"Rational Basis with Bite" for All

Randy Barnett responds to my blog post Strict Scrutiny for All! I mentioned this to a friend and he remarked that Barnett is the current "constitutional giant-slayer", to which I replied "and I'm no giant."

That being said, I don't think Barnett gets my post quite right or succeeds in defending Judge Brown's opinion. His basic argument is that Carolene Products, properly understood, still would allow meaningful review of economic regulations because the way it articulated rational basis still had some bite to it. The case that gave us our modern, toothless "rational basis" doctrine was actually Williamson v. Lee Optical. But we can restore "the real Carolene Products" and still have something properly called "rational basis" (rather than strict scrutiny) that nonetheless gives the Court meaningful oversight over economic regulation.

I venture no opinion as whether this is the correct reading of Carolene. As a response to my post, though, it's mostly a non-sequitur, for two reasons. First, Judge Brown's opinion did not cast its villain as Williamson -- it set its sights on Carolene. And it didn't say "rational basis is being wrongly applied", it attacked rational basis review wholesale: "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."

Second and more importantly, the main point of my post was that whatever she thinks the remedy should be (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein, whatever), Judge Brown's indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack on Carolene and its echoes of Ackerman's -- that public choice theory denies that "discrete and insular minorities" should be at a democratic disadvantage, hence, Carolene's decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.

But this line of attack is not limited to economic regulation -- it is a general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.

Gay Masorti Rabbis in Israel

The Israeli branch of Conservative Judaism (known as Masorti Judaism) has announced it will begin ordaining gay Rabbis, following a similar decision by the American branch several years ago. This is important, for several reasons (beyond the obvious advance for gay equality).

For starters, that this is happening in Israel has significant symbolic value. But moreover, Jewish organizations outside the US tend to be more traditional than their American counterparts (that is to say, Conservative Judaism in the US is more liberal than its analogue, Masorti Judaism, outside the US). Hence why the decision by American Conservative Jews to ordain gay Rabbis was both pathbreaking and lonely -- the non-US groups notably refused to follow along. But now they're catching up, and that's no small thing.

In the Room with Barney Frank

A fascinating interview with retiring Democratic Rep. Barney Frank (MA). My favorite part is when he talks about him telling House Speaker Rep. Tip O'Neill (D-MA) that he was planning on coming out publicly.

Robert Bauman had written a book in which he outed me. He incorrectly referred to somebody as my boyfriend—he wasn’t; he was a close personal friend—but he referred to me as gay. The press didn’t pick it up, but I thought, I’d better tell Tip. So I went to Tip. We were sitting on the floor, it was a bad day, we were losing the vote on the Contras, and I sat next to him. I said, “Tip, I’ve got to tell you something. Bob Bauman is coming out with a book that says I’m gay.”

“Awww, Bahney, don’t listen to that shit. You know they say these things about people.” I said, “Well, Tip, the point is it’s true.” He said, “Oh, Bahney, I’m so sad.” That’s when he told me he thought I was going to be the first Jewish speaker. He acted as if it was the end. But he was wonderfully supportive.

The final part of the story was when he told Chris Matthews, “We better get ready to talk to the press. They tell me Bahney Frank is going to come out of the room.” Matthews said, “What?” Finally he figured out Tip meant “come out of the closet.”

The whole thing is fascinating. Give it a read.

Cosplay for Killers

I'm a "fan" of the Assassin's Creed series on Facebook, which means their messages occasionally wander across my wall. Today, I saw one that I found interesting -- a plug for "the 1st Assassin's Creed Online Cosplay Contest."

Why do I find this odd? Well, to my lights at least, cosplay has always had the public image of being very geeky fanboy/girlish (I'm not saying I agree with this assessment, only that's how I've understood its public meaning). It's girls in anime costumes and guys with an obsession for Japanese RPGs. Assassin's Creed, by contrast, is much more of a macho man game; its advertising uses professional athletes*, incredible acrobatic feats, and, of course, the prospect of brutally dismembering half of Renaissance Italy.

Given that, I find it interesting that the game's official feed is promoting a cosplay event -- one would think they'd be more attentive to preserving the fragile egos of teen gamers for whom being associated with, ew, nerds is the last thing they want. But maybe I'm too cynical about Ubisoft. Or maybe I'm entirely misreading the cultural salience of cosplay. Thoughts?

* Funny story -- I was with my cousin when an ad for AC:Revelations came on. It showed a bunch of pro athletes in hoodies that mimicked the assassin garb, followed by "stats". The last state was for "Ezio Auditore", who, of course, is the protagonist of the series -- but my cousin just assumed he was another NBA player and was curious why he had never heard of this "Eezee-oh" guy.

Mad Men Thoughts

We missed parts of Mad Men last night (a thunderstorm caused the signal to cut out), but I think I got most of the important parts. Scattered thoughts:

* It was maybe a season and a half too late for maximum schadenfreude, but Pete Campbell got punched in the face! Repeatedly!

* Though Pete has been improving as a character, said schadenfreude was nonetheless amplified by his seeming retrogression this episode into the old, whiny, entitled Pete of yore.

* If you're going to get busted for adultery, chewing gum on your pubes has got to be one of the more bone-headed ways to be caught. If I'm the wife I'm equally offended for having a spouse that stupid.

* While Pete was getting punched, I couldn't help but think "Connor wouldn't have put up with this." Connor also would have never lusted after that high school senior (way, way too young).

* Why isn't Kenny a writer? Is he any good at being an accounts guy? Jill says he's not, as we don't see him bringing in any new business, I say that you also don't see any of his accounts disintegrating into ashes due to his own inattentiveness.

* When Joan was consoling Lane in his office, I shouted at the screen "Oh my God marry Joan your marriage is terrible anyway and she's single!" Immediately afterwards he kissed Joan, and I yelled "What are you doing, don't listen to me my advice sucks!"

* Pete Campbell got punched in the face!

The Judge as Moral Arbiter

Commenting on Judge Brown's opinion that I talked about in my last post, Professor Kerr also expresses his discomfort with "the propriety of placing such views in the Federal Reporter instead of a law review or published speech." I strongly disagree -- while obviously I disagree with the content of Judge Brown's opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way -- I'd like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.

Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.

For example, the Affordable Care Act might be perfectly constitutional and an awful, awful idea; it also might be unconstitutional and an entirely salutary and appropriate piece of legislation that nonetheless lies beyond Congress' commerce power. But, particularly if the law is struck down, that's not what we're going to hear from conservative opponents -- they will take the opinion as vindication that the law was an unconscionable socialist usurpation nipped in the bud. If the court wants to send that message, it might as well, but it should take affirmative control of what it is communicating. Judicial silence is not read neutrally -- fairly or not, amongst the public the baseline presumption at the moment is that legal victory means moral approval and legal defeat means moral disapproval. The stronger a norm there is of judges explicitly telling us what they think about the underlying policy merits of a dispute, the less likely we will be to conflate their legal discussion with a policy endorsement.

Or consider the infamous recent case where a Texas school district kicked a cheerleader off the team because she refused to cheer for a man who had assaulted her. The school district won in court; many were outraged by this, as it seemed to condone truly appalling conduct by the District. I argued that the district probably was acting perfectly legally -- but the Court should be clear to indicate its disapproval of conduct in the course of dismissing the suit. This is not just to assure the public that it still retains a conscience. It also has to do with the messages received by the parties -- what they are allowed to "take" from their victory or absorb in their defeat. The last thing we want is the school district thinking its legal victory constitutes any sort of imprimatur for their flatly inhuman conduct. Nor do we want to the message heard by the young woman in question to be "the Judicial Branch of the United States thinks you're a big ol' crybaby." The message we want to put out is that the school district is within its legal authority to act in this way, even though its actions were horrifying and demonstrate an incredible lack of empathy and prioritization that should cause all persons of conscience to question their fitness to serve.

Strict Scrutiny for All!

George Washington law professor Orin Kerr flags a concurring opinion by two arch-conservative judges on the DC circuit (Brown and Sentelle) urging the Supreme Court to return to a Lochner-style strict-scrutiny review of economic laws. The case is Hettinga v. United States:

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .

The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).

The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.

I think -- though I'm not sure -- that they're using "cowboy capitalism" as a compliment.

Now, it should come as no surprise that I disagree with this position thoroughly. Lochner remains wrong for the same reasons Justice Holmes told us Lochner was wrong. And the story Judge Brown tells about the "political process", though not wrong on face, is both inconsistent and can't support the jurisprudential shift she's advocating.

Judge Brown's critique is basically the indictment of Carolene Products that has been in the mix since at least Bruce Ackerman's Beyond Carolene Products article in the 1980s. The idea is that small, discrete, insular groups are at an advantage in the political process because they are easier to mobilize and can overcome collective action problems. So, for example, even though there are far more milk consumers than milk producers in America, milk producers are at an advantage because they are easier to organize and have a far greater relative stake in milk laws than the diffuse and diverse community of milk "consumers". In this way, law can be and often is subject to capture by these "special interests".

There are at least two responses to this. The first is that, though this does challenge Madison's vision of factions checking factions in Federalist #10, it does not defeat it entirely. Madison may have been wrong that the majority faction always wins. But widespread fracturing may still serve a useful purpose, because it can pit small, discrete factions against each other, thus dissipating their influence. The debate over SOPA, for example, pitted not a "special interest" versus "the people". Rather, there were small factions on both sides -- content providers like the RIAA going against content distributors like Google. In that circumstance, worries about pure capture seem overblown.

But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There's nothing really unique about economic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to "right itself" with respect to a (potentially mythical) "common good". We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.

Hence, Judge Brown argument doesn't support strict scrutiny for economic regulation -- it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it's notable that even that stance doesn't actually fix the "problem" Judge Brown purports to be tackling, because Congress' decisions not to regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position -- strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.

What's needed is a theory for when heightened judicial solicitude is appropriate. Carolene Products attempts to provide one, but its vulnerabilities are well-taken. But that's why most modern reconstructions of Carolene focus not on "discrete" or "insular" or "minorities", but on "prejudice". This was the one element of Carolene that Ackerman did not have a solid objection to, and it's particularly important in the pluralist interest-group bargaining model because it shows why certain groups or interests may be unable to even "play the game". In essence, public choice theory tells us that being Black in America should have historically been awesome -- they're a discrete, insular minority, they should have been cleaning up in the democratic process. Why didn't they? Because prejudice against them prevented them from even participating equally in the interest-group game. They were pariahs -- it was politically helpful to hurt them and politically deadly to help them.

No true parallel exists for economic regulation. Business interests have shown no incapacity to participate in the democratic process in pursuit of their interests. Obviously no particular business wins all the time, but neither do there seem to be systematic losers placed in the subordinate position because they're simply disliked.

Judge Brown doesn't promote any such theory. What she does have is an aria in praise of free market capitalism. But regrettably, the Constitution still doesn't enact Mr. Herbert Spencer's Social Statics. There is nothing in the Constitution that even presumes free market capitalism leads to the common good. Nor, for that matter, is there anything in the Constitution that presumes that the choices a free democratic society makes will be in pursuit of the common good, though the hope that it does I think is implicit in it.

Indeed, "common good" may be chimerical altogether. All Judge Brown is doing is redistributing the results of the interest-group game away from some and in favor of others more to her political tastes. But neither the Constitution, nor democratic theory, makes any provision for this. It's pure policy, nothing more.

(I have a second post going up dealing with a different part of Kerr's post -- where he questions the propriety of Judge Brown even writing an opinion like this -- which you can find here. While I disagree with the content of Judge Brown's concurrence, opinions of this type I think are quite valuable, for reasons I explain in-post.).

UPDATE: I respond to Professor Barnett's reply in a new post here.

Throw the Jew Down the Well!

A Pennsylvania state Republican conference is in hot water after a band playing at the event started spouting lyrics like "We’re fighting the corruption of the Jewish banks but when the Jews come to feed us, we always say thanks."

The band apparently was trying to satirize the Occupy Wall Street movement which ... I dunno, maybe? That the OWS is targeting "Jewish banks" is little more than a smear, but it's one I've heard of so it makes sense that it'd appear in the fever swamp a respected gathering of Pennsylvania Republicans. But that second part refers to ... what exactly? Jewish philanthropy? Prominent Jewish membership and in support for OWS? I have no idea.

Booker Saves the Day

How does a rising superstar mayor who already has uncountable superlatives attached to his name up the ante? By rescuing a woman from a burning building, Spiderman-style.

UPDATE: Vermont Governor Peter Shumlin (D) tries to imitate by attempting to chase off four bears raiding his property, but was unsuccessful (and nearly devoured).

No, I'm not making any of that update up.

I Have in My Hand....

Rep. Allen West (R-FL) claims that "he's heard" up to 80 U.S. House Democrats are Communist Party members. Naturally, he wouldn't name names.

So let me talk about some of the things I've "heard" about Rep. West. He was forced out of the Army after abusing a bound detainee. He's urged top military officials to resign rather than follow the President's orders. He considers Islam the enemy. He says the President is a "low-level socialist agitator" and that Rep. Debbie Wasserman-Schulz (D-FL) is "not a Lady, therefore, shall not be afforded due respect from me!" And he thinks Blacks are being kept on a modern-day "plantation" by the Democratic Party.

The difference is that, unlike Rep. West, I can back up what I've heard.

Publication Announcement

I am pleased to announce that my essay, The Perils and Promise of the Holder Memo, has been published in 2012 Cardozo L. Rev. de novo 187. You can read the whole symposium, entitled DOMA after the Holder Memo, at the Cardozo Law Review website.

My thanks to the hard work from the Cardozo editors, and congratulations to them on putting out a great issue!

Palestinian Group "Evicts" Jewish Students

A pro-Palestinian student group at Florida Atlantic University sent mock eviction notices to 200 FAU Jewish students, allegedly as a commentary on Palestinian home demolitions Israel has undertaken over the past several decades. The notices were apparently close enough to the real thing (including the unauthorized use of the FAU housing department's official stamp) to fool some of the students into thinking they were actually being evicted, and FAU is opening an investigation into the incident (which also may have violated the law). The flyers were distributed on the first night of Passover.

And, since it might have skated by -- these notices apparently targeted Jewish students. Not Israeli students, not "pro-Israel" students, but Jewish students.

Not that it matters. In the eyes of some, so long as there is an Israel whose policies can be opposed, Jews don't have any rights to speak of. It's "opposing Israeli policies", and so it's all good.

UPDATE: Further reporting indicates that Jewish students were not specifically targeted.

Cracking Down on Terrorists Reduces Terrorism

This is an interesting piece in Ha'aretz about efforts by the Shin Bet -- Israel's internal security service -- to crack down on far-right Jewish terrorists. Responding to increasingly brazen acts by these "price tag" militants, the Shin Bet was authorized to, in essence, treat them more akin to the Palestinian terrorists they resemble in every relevant respect. And after arresting over a dozen of the top leaders in the movement, violence against Palestinians has fallen.

It's not just depriving the beast of its head that's doing the work here. As the article relates, the right-wingers "thought they were immune to charges, but we surprised them." Basically, they believed in the culture of impunity, and acted accordingly. Once the Shin Bet sent a signal that the old rules didn't apply, the terrorists were taken aback and, at the very least, have been forced to regroup. This is a good thing.

Took You Long Enough

Who's to blame for Trayvon Martin's killing (and the non-arrest of the shooter, George Zimmerman)? Why the Jews, of course! Something about "Zimmerman" sounding kinda Jew-y and the ADL wants to give Jews carte blanche authority to murder "goyim" and free Palestine and the Southern Poverty Law Center is in on it too and oh who the hell cares. That is, unless the problem is the Jew-owned media perpetuating a fraud on the public by slandering an innocent White man who rightfully gunned down a drug-dealing thug in his backyard. One or the other.

Incoherence aside (or taken for granted), I'm just disappointed at the delay. I mean, it's been weeks since this story broke, and we're only now getting to the Jewish conspiracy element? I think folks are slipping.

Those Other Israelis

Writing in the Forward, Jay Michaelson argues that if J Street really wants to build momentum for progressive change in Israel, it should look at Israel's largely Sephardic/Mizrachi working class. These Jews, hailing predominantly from North Africa and the Middle East, lean considerably to the right, and bear a considerable amount of resentment towards Israel's Ashkenazi elite.

There is irony that this resentment ends up redounding to the benefit of the Israeli right, as non-Ashkenazi politicians have seemingly reached higher levels in Israel's more liberal parties (e.g., Amir Peretz in Labor or Shaul Mofaz in Kadima). Nonetheless, the Israeli peace camp is overwhelmingly associated with Ashkenazi politicians. And Jews hailing from the Arab world tend to be those with the most visceral disdain for Arabs (Beitar Jerusalem, whose fans recently went on an anti-Arab rampage through a shopping mall, draws its support overwhelmingly from the Mizrachi community).

Still, to the extent that a critical aspect of any pro-peace endeavor is building support for it on the ground, making inroads in this community is absolutely crucial. I noted this sort of left revitalization project as an alternative to Beinart's settlement boycott, and this only reemphasizes it. How does one gain the trust of a community that has been ignored for so long? Well, by listening, to begin with, and showing that one is responsive to their (legitimate) concerns. Attaching consideration for Jewish refugees in the Independence War is an obvious example of an issue area important for this community that has been repeatedly marginalized. I'm sure further engagement could come up with others (that, after all, is the point).

Over 80% of Jews Support Gay Marriage

The Forward has the new poll data, which shows overwhelming Jewish support for marriage equality. How's that for a Judeo-Christian value?

Yes (Duh)

This is just so unbelievably disrespectful. The other day, President Obama said it would be "unprecedented" for the Supreme Court to overturn the Affordable Care Act. Obviously, there's some political hyperbole here -- the Supreme Court has struck down economic regulations like the ACA before, it just hasn't done so since the New Deal. There are "precedents" for the action, they're just not considered to be good law. But that's nitpicking -- obviously, there is a very real sense in which a decision to strike down the ACA would represent the apex of a newly resurgent conservative judicial activism that is quite willing to strike down disagreeable policies based on flimsy, at best, constitutional hooks.

But Judge Jerry Smith of the 5th Circuit decided that it's grand-standing time:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
[...]
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Oh please. There's actual doubt as to whether the Obama administration believes in judicial review? As if this wasn't an absurd claim on face, the Holder memo's explicit determination as to the executive's belief in the unconstitutionality of the Defense of Marriage Act provides an obvious case of the Obama administration believing in the judiciary's right and duty to strike down unconstitutional laws. This, of course, does not extend to a belief in the judiciary's right to strike down perfectly constitutional laws. For Judge Smith to make this accusation is so far beneath the dignity of the federal bench you need an oil drill to reach it.

Judge Smith's order is outrageously disrespectful, more worthy of Rush Limbaugh-style gutter politics than a judge with life tenure. Disrespect deserves disrespect in turn. Since the administration can't lawfully ignore the order asking them whether or not they believe in the power of judicial review, I propose they respond with a one-page document that merely says "yes". There's nothing more to say and nothing to see here, and certainly Judge Smith deserves nothing more than that.

(Via).

UPDATE: To add to the middle school-ishness of it all, looks like the order requires the administration's response to be three pages, single-spaced. Well, there goes my proposal.

UPDATE 2x: Rush Limbaugh agrees!

And This, Too, Is Part of the Problem

There are many problems interfering with a just resolution of the Israeli/Palestinian conflict -- that is, the establishment of a system where both Jews and Palestinians democratic and national aspirations are honored and respected (also known as a two-state solution). To some extent, I think focusing on the "problems" is a mistake, because it rapidly turns into an excuse for quiescence. I don't believe that if only Israelis were nicer people, that peace, happiness, and bunnies would flow across the land. But I also don't really care -- Israel is under existential threat, and it shouldn't and doesn't need to wait for Palestinian agreeability before doing either what is necessary for its long-term survival as a Jewish, democratic state, or what is just with respect to the natural human rights of Jews and Palestinians.

But of course, the whole point of this analysis is that not everything is in Israel's hands. It should do as much as it can because it's in its interest and because it is the right thing to do, but anyone who doesn't think that Palestinians have their own work to do, or denies that Palestinians engage in their own share of acts incompatible with justice or peaceful coexistence is deluding themselves.

To cite two examples from today's Ha'aretz, the IDF just arrested 13 Palestinians on suspicion of engaging in terrorist activities, including the goaltender for Palestine's Olympic soccer team and, most ominously, employees of the Red Crescent. The use of entities like the Red Crescent -- which are given privileged status in conflict zones precisely because they promise to abstain from armed conflict -- is a hallmark of Palestinian terror groups and a critical factor in the putting Palestinian civilians in danger. Because the IDF has to view the Red Crescent as a potential threat -- its operators firing weapons and its ambulances smuggling weapons -- it makes it far harder for humanitarian aid (even legitimate) to reach Palestinians in conflict zones.

Second, none other than PA President Mahmoud Abbas decided to honor anti-Semitic reporter Helen Thomas, who resigned in disgrace after publicly declaring that Jews should "get the hell out" of Israel. The "go back where you came from" -- a charge which, ironically enough, follows Jews no matter where they go or where they come from -- is classic anti-Semitism, and the message with respect to the Israeli/Palestinian conflict in particular is that it will never end so long as Arabs have to suffer the indignity of their being Jews in their vicinity. Thomas has not expressed the slightest bit of remorse for her racist comments, yet the PA mission honored Thomas as having "defended the Palestinian position every step of the way."

So many problems. But how are they relevant? Insofar as the ultimate goal is Jews and Palestinians living side-by-side in harmony, they're very relevant. But with respect to the narrower question of "what actions should Israel take to secure its long-term status as a Jewish, democratic state", they matter far less. Israel's security ought be protected the same way it is now -- through a strong military deterrent capable of crushing anyone who tries to cross them. And peaceful co-existence may or may not be a pipe dream -- but even if it's impossible, two peoples who separately and democratically hate one another is better than two people who do so while under the same undemocratic authority.

To be clear, these things matter, because questions of justice matter -- and that includes Palestinian injustice, violence, and anti-Semitism towards Jews. But part of being Jewish is that you rapidly learn that you can't wait to act until everyone else decides "yes, you're equal". Anti-Semitism is a fact of life, the question is how to best create a just, equitable, democratic world that is fair to Jews and everyone else in the face of that -- something that includes, but is not limited to, a space where Jews are democratically in control of their own destiny.

Netanyahu versus Israel's Security

Jewish settlers purchase a home in Hebron in a closed military zone (it looks like they used some shady intermediaries to get the Palestinian owners to sell, not realizing it was going to settlers). IDF considers this to be a security provocation, orders settlers evicted. Netanyahu reverses advice of the military, orders the settlers be allowed to stay (at least temporarily).

Meanwhile, I'm left wondering: In the contest between Israel's security demands and its political leadership, who does Ben Kerstein think I need to agree with in order to avoid being anti-Semitic? Inquiring minds want to know.

Black-on-Black Homicide: Who Cares?

Answer: Black people, who speak out on this issue on a regular basis.

This all flows out of incredibly self-serving columns by folks like Rich Lowry, who are seeking to dissipate the outrage over Trayvon Martin's death by insinuating flatly asserting that people only care because Martin's killer was a White Hispanic. That, as a matter of fact, Black people are marching over intracommunity killings doesn't enter into Lowry's analysis at all. For all appearances, he has no idea that these protests exist. Why not? Because Lowry cares about this issue only when necessary to deflect attention from an awkward conversation he doesn't want to have.

Does Lowry attend these protest marches? Does he speak at them? Does he use his influence and clout to ensure they get attention and aren't relegated to the back pages? Does he listen to the policy prescriptions put forward at these marches and then use his clout within conservative circles to get his allies to take a leadership role in making them a reality? No, no, no, and no.

Lowry tells us that these crimes don't matter "unless they happen to fit the right agenda." But perhaps the real problem as Coates puts it, is "pundits who write more than they read, and talk more than they listen, and prefer an easy creationism to a google search."