Announcing You're Going to Discriminate + Discriminating = Liability for Discrimination

When the Trump administration's Muslim ban was moving through the courts, there was the weird debate people were having about whether it was fair to use Donald Trump's explicit statements announcing a discriminatory motive for the ban as evidence that the ban was discriminatory. The debate was weird because in any other circumstance the answer is obvious -- of course it's evidence. It's close to dispositive evidence. That's how anti-discrimination law works.

For example, this past week the Eleventh Circuit decided the case of McCarthy v. City of Cordele. Here are the relevant facts:

Joshua Deriso campaigned for election as chairman of the City Commission of Cordele, Georgia, by publicly stating his intent to “replace Caucasian employees with African Americans”; to lead “an entirely African American” City Commission; and to replace Roland McCarthy, the white City Manager, with a black City Manager. On social media, Deriso declared, “Structure needs to change . . . More Blacks!!!”; “The new City Manager should be Black”; and “it is time for African Americans to run our city.” Deriso won the election. The same day he and fellow commissioners took their oaths of office, the Commission voted on racial lines to fire McCarthy and to replace him with a black City Manager.

"The question," the court continued, "is whether those allegations permit the inference that the City Commission fired McCarthy because he is white." They quite reasonably answered "yes". When you publicly campaign on "I am going to racially discriminate", and then you do exactly what you promised to do, it's entirely reasonable to conclude that what you've done is engage in racial discrimination. And that inference is valid notwithstanding the fact that under normal circumstances the city council has wide discretion in hiring or terminating its city manager. This is not hard.

There's no pay off here other than to reemphasize the lawless anomaly that was Trump v. Hawaii. The pass it gave to blatant, undisguised discrimination is completely at odds with the doctrine both before and after the case. Judges fully understand how senseless Trump's rule is in other cases (especially, one must observe, in cases of "reverse discrimination"). Indeed, while Trump v. Hawaii was under consideration I observed that in any remotely analogous circumstance involving "Smallsville, Anystate" the case is an absolute dunker as a clear and obvious legal violation. It is only Donald Trump who received and continues to receive these ridiculous one-offs as the Supreme Court's special favorite.

The Storm and the Calm

Many of you have no doubt seen horrible images out of Israel, following an arrest by IDF military police of several reservists suspected of torturing and sexually assaulting military detainees. This led to a full-scale riot by far-right forces in Israel, including military police and joined in by several right-wing coalition MKs, who successfully stormed several IDF military bases. Among those who joined in the riots are MKs Amichay Eliyahu (Otzma Yehudit), Zvi Sukkot (Religious Zionism), and Nissim Vaturi (Likud). Others who praised either the riots themselves, or the underlying justice of their cause, include Itamar Ben Gvir (Otzma Yehudit), Tally Gotliv (Likud), Bezalel Smotrich (Religious Zionism), Yariv Levin (Likud), and Yuli Edelstein (Likud).

The image of Israel effectively at war with itself, with one faction -- well-represented in the current government -- violently protesting on behalf of the right to torture and rape Palestinian prisoners with impunity -- is sickening, and demonstrates the fundamental disgrace that is Netanyahu's government. That goes without saying, and I'll say no more on that.

The IDF's top brass is, unsurprisingly, incensed at the anarchic violence targeting the very core of its authority and ability to self-regulate. The response from Israel's civilian leadership has been more muted; calls for "calm" have featured heavily. Bibi, for instance, issued "an immediate calming of passions in the Sde Teiman base." President Isaac Herzog likewise urged elected officials "to show leadership — to relax and calm down," in response to the growing chorus of parliamentarians speaking out in support of the riots and in defense of the soldiers accused of torture (and in opposition, it must be said, to the other soldiers seeking to actual enforce order and rule of law).

The term "calm" grabbed me, since anyone familiar with Israel and security issues is well-familiar with the refrains for "calm" that follow this or that provocation. See, for example, the United States urging "calm" after Hezbollah's rocket attack on the Golan Heights that killed a dozen Druze teenagers. I have no quarrel with "calm" -- I think there are very good reasons to pause and take a beat rather than just rush headlong into potential escalation, even where the target is unquestionably a malign actor. But if one is tuned into the channels of pro-Israel rhetoric, one also knows how these calls for calm are received -- with contempt, as effectively a demand for appeasement and turning the other cheek in response to outrageous misconduct. "Calm" is what one says when one intends to just let the aggressor act without consequence.

Again, that's not my view. But for the people who do think that way, one wonders what it means to hear the Israeli government's response to violent attacks on the IDF in support of suspected war criminals being a plea for "calm". For them, it must sound like a prelude to acquiescence, no? Surely, they must be as repulsed by this form of appeasement as all the others. Right?