (by making the arguments why the examples were effective as tools of dehumanization). But while I can see the importance of permitting any of these presuppositions to be contested, I also see the pedagogical value of bracketing that contest and asking students to make more specific appraisals.

The question, then, is where one draws the line. What makes this assignment pedagogically valid (which I think it is), whereas the "Trump damaged America" one pedagogically suspect (which I also think it is)? Surely, it is not a valid defense of the Trump assignment to say "sure, I can see the value of contesting whether Trump in fact damaged the republic, but here we're going to bracket that debate and just stipulate that he did so we can dive into the mechanisms in more detail."

My sense is that while even contested presuppositions cannot be taken off the table entirely, as professors we have a professional responsibility to be extremely judicious in how we use them, because they're incredibly tempting vectors to insert our own political judgments under the guise of pedagogical depth. That sort of standard ("be extremely judicious") is one I simultaneously love and hate: I dislike it because it's vague and doesn't provide guidance, but I like it because it emphasizes that there isn't any substitute for actually trying to be virtuous and contain our bad impulses -- the lack of a hard rule means we're the guardrail against a political free-for-all. 

But curious for input from my fellow profs on this. Is this something you've thought about?

(I was inspired to think on this by this story of a DePaul adjunct who was removed from her microbiology teaching position after offering an optional assignment where students were asked, in the context of Israel's attack on Rafah, to "communicate the impacts of genocide on human biology, and the creation of a decolonized future that promotes liberation and resists systemic oppression," including "describ[ing] the specific ways in which institutions are complicit or actively engaged in supporting ethnic cleansing/genocide." The assignment prompt contains a host of contested presuppositions -- and note again that "contested" doesn't mean "false", see my Trump example -- though there arguably were other issues as well involving disciplinary scope. But in any event, I deliberately wrote this post to try and abstract from that particular incident and see if there were more general intuitions we might be able to bring to the table on questions like this.)

Friday, May 24, 2024

Talking Antisemitism (and Islamophobia) in Eugene

Earlier this week, I traveled down to Eugene to give two talks (one for students and the general public, the other for faculty and staff) on Islamophobia and antisemitism with Hussein Ibish.

I don't have any truly wild stories to report. We did have one disruption (to which I remarked "we beat the spread!") -- for those of you keeping score, it was a "pro-Israel" disruption -- but he was escorted out with relatively little incident. But overall, the audiences seemed engaged and happy to have us. I had two students separately stop me on the street well after the event was over to say how much they appreciated the event, one of whom was a leader of the campus chapter of J Street U, which was responsible for a very thoughtful letter regarding issues related to the campus encampment and Israel/Palestine questions more broadly that I encourage you to read.

Speaking of which, the university reached an agreement with protesters to disband the encampment while we were out at dinner. One of the administrators involved in the negotiations was on a text chain dealing with some of the issues while we ate! Living history, indeed.

All that said, the most exciting that happened was probably seeing if my Nissan Leaf could travel from Portland to Eugene on a single charge (answer: yes, but we were at 6% when we arrived at the hotel and 2% when we got home). I also started to come down with a cold on the second day (which I'm only just starting to pull out of now), so that was unpleasant. But for the most part, this felt like a successful event in front of a receptive audience that was happy to hear people try to tackle difficult issues about antisemitism and Islamophobia with rigor and care. I'm grateful to the University of Oregon community for having us, and I hope that they found it to be as fruitful and productive as I did.

Thursday, May 23, 2024

Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.

Tuesday, May 21, 2024

Antisemitism in Oregon, Minnesota, and Beyond

I'm heading to Eugene tomorrow to do two events on antisemitism and Islamophobia at the University of Oregon (one Wednesday evening, one Thursday morning). Both events will be with Hussein Ibish, someone who I've long admired and am thrilled to collaborate with on this endeavor.

So what's going on in the antisemitic America this week? Well, the Minnesota GOP is trying to nominate Royce White to take Amy Klobuchar's Senate seat, in spite (or because) of him criticizing "the Jewish elite" and claiming that Jews use the Holocaust "to provide a victimhood cover for their own corrupt practices." It will shock no one to learn he is a Kanye West defender ("They called Kanye West antisemitic because he was pushing a Black Republican or Conservative message wrapped in the gospel."). And while sometimes the story of these far-right antisemitic GOP pols is that they decide to merge hating Jews with loving Israel, White is very much a hater of both: Israel is, he says, "the lynchpin of the New World Order."

In general, while there's a lot more antisemitism in today's GOP than many give it, er, credit for, Minnesota really does seem to stand out from the pack for the regularity with which antisemites emerge as top-level Republican politicos.

That said, while I think White is DOA against Klobuchar (who has throttled far more serious opponents than he), I am very idly curious to see whether he makes inroads amongst the "uncommitted" cadre that (unlike in some states) did seem to perform disproportionately well against Biden in Minnesota. I think the lefty complaint "Biden is worse than Trump on Israel" (or even "Biden and Trump are the same on Israel") is wildly off-base, it is actually arguable that if your only criteria is "who hates Israel the most", White is "better" than Klobuchar. For people looking for a permission structure, White's status as an African-American man who led racial justice protests in the wake of the George Floyd murder certainly helps. Moreover, the Muslim community in America is not as liberal as people sometimes think, and if there is a contingent of, say, the Somali Muslim community in Minnesota that is really committed to Palestine uber alles, well, this race arguably presents a genuinely interesting choice.

Again, I think that Klobuchar will win quite handily. But it wouldn't surprise me if there were some inroads in communities where Republicans historically have struggled. As I've said before, antisemitism is a major growth opportunity for the GOP in minority communities (not because minorities are especially antisemitic, but because minorities most likely to defect to the GOP are in fact disproportionately prone to be antisemitic), and by accident or intentionally they're starting to realize it.

Oh, and Donald Trump is promising a "unified Reich" if he's elected. So there's that too.

Friday, May 17, 2024

Raises and Inflation

I'm embarrassed to admit that it was alarmingly late in life that I realized that part of the reason workers get (and expect) raises each year is to account for inflation.

In my head, for most of my life, I associated a raise solely with being rewarded for performance and/or seniority. As you advance in your career, you (hopefully) become more effective, take on more responsibilities, develop additional competencies, etc.. That makes you more valuable to your employer, and so in turn, you get more money. It would of course be possible that in bad economic times one's employer might not have the money to give you a raise. But the raise you do get is meant to be an advancement -- it improves you vis-a-vis your position in the year before. By the end of my career, assuming I stay on the same professional arc I'm on now, I should be making more money than at the start of it.

This is one function of a raise. But because of inflation, it's not the only or even initial function. At the outset, a raise is not about advancing you economically compared to the prior year, it's about maintaining parity. Not getting a raise isn't career stagnation, it's actively losing money. If throughout your career you only get a raise equivalent to that year's inflation rate, you've basically never gotten a raise at all.

I'm not realizing anything that isn't obvious. That said, it's been noted that the view that raises are earned based on merit while inflation is imposed is actually a pretty common one amongst American workers, so I wasn't entirely alone on it as an unreflective intuition. The mental uncoupling of wage growth from inflation, in turn, probably causes all manner of misshapen beliefs about the state of the economy and what constitutes reasonable wage growth -- particularly if one (rightly!) thinks that one's real, not just nominal, salary should increase as one gains experience and seniority.

Wednesday, May 15, 2024

Did You Hear? CUNY Branches Cancel Hillel Yom Ha'atzmaut Events

Two branches of the City University of New York system -- Kingsborough and Baruch -- have apparently canceled Israeli Independence Day events sponsored by local Hillel chapters, citing security risks. In the case of Baruch, administrators reportedly offered alternative venues to the Hillel chapter (which were declined), at Kingsborough, by contrast, the administration reportedly refused to make any arrangements to enable the event to go forward.

CUNY is a public university, so this raises the usual First Amendment problems. While every case is different, there are some clear overlaps between this case (in particular, the citation to "security" concerns) and the cancellation of pro-Palestinian speakers and events justified on similar logic (for example, at USC). This, of course, represents a golden opportunity for people to lob dueling hypocrisy charges at one another ("You were aghast when this happened at USC, but I don't hear you complaining now!" "Yeah, well you were apologizing for this when it happened at USC, but you're aghast now!"). I'm sure that will be a grand old time for everyone.

I do want to make one note on the relative coverage and penetration of this story compared to other free speech debacles related to Israel and Palestine on campus. I haven't seen this story covered outside of the Jewish press. That doesn't mean it won't be later, and I'm not generally a fan of the "...but you'll never see this reported in the mainstream media!" genre of commentary. In part, that's because I think there's massive selection bias in what we claim is over- or under-covered; in part, it's because I think virtually everyone massively overestimates how many stories break through to mass public consciousness at all. In reality, I think different stories gain traction in different media domains, such that a story which might tear through one sort of social or ideological circle might make barely a ripple in another.

That said, in many of the circles I reside in, there is essentially no knowledge that there are any cases of academic censorship of "pro-Israel" voices on campus at all. To be clear, I'm not saying that there are not numerous cases of academic freedom violations targeting pro-Palestinian speakers -- there are a slew of them. But the notion that this is a Palestine exception to academic freedom, rather than something which unfortunately happens in a host of other cases and contexts (including, in the right-slash-wrong environments, to pro-Israel speakers), speaks less to the reality of academic freedom and more to an epistemology of which cases get attention and which don't. There are many academics for whom the Steven Salaitas are known, while the Melissa Landas are not. In other domains and registers, there are different gaps.

Ultimately, it's a variant on "they would say it about Jews, they'd say it about other groups too." The claims of injustice are not wrong, but the claims of uniqueness very often are. How many times have we heard variations on "can you imagine if there was a mob of people harassing and making racist remarks towards any other minority group -- how would universities respond to that?" (As we saw at UCLA, the answer apparently is "they'd sit back and let said mob kick the crap out of their targets"). And at the same time, we've also heard plenty of iterations of "if a university dared cancel a pro-Israel event, it'd be on the front-page of every newspaper for the next month" (so far, no headlines).

So I'll all say is that, if you're of the bent that there's no meaningful suppression of pro-Israel speech in campus environments, and your informational ecosystem (other than me, I guess) didn't alert you to this cancellation at CUNY, you should consider how the former belief might be correlated with the latter lacuna. Other people might have different gaps, and they should contemplate what generates them as well.