Monday, January 17, 2022

In Honor of MLK Day, Read MLK

One of the recurrent themes of the "anti-CRT" push by conservative politicians and activists is that they are merely upholding the legacy of Martin Luther King. Liberals counter by pointing out that Republicans seem to think MLK's entire legacy consists of one line from one speech, and that Republicans only like him because he's conveniently dead. But no no!, they say, MLK is the beacon of what racial relations in America should be! He is the antithesis of CRT!

So here is my suggestion for compromise: in every state which is currently enacting a "CRT" ban, school boards should develop a course that is simply and entirely devoted to reading the collected works of MLK. They can read statements like this:

“Whites, it must frankly be said, are not putting in a similar mass effort to reeducate themselves out of their racial ignorance. It is an aspect of their sense of superiority that the white people of America believe they have so little to learn.”

And this:

Whenever the issue of compensatory treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable, but it is not realistic. A society that has done something special against the Negro for hundreds of years must now do something special for the Negro.

And this:

First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in the stride toward freedom is not the White Citizen's Council-er or the Ku Klux Klanner, but the white moderate who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says "I agree with you in the goal you seek, but I can't agree with your methods of direct action;" who paternalistically feels he can set the timetable for another man's freedom; who lives by the myth of time and who constantly advises the Negro to wait until a "more convenient season." 

And these:

The evils of capitalism are as real as the evils of militarism and racism. The problems of racial injustice and economic injustice cannot be solved without a radical redistribution of political and economic power.


“Again we have deluded ourselves into believing the myth that capitalism grew and prospered out of the Protestant ethic of hard work and sacrifices. Capitalism was built on the exploitation of black slaves and continues to thrive on the exploitation of the poor, both black and white, both here and abroad.”

There are many more besides. It is a rich corpus of work, after all, more than sufficient to support a semester's worth of study. Reading them all together, from the "I Have a Dream" speech to the "Letter from a Birmingham Jail" to the "Three Evils" speech could spark such interesting discussions and give a more thorough foundation to the ideas and ideology of a man whom -- liberals and conservatives agree -- is one of America's great heroes.

You want to ban "divisive concepts"? I dare Republicans to try and ban the "Collected Works of MLK" class as "divisive".

UPDATE: Nikole Hannah-Jones basically just did this in speech form.

Scattered Thoughts on the Colleyville Hostage Incident

Like most Jews, I imagine, I'm still in a semi-state of shock about what happened in Colleyville, Texas yesterday. Part of that shock is precisely because I am not shocked. Things such as this happening -- well, it's not constantly in the forefront of my mind, but it's never far from the background either. The most important feeling is gratitude that all of the hostages emerged without injury, and gratitude to all of those who worked feverishly to bring about that outcome.

Beyond that, my thoughts are more ... scattered. On a personal level, my wife and I have just started house-hunting, and one element we're considering is whether we want to live in a "Jewish neighborhood". Portland is like many medium-to-large American cities that are not New York, Washington, or Los Angeles, in that there is certainly a well-established Jewish community here, but not a particularly large one. In effect, that means "a Jewish neighborhood" is really "the Jewish neighborhood" -- Hillsdale. There are Jews elsewhere in the city and suburbs, of course, but Hillsdale seems like the only area which is notably Jewish in the way that I grew up in Bethesda (think of the role St. Louis Park plays in the Twin Cities).

Of course, Colleyville, Texas isn't exactly what springs to mind as a Jewish hub either. Which gives a bit of gallows-humor silver lining to the week's events -- while there are advantages and disadvantages to living in a heavily Jewish area, Colleyville underscores that antisemitic terrorism can happen anywhere, so as a factor to consider in where I should plant roots it's pretty much a wash. What a reassuring thought.

On a more socio-political level, well, first things first -- I'll repeat what I said after the attack on a synagogue by a White supremacist in Germany in 2019 (and it disgusts me that I can appeal to precedent on this subject): if our response to White supremacist violence against Jews is not to call for expulsion of White people, or shutdown of White immigration, or restrictions on White civil rights, then the same holds true for Muslims. Ultimately, the key battle line that divided this terrorist from his victims was not Muslim versus Jew, or East versus West. It was between those who are willing to terrorize innocents and destroy families for ideological gain, and those whose politics are about safeguarding families and caring for their neighborhoods. And in that battle, anyone who uses this horror to stir up Islamophobia or any other form of hatred is fundamentally on the side of the terrorist.

Also in the realm of the obvious: it was already a disgrace that Deborah Lipstadt hadn't sailed through confirmation to occupy the role of antisemitism envoy, and I do not want to hear a word about "opposing antisemitism" from any Republican who has blocked her nomination. She should have been confirmed yesterday, and barring that she absolutely must be confirmed tomorrow.

Other things:

  • This was an antisemitic attack, and I am flabbergasted that some people are trying to describe it in any other terms. Yes, it appears true that the attacker's immediate political motive was not something as direct as "I hate Jews" -- it was to secure the release of Aafia Siddiqui from prison. But anyone whose understanding of antisemitism is limited to that narrow horizon needs to wake up. The attacker did not choose a synagogue by throwing darts; he chose it because he believed the fundamentally antisemitic conspiracy theory that "the Jews" were in a position to control American policy with respect to the war on terror (it must be said that this sort of antisemitism is something that he appears to share with Dr. Siddiqui). And, conspiracy theory aside, the conscious decision to target Jews in their house of worship for whatever purpose evinces a conscious disregard for Jewish humanity and equal standing that could and should only be characterized as antisemitism.
  • Already, we have seen in some quarters of the Jewish world disdain or even hatred directed at this congregation and this Rabbi because they are Reform Jews with avowedly liberal politics. This is not the first time these murmurs have been overheard, and with each passing year they grow louder. It is not something we can ignore for much longer, and it links up to other ways in which liberal Jews are constantly treated as second-class citizens within the Jewish world (whether at the Western Wall or in organizations like the Conference).
  • Likewise, there is a direct line between the rhetoric presenting synagogues as the "enemy" who must not be "collaborated" with, and incidents like these. The former is not excusable political hyperbole, it is not an opportunity to engage in elaborate theoretical justifications and hem-hawing. It has stakes, and it has consequences, and incidents like this are among those consequences. I saw many people lauding the Rabbi of this synagogue for his strong commitment to interfaith work, a commitment which showcases the strength of solidarity and communal bonds. And they are right to do so -- but that work and that solidarity and those bonds of kinship are exactly what some people are trying to eliminate under the guise of anti-normalization.
  • The Rabbi of this congregation was direct in giving credit to prior outreach and training with local law enforcement and groups like the ADL, which gave him and his congregation the tools they needed to survive this incident. These connections and these trainings keep Jews alive. It is one thing to envision other mechanisms for keeping Jews safe. It is quite another to act as if the only reason Jews have these connections and trainings is because we are eager comrades of the carceral state, and to point to these linkages as proof of our "complicity" in evil.
  • The media is terrible at talking about antisemitism, because it doesn't know much about antisemitism. In fairness, this is not something unique to either the media or the subject of antisemitism -- most people don't know much about most things. But there is a tendency by many to believe that of course antisemitism is understood and covered fairly and comprehensively, and it isn't true -- a fact that is a commonality, not a divergence, from the travails endured by other communities facing other issues.
Ultimately, each time an incident like this happens it should confirm that dangerous antisemitism is a real thing and a real threat. That sounds like it should be obvious, but I don't think it is -- too much of our national conversation about Jews and about antisemitism treats it as an opportunity to take political cheap shots by poking at a source of trauma that is fundamentally viewed as a joke. I've seen too many cases where "antisemitism" -- and this includes people who purport to be fighting it as well as people who are downplaying it -- is treated as an opportunity for trolling more than anything else, because the participants don't actually think "antisemitism" carries any stakes. Will any Jews really be hurt, if we use a synagogue's ties to the ADL call for boycott; will any really be hurt, if we exploit a violent assault to pretend as if Jews are calling for a ban on Muslim immigration; will any really be hurt, if we keep the antisemitism envoy position vacant for a little while longer while we grandstand for the base? Either those who act this way think the answer is no, or they don't care that the answer is yes. Both options are disgraceful, and reflect the core disease that permeates every discussion we have as a country about antisemitism and Jewish safety.

I wish I could say things will be different this time. But I would put money down on nothing changing one bit.

UPDATE: One other thing I forgot to mention. The primary effects of terrorism on its victims are bad enough. But a secondary effect -- and often a secondary objective -- is to convert the openness of societies and institutions into vulnerabilities. Just as Dylann Roof was invited into the church he'd eventually massacre because they thought he wanted to participate in the Bible study, the attacker at this synagogue was invited inside because they thought he was a homeless man and wished to provide him shelter. It is tempting -- and a perfectly understandable temptation -- to respond to that exploitation by closing one's doors. But ultimately, that is a choice that gives the terrorists a posthumous victory, and we should do everything in our power to avoid that terrible outcome. I don't pretend that the choices between security and welcoming are easy or straightforward, but a Jewish community which does not remain open to member, neighbor and stranger is a Jewish community that is no longer recognizably Jewish.

Saturday, January 15, 2022

Virginia's Newly Anointed Death Cult High Priest Prepares Initial Sacrifices

Death may be an inevitability, but the current Republican Party ethos appears to be to do everything in its power to speed the process along. Freshly minted Virginia Governor Glenn Youngkin has rolled out an initial series of executive orders, and I have to imagine that Thanatos is pleased. He repealed state masking and vaccine mandates, so COVID can get us in the short-term, and he withdrew from a major anti-greenhouse gas initiative, so climate change can kill us in the long-term. No matter which way you turn, the GOP is cuddling up with the Reaper.

Oh, and there's also the unavoidable "ban on critical race theory" (perhaps soon to be paired with mandatory lessons on Abraham Lincoln's famous debates with Frederick Douglass?). Admittedly not death-related, unless you count the death of civics education.

This is, to reiterate, the opening gambits from a Republican who squeaked into office in a purple-blue state by a 2% margin. It's as if Missouri elected a Democrat as Governor in an off-year and his first move in office was to abolish the police. The gumption is nearly unfathomable.

But this is the great thing about being a purple state Republican. The media -- and, admittedly, a certain cohort of voters -- is so thirsty for a "reasonable Republican" that if you just hold off on biting off a baby head during the campaign, they will decide that you represent the very essence of sobriety and moderation, and anyone who tries to tell otherwise is just fear-mongering (cf. Scott Lemieux: "The greatest act of incivility in American politics ... is to accurately describe a Republican’s publicly stated positions."). 

Then, once you enter office, you can bite as many baby heads as you want! And everyone will be so shocked, and sad, and surprised, that he is doing exactly what Democrats said Republicans will do because it's also what Republicans said Republicans will do.

Friday, January 14, 2022

Should I PlagueWatch It Revived, Quick Hits Edition

Last May, in a spate of foolish optimism, I retired my "should I PlagueWatch it" series. Now we're smack in the middle of the Omicron wave, and the Supreme Court has decided that this pandemic must last as long as possible because the Constitution, it turns out, is a suicide homicide pact.

I don't have the time to do full reviews of some of the shows I've been watching. So instead, here are some quick hits and ratings:

Industry: As a stopgap while you wait for Billions to come back, it's fine, but it's also one of those shows that conflates inscrutability with depth. A full season in and I still can't explain why the main character made 80% of her choices. B

Inside Job: Very funny, but which Qanon writer is going to treat it as documentary? A-

The Sex Lives of College Girls: Voted "most difficult to have a conversation about when you're in a public place populated by actual college girls"! Standard Mindy Kaling fare, taken to HBO, and it mostly works. A-

American Auto: None of the characters seem to possess a soul, or indeed, any interesting attribute whatsoever. This is the successor to Superstore? C

Abbott Elementary: Now this would be a worthy successor to Superstore! To think I watched Quinta Brunson back in her Buzzfeed days! A

Bridgerton: The Bridgerton family consists of one doe-faced blond and an indeterminate number of clones grown in a vat. That said, if you miss Downton Abbey but wished for more sexy times -- and lord knows I do -- this is good soapy fun. A-

Witcher: It no longer has the confusing separate timelines, but this was the rare show that was stronger when it was more "monster-of-the-week". B+

Nailed It!: Good-natured laughter at inevitable cake-fails is all anyone can ask for. A

Thursday, January 13, 2022

Dispatches From SCOTUS' War on the American People: Clear Text Won't Save You This Time

Today, the Supreme Court invalidated the Occupational Safety and Health Administration's vaccine-or-test COVID mandate for large businesses. The opinions span 30 pages. They could and should be less than one. The relevant statute authorizes OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID is an "agent", it poses "grave danger" to employees, and vaccines and/or regular testing are necessary to protect workers from their toxic and/or physically harmful effects. The statutory language is clear, the application is straightforward and that should be the end of the story.

Of course, things are never so simple with this Court, which rarely has rarely missed an opportunity to play doctor at the expense of actual doctors during a pandemic. The Court's analysis in this field has been almost utterly unmoored from pre-existing legal precedent and is, at best, "justified" by policy disagreements with Democratic elected officials which the conservative SCOTUS majority elevates to the level of novel doctrinal creations on the firm legalistic basis of "because we can". Rarely has Justice Brennan's quip that "with five votes you can do anything" been so enthusiastically lived out.

I've actually been repeatedly returning to one of the most prominent cases from my tenure as a judicial clerk, a case I've talked about before -- Keiran v. Home Capital, Inc. Keiran was a Truth in Lending Act case that was simultaneously technical and quite straightforward. TILA gives consumers making certain transactions a right to rescind those transactions within a given period of time -- typically three days, but (where the seller fails to make certain disclosures) sometimes up to three years. The statutory text states that "the obligor shall have the right to rescind the transaction ... by notifying the creditor, in accordance with regulations of the [Consumer Financial Protection] Bureau, of his intention to do so." The relevant regulations likewise state that a consumer can "exercise the right to rescind" by "notify[ing] the creditor of the rescission by mail, telegram, or other means of written communication." The CFPB, for its part, also took the view that a consumer exercises their right to rescind by notifying the creditor.

And the plaintiff in Keiran did exactly what the statute, and the regulation, and the enforcing agency, said he should do: notify the creditor that he was exercising his right of rescission. Nonetheless, a majority on the Eighth Circuit (my judge dissented) decided that the clear text of the statute, and the regulation, and the opinion of the relevant agency, all should be ignored in favor of an additional requirement -- the plaintiff must file suit within the relevant statutory time period. What motivated the court to graft on this invented hurdle? Basically, applying TILA as it was written would make big banks -- and therefore, it seems, the Eighth Circuit -- sad. That seems harsh, but there really isn't much more to it: the Eighth Circuit panel thought that this statutory process made rescission too easy, and created devious opportunities for evil, ruthless homeowners to exploit poor defenseless banks by manufacturing clouds on title. So the text doesn't matter, and the regulations don't matter, and the agency opinion doesn't matter, and the purpose of TILA as a consumer protection measure doesn't matter. If big banks need to be saved, by golly, the courts are there to come to the rescue.

Keiran was reversed unanimously by the Supreme Court in the shortest opinion of the term -- an outcome I chalked up to the difference between good lawyering the Supreme Court and mediocre lawyering at the appellate court. I still think there's something to that, at least in relatively low-salience cases. But just as Keiran demonstrated at the appellate level, NFIB demonstrates at the Supreme Court level that where a judicial majority is hell-bent on reaching a certain outcome, they certainly aren't going to let little things like clear textual mandates stop them.

Sunday, January 09, 2022

The Surprising War of ADL vs. Facebook

Am I the only one who's surprised by the intensity with which the ADL has been going after Facebook recently?

I want to be clear: For purposes of this post, I mean "surprised" in a wholly value-neutral way. I'm neither saying "about time" nor "this is out of control". One can make arguments either way about whether the ADL is right or not, and those arguments are worth having, but here I'm really just focusing on the descriptive character, because what we're seeing just seems very out of character for what we know about the ADL's standard operating procedures.

There are many strategies towards trying to effectuate social change. Some are more confrontational, others are more collaborative; some are more utopian, others are more pragmatic. Along that spectrum, I think it's fair to say the ADL tends to work mostly within established systems and structures rather than radically challenging them. Again, that's not a judgment -- there's a place for radical disruption and there's a place for negotiated advances, and it just so happens that the ADL tends to be more about the latter.

And that's why their campaign against Facebook stands out. Facebook is a tech heavyweight, the sort of entity with whom the ADL typically approaches in a more collaborative spirit, knowing full well that this will involve negotiation-with-the-devil compromises and suboptimal, half-a-loaf-is-better outcomes. Whatever when can say about the virtues and defects of that approach, the ADL is hardly naïve on the subject and is relatively comfortable in its own skin as an insider operation. And as I recall, initially that was how the ADL was relating to Facebook as well -- for example, bringing Facebook execs onboard its then-new Center for Technology and Society in 2017 specifically to help combat hate speech online.

But boy is that not their tenor today. Over the past few years, the ADL has been unabashedly presenting Facebook not as a partner to be reformed, but as a menace to be confronted head on. They've organized an advertiser boycott under the banner "Stop hate for profit". Their CEO has said of Facebook "I don't think ever before a single company has been responsible for so much misfortune." They've savaged Facebook for permitting Holocaust denial and for promoting manipulative political misinformation. It is, I think it's fair to say, a full-blown war, of the sort I cannot recall the ADL waging against any institution as prominent as Facebook. Again, this is just not how the ADL typically operates when relating to organizations of Facebook's size and stature.

So while the normative analysis of whether the ADL is right or wrong, or should be doing more or less campaigning like this, is plenty interesting, for the moment I'm just curious about how we got here. What is it that made the ADL break its normal boundaries? Just what happened during the earlier period of collaboration that seemingly made the ADL completely lose patience with Facebook as an even potentially viable partner? I bet there is a very interesting story here, and I'd love to hear about it.

Saturday, January 08, 2022

The New Holocaust Minimization from Europe to America

It is a common cliché to claim that 21st century American antisemitism will follow the trajectory of 21st century Europe's, lagging only by a couple of years. I hear it most often in claims that the Democratic Party will inevitably Corbynify (I never hear the follow-up of what is supposed to be the American iteration of "... and then Corbyn is trounced in the general and summarily tossed from his leadership post"). Far less frequently is attention paid to how the American right can and will follow in the footsteps of its European peers.

On that note, I want to put two stories in conversation with one another. The first is a right-wing party in Romania under attack for dismissing Holocaust education as a "minor topic". The second is a Republican legislator in Indiana, State Sen. Scott Baldwin, taking flak for insisting that, under his proposed "anti-CRT' law, educators must and should take a "neutral" stance on Nazism.

The Indiana incident is hardly the first of its kind. From the outset, the anti-CRT push has undercut Holocaust education initiatives -- an utterly predictable consequence that thus far has barely even registered an iota of worry amongst Republicans who just a few months ago were holding themselves as the last hope against an incipient tidal wave of antisemitism (then again, it was barely a year ago when Republicans were still holding themselves out as defenders of free speech in education -- who can keep up?).

But it is worth putting these developments in America in conversation with what's happening in Europe, and why it is exactly that they find the Holocaust to be so disposable. For the most part, it is not that I think that the legislators in Indiana or Texas are secret Hitler admirers. However, I do think they may possess, and be acting on, a sort of annoyed indifference to the Holocaust's preeminence. Much like Republican frustration over how all political scandals end in -gate, there is frustration over how the main "shared" exemplar of pure political evil is a right-wing phenomenon. Sometimes this frustration manifests in absurd attempts to pretend that Nazism was "actually" a left-wing ideology. But another play is to seek to undercut the Holocaust as "just another" historical event, one that shouldn't receive undue attention or be subject to special condemnation. Who cares about the Holocaust when somewhere, someone is reading a book on how to provide support to LGBT youth? It's not pro-Nazi so much as it's anti- expending any resources to fight Nazism or inculcate the view that Nazism is bad. 

On the European side, the new far-right parties are not (yet) outright praising Hitler, but they're very much taking the view that we obsess too much over Hitler. Nazism is a minor blemish, an inkblot, a footnote in an otherwise glorious White European history, and bringing it up is just an obnoxious distraction from the "real" threats posed by immigrants, Muslims, and multiculturalism. And of course, the American right is increasingly lining up with these parties -- Steve King was just a touch ahead of the curve, but the snuggling up to Viktor Orban in Hungary has long since passed into the GOP mainstream. Why should the view of the Holocaust resist the trend? Indeed, the Indiana and Texas cases already show the GOP is happily galloping along with it.

Thursday, January 06, 2022

A Quick Note on DEI Professionals and Antisemitism

This is a topic careening around my corner of the internet, and I've almost blogged on it a few times. Instead, I'll just share some quick and tentative thoughts.

(1) Anecdotal evidence aside, I entirely believe there are many DEI professionals who don't know much about antisemitism, and so are poorly equipped to recognize or address instances of antisemitism.

(2) The above can be, but I suspect is not primarily, due to latent hostility towards Jews or a belief that antisemitism "doesn't matter". 

(a) First of all, most people don't know much about most things, including but not limited to antisemitism.

(b) Second, in the American context, I suspect the professional development of DEI staffers tends to concentrate, for understandable reasons, on race and sex, with comparatively less (albeit not zero) attention paid to other potential axes of marginalization (such as religion, disability, indigenous status, and class). I also think that people wildly overestimate the breadth and depth of knowledge DEI professionals have -- which is not a knock on them, they have a hard job! -- in assuming that any gap in their understanding can only be a matter of willful ignorance (and that every other group is the beneficiary of their infinite fount of wisdom and energy).

(c) Finally, while some "generic" principles of DEI training might be cross-applicable to handling instances of antisemitism, I tend to view antisemitism and other forms of marginalization as sufficiently distinct such that one cannot simply deduce proper orientation to one via knowledge of another, and so it is not the case that one knows how to treat antisemitism by taking what one knows about racism and cross-applying.

(3) I do not, therefore, unduly begrudge a DEI professional for not knowing much about antisemitism -- so long (and this is an important point) as they know they don't know much about antisemitism and do not assume expertise they don't have. It's fine for people not to know things -- most people don't know most things. It's when people think they know things they don't that we run into problems -- this is why I actually really find the assumptions attacked in 2(c) dangerous. The problem of antisemitism in DEI isn't that people don't know much about it, it's that too often they don't know much about it but assume that they know plenty much primarily because they oppose racism and so that suffices to establish their anti-antisemitism bona fides (I've sometimes referred to this as treating antisemitism as a BOGO -- learn about racism, and you get credibility on antisemitism thrown in free!).

Putting all this together, and recognizing that DEI training time is a scarce resource and "become an expert on everything in advance" is not actually a viable proposal, the integration of antisemitism into DEI spaces may be better served by developing a culture of outsourcing -- recognizing that, outside a basic corpus of principles that everyone can reasonably be expected to know, that on-site DEI professionals may not have significant expertise in antisemitism and can, without being viewed as failures, turn to outside authorities (such as respected local Jewish organizations) for assistance if and when issues come up.