How To Be Honored By Friends

I've occasionally commented on the weird "honors" I get from nutty lunatics who hate me. Sure, they're extreme, and sure, they openly detest me, and sure, they probably are mentally ill. But on the other hand, do my friends place me in a group of some of the most illustrious legal scholars of the 21st century? Do my friends dedicate whole websites to declaring me a "disgusting Zionist punk" (it's still up!)? My enemies, I've often quipped, seem to have a far higher opinion of me than my so-called friends do!

It is in that light, though, that I'm especially pleased about two presentations I gave over the past week -- the first at the Washington State Judiciary's appellate conference, and the second at Reed College. Both talks were wonderful in their own right. But it was equally exciting who I shared the program with. In Washington, I followed directly after none other than Erwin Chemerinsky. And at Reed, I was part of a "free speech" program headlined by Cass Sunstein. Those are pretty big names -- ones fit, I daresay, for even the most discerning ramble from a damaged personality blasting off email screeds about Jewish perfidy.

So thanks to all my friends and supporters, for finally catching up to my enemies. I'm profoundly grateful.

(But in all seriousness -- I am profoundly grateful. It is awe-inspiring to seriously keep company like that).

What Will Happen That Night?

I can imagine the moment: When the networks agree that Joe Biden has defeated Donald Trump and will become the next President of the United States.

But it's hard to imagine the very next moment. Which, in itself, is a sign of how bizarre and precarious our political era is right now.

We all wonder if Donald Trump will actually concede, even if he's clearly losing. Which is a scary thought on its own. But suppose he does concede. What does a Donald Trump concession speech even sound like? I literally can't imagine it. I have no idea what he'd say.

Meanwhile, there are some standard phrases one gives when accepting a concession -- ran a strong campaign blah blah blah thank you for your service blah blah blah unite as a country. But, even as platitudes, can you really say those things about Donald Trump? Joe Biden doesn't strike me as the sort of man to deviate from tradition on this front, but I wonder who will be the first to demand we condemn Biden as soft on fascism because he mouths some meaningless rhetoric of graciousness.

It's a night I can't imagine. So I sure do hope I get to live through it.

The Impossibility of Speech Disruption

Last week, I went to a talk at UC-Berkeley by James Loeffler on the Zionist history of the architects of post-WWII human rights law.

In the middle of the talk, there was a disruption.

Now you might think that "disruption at Berkeley of a talk on Zionism" would be from some sort of pro-Palestinian or anti-occupation activist -- but in this case, you'd be wrong. The disrupter instead was a disheveled old White man who stood up in the middle of the talk and started rambling incomprehensibly about Mammon and Christ and the coming day of judgment and some 500 year old campaign of resistance which either Jews were a part of or Jews were the adversary of (it really was hard to follow).

In a sense, this was the "ideal" disruption because it is entirely unsympathetic. There's no political controversy that skews our prejudices, there's no uncomfortable dissenting view that may need space for airing. On the ledger of "ensuring the speaker can speak" and "ensuring the audience can participate", every entry fell in favor of silencing the protester as quickly and decisively as possible.

Which is why I found it interesting that, even in this case, there really wasn't anything the event organizers could reasonably do to end the disruption in a timely fashion. We were pretty much at his mercy for as long as he wanted to talk. The organizers walked up towards him and sort of vaguely gestured at the exits, which he ignored; eventually a different organizer got a microphone and asked him to leave and let people listen to the talk, which he also mostly ignored. Eventually, he made his way down to the front and out the door (never not talking), started to walk out (to cheers), briefly walked back in (to boos), and then finally exited once again. But there was no real doubt that he could have kept going indefinitely, at least until some form of security arrived to forcibly remove him.

And that's the interesting thing about such disruptions: even in a case like this, where one is wholly unsympathetic to a protester who is adding no intellectual or social content to the event whatsoever, if he withdraws social cooperation and just refuses to leave when asked, there's really nothing anyone can do short of the physical. And that, in turn, will no doubt feel like an escalation and an overreaction -- the protester literally dragged out of the room -- even in a case like this, much less in one where some people might have sympathy for the protester.

And in a way, that dynamic is what is being relied upon in these sorts of protesters. Our society relies on certain implicit norms of social cooperation (such as, if you're asked to leave an event you're disrupting, you walk out under your own power). Where that cooperation is withdrawn, society isn't powerless, but it becomes a lot cruder a lot more quickly -- and the revelation of the crudeness is often the point of the protest. But the point of using the above example is to stress that this is the reality in any social case -- it isn't something unique to a particular political or social worldview. Any social institution relies on implicit cooperation as a substitute for physical power as against any sort of challenge -- it's not something unique to the good guys or the bad guys.

Post-Panel Recap

I spoke on a panel today. Myself and two other faculty members picked a case before the Supreme Court this term, and talked about it (background, analysis, predictions, etc.). I picked Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fascinating case about the ministerial exception in the First Amendment.

Basically, the ministerial exception allows religious organizations more-or-less free rein in the hiring and firing of clergy -- particularly, as against anti-discrimination law. So, if a synagogue fires its Rabbi, and she alleges sex discrimination, that case is just thrown out irrespective of the facts. The rationale behind the exception is that the Free Exercise clause, if nothing else, requires that religious bodies be allowed to choose who serves as their own minister. The government in effect telling the synagogue "no, you have to hire/keep on this Rabbi to serve as your spiritual leader" is incompatible with First Amendment protections. And while one could make an argument that such logic cannot survive Employment Division of Oregon v. Smith (holding that the Free Exercise clause generally does not require religious exemptions from generally applicable laws), the ministerial exception appears to remain on steady footing.

There is a big caveat to the above, however: the ministerial exception has never been ratified by the Supreme Court. It is a creature of the federal appellate courts, and while every circuit now accepts its existence, until Hosanna-Tabor the Supreme Court never heard a case on the subject. The reason behind that isn't hard to see -- intuitive as the ministerial exception is in principle, it can be devilishly difficult to apply in practice. Who counts as a minister? How deep into the payroll does it extend?

Hosanna-Tabor deals with a teacher at a Christian school who, on the one hand, taught secular subjects and had an almost-exclusively secular job description, but on the other hand was considered a "called" teacher and a "commissioned minister" at the school and church, and did do some religious functions in addition to the school's intended mission as being infused with a spiritual mission from top to bottom. Should her ADA retaliation claim be barred on the exception? Saying yes means potentially excluding huge swaths of employees from the entire thrust of anti-discrimination law protections. Saying no means answering some exceptionally difficult line-drawing problems regarding who does count as a "minister", and risks entangling the court in religious doctrinal disputes that may be the key factual controversies in why a given employee was terminated.

The talk went quite well, though I continue to be unhappy at just how much my public speaking skills have degraded over the years. My fellows spoke on the warrantless GPS tracking case and the notorious fleeting expletives case (as a professor, one relishes the chance to use various swear words in an academically sanctioned setting in front of scores of students). So hopefully, a good time was had by all.

Different Speeches for Different Audiences

Apparently, "the left" is disappointed with President Obama's UN speech, which focused primarily on chastising the international community for its obsessive focus on Israel and its deliberate apathy towards that state's security and legitimacy needs. They wanted to see a more aggressive push by the President towards restarting negotiations.

Whatever. First, the Obama administration has hardly been quiet about pushing for a return to the negotiating table. I'm not sure why it was particularly important that he lay out a 12-point plan before this particular body. Much like how the President's pressure on Palestinians apparently doesn't count because it wasn't sufficiently public, apparently it is valid practice to ignore the administration's tireless efforts to return the two parties to the negotiating table because it is merely being plastered over the front page of every newspaper in America, rather than at the UNGA.

But more importantly, forums matter, and this was a speech that the UNGA diplomats needed to hear. The fact of the matter is that one of the major obstacles to a just peace between Israel and Palestine is that a substantial portion of the international community rejects in principle basic things like "Israel shouldn't be destroyed" or "it's bad when suicide bombers blow up cafes in Tel Aviv". That norm has been for too long unchallenged, and it is a great thing that the President took it upon himself to break that streak. While Avigdor Lieberman's approval fills me with shame, it is notable that President Obama gave what Ha'aretz is calling "probably the warmest pro-Israel speech ever given at an annual UN General Assembly meeting by any U.S. president, bar none." This is a body that doesn't hear many such speeches, and it needs to.

Not every forum is like the UN, of course. Not every relevant location to the Israeli/Palestinian conflict is a place where Israeli concerns are systematically marginalized and the Jewish people are routinely denigrated. In other places, it is the Palestinians who are marginalized and ignored, and in those places people need to be informed of the legitimate aspirations and true suffering of the Palestinian people. And in other locations, the problem isn't really lack of awareness of either side's plight, but a simple need to get people back in a room together. And in those places, that's the message that should be sent.

But the UN is a specific audience, with a specific character flaw that needed to be picked out. It's not the only thing President Obama should do, but in this forum, before this audience, it was the right speech at the right time.

Obama's Mideast Speech

The buzz on this speech has already been fluctuated wildly, from "he won't say anything new" to "he's going to make an exceptionally bold and ambition statement on resolving the conflict."

I don't know which intuition is right, but the latter is obviously more fun to speculate over. So what do I want to hear?

1) Clear assertion of the right of Palestinians to a state, based on 1967 borders. There will be landswaps, and there should be landswaps, but the basic right of Palestinian statehood has to be acknowledged.

2) Clear statement that the establishment of a Palestinian state is in Israel's clear, existential interest. Palestinian statehood isn't a "favor", nor is it just idealistic posturing. It's a necessary condition to Israel's continued safety and security as a Jewish, democratic state.

3) Clear affirmation of Israel's right to defend itself and live inside secure borders. This is boilerplate at this point, but obviously remains important.

4) Clear rejection of the right of return. Rightly or wrongly, a speech that forwards points #1 and even #2 will be seized upon by rightist elements as "proof" that Obama is "anti-Israel". That's ridiculous, but it's reality. Observing that the right of return is a non-starter, and that at the end of the day not everyone is going to be able to live in the precise patch land they want to, is a good hedge against this. It's a known negotiation red-line, everyone knows that a final deal won't include it, something that is objectively hostile to final resolution of the conflict, and something that pro-Israel folks care about passionately. Compensation for refugees, yes, absolutely, but no right of return.

5) A call on both parties to hit the negotiating table. Both sides bear their share of the blame on this. The Palestinians got a 10 month settlement freeze, and spent much of that time dicking around rather than attempting to make any progress. On the other hand, that freeze was pretty anomalous for a Netanyahu administration that, by and large, is abjectly incompetent at best (with coalition members who are best described as fascistic). Whatever -- the point is that the only way things happen is if people sit down at a table and commit to banging an agreement out. Enough is enough.

How many of these points do you think Obama will hit? Fingers crossed for a good speech.

UPDATE: Four out of five, by my count. Obama specifically punted on refugees (as well as Jerusalem), but the functional replacement w/r/t my political analysis was his call for a demilitarized Palestinian state. I continue to be a little perplexed at why this is supposed to be so appealing. I want Palestine to have a monopoly of violence in its borders. The alternative isn't "no weapons in Palestine", but rather something like Hezbollah setting up shop with the actual government too weak to stop them (just like in Lebanon). But again -- whatever helps make a deal....

Obama, Settlements, and Cairo

Barack Obama's surprisingly hardline stance against Israeli settlements has been cresting as he approaches his eagerly awaited Cairo speech to the Arab world. It is looking more and more likely that he will give a tough criticism of the settlements in the forum. And I hope he does. Because I assume that it will come paired with a forthright call for the Arab world to battle its own internal demons, particularly anti-Semitism. And that's a trade I'm more than glad to see made.

Barack Obama's best speeches share a common theme: hard calls for introspection. The Philadelphia race speech was a notable one. His Atlanta speech, which I called his best of the campaign season, was another. But for that move to work, it can't be a lecture -- it has to come from a position of empathy, respect, and understanding. Arabs (among others) are justifiably angry that the US has been an insufficient bulwark against the settlement enterprise. A firm Obama stance saying that they will no longer be tolerated will be big news. But in doing so, he will build upon his personal popularity and allow him the space to honestly and forthrightly demand that the Arab community look inward at the hatred many of its members have preached towards Jews (not Israelis, not Zionists, but Jews) for decades.