The Tenth Plague in 2025

My least favorite part of the Passover Seder, by far, is the recitation of the Ten Plagues. It is tradition to spill a drop of wine for each plague, to acknowledge the suffering of the Egyptians and how it lessens our own joy at liberation.

For nine of the ten plagues, I'd consider this sufficient. For the Tenth Plague -- death of the first born -- I never have. A single drop of wine as a response to dead children is woefully, horrifyingly grotesque; even when those deaths are in pursuit of the most noble cause of liberation from slavery (though I continue to assert that, as told in the Passover tale, the Tenth Plague was absolutely unnecessary -- it was the Lord who "hardened Pharoah's heart" and precluded an earlier resolution). 

Again, this is something I've believed for many, many years (the above-linked post is from 2007). But it is all the more resonant right now. When one thinks of the Israeli children butchered on October 7, or those murdered in Hamas captivity, or the Palestinian children torn asunder by bombs, or dying in want of adequate nutrition or medical care -- what kind of holiday treats such horrors as a literal drop in the bucket? How can we think that way?

Here, too, the lesson is that such atrocities must not be downplayed, in particular downplayed on the grounds that some overarching "cause" behind them is just; here, too, the lesson also is that what is presented as "necessary" rarely actually is.

Next year without murdered children.

The Global Right Ascendance Will Leave Israel in the Wreckage

Many people have taken note of recent poll data regarding American attitudes towards Israel, which are (to summarize) cratering. Among Democrats, 69% now view Israel unfavorably. This doesn't surprise me, as Israel has done everything it possibly can to spit in the eye of Democrats and liberals (and yet somehow seems ever-so wounded that it's resulted in declining support). To paraphrase Chidi from The Good Place: In order to be a liberal, you have to do liberal things!

But what really should get people's eyebrows up are the numbers amongst young Republicans, where a majority (50%) also view Israel unfavorably (this is in contrast to older Republicans, who overwhelmingly like Israel; amongst Democrats there is a little generational gap). The MAGA Young Turks have no reservoir of good will towards Israel. They may sometimes find it a useful rhetorical trope to instantiate other goals (like xenophobic nativism), but it's a purely instrumental play. Ultimately, the rising tide of antisemitism amongst young Republicans is going to swamp whatever residual utility Israel has in the toolkit of right-wing domestic authoritarianism.

Indeed, reading this poll data reminded me of Robert Kagan's article a few years ago about Israel's future in an illiberal world -- namely, that Israel is delusional if it thinks that, in a world governed by reactionary nationalism combined with short-sighted faux-realpolitik, it will retain any sort of "special relationship" with its erstwhile patrons. Negative polarization alone will accelerate already deteriorating relationship Israel has with other western powers as Israel becomes associated with the new illiberal bloc; but if you look at the prime players in said bloc (Russia, China), Israel's never had an especially warm relationship with them either. Add that to the waxing influence amongst young MAGA sorts of figures like Tucker Carlson and Candace Owens, and why would Israel expect to remain anyone's favorite? Why wouldn't the right jettison Israel the moment it becomes an inconvenience to dealmaking with nations possessing more people, more territory, more wealth, and more oil?

We're already seeing inklings of this in how Israel has been treated in the tariff, er, "negotiations." First, they were slapped with higher tariffs than Iran. Israel tried to preempt that move by dropping its tariff rate for the United States to zero, but it didn't work even after an embarrassing bit of personal supplication from Bibi. Turns out Israel isn't Trump's special favorite; the best it can hope for is to be relegated to a pure client-state, begging for scraps (even antisemites, after all, sometimes are willing to tolerate Jews when they sit in states of permanent abasement).

This is all, of course, leopards-eating-faces on a geopolitical scale. But Israeli conservatives are, I think, in complete denial as to what's happening here. There may or may not be an ascendance of illiberal conservatism over the next few decades. But I predict that, of all the countries that might identify with and try to hop aboard that bandwagon, Israel is the most likely to be left behind in the wreckage.

The Columbia-Boycotting Judges Should Recuse from Columbia-Related Cases

A Seventh Circuit panel has dismissed a judicial ethics complaint levied against one of the judges who announced a boycott of Columbia University graduates in his clerkship hiring.

This was, I think, the correct decision, and I have no substantive quarrel with the panel's analysis. Moreover, the complainant, who "is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship" and who loaded up his complaints with spurious conspiracies of foreign influence and control, is hardly the ideal party to raise concerns about judicial behavior in this context.

That said, while I agree that there is no ethics violation to be found in the Columbia boycott, I do think that the signatories to the boycott letter are obligated to recuse themselves from any Columbia-related cases -- including cases where a party is represented by a Columbia attorney who matriculated in the targeted time period. An academic boycott of this sort necessarily signals bias against persons under the umbrella of the targeted institution, and both the university and its graduates can fairly wonder if they will be treated fairly in the courtroom of a judge who participates in this boycott.

To understand why, it's important to be clear about what a boycott is. One point that is often emphasized in this conversation is that judges have extremely wide latitude in deciding who their clerks will be and on what criteria they will be selected. For example, the panel here wrote:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

This is quite right. But then they continue to say that "[i]n the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination."

I don't think these are the same. And one hint that they're not the same is that you would never hear any of the examples cited in the first paragraph described as a "boycott". A judge who will only hire (or more likely, strongly prefers to hire) applicants for law schools in their state would not characterize herself as "boycotting" the other 49 states. A judge who only hires students in the top 20% of their class would not say he is "boycotting" the bottom 80%. A "boycott" by its nature is different from the ordinary and normal processes of selection that judges (and all of us) do on a daily basis. And -- more to the point -- one calls what one is doing a "boycott" precisely in order to draw that distinction and to signal that one is departing from the normal and unremarkable exercise of discretionary selection.

Consider another example: there are many restaurants in Portland. In deciding where I go to eat, there is a wide range of screening and selection criteria I might use, from taste to price to convenience. Even with those criteria, the vast majority of restaurants I never have and never will eat at -- but nobody would say I am "boycotting" them. In other cases I have eaten at them, but decided that (for example) the food was bad and so will not return. Again, under ordinary usage nobody would call that a "boycott". 

If I announced I was boycotting a given restaurant, the ordinary listener would understand that I am doing something different than identifying the place as among the many, many restaurants I don't eat at for "normal" reasons. A boycott, rather, is a decision to not patronize or transact with a given establishment, based on reasons that lie outside the normal evaluative criteria one typically uses to select a restaurant and in order to effectuate some change in behavior that also lies outside the normal bases one uses to select where to dine (one might say, with respect to the restaurants I no longer visit because the food is bad, that my non-patronage is an attempt to "pressure" them to improve their menus and I won't return until my demands are met, but this would again be highly idiosyncratic usage). The expressive meaning of a boycott -- what makes it a boycott as opposed to an unremarkable decision not to patronize -- is a declaration that "I will not transact with you even if you do meet the criteria I normally use."

This highlights another feature of boycotts: by their nature and by design, they stand in opposition to individualized consideration of a candidate on his or her merits. Return to the law school example. Contra the above paragraph, I actually think it is quite rare for a judge to have a flat rule -- as opposed to a strong preference -- to only hire clerks from a certain state or with a certain GPA or possessing a certain academic background (the repeated use of language like "preferences" and "prioritizes" is again a hint here). They would not reject on principle an oddball candidate who doesn't meet one of the normal screens but for whatever reason still stands out to the judge as extraordinary. Now, it may be that given the surplus of qualified candidates, in practice no such "oddballs" ever emerge; there are always enough candidates who fill the normal criteria and are also deemed extraordinary. But again, the point of a boycott is precisely that it entails refusing, in advance and without exception, to even consider the applicant no matter what their merits might be. One refuses to dine at the boycotted restaurant no matter how tasty one of its dishes may be. One refuses to hire from the boycotted school no matter how superb one of its graduates may be.

And this is where the issue of bias does creep in. The putative justification for the blanket boycott of Columbia is that the university is so suffused in antisemitism and broader censorialism that all of its graduates are indelibly tainted -- so much so that the judges are outright refusing to engage in any individualized consideration or assessment of any members of the community. I've observed before and I'll observe again that not only are the nominal victims here -- Columbia's Jews and/or conservatives --covered by the boycott, they are in fact its most likely targets (those harassing Jews on campus were not likely to be applying to the judges in question in the first place). Assessed as individuals, it would be weird to impute the sins of Columbia writ large onto their heads. But the entire point of the boycott is that substitutes collectivist grievance for individualized consideration:

[T]he point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho [or other signatories to the boycott letter] declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

I recognize, of course, that at some level there is no such thing as truly "individualized" consideration and there is inevitable mushiness around terms like "normal evaluative criteria" (I recognize that; I wish the courts understood it better in the context of affirmative action). But my position is that the very invocation of the term "boycott" is a declaration and a concession to that point: one says one is boycotting because one wants to express that you're not just doing the ordinary work of meritocratic selection. 

To put it starkly: the core, distilled message the signatories of the Columbia boycott are sending vis-a-vis Columbia students is "because of your association with Columbia, we will not assess you as individuals or on your merits. Your association is enough to render you irrebuttably tainted in our eyes." 

Given that, could an attorney who matriculated at Columbia in the relevant time period feel confident that one of these judges would abide by their judicial duty -- will assess their arguments, behavior, and comportment based on their individual performance and "on their merits"? I don't think they can have that confidence, and I think those fears are reasonable.

None of this constitutes an ethics violation -- a judge does not commit an ethics violation simply by engaging in conduct which would, given the right parties or circumstances, compel a recusal. But I do think that any judge who announces an academic boycott of a given law school, in circumstances where that necessarily entails an announced refusal to judge that school's community members as individuals and on their individual merits, can reasonably have their impartiality questioned when later asked to assess the merits and demerits of that school or its graduates.

(There's one other element of the boycott that I haven't heard talked about much: the extent to whether it crosses over from permitted "jawboning" to impermissible government efforts to censor speech. The boycott imposes official sanctions on Columbia unless it makes various alterations to its school speech and disciplinary policies to the satisfaction of the boycotting judges. Obviously, Columbia has no First Amendment right to, for example, violate Title VI. But while it can, as a private university, suppress antisemitic speech, it is not obligated to; and the government cannot compel it to. Less obviously, but perhaps more importantly, as a private university Columbia is not required to abide by any commitment to viewpoint neutrality or "evenhanded" treatment of different types of protesters. While I doubt Columbia would concede the premise that it does engage in any sort of biased behavior -- and my recollection is that the letter was in fact purely speculative on this point -- the point is that Columbia's choices as to what views it does or does not favor are an exercise of its free speech and associational rights, and official efforts to punish the university for expressing itself incorrectly seem to raise significant First Amendment problems).

Be Wary of Rationalizing Hate: The Specter of Park51

The recent wave of government anti-immigrant repression, justified (in part) as a means of "fighting antisemitism", made me think about (of all things) the 2010 effort to scuttle the Park51 Islamic community center in South Manhattan. Opponents of the center, which at the time included the ADL, argued that the center would be insensitive to the victims of 9/11.

Jonathan Greenblatt, to his credit, apologized for the ADL's position (this was, needless to say, before his heel turn). And he's also walking back the ADL's initial support for Trump's deportation wave. I don't give him points for that (or rather, I do, but nowhere near enough to offset the points lost for backing the repression in the first place), but it is worth noting.

In any event, the reason it came to mind is how the logic of the Park51 opponents might extend to how the victims of Trump's anti-immigrant repression will think of Jews. The argument against Park51 is, when you boil it down, that because the 9/11 attack was one perpetrated by Muslim terrorists, the victims of 9/11 were now justified in being biased against Muslims tout court (see also Jody Armour's discussion of the "Involuntary Negrophobe"). It is important to note the extension -- the bias said to be justified is not against al-Qaeda, or even against whichever Muslims provided backing, support, or sympathy for the 9/11 strike (nobody accused the Park51 project of having any such sins on its head). The position being defended was that those victimized by 9/11 were reasonable and justified in being biased against all Muslims, and that their bias was one owed sensitivity and respect from the rest of us -- which is why it could allegedly justify opposition to the mere existence of an Islamic Center in their vicinity.

Under that same logic, it seems clear that those persons harassed and detained under the auspices of Trump's "antisemitism" initiative would be justified in hating Jews. Not just those Jewish groups who are actively assisting in the deportation regime, nor just those which have evinced support or sympathy for it, but all Jews. If we take the Park51 position seriously, if some of these deportees do turn into full antisemites, then we would owe them sensitivity and respect for their hatred.

To be crystal clear: this would be wrong. The ADL got it right the second time; no trauma, no matter how grave, justifies blind and sweeping hatred for an entire religious group. I only mention it because it provides a good warning of the consequences of trying to rationalize hate -- the logic will always come around to bite you too.

The Constitution is in Exile

One of the small mercies of the past few months is that because I'm paternity leave, I am not teaching Constitutional Law right now. Even before the election I was dreading having to incorporate Trump v. United States into my syllabus. Obviously now, things are much, much worse.

When I was in law school, conservatives spoke of teaching about "the constitution in exile" -- the true and proper legal order that for decades had been flouted and suppressed by the courts. Of course, what they meant by that was a world where Social Security was unconstitutional. But today I think it is fair to say that the constitution is, truly, in exile. 

The upper ranks of the federal judiciary is controlled by a cabal with complete and utter contempt for the most basic constitutional values that are meant to guide this nation. Lawless disappearances, dictatorial executive power, impunity for corrupt officials, sabotaging of democratic elections -- it's all here, and it's all embedding itself into the official accounts of constitutional law as recorded in U.S. Reporter. In the foreseeable future, the prospects of undoing these decisions, or even stemming further decay, feel grim. Certainly, legal arguments don't seem likely to save us.

It is tremendously, tremendously depressing to feel as if the "law" one imparts on one's students is irrelevant; that no legal argument they can make, no matter how well-warranted or justified, will make a difference in legal outcomes if the powers-that-be prefer something different. Robert Bolt once characterized the essence of law as "a causeway upon which so long as he keeps to it a citizen may walk safely." When rule of law breaks down, this causeway turns into a mirage -- the citizen (to say nothing of the visitor or resident alien) who tries to keep to it is acutely aware that it might disappear under his feet at any time. The constitution that was supposed to guarantee us the ability to walk safely is, practically speaking, no longer present. It has been exiled, replaced by an usurper.

So what does one do as a constitutional law professor? I've always believed that my primary job, albeit not my only job, is to teach my students what the law and doctrine is, as it is declared by the Supreme Court. This view of my role is not in contrast to taking a more critical perspective -- to the contrary, the point is that foundational knowledge is a prerequisite to any effective critique. One has to know what the law is, in order to know whether the law is good, right, or should remain the law at all. Those more normative conclusions are for my students to draw for themselves; but it is absolutely in my ambit to give them the resources to make those critical judgments.

That view has not changed. But going forward, it will be even more important to contextualize the law as its being articulated today in terms of other possibilities and roads not taken. The law that we have is not something inalterable or inexorable; it is a choice. There are other choices. What are the reasons behind the choices that were made? What are the arguments for making different choices? Which choices fit better inside the broader corpus of legal values and commitments that were meant to guide the American constitutional project? And if we do currently live in a legal order that lies decisively outside the proper constitutional vision, what results? 

There isn't, I think, any need to be didactic about this. The original "constitution in exile" proponents had faith that simply laying out their alternative vision of what the constitution should be would suffice to gain them acolytes. I have similar confidence that the articulating the actual constitution -- the causeway of safety meant to guard us from predatory abuses and overreach -- will earn similar loyalty. And I do not know how long it will take for this constitution to return from its exile. But one must have faith that with enough support and enough commitment from persons who retained their faith in the rule of law, it will return, and will bring its just reckoning.

Republicans Against Democracy, Parts 53258 and 53259

Today, a North Carolina appellate court issued a decision that would effectively steal a tightly contested State Supreme Court race won by Democratic incumbent Allison Riggs, retroactively invalidating thousands of ballots that the state board of elections deemed lawfully cast. The court gave some of the voters in question fifteen days to "cure" alleged defects, but few believe that the pell-mell scramble the decision has unleashed will enable all the voters in question to avoid being disenfranchised. In other cases, the court peremptorily declared that an entire class of voters that long been permitted to vote in North Carolina elections must be excluded after the fact. The decision is norm-shattering in retroactively -- after the election has occurred and ballots have already been cast -- deciding that certain votes by eligible voters will not be counted.

Because the race was so close and most of the challenged ballots are from Democrat-heavy constituencies, most observers believe the ruling will be enough to allow the losing Republican candidate to prevail by ex post facto judicial fiat. The decision will be appealed to the North Carolina supreme court (which has a Republican majority even without Riggs recusing, which she will); there is also a federal court case that is sitting in abeyance while the state challenges work their course.

Meanwhile, down in Texas, Republican Governor Greg Abbott is refusing to call a special election to fill the seat of deceased Houston-area Rep. Sylvester Turner (D). Abbott nominally justifies the delay on alleged "failures" in how Harris County administers elections; claims that county election officials have dismissed as "nonsense". The actual reason, nobody has any serious doubt, is to keep a Democratic seat empty and prop up the GOP's razor-thin House majority. Can't elect a Democrat if you don't hold an election in the first place!

Both of these atrocities are united by a common theme, which is that Republicans fundamentally do not believe in democratic elections (January 6 was proof enough of that; the pardons of the insurrectionists just gilds the lily). And I fully endorse Scott Lemieux's point that these decisions lie downstream of the Supreme Court's abominable Rucho decision: once you validate contempt for the democratic process in the form of extreme partisan gerrymanders, you encourage further contempt in all sorts of other domains.

Law vs. Antisemitism vs. McCarthyites

In the spring of 2023, I co-convened and hosted the second annual "Law vs. Antisemitism" conference at Lewis & Clark Law School. It, and the ensuing symposium issue published by the Lewis & Clark Law Review, was one of my proudest professional accomplishments.

As I was organizing the conference and soliciting participants, I had one absolute bedrock rule I swore I would not break: nobody but the organizers, using our best professional judgment, could tell us who would speak at, sponsor, or otherwise participate in the conference.

One reason for that rule was that one of our sponsors was the ADL (and Steven Freeman of the ADL one of our two keynote speakers, alongside Eric Ward). Even in 2023, there was an active campaign in some circles to "drop the ADL" and to refuse participation in events the ADL co-sponsored. My position on that was that nobody could tell us who our sponsors would be. And the corollary position was that none of our sponsors could tell us who our participants would be. End of story.

For the most part, this firm redline I drew was an entirely moot point. None of our sponsors (including the ADL and the Academic Engagement Network, which I was then a member of) expressed any interest in dictating who could participate. And none of our participants raised any questions about who was sponsoring us. We did get a few emails from outsiders who asked rather motivated questions about whether representatives from this or that hobbyhorse cause would or would not be participating. My answer to those emails was straightforward: any such group was welcome to submit a proposal, and they would be assessed on the same basis as any other potential speaker (though as I recall all of these messages came after the proposal deadline had closed anyway). With a single exception (which I'll discuss in a second), nobody involved in the conference sought or received any alteration of any aspect of the conference's program based on ideological objections to a co-participant. The result was an extraordinarily vibrant and successful conference where speakers from diverse perspectives and ideological backgrounds got to converse and learn from one another. It was a great experience.

I have not attended the subsequent Law vs. Antisemitism conferences. This year I'm on paternity leave, and last year I was frankly burnt out. But I still think it's a great conference and a great asset to the community.

So I was frankly furious to read what can only be described as a hit piece in the Jewish Insider targeting this year's conference, titled "ADL, AEN sponsor UCLA antisemitism conference that featured speakers tied to anti-Zionist groups." The article is clearly written with a scandalized tone -- how could these respectable organizations permit such scoundrels in a room they sponsored! -- and it has already yielded results: both the AEN and ADL have promised to withhold future participation and support for the conference unless they are given veto power to "exclude" speakers they disagree with.

No academic conference with any integrity could accede to such a demand. If the ADL pulls out of the conference going forward, it will have only made a decision to "drop" itself. And on the merits, there simply is no basis to object here. What the ADL and AEN are asking for is fundamentally incompatible with the Law vs. Antisemitism conference project.

To begin: while the nature of the topic means we've always drawn more deeply from the "practitioner" space than many of our peers, the LvA conference is first and foremost an academic conference. It is not a pep rally, it is not a cheerleading initiative, it is not a "safe space", and it is not a therapy session. There are and should be diverse views present; we were not selecting for an ideological line, and we do not promise that anyone's ideological orthodoxies won't be challenged. 

This resulted in a range of left-to-right views represented amongst conference participants, which is how it should be. For example, when the Lewis & Clark Law Review was selecting papers to be published in the accompanying symposium issue (we had more submissions than space), I advocated that Ken Marcus' IHRA paper be included -- not because I agreed with it (I didn't), but because it represented a perspective that I knew was important and relevant to a live debate. I don't agree with his take on IHRA, but I'm not going to pretend like it isn't a live perspective that deliberators on the subject of antisemitism need to grapple with. Again, that's how things should be -- and while there that intervention was to the benefit of a conservative voice, like it or not, anti-Zionist views on antisemitism are also important and relevant to a live debate and deserve their space in academic conferences (whether I agree with them or not). They don't get to monopolize the space; but they can't be artificially excluded either. Pretending this debate doesn't exist and wishing it away doesn't do anyone any favors.

As alluded to above, there was one sop we made to ideological demands at the Lewis & Clark conference -- one of our conservative speakers said he would not be on a panel with a certain progressive speaker. This condition was agreed to by one of my co-organizers without my knowledge or consent; and when I found out I was furious -- partially because on principle I didn't believe our speakers should be able to dictate our panel setups, and partially because I wanted ideologically diverse panels and demands like this interfered with that project. This conservative should have been forced to grapple with the challenges posed by a progressive critic; and vice versa -- that's what makes conferences like this valuable.

That experience makes me take particular note of those persons who walked out or announced future non-participation because there were panels they deemed "one-sided" or otherwise included speakers they said "crossed the red line". The problem here is obvious: one cannot simultaneously have a no-platform rule where one refuses to be in a room with anti-Zionists and then complain about one-sided panels! And if we zoom out on the subject of "one-sidedness", the article identifies a total of three "problematic" speakers. I don't know how many speakers there were at this conference overall, but at mine there were around thirty-five. Three of thirty-five does not suggest a conference that was on the whole one-sided or ideologically stacked (or if it was, it's stacked in a Zionist direction). The article suggests that the anti-Zionists were given special highlighting or feting. They were not. They were part of a larger event and they got to speak their piece on the same terms and in the same environment as everyone else.

What we're seeing here, rather, is certain speakers who refuse to tolerate being in a space that is not univocally Zionist -- and then, upon their departure, complain that the space is ideologically biased. This is a self-fulfilling prophecy. One suspects the departure will yield a wider academic boycott of the conference from the political right, which will push the conference's center of gravity further to the left, which the conservatives will then use to claim vindication regarding their decision not to participate. But let's be clear: they were welcome. They were present. Their ideological compatriots were in the overwhelming majority of participants. They left not because they were pushed out, but because they demanded an ideological litmus test and the conference would not indulge them -- any more than we would or will indulge similar no-platform demands seeking to impose an anti-Zionist ideological uniformity.

The point of articles like this are to facilitate ideological censorship and a narrowing of academic exchange. If you have a problem with conferences that maintain an ideological anti-Zionist litmus test; then you can't endorse conferences maintaining an ideological pro-Zionist litmus test. And likewise, the attempt to present the presence of a handful of anti-Zionist speakers as corrupting the entirety of the conference is just as problematic as an attempt to present the presence of a handful of Zionist speakers as corrupting the entirety of a conference. In all cases, the target is the very project of open and free academic exchange.

In any situation like this, where an event features both JVP-type folk and ADL-type folk, it is a fifty/fifty shot whether the former will threaten to boycott unless the latter are excluded, or the latter will threaten to boycott unless the former are excluded. Here, it was the second; sometimes it will go the other way. I'm always stunned that the people who make these ultimatums don't recognize that they always come off a whiny, censorial bullies; but it doesn't seem to stop anyone. Nonetheless -- the ADL and AEN come off as whiny, censorial bullies here, and that's through no fault of anyone but themselves. Again, one doesn't need a campaign to "drop the ADL" if they're just going to end up dropping themselves.

I have no doubt that all the speakers who were selected to present at this conference were picked because they provided an interesting perspective that would deepen the academic conversation on the subject of antisemitism. They were not picked because the organizers "agreed" with everything they have said or would say. It is not a vice but a virtue that these perspectives will not all be agreed to by all; an academic conference that is deliberately trying to create an ideological monoculture is a conference that should be run by someone else.

Coincidentally, I was on a panel at a different conference a few weeks ago with one of the "problem" speakers at the LvA, University of Toronto professor Mohammed Fadel. The subject was campus free speech issues related to Israel/Palestine, and we disagreed on a lot -- sometimes sharply. But it was a productive and pleasant conversation, and that's how these things should be. 

Also coincidentally, a few days ago I formally resigned my membership in the AEN. It had been dormant for some time, but in the wake of Trump's all-out assault on academia and academic freedom, I lacked confidence that AEN would stand up for the principles of academic engagement that attracted me to it in the first place. Replying to my message, the AEN's leader expressed her disappointment and reminded me of the AEN's sponsorship of the LvA conference. That just a few days later they announced they would drop that sponsorship because the conference refused to impose a rule of intellectual orthodoxy only confirms my decision was the right one.

The Blogosphere is Dead. Long Live the Blogosphere!

I'm not sure when the last time I updated my blogroll was -- I both didn't remember, and didn't remember how to do it -- but I figured it out in time to add Divided Argument at the recommendation of Paul Horwitz. His selling point was that it "includes some of the finest former Volokh Conspiracy bloggers", and he isn't wrong.

I know everyone says the blogosphere is dead, but a few of us keep chugging along. It's nice to see signs of life in the old girl.

Mouseketeer

Last night, I saw a mouse in my house.

It was around 3 AM, and I was finishing up my overnight parenting shift (I cover bedtime to 3 AM; Jill wakes up to pump from 3 - 3:30 or so, and then she covers through the rest of the morning). I only saw the mouse for an instant as it scampered under a kitchen cabinet. I yelped in surprise, but then finished my various tasks before going to wake Jill up (though the yelp probably already accomplished that).

And then I just melted down.

I don't know what came over me. I didn't want the mouse in the house. But I also didn't want to hurt it, nor did I want the responsibility for getting rid of it (a responsibility which, in my eyes, ran an intolerable risk that I'd hurt it). I was terrified that I was going to injure or harm it in the course of trying to catch and remove it; or that if I didn't succeed in catching and removing it the mouse would never be out of the house. And the entire thought process just made me come entirely unglued. I was crying in the bathroom in a state of complete panic; I actually wanted to flee to a hotel. It was ridiculous.

Now I'm trying to work out what background neurosis is actually operating here. I've always been a sensitive sort -- one of my major childhood trauma stories centered on a caterpillar I accidentally ran over with a garbage can I was pulling inside. And I've always found mice to be inordinately cute (my second-grade play was "Of Mice and Mozart", though I actually did not play the role of a narrator-mouse).

But I think what's mostly going on relates, of course, to my own baby. On the one hand, it is extra important not to have a mouse running around the floor when one has a baby who's main daily activity is lying on a playmat on the floor. What if the mouse scratches the baby? But on the other hand, small, cute, and adorable are the main characteristics of my baby, so the idea of harming (or being responsible for harming) something small, cute, and adorable is one easily liable to psychological projection. I suspect that there's a deeper layer of stress about parental responsibility and keeping our baby safe and protected in an unpredictable world, but I don't think I need to dig any deeper on that.

Anyway, I researched humane traps, which helped (though the descriptions were often juxtaposed against nightmarish accounts of glue traps, which very much did not help). And Jill -- who after seeing me fall to pieces last night agreed to take point on this project -- contacted a pest control service to stop by (we need it anyway, as we've long had an ant problem). I also found the hole it came through in the kitchen and stuffed some steel wool into it, so hopefully that serves as a stopgap. 

It's going to work out. But man, that was an unexpected emotional rapids ride I went through.

(Also, Jamelle Bouie followed me on BlueSky right as I was working through all those emotions. It was a lot).

Laying Aside One's Toys

One of the first law review articles I ever remember reading and loving was Vesan Kevasan and Michael Stokes Paulsen's "Let's Mess with Texas", arguing (in the wake of an extreme GOP gerrymander orchestrated by Tom DeLay) that -- under the treaty governing its admission to the United States -- Texas could go even further by dividing itself into five mini-states. These "Texas tots" could of course also be gerrymandered, thus giving Republicans not just a bunch of bonus House seats, but several Senate seats besides.

Nothing came of the article, of course. It was viewed as an amusing exercise and a bit of provocation; a way of seeing how one could play with various legal principles and arguments to reach absurd results while still staying nominally inside the rules of the game. Their follow-up article, "Is West Virginia Unconstitutional", was similarly silly, fun, provocative, and obviously not ever pursued.

I am not here to say those articles should not have been written. To the contrary, I think that in a healthy legal climate, articles like these are fantastic. They're like avant-garde art -- they push boundaries, get readers to think in new ways, and provoke thought and discussion even as they are ultimately recognized as impractical and nonstarters. We should not divvy up Texas, and we should not abolish West Virginia, but those articles still were fun to read and had a lot to teach us.

But in an unhealthy legal climate, where norms are routinely shattered and long-standing legal limits are crumbling at alarming speed, this sort of play must be set aside. What in other times might be playful and provocative takes on a very different tenor when serious (or at least powerful) people are taking everything seriously.

I'm referring, of course, to the spate of right-wing scholars who responded to Donald Trump's attempted suspension of the constitutional guarantee of birthright citizenship by sprinting as fast as possible to "make the case" for it. The resulting endeavors were an embarrassing display of openly prostituting oneself to their dearest leader: starting with half-cocked tweets before moving to half-baked op-eds and blogposts, and now one of their half-completed essays is apparently being published in the Notre Dame Law Review.

As earnest scholarship, this is all transparent bullshit -- it's blindingly, painfully, shamefully obvious that the whole bit is purely results-oriented, designed to "create a debate" where none actually existed. The "best" category one could slot it into is in the mode of the playful provocations above -- can one, while appearing to stay nominally inside the rules of the game, dislodge a longstanding presumption of constitutional law everyone has taken for granted? If one can pull it off, isn't one roguish and rakish and a dashing flouter of the status quo? 

But in times like these, that "play" -- isn't. It's not charming, or funny, or quirky, or even thought-provoking. We are not in time where we enjoy the luxury of indulging in such play, because it isn't actually play at all -- it is a terrifyingly live possibility that countless American citizens will be summarily denaturalized and placed at the mercy of the state.

A few years ago, I wrote about certain right-wing ideologues who were upset that, as their faction of nationalist-conservatism ascended in power, they were no longer treated with the tolerant patience that they enjoyed in their formative years as plucky little law students. "You’re fine when you’re just a yappy little dog that can’t bite," one said, but "if you grow up to be a big dog that can actually do stuff, then you’re probably going to be put down." They framed this as a story of liberal intolerance. But it's actually exactly how things are supposed to go -- the whole point of liberal tolerance is that we're willing to discuss a lot more than we're willing to endorse as actual lived policy. We can read and consider and have serious debates over the ideas of Lenin in a political theory class precisely because there's a background presumption that Leninism isn't coming back. But

if the Leninists actually start seizing political power and instituting the purges, that would be bad! And if they said, "Oh, it was fine to debate our ideas in the classroom, but now that we're actually in charge and establishing gulags you have a problem with it," well, yeah, I do! Clearly! 

Again, I greatly prefer the days where we could be more indulgent. It's a much more vibrant and enjoyable world to be in. It's fun to play with the avant-garde sometimes. It's much nicer to contemplate "messing with Texas" as a thought experiment when we're all reasonably confident it isn't actually on the table.

But we're not in that world right now. And the "scholars" who are making play with people's lives -- not as a thought experiment, not as a hypothetical, but in a very real way with very real stakes -- don't deserve our respect or indulgence. In these times, we must lay aside our toys.

Don't Accommodate Conspiracists

The other day, Yair Rosenberg flagged a bill introduced by Republican Rep. Thomas Massie (R-KY, and almost certainly the most openly antisemitic member of Congress in office today), titled the "Dual Loyalty Disclosure Act," which would require all persons running for office to disclose what countries (other than the United States) they hold citizenship in. Nominally targeting dual citizens, the bill, Rosenberg observed, was clearly inspired by various "lists" circulating on neo-Nazi sites which allege that all Jewish members of Congress are dual citizens of (and thus dually-loyal to) Israel. To that, Rosenberg wrote, "Ironically, the bill would debunk one of the very conspiracy theories that inspired it" (since the disclosure list would reveal that no Jewish MoC has Israeli citizenship).

I meant no disrespect to Yair when I replied that the bill would not "debunk" the conspiracy at all. "[T]he nature of these conspiracies immunizes them from debunking." The truth is already out there, and has not accomplished anything -- so offering more "truth" isn't going to serve as remedy. Rather, I said "When you humor conspiracy theorists by suggesting they have 'legitimate' concerns, you only encourage them."

This is a lesson that generalizes. "Voter fraud", for instance, is an essentially non-existent problem in this country. Nonetheless, the Supreme Court endorsed the state's right to impose voter ID laws to tackle the perception of widespread voter fraud -- even though that perception was (by the Court's own admission) not remotely grounded in the objective record. The Court rationalized its decision as enabling the state to generate greater "confidence" in election results in the face of this widespread, albeit objectively false, sentiment that voter fraud was a serious problem.

This, to put it mildly, did not work. Humoring those who harbored lurid and outlandish beliefs about voter fraud did not cause them to develop greater "confidence" in the electoral system; it instead encouraged them to dig in deeper (culminating, of course, in Trump's attempted insurrection following the 2020 election). A second's worth of reflection could have predicted this would be so: their original fears weren't grounded in reality, so obviously a reality-based solution isn't going to assuage them. All it does it suggest they are on the right track. But whatever grievance or paranoia generated their conspiracy to begin with -- most likely "minorities are sometimes winning elections when I don't want them to" -- that isn't effected at all. You cannot indulge.

Or take vaccines. We've gotten, it seems, a column a week lecturing the medical profession that they must figure out ways to "reassure" "vaccine-hesitant" Americans who, while perhaps objectively misinformed, also have "legitimate concerns" that need to be addressed. Again, the notion that more robust studies or in-depth research could "assuage" "concerns" misapprehends how anti-vaccine sentiment works. RFK Jr. does not want to be "reassured" about vaccine safety, he wants to believe that vaccines are dangerous, and will actively resist efforts at appeasement that still end up concluding that vaccines are in fact, safe. The fact that vaccine safety is settled science means that science must be unsettled. That's no doubt why the new NIH head is so enthusiastic about promoting "dissent" -- not from the administration's new orthodoxies about transgender healthcare, of course, but about the utility of vaccination. It's certainly why RFK picked a serial fraudster to lead the new "studies" into the alleged links between vaccines and autism. When you accommodate the cranks, they get crankier.

"Media bias", same thing. And there's a branch of criticism of academia that, I think, falls into this category as well. Here, too, we are regularly regaled with lectures on how, while Trump's assault on academic freedom may be a step too far, universities did maybe bring it on themselves with their stifling group think and endorsement of wacky leftist priorities. I took a sinful amount of pleasure reading Tressie McMillan Cottom positively curb-stomp Bret Stephens as the latter tried to trot out his tired applause lines about the alleged woes of contemporary academia. Actually, there are plenty of robust debates inside our classrooms. Actually, humanities majors do fine in the job market. Actually, the "lowest-quality institutions" extant in academia today are not "Columbia" and "Berkeley", they're predatory for-profit institutions who plunged hundreds of thousands of Americans into crushing debt by falsely promising a "career-ready" education ("colleges not unlike the one that our current dear leader once ran as a purely economic enterprise.").

For academia, too, there are no reforms that are going to satisfy people prone to believe that the academia is compromised of "factories of Maoist cadres", because the actual state of academia bears no relation to their views on it. Accommodating their fantasies won't make them back off, it will just convince them they've been vindicated.

This doesn't mean that there are no steps university stakeholders should take to improve the robustness of discussion and debate on campus, ensure that campus communities of diverse backgrounds and viewpoints feel included and are treated equitably, and so on -- any more than urging that we dismiss anti-vaccine cranks means that we stop caring about medical quality control and safety testing. Rather, the point is we should do these things for ourselves, not for earning elusive and probably chimerical "credibility" from insatiable critics. Chasing their approval is a fool's errand.

Unmasking a Social Collapse

The image of masked federal agents seizing Rumeysa Ozturk on the street for the "offense" of writing a disfavored op-ed on Gaza is chilling enough. But surely there is an extra dose of irony in the masks themselves, seeing how the MAGA right has specifically identified banning masks as one of its main demands in its ongoing assault on academia in general and protests in particular.

Of course, wearing a mask has also become a progressive marker of good citizenship in recent years. There's always irony enough to go around.

In so many ways, masks are a microcosm of everything that's gone wrong in our politics over the last five years. First, we saw the histrionic conservative protests over mask mandates, where wearing a scrap of fabric over one's face in the middle of a lethal pandemic was portrayed as the greatest civil rights violation in living memory. Soon, not content with not wearing their own masks, the right extended outward to try to actively curtail voluntarily masking by others, using spurious comparisons to the KKK as flimsy justification for what was obviously kulturkampf.

A few years later, though, as masks became de rigueur in the protester scene, we saw a few too many progressives get a little too cute in merging the medical justification for masking with an obvious desire to shield people from accountability for criminal activity or violation of campus rules. The idea that the protesters who stormed an Israel history class at Columbia wore masks out of respect for avoiding contagious disease is ludicrous.

But it wasn't long afterwards that the progressives' legitimate concerns were validated once again, as unmasked individuals associated with campus protests found themselves easy marks for Trump's authoritarian predations. It was Mahmoud Khalil's decision not to wear a mask, after all, that made him a prime target to inaugurate Trump's censorial crackdown on international students. Here masking isn't about evading legitimate consequences for unlawful acts, it's about protecting oneself from out-of-control abuses of power.

And of course, the masked officers making sure to conceal their identity while abducting a student off the street for WrongThink makes for the full circle: a terrifying encroachment on civil liberties that brings to mind the secret police of history's most repressive regimes.

The reality is that the ethics surrounding masks seem uniquely resistant to being formalized into rules, and instead demand a modicum of virtue and common sense. Anyone should be able to tell the moral difference between masking as a prophylactic health measure, versus masking to shield oneself from public accountability. Yet any malicious actor can easily say, without being easily refuted, that they are wearing their mask for medical reasons. How would one refute that?

A healthy society resolves these problems simply by being healthy. We accept frankly trivial burdens like mask mandates if its necessary to stop a pandemic. We recognize that masked hooligans trashing a classroom are not the same as EMTs in an ambulance. We expect our police to conduct their operations in a manner that permits review and accountability, so that we can all be confident the law will be followed.

Our society is not healthy. And so choices that should be taken for granted, no longer can be.

How To Support Anti-Hamas Protests in Gaza

You may have seen that protests have broken out in the Gaza Strip targeting Hamas.

This is a great thing, and the bravery of these protesters deserves nothing but applause. They should be viewed as of a piece with other brave protesters standing up to authoritarian practices in places like Turkey, Israel, and (for that matter) the United States.

But I've noticed some pro-Israel commenters highlighting these protests with a weird tone of empty triumphalism. They're excited about the protests because they're anti-Hamas (makes sense), but beyond expressing that giddiness there's just ... nothing else there in terms of what they, or we, or anyone outside of Gaza might do to back the protesters up.

Nothing on how we might actually support these protests (hint: I suspect they will not find dropping bombs on their heads helpful). And nothing on what, tangibly, we think these protesters should get as an alternative to Hamas rule (again, I doubt they're excited at the process of being evicted to make room for a MAGA seaside resort development).

But if you're going to claim the mantle of supporting these protests, those are the sorts of questions you need to have answers for. You don't get to say "gee, these protests are swell -- anyway, back to bombing!"  (I suppose there is a very slim chance the protesters want the war to continue as a means of ousting Hamas, but anyone making that claim on the protesters' behalf, absent them saying so themselves, bears a very high burden of persuasion). 

And you also don't get to just be coy about the end status of Gaza. I don't have a direct line to the protesters' ears, but I assume they want some form of genuine self-governance and independence. If one isn't willing to accede to that, you also don't get to claim the protests for your own purposes.

Again, the complete inability of Israel to articulate a plausible "day after" upon toppling Hamas is one reason this war is dragging on without end. As long as the war continues, Gaza is Schrodinger's territory -- neither reoccupied and annexed nor granted freedom and independence. Israel doesn't want to commit to either option, so it delays and delays and delays by extending and extending and extending the war.

Justice Jackson on "Giving Up" in the Face of Tyranny

When I teach the Steel Seizure Case, the Supreme Court's seminal decision on domestic executive power during wartime, I tell my students that while Justice Black may have written the lead opinion, it's Justice Jackson's concurrence that they really need to study. I also tell them that while being a Supreme Court Justice is more than enough to earn one's Wikipedia page, Justice Jackson has another entry in the annals of history: lead prosecutor during the Nuremberg War Crimes trials following World War II. It was evident, I say, that Justice Jackson had this experience in mind when considering the question of permitting runaway executive power justified on the basis of a wartime "emergency."

With that background in place, I draw my students' attention to how Justice Jackson concludes his opinion; in particular, his recognition of the potential futility of the judicial branch trying to stand alone against a truly unbounded executive claiming emergency powers, and why that potential failure should not license judges to simply accept the ascendance of a tyrant:

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.... We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"—to be governed by those impersonal forces which we call law.... The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

The other day, J. Michael Luttig -- former Fourth Circuit Judge and conservative darling turned sharp Trump critic -- published an essay in the New York Times insisting that Trump's war on the judiciary "won't end well for Trump." To this, Josh Blackman unsurprisingly argued the opposite, suggesting it is the courts that will lose this battle and that they should bend the knee to Trump and spare themselves the inevitable humiliation.

For my part, I don't know who will win this showdown (if a showdown there is to be). History does not inspire unalloyed confidence in either direction. 

But I do know that the courts must not surrender in advance.

Justice Jackson was right: it may be that the institutions that undergird our democratic experiment are destined to pass away. But the courts must be the last, not the first, to give them up.

What Will Be the Democratic Party's Anti-Incumbent Keyes Number?

Way back in 2005 (20 years ago(!)) the blogosphere discovered the "Crazification Factor" of 27% -- the baseline percentage of Americans who will take an action for reasons that defy any rational explanation whatsoever. The background came in a discussion of President George W. Bush's cratering approval numbers, and a query as to how low they might go, and it's still fun to read to this day:

John: Hey, Bush is now at 37% approval. I feel much less like Kevin McCarthy screaming in traffic. But I wonder what his base is --

Tyrone: 27%.

John: ... you said that immediately, and with some authority.

Tyrone: Obama vs. Alan Keyes. Keyes was from out of state, so you can eliminate any established political base; both candidates were black, so you can factor out racism; and Keyes was plainly, obviously, completely crazy. Batshit crazy. Head-trauma crazy. But 27% of the population of Illinois voted for him. They put party identification, personal prejudice, whatever ahead of rational judgement. Hell, even like 5% of Democrats voted for him. That's crazy behaviour. I think you have to assume a 27% Crazification Factor in any population.

For this reason, the "Crazification Factor" is also known as the "Keyes Number". And though undoubtedly the product of significant cherry-picking, it was fun in the years that followed to find other crazy propositions that clustered around 27% support.

I was thinking about this nugget of blogger history upon reading about an announced primary challenge against incumbent Rep. Jan Schakowsky (D-IL) by progressive influencer Kat Abughazaleh. The announced basis for the challenge is general discontent with Democratic leadership and the "gerontocracy" not being aggressive enough in fighting the Trump administration. But the problem is that nobody -- not even Abughazaleh -- can point to any problems on that front for Schakowsky, specifically. Abughazaleh herself agrees that Schakowsky has been a good Democrat!

Beyond that, Abughazaleh has never held elected office, has no significant political experience, is from out-of-state (she voted in DC last election), and doesn't live in Schakowsky's district. In terms of traditional bases of support, Abughazaleh has literally nothing going for her other than "I am not a long-standing incumbent Democrat."

To be clear, I'm not saying one would have to be crazy to vote for Abughazaleh. Rather, what made the Keyes Factor notable was that the Keyes/Obama race helpfully isolated out every possible reason one might vote for a candidate aside from "I'm attracted to the crazy." Likewise, I'm pointing out that if Abughazaleh does end up facing off against Schakowsky (and the latter hasn't decided if she's seeking reelection), any support the latter gets will be purely, 100% attributable to people voting entirely on the basis of generalized anti-incumbent/anti-established Democrat rage, untethered either to any particular vices of the incumbent or any particular virtues of the challenger. It will, in other words, provide a useful baseline for seeing how powerful this sentiment is amongst the Democratic electorate, because it is a race that is uniquely free of other confounding variables. 

This race will not be like George Latimer beating Jamaal Bowman (an especially well-established challenger taking out a somewhat wounded incumbent, with clear ideological differences), or AOC beating Joe Crowley (a uniquely talented challenger ousting an incumbent asleep at the wheel). Here, the only impetus that might push a voter to pick Abughazaleh over Schakowsky is "Schakowsky is an old, long-tenured incumbent, and I don't like that." That's clearly a sentiment that has no small amount of force amongst Democrats right now -- but is it enough to actually win a race?

I don't think it is. My guess, assuming a head-to-head matchup between Schakowsky and Abughazaleh? I think the latter will end up pulling around 27%. We'll see if I'm right.

UPDATE: Erik Loomis writes a post on this race that I think pretty well encapsulates the dynamic I'm describing above. He opens by admitting he has no quarrel with Schakowsky or her performance in Congress; she has been a solid Democrat. Nonetheless, he finds Abughazaleh appealing because of grievances towards other Democrats that -- with the single exception of "she's old" -- he admits don't apply to Schakowsky.

This offers me a good opportunity to restate my general views on primaries:

(1) I will freely admit I default to being more "pro-incumbent" than a lot of my peers. This is because I view politics as a job and I think one gets better at it with experience (this is also why I oppose term limits). I am deeply skeptical of the populist "we just need some common-sense wisdom from outsiders in order to get things done in Washington" take. I also think primaries-for-the-sake-of-primaries are needlessly fratricidal and shunt energy that should be used to fight Republicans into D-on-D violence. Consequently, for me the burden of persuasion is always on the challenger to justify their primary challenge.

(2) That said, there are lots of good reasons that can justify a primary challenge! A substantially different ideological vision? Absolutely. Proof that the incumbent has gotten too cozy with Republicans and is selling out party priorities? Definitely (hello IDC!). Political heresies that can't be justified by the demographics of the district (fair or not, we have to give more leeway to Joe Manchin than to Dan Lipinski)? 100%. A serious scandal? Obviously. Indeed, where there is a good reason for antipathy towards a specific incumbent, then I think a primary challenge is the right way to push the party in a more positive direction. Nobody is entitled to keep their seat in absence of good performance.

(3) But there does need to be a real reason. "The incumbent is old", without that manifesting in terms of incapacity or unwillingness to "fight", is not a reason. "I feel I deserve to be a bigger deal" is also not a reason (looking at you, Joe Kennedy). "It's time for new blood" is also not, on its own, a real reason.

(4) And finally, I think it is actually bad to challenge incumbents who have objectively good records. We want our politicians to be properly incentivized vis-a-vis good performance. When they misbehave, we should put a little fear into them (and a serious primary challenge is a great way to do that). But the corollary is that when they do well, they should be rewarded with political security. Do badly, get primaried; do well, keep your seat. But if doing the right thing doesn't yield electoral rewards, then the material incentive structure for politicians to do good things frays considerably, and we have to start relying on less reliable and more idiosyncratic mechanisms to get our representatives to vote in the appropriate fashion.

Will My Child Grow Up To Be a Human?

The other day, Jill and I were playing a common game with our baby -- telling him all the different things he could be when he grows up.

"Are you going to be ... a writer?" "Are you going to be a hockey player?" "Are you going to be an artist?" "Are you going to be a crypto bro?" (we grimaced for the last one).

Our baby is ten weeks old. He isn't much of anything yet. We don't know what he's going to be. And in the present moment, that unknown doesn't just inspire hope and anticipation. It also inspires deep anxiety and worry. We don't know if our child is going to grow up to be the type of person who is under attack by his own government.

For example, we don't know if our baby is going to have a learning disability. And that matters, given the crusade conservative politicians have launched against education programs for disabled children; one conservative commentator on Fox & Friends bluntly described the conservative position on "making sure disabled kids have access to a public education" as "we're against it."

We don't know if our baby is going to have a serious or chronic medical condition. That matters, given the  deep desire by the Trump administration to gut the American healthcare system, coupled with the bloody swath they're already cutting through critical medical research programs.

We don't know if our baby is going to be gay, or trans, or otherwise queer. That matters, given the inhumane attacks on queer personhood that have been promoted over the past few weeks, threatening to undo decades of progress towards actualizing the American promise of equal justice under law.

Of course, he might not turn out to be any of these things. We don't know, just like we don't know if he'll be a writer or a hockey player or an artist or (shudder) a crypto bro.

So we just have to wait and see, and hope that whatever our child grows into, it'll be one of the categories our country still recognizes as fully human.

Judge Ho's Politics of Collectivist Grievance

Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.

I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.

Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."

At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.

But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.

Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."

All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.

This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).

Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.

"I Decide Who Is a Jew", Redux

Leo Terrell just reposted a prominent White supremacist's claim, in reference to Donald Trump declaring that Chuck Schumer is not a Jew but a "Palestinian", that "Trump has the ability to revoke someone’s Jew card."

Who is Leo Terrell, you may ask? Why, he's Donald Trump's "antisemitism czar". Can't make this up.*

But in reality, the claimed entitlement by (non-Jewish) conservatives to decide who does and does not count as Jewish has been waxing for some time now. In my "Liberal Jews and Religious Liberty" article, I made an observation about the contemporary salience of Vienna Mayor Kari Lueger's famous declaration "I decide who is a Jew":

Lueger made this statement in response to criticisms that there was an inconsistency between his publicly professed antisemitism and his private friendships with certain Viennese Jews; a contradiction resolved by Lueger simply declaring that the Jews he liked were not actually Jews at all. In the spirit of the old saw “a philosemite is an antisemite who loves Jews,” the modern iteration—where the hated Jews are denied to be Jews and the few acceptable Jews deemed the only actual Jews—flips Lueger’s pattern but fundamentally replicates it.

In that article, I grouped this practice into what I termed the "new supersessionism": "the ability of non-Jews to possess, as against actual Jews, a superior entitlement to declare what Jewishness is." The original supersessionism was theological: Christianity simply declares itself to be the true and proper evolution of Judaism; the Jews themselves got Jewishness wrong. Today's supersessionism is more often political: Christians informing Jews that holding Jewish positions on issues like abortion or gay rights mean they are not real Jews at all. And having declared that these Jews -- which is to say, most Jews -- are not "real Jews", there of course can be no antisemitism in hating them. 

In this way, contemporary conservatives can square the otherwise impossible circle: their self-identity of loving (their self-constructed image of) "Jews", and their actual practice of hating (real-life, flesh-and-blood) Jews. It is the natural terminus of that mode of thinking that a nominal leader of a taskforce against antisemitism would promote antisemitism of the most despicable kind -- we are not the Jews he ever intended to protect, we are the Jews he seeks justification to hate.

* In fairness, we all know how committed today's conservatives are to originalism, and originally speaking a "czar" absolutely refers to someone who promotes antisemitism, not one who combats it. Let it never be said that Donald Trump isn't taking conservatism back to its roots.

Roberts to Trump: The Bottle is in the Warmer

It's taken less than two months for Donald Trump to start demanding impeachments of judges who issue rulings he doesn't like. This remarkably fast turnaround prompted Chief Justice Roberts to rebuke the president, stating that the proper mechanism for expressing disagreement with a lower court decision is an appeal, not an impeachment threat.

People are reading Roberts' statement as him recognizing Trump's increasingly lawless posturing and pushing back (albeit in a sort of "Dr. Frankenstein realizes his monster is a problem" sort of way). I must confess, I read it more like me trying to calm my screaming baby while his bottle is in the warmer: "If you could just wait five minutes I promise I'll give you what you want."

I guess we'll see who's right.