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.