The Latest Anti-Israel Organization

I argued in my last post that an alternative to boycotting settlements is to more aggressively take on their supporters in the American "pro-Israel" establishment. Groups like the Zionist Organization of America, I argue, are anti-Israel under generally accepted definitions promulgated by mainstream American Jewish institutions -- most notably, for its apparent endorsement of a one-state solution.

In Ha'aretz, Bradley Burston fires his own salvo at ZOA, indicting them for their vitriolic attacks on Israeli security measures aimed at preserving peace in Jerusalem. Conservative "pro-Israel" groups often claim that we should be deferential to Israeli security appraisals and be reticent to criticize them, but it is a standard they have never purported to live up to.

And in all honesty, they shouldn't. Caring about something means having opinions about it, and ZOA is entitled to think that Israeli policies are wrong. That, in itself, isn't the sin -- though ZOA's substantive support for one-stateism, which would end Israel as a Jewish, democratic state, is a whole different kettle of fish. But the hypocrisy is telling, and it would be bad enough even if it wasn't a smokescreen to disguise the fact that ZOA has moved itself beyond the borders of what the pro-Israel community should deem tolerable.

Beinart's Settlement Boycott

Peter Beinart made waves in the NYT the other day in calling for a boycott of Israeli settlements -- paired with, Beinart says, a sharp opposition to boycotting Israel-proper. The goal, Beinart argues, is to effectuate a sharp separation between Green Line Israel -- an imperfect democracy that nonetheless is among the freest places on earth, and a beacon for what the liberal Zionist dream should be -- and the occupied territories, which is ... not. I'm a sharp critic of boycotts, and a sharp critic of the settlements, which puts in me a bit of bind. While I might agree that conceptually there is a distinction between boycotts of Israel writ large and the settlements I instinctively recoil at boycotts targeting Israel, because the BDS movement pervasively shot through with anti-Semitism and anti-Zionism that appears intractable. I think Beinart underestimates just how much a visceral reaction Jews have against this particular tactic -- it has such a dark history, and it's current manifestation has been surrounded by such a vicious resurgence of anti-Semitic rhetoric, that it really can't be viewed abstracted from the context. It's like Glenn Greenwald writing in Pat Buchanan's outfit. Sometimes past and present prejudice circumscribes what would otherwise be acceptable, and this could be one of those cases.

In any event, the reaction to Beinart's call has mostly been negative on the Jewish left -- J Street, for instance, said it thought a boycott would cause the settlers to hunker down and become more radical. Beinart's own site posted a powerful rebuttal to his argument (which is testament, one should say, to Beinart's desire for honest dialogue on this question), saying that the boycott absolves both the left and right of having to deal with the tough questions that -- despite ever-present efforts to simplify the conflict to dueling caricatures -- have to be answered for any lasting peace to be created. This is the crux of Jeffrey Goldberg's objection as well -- Beinart simplifies the conflict so greatly that he doesn't seem to recognize that even if Israel starts acting like a perfect mensch, it won't solve things.

The retort Beinart and his supporters (like Andrew Sullivan) have been throwing out is "well, how do you propose to arrest the settlements?" This debate, after all, is being held amongst people who all agree the settlements are a bad thing and should be opposed -- but Beinart's allegation is that for many, this is purely a rhetorical trope, and they reflexively oppose any calls for actual action aimed at restricting settlement expansion. Which is not an unreasonable retort, and I'd like to see a more comprehensive response. But that cuts both ways -- it's a fair critique that Beinart is wildly oversimplifying too, and he needs to tack onto his proposal concrete agenda items to demonstrate, for example, how to ensure that a final status agreement is actually "final", how to delegitimize anti-Israel and anti-Semitic zealots who seem to view the existence of Jews in any state but one of abject supplication as an affront, or how to take non-starters like a Palestinian right of return off the table.

Still, seeing as I do think that arresting settlement growth is critical both to the peace process as well as Israel's long-term longevity, it is important to think of tactics for making that happen. So I tentatively forward a few proposals -- not meant as a firm commitment to any of them as either necessary or sufficient, but an effort to get ideas flowing.

(1) Increased support for efforts aimed at revitalizing the Israeli left (e.g., OneVoice and TULIP). Israelis are always going to be in the best position to stop the settlements from destroying their state -- but the pro-peace left in Israel has been largely moribund since the second intifada, and has largely been ignored by its international peers.

(2) Better policing of the pro-Israel tent in the US. I am absolutely in agreement that not any and every group which claims to be "pro-Israel" should be allowed to get away with it -- if they advocate "solutions" to the conflict that are manifestly anti-Israel and outside the consensus of the broader Jewish community, they should be expelled. But in recent years this has been a one-sided standard -- left-wing groups have been closely scrutinized (sometimes rightly so), while their conservative counterparts have gotten a free hand, even when the advocate policies (like one-statism) that are clearly considered beyond the pale. No more: the onus is on mainstream Jewish groups like the AJC and ADL to come down hard on politicians and organizations -- putatively "Zionist" or not -- which endorse one-statism and encourage settlement growth. What Americans consider to be "pro-Israel" has influence in Israel-proper -- to the extent that the consensus Jewish-American position is clearly and unabashedly anti-settlement and anti-one state, that will strengthen forces inside Israel pushing for those same results.

Automatic Self-Defense, Redux

In the wake of the Trayvon Martin shooting, and in particular this piece by Michael Skolnik on how he has the privilege of "never looking suspicious", I thought I might repost this piece of mine from 2010, wherein I relate the following story:

I've never been stopped "on the street" by a cop. But I do remember one time when I was a teenager playing "hide and go seek in the dark" by my house. I was crouching behind a leaf pile in my front yard, wearing a dark hoodie, when a cop pulls up behind me. It could not have possibly looked more like a stakeout, and I knew it. So I stood up and heartily waved at the cop, who looked at me for a moment, then kept driving. There is no way in hell he would have just kept driving if I was Black.

See also this one from 2006 ("They'll pull me aside sometimes because they say I fit the description. Yeah. Young black male. I always 'fit the description.'").

It's Not What You Do, It's Who You Are

Remember the hoopla when rapper Common visited the White House? Conservatives were aghast, complaining that Common (and the rap community in general) glorified guns and violence, bragging about the weight of his Uzi and how "I hold up a peace sign but I carry a gun." These violent rap lyrics were responsible for violence and bloodshed in the inner cities, as a generation of Black youths grew up thinking that the way to be cool and authentic was to pack heat. Ever keen on blame-throwing, conservatives asked why prominent Black leaders weren't speaking out against this poison.

And while certainly this isn't a consistent tradition, and we can be rightly suspicious of whether it's being offered up in good faith, in the abstract there's nothing wrong with forwarding the position that Black leaders should more aggressively try to work against cultural glorification of guns and violence. Right or wrong, it's certainly within the realm of argument, and there's no intrinsic problem with favoring those leaders who adopt that standpoint and chastising those who do not.

So what happens when a Black leader does take it upon himself to aggressively oppose the cultural glorification of packing heat among our youth? The answer, of course, is that he's extremist, un-American, hostile to the Constitution and seeking an agenda of radical left-wing "reform".

Fresh off hug-gate, where Barack Obama stood accused of embracing a civil rights hero (horrors), Breitbart is now training its sights on Attorney General Eric Holder for this precise sin. Specifically, they've got him on tape arguing that we need to break the belief amongst young people that it's "hip" to carry guns -- in other words, precisely the standpoint conservatives claimed they wanted folks like Holder to take in response to the purportedly pro-gun, pro-violence lyrics of folks like Common. Only it turns out that this position is equally objectionable as standing in opposition to our fundamental right to cradle snuggle bear arms.

I'm hardly the first one to notice the overlap between conservative gun politics and contemporary hip-hop -- The Boondocks had Riley announce that "I'm down with the NRA!" after realizing that the right-wing group was far better at living out his gun fantasies than any of his rap idols ("You know how NWA brags about looking for trouble, packing everywhere they go, and killing for fun? Well, the NRA actually does that."). But it does hit home, once more, the catch-22 racial minorities face whenever they try to appease conservatives -- no matter what they do to demonstrate themselves as good public citizens, it will not only be insufficient, it will be proof of the opposite.

Defending cultural expressions glorifying guns makes you a harbinger of cultural decay, responsible for violence and crime and God knows what else. Opposing these expressions makes you a latte-sipping liberal elitist who wants to take away our God-given right to bear arms (probably using jack-booted governmental thugs). If Blacks pursue integration and aggressive inclusion in America's social fabric, they're pushy and demanding special rights; but if they decide to forgo those demands and instead focus on developing their own, separatist institution, they're radical racists. If you're poor and don't do well in school, you're a mooch with a welfare mentality; if you succeed and make something of yourself, you're a fraud who only got as far as you did through cheating and special preferences (a message Latinos also received loud and clear during the ugly Sotomayor nomination fight).

It is an article of faith amongst the right that any bad thing that happens to racial minorities is their own fault, and that if they just did this or that thing, they'd have every opportunity and be treated just as well as anybody else. The problem is "this thing" and "that thing" are often mutually exclusive, because the objectionable quality isn't the substance of the behavior, it's the fact that a racial minority is doing it. The attack on Holder for opposing gun glorification -- so often exactly what conservatives have demanded of people like Holder -- is just another data point for the sobering conclusion: The problem isn't what you do, the problem is who you are.

The Fatal Flaw of Brandeis University

The latest element of the Sandra Fluke walking disaster for the right controversy is that her boyfriend is ... Jewish. Socialist Jew Brandeis University Marxist Jewish Socialist Unionizing Jew (to be precise). Fluke's connection with this Brandeis-affiliated Jewy Jew

begs the question… if you’re so connected to the Mutterperl family, Sandra, why not go to Brandeis, a school much more aligned with your worldview, instead of Georgetown University, a Catholic Jesuit school? Are you admitting that a Christian school is better than a neo-Marxist school, or is there some other agenda?

Indeed, what an interesting question! Why would Ms. Fluke prefer to attend Georgetown for law school rather than Brandeis University? An implicit concession of the inferiority of the leftist worldview? A natural aversion to associating with those unionizing Christ-butchers? A subconscious desire to cleanse herself of sinfully wicked lustful desires -- or a guerilla campaign to introduce such decadent ways amongst the faithful?

Or perhaps -- just perhaps -- it's because Brandeis University doesn't have a law school. Good news for the University of Louisville, bad news for the coherence (such as it is) of the conspiracy.

The Wise Also Fail

I knew of then-General Ulysses S. Grant's "General Order No. 11", which expelled all Jews from a huge swath of America. The order proclaimed that "The Jews, as a class violating every regulation of trade established by the Treasury Department and also department orders, are hereby expelled from the department within twenty-four hours from the receipt of this order." It was one of the most prominent examples of officially condoned anti-Semitism in American history (though the order itself was reversed by President Lincoln 11 days later).

What I didn't know was the story of the rest of Grant's career vis-a-vis the Jews (via TNC). Grant, it seems, was sincerely and genuinely repentant over what he had done. He recognized that it was incompatible with his broader commitments to human equality. And he committed himself, particularly while as President, to protecting the equality of Jews and fostering their inclusion as full Americans. This included visiting newly opened synagogues in DC, speaking out against abuses of Jewish human rights in eastern Europe, and appointing more Jews to public office than any President up to that point. At the end of his life, Grant was exceptionally proud of the fact that he counted Jews and non-Jews alike amongst his friends and visitors.

This was all the more impressive because Grant was not simply responding to a change in social attitudes. In fact, he was actively resisting social tides, which were trying to aggressively declare America a "Christian nation" and viewed Jews with distrust and contempt. Grant's overt and repeated gestures towards Jewish inclusion helped foster in a "golden age" of Jewish life in America paralleling the high point of reconstruction. Unfortunately, like with reconstruction, this era faded when Grant left office, as other national leaders were not committed to keeping equality on the front-burner.

Grant's response to the depravity of General Order No. 11 wasn't "but I have Jewish friends!" By all accounts, Grant exhibited genuine remorse and genuinely worked to make things better. It was not cheap grace. It was a true impressive commitment by Grant to make up for an acknowledged wrong. And so it was after Grant died that one of the great Jewish leaders of the era, Rabbi Isaac Mayer Wise, remarked "that the wise also fail." They do, and when they do they do so on a more public stage than most. But the wise also repent, and set out to make things right. And the ability to do that, consistently, in public, over the course of a long and powerful political career, is the sign of a great American patriot.

Wisconsin State Senate Evens Up

In a stunning announcement, Republican State Sen. Pam Galloway -- targeted in the latest round of Democratic recall efforts -- is resigning her seat (due to familial health concerns). This causes the State Senate to even up at 16 members apiece, depriving Republicans of their majority.

Not only does this temporarily stop the Scott Walker/Fitzgerald Bros. steamroller that's been ramming through right-wing legislation (until the next round of elections, which will more permanently settle who is in charge of the chamber), but it could have a huge effect on redistricting. A Republican gerrymander is currently in front of the courts. If the Court rules the maps unlawful, they get kicked back to the legislature -- which, no longer unified under GOP control, won't be able to pass a map anywhere near as GOP-friendly as the one currently being pushed. That means either there will need to be a compromise map, or the courts will draw one -- either way, gerrymander (likely) averted.

Rep. Gary Ackerman (D-NY) Retiring

All I really knew about Ackerman was that he was a seemingly run-of-the-mill NYC Jewish Democrat. So the tidbits about him in the story about his surprise retirement were particularly entertaining:

Mr. Ackerman had always baffled people on the Hill. He was hard to miss in the corridors of Congress, always wearing a white carnation boutonniere on his lapel and pulling up to work in white 1966 Plymouth Valiant.

And unlike other lawmakers who live in apartments, hotels and houses during the week while Congress is in session, he lived on a houseboat called the Unsinkable II, a 42-foot vessel with one room that was docked on the Potomac River, just miles from Capitol Hill. (The Unsinkable I sank in the Potomac in the mid-1980s.)

The district is solidly Democratic, but there will undoubtedly be some primary action on the blue side after this announcement.

National Treasure

Know who I respect? Richard Simmons. He was basically a national joke for so long, with his flamboyance and short shorts and overwhelming perkiness. And you know what? He just decided "I am going to own this." And he did. He played along with all the jokes and totally owned his character, and look at him now. He's completely made the transition to from national laughingstock to national treasure. And now when we see him on TV, he's a cherished part of our collective culture.

And he hasn't changed a bit.

Pro-Israel Groups Silent as One-State Goes Mainstream

Following South Carolina and the RNC, the Florida state legislature just passed a resolution calling for a one-state solution. Specifically, the resolution disavows that Israel is "an occupier of the lands of others", instead affirming its right to jurisdiction over the West Bank and Gaza and proclaiming "that peace can be afforded the region only through a whole and united Israel governed under one law for all people." Which is another way of saying one-stateism.

The anti-Zionists at Mondoweiss are crowing, and why shouldn't they? This rash of one-state support is easily the highest-profile domestic victory they've ever seen. The ADL and AJC, among others, have denounced one-stateism as inherently anti-Israel. But it is rapidly becoming mainstream, with these resolutions leading the charge.

What might be most remarkable, though, is that essentially all the main players are effectively admitting that they simply weren't thinking too hard about Israel's best interests. Responding to the objection that he was forwarding a one-state agenda, Alan Clemmons (author of the South Carolina resolution) stated that "This document was drafted over a period of hours, not months, in an exercise of exorcising my own concerns with President Obama over advocating that Israel abandon Judea, Samaria, and East Jerusalem." He continued: "this resolution was passed as a symbol and it truly is little more than a symbol. I don’t pretend to know what the best answer is with respect to the voting issue in Judea and Samaria, and in Israel for that matter." A Florida Democratic co-sponsor conceded that "I did not focus on [the one-state call" and ventured that "If it’s anything other than support for the State of Israel, then I would say shame on us for signing on."

Even (well, "even") the right-wing Zionist Organization of America, which was the prime mover behind these resolutions, admits that it doesn't actually know what it was advocating. Talking about the the "one law for all people" clause, ZOA President Mort Klein admitted "It’s not so clear what it means. I remember struggling with that phrase. It was not written very clearly." (Of course, the problem is actually that it is written too clearly, and too clearly indicates that ZOA prefers a one-state solution to the conflict compared to the two-state paradigm which ZOA's Joe Sabag declared "is not working").

What is going on here? Well, at one level, it is another indicator of Zionism becoming post-Jewish, as what counts as "pro-Israel" becomes ever more divorced from how Jews think of the issue. Instead, Zionism becomes a talking point right- and left-wing agitators who neither know nor care about Jewish values or interests. Essentially none of the proponents of this resolution were actually willing to defend its text; most candidly admitted that it was an attempt at symbolic support for Israel, agnostic to any particular policy paradigm. But of course, the last thing Israel needs is empty symbolism -- what it needs is friends who care about it and are willing to fight to make sure it stays secure as a Jewish democratic homeland. That's a policy priority for most Jews, but it's not for the new gentile "Zionism" and their token Jewish allies in ZOA. For these so-called Zionists, the important thing isn't whether Zionism lives or dies, it's whether one demonstrated fealty to the right "symbol". That sort of "support" is worse than worthless -- it is disgraceful and should have no place in the pro-Israel community.

At another level, it shows the weakness of mainstream Jewish institutions like the ADL and AJC. It is notable that while these groups were able to react swiftly and decisively to a one-state conference hosted by fringe leftists, they've been virtually silent about its growing hold on mainstream American political institutions (particularly on the right). Obviously, there's a reason for that: The AJC has more than enough clout to take on a few radical academic types, but nowhere near the influence to be able to comfortably check the entirety of the Republican Party.

For all the claims at the massive power and influence of The Israel Lobby(tm), for the most part it is successful because it advocates positions which are overwhelmingly popular amongst the public and amongst mainstream politicians. It is a rare situation where pro-Israel groups are forced to frontally challenge a mainstream political position -- but of course, the prospect of an anti-Israel position becoming mainstream is precisely why it is so important that we have these sorts of groups. So where are there? Cowering. The AJC, the ADL, AIPAC, these groups don't have the spine to challenge the right's push to mainstream one-stateism. Remember what happened when the ADL tried to take on Mike Huckabee? So while the AJC and ADL should be coming out with statements lambasting Florida, South Carolina, the RNC, and ZOA (which frankly should be drummed out of the pro-Israel tent as the right-wing equivalent of the JVP for this heresy), they'll remain silent -- and Israel's security will suffer for it.

Israel is in a very precarious situation right now, and this whole scenario illustrates just how dangerous things are. Its "friends" are, by their own admission, more concerned with empty symbolism than actually securing Israel's future. Its stateside political veneer is, more and more, falling under sway of a radically anti-Israel position that has as its inevitable end the destruction of Israel as a Jewish, democratic state. And the American Jewish community -- tasked with protecting Israel from that fate --can't muster up the courage to draw a line in the sand and say that this is all a bridge too far. It's disgraceful, and true friends of Israel won't forget their failure.

As a Breitbart-Approved Expert, Breitbart is Full of Shit

One of the Breitbart flunkies has decreed that I am an officially approved Derrick Bell expert, and that in order for the "controversy" regarding Derrick Bell and Critical Race Theory to abate, folks need to hear me weigh in.

Hey, anything for Breitbart. Ready? The claims Breitbart's site is making about Bell and Obama are entirely wrong, and betray a fundamental misunderstanding not just of critical race theory, but of massive swaths of literature on the judiciary.

Now, the pattern of Breitbart's attacks is hard to discern -- it seems to be just throwing up random arguments Bell has made over the course of his career, punctuated by scary adjectives. So, for example, my expertise is demonstrated via my 2006 description of Bell's interest-convergence theory, which holds, in essence, that civil rights advances occur when they are in the interest of Whites. In terms of Brown v. Board, the interest was maintaining our diplomatic edge in the Cold War, which caused the Eisenhower administration to intervene on the side of the NAACP (the Soviets had been using Jim Crow abuses as a cudgel against the US in their diplomatic efforts to curry favor in the Third World).

As I noted in my post, subsequent historians have verified that Bell's argument here is perfectly accurate (the key book is Cold War Civil Rights, by USC legal historian Mary Dudziak), and I'm not sure why the claim should be seen as controversial. I mean, I suppose it dispenses with the notion that civil rights advances were done because White people collectively saw the light, but so what? Obviously the truth should be an absolute defense anyway, but to the extent Bell is arguing simply that people act in their self-interest, he's observing nothing more controversial than the building block of capitalism, law & economics, and the Federalist Papers ("if men were angels ..."). If anything, Bell's argument is fundamentally conservative -- it's not about fuzzy notions of "justice" and "doing the right thing", it's about hard-headed analysis of the national interest.

In any event, despite linking to me on this point, this doesn't form the core of their objection to Professor Bell. Rather, they take issue with his general disdain for using courts as methods of social change. Well -- sort of, and here is where they seem to fall wildly off the rails. This column attempts to claim that Barack Obama wished the Warren Court had been "more radical", a sentiment he allegedly shares with Bell. It is almost impossible to count the ways this is wrong -- it manages to get Obama's position wrong, Bell's position wrong, as well as misattributing the actual position in question as emblematic of "critical race theory", when it has a much broader reach than that.

The quotes they give from Obama make the relatively unremarkable assertion that, for all the Warren Court's supposed "radicalism", it actually was surprisingly modest in its reach. It did not attempt wide-ranging socio-economic reform (typically seen as beyond the reach of the judiciary). It focused on enforcing negative rights -- freedom from governmental coercion -- which is well within the classic wheelhouse of the judiciary. And he goes on to say that social movements who adopted a "courts-focused" strategy made a terrible mistake, because they expended resources in a forum that would not and likely could not actually grant them the victories they desired. And Bell is mostly in agreement here -- his experiences as a litigator for the NAACP convinced him that a judicial strategy was sharply limited in what it would be able to accomplish for everyday Blacks.

What's wrong is the extension Breitbart asserts over and over is "clear" -- that Obama (and Bell) wish the Court would have taken on this role. That claim, alas, is "clearly" wrong. Most mainstream legal theorists don't think the Court is legitimately in the business of guaranteeing positive rights -- it would be illegitimate for them to make such guarantees part of their jurisprudence. This holds true even if one thinks that some positive guarantees should exist. So, for example, I might think that we should have a minimum wage (I do), but not believe the Courts should mandate one as a matter of constitutional law. This is not a particularly complicated concept -- it simply holds that there is a difference between one's political commitments and what one thinks is the legitimate province of the courts -- a staple of conservative constitutional principles, incidentally. That's half of Obama's point (I'll get to the latter half in a second) -- that the judiciary is properly constrained by certain essential principles, that the Warren Court did not break free of those constraints but rather stayed well within them, and that thus nothing it did should be seen as particularly out of the mainstream. To the extent liberals wanted to see change of the sort not properly engineered by the courts, they should have focused on social elements that are legitimately tasked with those projects (such as legislatures).

That's a legitimacy point -- that the Courts are not properly tasked with certain social agenda items, even if it would be a good thing for society if they were accomplished in some other way -- and it is perfectly mainstream. Does Bell agree? It's unclear, since Bell is more focused on the second half of the equation -- legitimate or not, are courts institutionally capable of accomplishing widespread social reform? Bell's answer here -- mediated by his time as a frontline NAACP attorney during the civil rights revolution -- is a resounding no. If what one wants is widespread social reform, going through the courts is a bad idea. It doesn't matter whether courts ought to do it or not, in fact, it doesn't matter whether courts want to do it or not. They are structurally incapable of accomplishing significant social reform. Reformers should focus their attention on other, more effective means of attaining their desired ends -- like community organizing, like lobbying elected branches.

Is this a CRT position? To some extent, yes, but it's hardly restricted to them. Probably the most well-known defense of this stance came in Gerald Rosenberg's The Hollow Hope. Rosenberg is not part of the Critical Race Theory movement (he's also a White dude, so Breitbart readers can trust him), but his book is the go-to citation for the claim that courts can't bring about social change on their own. Brown, he argues (and backs up with a mountain of data), was relatively meaningless -- desegregation didn't begin in earnest until Congress passed the Civil Rights Act, and desegregation ceased as soon as the political costs began to outweigh the benefits. Rosenberg is quite clear that the problem was not a lack of effort by the judiciary. Rather, it is structural weaknesses present in the judicial branch -- for example, lack of control over budget and enforcement, lack of resources and expertise to oversee complicated remedial plans, and constitutional inability (due to standing rules in Article III) to be proactive in face of popular resistance. To say the problem is that Courts "aren't radical enough" is to wildly miss the point -- the problem is that people think the Courts are even capable of effectuating this sort of change. Bell absolutely concurs with this argument -- adding other reasons for judicial incapacity as well -- but the position itself is not unique to Crits. It is a mainstay of the entire American Courts subfield of political science and law.

And again, why should this position -- that social movements shouldn't rely on the judiciary to achieve their ends -- even be controversial? The irony is that these positions are fundamentally conservative ones. The right-wing has always complained that liberals want courts to engage in social engineering beyond their institutional capacity, in ways that supersede the will of the people as expressed through democratic branches. But Bell's beliefs are entirely consistent with this critique -- he agrees that one shouldn't use courts as primary engines of reform, and that one should instead look to more localized methods of achieving ones ends. The obsession liberals have with the courts, Bell and Obama both hold, is counterproductive -- it accords the courts far more power than they either ought to have or are capable of effectively wielding.

The final area of Bell's writing that might be controversial is his belief that the American corpus of law maintains and perpetuates racism and White supremacy. This would be something thing is distinctively CRT. It also has no link to President Obama, who is notable for the rarity with which he approaches policy through the lens of race or racial equality. And that, more than anything, is why Dorothy Brown was clearly right in saying Obama doesn't even have a "vapor" of CRT. CRT approaches problems of law primarily through how they affect questions of race, and their general answer is "American law perpetuates racism". As Obama doesn't really focus on race in American life at all, it is bizarre to label him as particularly CRT-oriented.

Should the idea that racism is ingrained in American law be controversial? I guess it's inevitable. But the argument isn't hard to make. The starting point is that racism is normal in American society. That's an empirical argument resolvable by empirical research -- people can chest-thump all they want about how outrageous it is to assert that racism is common-place in America, but the fact remains that racism is something we can measure, and the measurements indicate it still is very prevalent (see, e.g., here (applicants with Black-sounding names fare considerably worse than Whites with identical qualifications), here (holding credentials constant, Blacks on the job market fare worse than Whites with criminal records), and here (knowledge of a seller's race causes buyers to offer reduced prices for goods of identical quality sold by Black merchants)).

But since the law (incorrectly) assumes racism is aberrational, it generally maintains a stance of neutrality -- it doesn't talk about race, and generally just upholds the (still racially biased) status quo. Moreover, since the law's presumption is that it should not delve into racial matters, what efforts do exist to remedy that still-extant racial inequality are greeted with significant suspicion by the courts -- leading to, for example, the Court finding that voluntary desegregation of public schools is an unconstitutional violation of the 14th Amendment. Given these twin arguments (1) that society remains racist and (2) that the dominant legal structures are geared to prevent significant shifts along the axis of race, the conclusion that the law acts to perpetuate racism is perfectly plausible.

It's worth one final point here -- note that these problems of racism (e.g., that Black sellers receive less than White sellers, all else equal) are not problems that seem amenable to judicial resolution. How exactly would a seller bring a claim to remedy this racial disparity? It's unclear, and for a court to try and solve this problem would likely be futile and would probably constitute overreach. So if we think that disparity is bad, our remedy should not come from the courts but from elsewhere. But that observation -- that social reform should come from institution more democratically accountable than the federal judiciary -- is not something that distinguishes Crits from mainstream Americans. If anything, it is something that seemingly unites across political borders.

So to conclude:

(1) Many of the arguments under dispute here simply aren't (or shouldn't be) that controversial. Interest-convergence is simply a historical point regarding what causes major civil rights shifts, and the particular claim about Brown has been verified by subsequent historical literature. The idea that people should not look to the courts as the primary engineers of social reform is (a) mainstream, if not conservative, and (b) hardly the exclusive province of critical race theorists.

(2) The claim that Obama and Bell want a "more radical" judiciary is almost comically false in its misreading of the argument. The claim Bell, like Rosenberg and Obama, make is that the judiciary is a terrible locus point for social movement efforts, and that it was a massive tactical mistake to focus on the courts as opposed to other avenues for reform. Their argument is fundamentally a critique of those who were saying "if only the courts were willing to do more, we'd be in the promised land".

(3) The distinctively "CRT" elements of CRT are the focus on race as the point of the analysis for American law, with Bell concluding that the law entrenches and reifies racial hierarchy in America. Obama can't be said to operate from this lens, since Obama almost never talks about or focuses on the law's effect on race and racial relations -- putting him in a polar opposite position from the CRTers. As for the merits of Bell's position itself, it's perfectly plausible. American legal doctrine as stands generally views the racial status quo as adequate and works to maintain it -- unwilling to tolerate significant efforts to make it either more or less racist. But if the baseline is already one of White supremacy -- if racism is the default setting (an empirical question) -- then this "neutrality" perpetuates and protects a racist status quo. This is "radical" in the sense of challenging fundamental assumptions about American law, but it's hardly something that should be beyond the pale for academics to explore.

UPDATE: The one thing left is this question about whether CRT is "about White supremacy". "About" is ambiguous language -- it can mean "related to" ("this class is about physics") or it can mean "exemplifying" ("I'm all about authenticity"), and I think that's where the confusion lies. Pollak cast CRT as being the antithesis of Martin Luther King, instead being "about White supremacy". That is more of the "exemplifying" reading (the opposite of being MLK is supporting White supremacy), and that sounds like what Brown and O'Brien were responding to (obviously, CRT is not about supporting or maintaining White supremacy). Does Critical Race Theory talks about racism and White supremacy? Of course it does. Does it support White supremacy and racism? Obviously not.

Now which way to Pollak mean it? It's hard to say, as he was kind of rambling, which is how these sorts of miscommunications happen. If anything, it seems like he doesn't mean anything in particular, instead relying on the emotive punch of the phrase "White supremacy" (specifically, his belief that it will rile up White ressentiment which is tired of being supposedly blamed for the existence of racism and sees all discourse about racial inequity as "playing the race card") absent any content whatsoever. This is the political cleverness of this gambit -- it's not about particular arguments. It's simply a belief that any discussion about racism is a discussion Republicans are winning, because it appeals to a sense of siege and victimization by the GOP's White base.

Reality-Based Voting Bloc

In anticipation of their upcoming primaries, PPP polls Alabama and Mississippi. They're finding that both states are essentially knotted up between Romney, Gingrich, and Santorum. But there are some interesting breakdowns once you consider the, er, unique views of many Dixie Republicans.

For example, in Mississippi only 12% of voters think Obama's a Christian to 52% who think he's a Muslim and 36% who are not sure. In Alabama just 14% think Obama's a Christian to 45% who think he's a Muslim and 41% who aren't sure. Among voters who answer this question correctly, Romney dominates, but among the Obama's-a-Muslim crowd Gingrich starts to pull back into favor (holding an 11 point lead in Mississippi and tying the race in Alabama).

Barely half of Mississippi Republicans belief interracial marriage should be legal, and Newt crushes amongst those who think it should not. Romney leads amongst the quarter of Alabamans and Mississippians who believe in evolution, while Gingrich tops amongst the majority that does not.

Basically, one thing you can say about Romney is that he does do better among the bloc of Republicans who still have at least a foot planted in reality. The problem, of course, is that this is a relatively small segment of the GOP primary electorate.

Bibi Backs Arab Justice

Israeli Supreme Court Justice Salim Joubran, the first Arab to sit on the state's high court (and whom I blogged about here), caused a mild stir when he declined to sing the Israeli national anthem at a swearing-in ceremony (he didn't disrespect the anthem -- he just stood silently). The anthem specifically refers to the Jewish yearning for Zion, which needless to say the state's Arab residents find alienating.

The usual far-right suspects went nuts and called for him to be removed from the bench, but Justice Joubran is getting backing from a perhaps surprising source: Bibi Netanyahu himself. Netanyahu dispatched one of his top aides to assure Joubran that the Prime Minister understood and backed his decision. Meanwhile, a right-wing heavy-hitter, Moshe Ya'alon of Likud (not known as the fuzzy sort), savaged Joubran's critics, saying "The attack on Salim Joubran is inexplicable, unnecessary and reeks of persecution due to his origin."

Weekend Roundup

I have been dialed in these past few weeks, and the blogging has suffered, I know. Not sure if things will pick-up or not in the upcoming days.

* * *

Rick Santorum lets the economic cat out of the bag -- if it improves, Republicans suffer.

Republicans try, fail, to lift a consent decree barring them from voter suppression.

Sarah Palin says Obama pines for pre-Civil War America. I have to say, anytime someone says "obviously, even the most hardened conservative wouldn't say such-and-such", I immediately have very little trouble envisioning a conservative saying it.

My job is awesome. But lots of jobs stink.

Jon Chait postulates that "Bellgate" is just an instantiation of Jewish Republicans wild tendency to see Black anti-Semitism in every corner.

Long Live the King

Chris Hughes, looking to spend some of the megabucks he's earned as co-founder of Facebook, has bought a majority share in The New Republic and installed himself as the new editor-in-chief. You can read his introductory letter here.

Count me in as a supporter. The New Republic still has, I think, quite a bit to give to the progressive political community. But the increasingly misanthropic rantings of Marty Peretz were holding it back. Hughes is not only a break from the old guard, he is obviously well tied-in to modern media platforms, making him more than just a rich dude playing publisher. He has a real chance to make TNR into an opinion leader again.

Bell and Obama

Despite calls from my adoring fan base, I do not plan on providing a lengthy defense of Derrick Bell in the wake of the "revelation" that Barack Obama hugged him. The simple reason is that I don't have the energy to respond to the GOP faux-scandal d'jour, and it feels like only yesterday that I wrote Bell's obituary. Bell's status as a warrior for racial justice, and one of the most important writers on race relations in America should be beyond question, and I'd rather just make believe that we're not so stunted as a society that we can be deluded into thinking Bell is the bad guy in our anti-racism saga.

The BDS Campaign, All Wrapped in a Little Bow

Who would have thought one little tweet could sum up the entire BDS movement in a tidy little package? The tweet, posted on Monday, brags about an Alitalia Pilot who announced "Welcome To Palestine" after landing at Tel Aviv Airport, linking to this story.

Now, right off the bat this gives us two of the most noteworthy attributes of the BDS campaign -- its incredible ability to hyperventilate regarding the most minute of "victories" (a pilot said a phrase!), and its inability to mask its agenda of eliminating Israel (Tel Aviv, of course, is well on the Israeli side of the Green Line). The latter part is quite important to stress, because it is something the BDSers like to obfuscate -- they are notoriously evasive regarding whether they view all of Israel as "occupied Palestinian land", mostly because they believe the answer is yes but know that position is (a) a complete non-starter and (b) would effectively negate any claims they have that they're pushing -- however inelegantly -- for a just solution to the Israeli/Palestinian conflict. What they want is a situation where Jews are once again a minority everywhere -- where the horror of Jews exercising self-determination and directing their own affairs is no more.

That's a little heavy, and I meant this post to be light. What can bring it back -- oh how's this? This story? It's from 2003. That's right -- it's a tweet praising a random person calling Tel Aviv part of Palestine from nine years ago.

Classic. (Via).

You've Lost It

The National Review demands Republicans cut ties with Maricopa County sheriff Joe Arpaio. The instigating event is Arpaio's birtherism (it could have as easily been issuing indictments aimed at suppressing opponents, or his propensity towards racial profiling).

So, on the one hand, a belated good-for-you to the National Review. And one could query just how nuts one has to be in order to lose the website that publishes Andrew "Bill Ayers ghost-wrote Obama's book" McCarthy. But the most important thing to remember is that the effect of this column will be approximately nothing. The National Review can stoke the fears of the GOP base, but it can't put out any fires. When it seeks to stand athwart the runaway train of the conservative id and yell "stop", it will be flattened like a pancake -- assuming anyone even notices at all.

Ralph Reed Accepts Rush's Apology

Remember Ralph Reed? Sure you do! The disgraced prince of the Christian right, he was famous for bilking his followers while basically following the Jack Abramhoff model of corruption to a T. He's basically a dick, and, more importantly for the purpose of this post, possesses one as well (as far as I know, anyway).

Today, Reed decided to weigh in on the Rush Limbaugh "slut" controversy. To disprove my claim that Republicans, by and large, can't condemn Limbaugh's repulsive behavior? Of course not! He's here to accept Limbaugh's apology and move on:

Rush: apology accepted. Let's move on and talk about the issues. We're with you.

Why, exactly, Reed thinks he gets to "accept" Rush's apology is not altogether clear. As a suspected penis-bearer, the insult wasn't exactly directed at him, so one would think absolution was not his to give.

But this whole "viewing women as human" thing is distracting me, as usual. The important thing is that Reed is ready to move on and get back to standing with Rush. Who's with him? I'm sure we'll find out in the weeks to come that it's "the majority of the GOP".

Tip Off

Last week, I noted the most amazing thing about the Rush Limbaugh "slut" saga is that the GOP could barely manage a peep against him. Now TPM is advertising a "tipping point", as "GOPers Start To Turn On Rush Limbaugh." Forgive me, but I just don't see it.

The only two politicians they cite who really can be said to have "condemned" Limbaugh are Carly Fiorina (who I already mentioned) and Sen. Scott Brown (R-MA) (locked in a tight battle with Elizabeth Warren). Beyond that? It's basically nothing. John Boehner murmers that Limbaugh's comments were "inappropriate" -- roughly as offensive as a Democratic fundraising letter. Rick Santorum called the statement "absurd" but observed that "an entertainer can be absurd". Rep. Darrell Issa (R-CA) (who in a sense is responsible for this whole mess) barely managed to sneak in a word against Limbaugh as he tried desperately to play the victim. And Mitt Romney? "It's not the language I would have used." Feel the outrage!

No, there's no tipping going on amongst the GOP. They're still as much in thrall of Rush as ever.

The Insular Cases

I just read an interesting empirical study on Jewish feelings of outsiderness in the United States.* The good news is that most Jews don't feel like outsiders in the United States. So yay for that! But the interesting part of the study, to me, was what accounted for the sentiment. In general, Jews who lived in areas with many other Jews and who had many Jewish friends and acquaintances were far more likely to say they felt included as Americans. By contrast, Jews who were more isolated from other Jews and had fewer Jewish contacts were more likely to feel that they were outsiders in America. Since most Jews live in areas with relatively large Jewish populations, that means most Jews feel relatively included in America.

To me, this finding is quite intuitive. But it does clash with a narrative some forward, that insularity and particularism amongst minority group "ghettoizes" them and prevents their integration into the American mainstream. It turns out that story seems to be wrong. Rather, when a member of a minority group has surrounding structures demonstrating the normalcy of their peers (that they're average, non-exceptional members of the community), it is likely to reinforce the message that there is no conflict between being a member of the minority group and being an American.

The upshot is pluralist. If what we're going for is a polity in which people of all backgrounds feel welcome and included as Americans, the right strategy isn't to try and breakdown particularistic group affiliations. Rather, these groups are essential to the mainstreaming process, because they promote feelings of normalcy and non-exceptionalism amongst the minority group, which in turn renders the surrounding culture less alienating.

* Becka A. Alper & Daniel V.A. Olson, Do Jews Feel Like Outsiders in America?: The Impact of Anti-Semitism, Friendships, and Religious Geography 50 J. Sci. Stud. Religion 822 (2011).

GOP Can Barely Make a Peep About Limbaugh

Rush Limbaugh called Sandra Fluke a "slut" and "prostitute" after she testified before Congress about the cost of birth control, and said that she should film her sexual activity and "post the videos online so we can all watch."

People are shocked. I am not. This is Rush Limbaugh. You know what you're getting, and what you're getting a misogynist jackass. Anyone who is surprised by this is someone who wants to pretend that Rush Limbaugh is something that he's not.

But there is something else that Rush Limbaugh is: an important player in the conservative movement. A "giant", as Rep. Phil Gingrey (R-GA) put it. The Republican Party is effectively unable to criticize him -- they're in thrall to him.

And so we see just how muted the GOP can be when one of its leading lights calls his political opponents "sluts": they say virtually nothing. Rep. John Boehner (R-OH) demurs when asked if Limbaugh should apologize, instead offering a bland "it was inappropriate" (just as inappropriate, in Boehner's view, as Democrats raising money off the remark. Why, exactly, that is "inappropriate" behavior on the part of the Democratic Party at all -- much less to the same degree as calling a woman a "prostitute" just because she uses birth control -- is left unsaid).

Other conservative organizations are demonstrating the same cowardice. Rae Chornenky, president of the National Federation of Republican Women, "doesn't want to discuss [it]", calling it "a sideshow." Alci Maldonado of the Republican National Hispanic Assembly tried to change the subject to the (spurious) freedom of religion argument, and Frances Rice, chairwoman of the National Black Republican Association, refused to comment on Limbaugh's statement at all. Failed GOP Senate candidate Carly Fiorina managed to call the language "insulting" and "incendiary", for which she was called to the carpet by Red State editor Erick Erickson, who said Fiorina "just [does] not get it" -- "it" being that Limbaugh was being sarcastic (women -- no sense of humor, amiright?).

For the most part, it seems that the modern GOP can be divided into two categories. People who agree with Limbaugh that the vast, vast majority of women are sluts and prostitutes whose sexual activity should be a matter of public record. And people who don't agree, but are too afraid to challenge the emerging orthodoxy within their party's base.

Publication Announcement

David Schraub, Sticky Slopes, 101 Cal. L. Rev. __ (forthcoming 2013).

Obviously, this is exceptionally exciting, and particularly so given this early stage of my career. And it represents the culmination of the roller-coaster ride that has characterized the start of my academic career.

I had submitted Sticky Slopes to law reviews last fall, and gotten no bites (though it did reach final review at a very good secondary journal). That was very disappointing, and really shook up my confidence. Following that strike-out, I presented the paper here at the University of Illinois, and the feedback I got sparked a pretty substantial reworking of the paper, both in terms of new content and a new organizational structure. Most of that was done towards the end of last calendar year, and after some final tweaking (and some last minute comments), I sent it out against on President's Day.

From there, it was amazing. I got a couple rejections right off the bat (which always happens), but Friday morning I received my first offer from a stellar journal ranked in the top 20. I was over the moon -- kind of zero-to-hero, all at once. It was a far better placement than I ever dreamed of for my very first article, and, as my people put it, dayenu. But I dutifully sent out expedites, not really expecting anything more to come of it. Instead, I received a slew of positive feedback from some of the very best journals in the business. That turned into two offers from top ten journals, and I accepted California this morning.

It is not the beginning of the end, as they say, but it may well be the end of the beginning. I'm publishing in a great journal which seems very excited about my work. I'm thinking very seriously about going on the academic job market, and of course a placement like this -- well, it doesn't exactly put my destiny in my own hands, but it means I've done all that I could. And just to have that sense of ratification after all this time where this has been the dream, and suddenly it feels real, like it could actually happen -- that feeling is irreplaceable.

See y'all in print!

One-Statism as Wedge Issue

Gal Beckerman has a post up on a Democratic ad demonstrating that "Democrats will not cede Israel to Republicans". Here's the ad.



Obviously, I'm glad that Democrats aren't ceding this terrain. And the points made -- about how the Obama administration has in fact been excellent in terms of funding Israel's security needs and keeping Iran in check -- are important ones. But that's a defensive posture, and there's plenty of room for Democrats to go on offense.

If I were cutting a Democratic campaign ad, I'd start by pairing up text and speeches from Republicans who are one-staters and radical left and Islamist speakers calling for the same thing. I'd quote Jewish groups condemning that position as intrinsically hostile to Israel, and probably include a map showing Israel fading away into one indistinguishable state. Then I'd use the "call so-and-so and demand that they support Israel and reject a one-state 'solution'".

One-statism is the Democratic Party's ultimate wedge for keeping Jewish pro-Israel voters out of Republican hands. Why don't they use the damn thing?

Forget This

The JTA has an interesting report on a trip taken by several American Congresswomen to Israel and Palestine, sponsored by J Street. The women met with a wide array of locals, ranging from Palestinian workers to Israeli peace activists to settlers.

But what might have been most striking was the statements made by the settlers. The Congresswomen drove out to Shiloh, a West Bank settlement that almost certainly will not be part of Israel in any peace deal.

“I’m holding the Bible; Shiloh was our first capital before Jerusalem and it has layers and layers of history,” Tzofiah Dorot, the director of Ancient Shiloh, told the women. “This is the heart of Israel and I don’t see a future for the state if you take the heart out.”

All of the women said they were sure that their settlements would remain part of Israel.

“This is our homeland, the homeland of the Jewish nation -- period,” Tamar Aslaf told the delegation. “A Palestinian who lives here is welcome to stay. It’s his home but it’s our homeland.”

Several of the settlers described a scenario in which Palestinians could stay in their homes but not receive national or voting rights. That drew a sharp reply from the congresswomen, five of whom are African Americans.

“Some people would call that apartheid,” said Rep. Jackie Speier (D-Calif.), the only white congresswomen on the trip.

“It’s easy to sit in your comfortable house and decide what is good for the Jews,” Dorot responded. “I’m begging you to see that we’re not pieces of Lego you can move around. This is life and death. We all need to think out of the box. I’m asking you to forget about the two-state solution.”

Now we shouldn't generalize. The type of person who lives in Shiloh is not a carbon copy of Israeli society has a whole. We of course know that there are Israelis who support a two-state solution and those who oppose it, and likewise for Palestinians.

But the statements are nonetheless revealing. Most obviously, of course, is the fact that some of the settlers explicitly forward as a "solution" the permanent political inferiority of Palestinians -- a complete non-starter for anyone who cares about human rights and human equality. With due respect to Dorot, the policy of the global community towards Israel is not solely about what is "good for the Jews" but rather about achieving justice and equality for all persons (though the interests and rights of Jews are of course important components of this). But the explicit call to abandon a two-state solution is, if anything, more striking. The vast majority of the Jewish community -- including important institutional actors like the ADL and AJC -- do not just oppose a one-state solution, they find it fundamentally outside the contours of what it means to be "pro-Israel". As David Harris of the AJC put it, "The one-state idea is a recipe for Israel's destruction. Those promoting this proposition ... are not remotely offering a peace option."

I entirely agree with this assessment. And here it helps us draw important lines. If we are to say, as I think we should, that "pro-Israel" cannot encompass one-staters, then the Shiloh settlers are as much a threat to Israel's democracy, security, legitimacy, and longevity as any other one-stater. And they shouldn't be treated any differently.

Need More Beaver!

I am not surprised there is a parody out there entitled "Joustin' Beaver". I am surprised that it is not pornography.

It's All Politics, Baby

The Daily Caller floats a Clarence Thomas presidential run. Obviously, this is "clever, outside-the-box!" punditry at its most ridiculous. But my favorite part is the little bait and switch they do over Thomas' political position.

On the one hand, they use his judicial record to demonstrate how he'd energize conservatives with his "opposition to environmental regulation and his free market philosophy.... [and] that he’s against abortion, gay rights, and limits on prayer in school." On the other hand, when faced with the inevitability that Democrats will, you know, cream him over the radical positions he's taken on these issues, they retort that "Thomas has a trump card. Those were not statements of his personal political positions, he can say, but merely interpretations of the law." What a fabulous little rope-a-dope that would be!

The real irony is that, at least for some of the above positions, the latter may well be right. I have it on good authority, for instance, that as a matter of policy Thomas is pro-choice, and his "uncommonly silly" dissenting opinion in Lawrence v. Texas indicates similar views about gay rights. Somehow, I think the right would be less excited about that.

Project Runway Random Recap

We were down to the final six designers last night on Project Runway: All-Stars, and for some reason I want to share my thoughts. Don't know why -- it's not like this episode was particularly wild or outrageous or something (that prize goes to Rami being sent home while Austin slid through with a look that would have been dated in 1967). But whatever -- it's my blog, I do what I want.

The theme of this challenge was that designers had to be inspired by the culture and colors of a foreign country: Chile (Kenley), India (Jerrell), Seychelles (Austin), Papua New Guinea (Mila), Greece (Michael), and Jamaica (Mondo). I really liked the concept in theory, but boy oh boy was it not the designer's best work.

Mondo: Mondo sent out a long but very tight black dress. From a judging perspective, it presented an interesting conundrum: 95% of the dress was great, but didn't read "Jamaica" at all. The 5% that did (green and gold chevrons down the otherwise open back) had all the subtlety of a sledgehammer and was hideous to boot. Mondo also came in for criticism for his styling and accessorizing, which I agree with -- I can see how the headband was meant to say "island" but to me it said "ninja". All these problems would have more serious had the competition been less dreadful, but that was not the situation.

Kenley: Kenley put out a short polka-dotted (surprise!) party dress with an asymmetrical flamingo trim. The good news is that I definitely saw "Chile" in it. The bad news is that I specifically saw "Chilean hooker" in it. For whatever reason, it just read skanky to me -- which is odd, because Kenley's problem is normally that her dresses seem too babyish to me, not too slutty. Still, it had some interesting elements and fit her country without being literal, which was much appreciated.

Austin: Eh. It was fine. It wasn't stellar. Austin made the mistake of picking the Seychelles because he knew nothing about it (always a bad call), and the Seychelles in particular has a flag that looks like a rainbow vomiting. That's tough to design around, and Austin really just played it safe -- a simple gown which only featured a few colors, which didn't offend the eye or anything, but hardly wowed.

Michael: "Greece frightening". "Ms. Greece 2012". This number had problems front to back (literally). The concept was decent enough if a bit obvious: a draped white gown with blue embellishments over the shoulder. The problem was that the blue embellishments look for all the world like a sash, which, coupled with the gown cut, really made it look like pageant entry. Meanwhile, the model turns to reveal a plunging back line -- so plunging, it reaches all the way down to her ass. Oops.

Jerrell: As you may be able to tell, I was hardly enamored with most of the offerings last night. But only one, er, "design" feels like it should have set off a civil rights march, and that's Jerell's. It was worse than a costume -- it was a stereotyped costume. It was a green fabric bunch over a highly embellished gold bustier dress, with a ton of accessorizing to complete that ever-stylish "Hindu barbie" look. Jerrell's problem is always editing, and this was not edited at all. Moreover, the shades of green and gold he used clashed horribly with each other, providing another layer of distraction to an already-overcomplicated look. And he kept talking about how "ethnic" India is. As opposed to? Ugh.

Mila: I actually really liked this dress. It was an asymmetrical black and red dress with gold trim (following Papua New Guinea's flag). The geometry was really cool, and the silhouette was interesting and unique. Isaac said the colors reminded him of communism. I say this is why I hate Isaac -- yes, red, black, and gold have a Communist vibe, but that's not all they say. If anything, the dress looks like a sexy play on communism (a Soviet analogue to the recent "sexy Haradi" photo-shoot in Israel). But the point is that Isaac is always completely absorbed in his own little world, and as a judge seems utterly unable to step outside of his personal aesthetic preferences. This show's enjoyability is directly proportional to the amount of time Joanna Coles spends talking and Isaac Mizrahi spends shutting up. Mila was sent home, and honestly, I would have had her win -- hers was the most unique, the most interesting profile, and did the best job of being fashionable while still representing her country.

My top: Mila (winner), Mondo, Austin.

My bottom: Michael, Kenley, Jerrell (goes home).

Woohoo Maryland!

Maryland just passed a law legalizing same-sex marriage, the eighth state to legalize it. Kudos to all the legislators who voted in favor, but particularly Gov. Martin O'Malley (D), who really put himself out there as a key leader in this campaign and shepherded this bill to passage.

As is becoming custom, the law will soon hit the referendum process, as opponents seek to overturn the law and restore the prior state of inequality. Maryland is an interesting context because it is so Democratic, but also features a substantial African-American population which is skittish about marriage equality. It will be interesting to see if conservatives can draw enough cross-over votes to take this law down. But my instinct is that they won't be able to, and Maryland will see gay marriage approved not just be the legislature, but directly by the people as well.

The Baby Rick Santorum Would Have Killed

GOP Presidential hopeful Rick Santorum made waves recently when he came out against requiring insurers to cover prenatal testing. He singled out amniocentesis as a procedure which, in his view, was being used as a precursor to abortion and which insurance companies should not be required (as they are under the ACA) to cover.

Rick Santorum's policy would have killed Sarah Fister Gale's daughter.

Gale was six months into an otherwise normal pregnancy when two successive blood tests turned up abnormal. "Rather than turning to my local politician for prenatal advice, I followed the guidance of my obstetrician, who sent me to a perinatologist, who recommended I have an amniocentesis."

And it's a good thing she did. Gale's daughter was diagnosed via amniocentesis with Rh negative disease, a disorder which occurs when the fetus' blood is positive type but the mother's is negative. The mothers' immune system attacks the baby's blood cells, preventing them from developing. Absent treatment, the baby is normally carried to term but then dies shortly after birth.

Amniocentesis is very expensive. If it wasn't covered by insurance, Gale probably couldn't have gotten the test. And her baby would probably be dead. That, in turn, would be a direct result of Santorum deciding that his moral code takes precedence over doctor's practicing medicine.

If Rick Santorum had his way, I wouldn’t have been able to get that test, and she most likely would have died. Because according to him, tests that give parents vital information about the health of their unborn children are morally wrong. Though he has no medical training, and no business commenting on the medical decisions that women and their doctors make, he argues that such tests shouldn’t be provided, or that employers at least should be allowed to opt out of paying for them on “moral grounds.”
[...]
In the Catholic church where I was raised, pride, arrogance and an overinflated sense of oneself were considered sins. But in Rick Santorum’s world they are virtues, and they make up the foundation from which he proclaims how other people should live their lives.

In 2008, the Archbishop of Denver said that for a Catholic to justify a vote for a pro-choice politician, they must have a reason of the sort "we will be able to explain, with a clean heart, to the victims of abortion when we meet them face to face in the next life - which we most certainly will." One wonders if Mr. Santorum has a similar reason compelling enough for him to justify a campaign which would see children like Ms. Gale's dead.

HUD

Technology often does cool things. But it is particularly exciting when technology makes real a classic sci-fi trope. And while we're still waiting on flying cars, Google may be bringing us glasses fit with a heads-up display, able to stream information about one's surroundings in real-time.

Yes, it'd actually probably be really weird, and yes, there are serious privacy implications if people are wandering around with hidden, constantly-recording cameras built into to their eyeware. But come on! A heads-up display! Just like everyone has dreamed of since they played Halo (or Goldeneye, or Doom ... age yourself appropriately)! If it doesn't give me the option to have a red box bracket my conversation partner with "target acquired", I'll be sad.

7 Days for 7 Journals

I submitted Sticky Slopes yesterday to about 60 of the nation's finest law journals (I'll push that number up closer to 75 as several late bloomers complete their turnover). I've already achieved the first critical milestone of any submission season -- the first rejection (here within less than 24 hours) -- so that's out of the way (and I must admire the speed at which the journal in question completed their review of my 29,000 word article. No, I won't mention who it was -- wouldn't want to embarrass them).

But I was thinking about the emergent trend we're seeing in some journals to abide by a 7-day expedite window, where they commit to giving authors at least 7 days to make a decision. The effect is to give authors a reasonable amount of time to gain expedited review from more prestigious journals. It's something authors have been clamoring for for some time as expedite windows have been shrinking to absurdly small time-frames (I've heard of 2 hour windows, and even rumors of demands to accept or reject on the phone), but one understands why the journals have been reticent.

1) It's basically giving authors greater opportunity leave them for greener pastures, and there is no clear benefit to the journals for playing nice. One could argue that it helps their reputation, but there is no real evidence that authors actually are putting their money where their mouth is and preferring journals which provide generous expedite windows.

2) Even if journals were inclined to be altruistic, there is a race to the bottom -- journals are afraid of being outcompeted by peers which play hardball.

For these reasons, most of the journals which have agreed to the 7-day window are relatively top-tier reviews that, frankly, don't see a lot of their pieces stolen by reviews higher up the chain.

One proposal I have for fixing this -- or at least partially solving the collective action portion of it, anyway -- is for journals to agree to a 7-day window, but only for expedites to journals which have themselves adopted the 7-day expedite window policy. So if the #50 ranked journal adopts this policy, it would say authors have 7 days to accept an offer from any higher ranked journal which itself provides 7 days to make a decision, so long as it agrees to withdraw from all journals which do not have that policy (or withdraw from those journals after, say, 2 days). This would encourage the journals higher up the ladder to sign on to 7-day policies, as they would be reaping concrete benefits.

Of course, these sorts of withdrawal demands may seem difficult to enforce. But it seems like deals like this happen with some regularity -- schools agree to extensions on offer windows on the condition that the author withdraw their submission from all but a few agreed-upon law reviews.

Anyway, all of this is getting ahead of myself with Sticky Slopes -- dealing with expedite chains is a problem I at the moment only dream of facing. But the policy idea seems sound to me. Thoughts?

State Rape

Trigger warning.

After a great deal of public outcry, Virginia legislators are delaying consideration of a bill that would mandate raping women who want an abortion. The bill specifically would require women seeking an abortion to obtain a medically unnecessary trans-vaginal ultrasound, thus revealing to them that what's growing in their uterus is a fetus and not, say, a basketball.

Since most definitions of rape run something along the lines of "oral, vaginal, or anal penetration of a foreign object without the party's consent", and since here "consent" is manufactured by force of statute (cf., the old spousal rape exemption, where by statute a married women automatically consented to sexual intercourse), Virginia's law is perfectly accurately characterized as a law requiring the rape of women.

But you know what? Everyone's so focused on the negative; but I think that this is really an effort by Virginia legislators to be more pro-choice than they were before. Recall that even most anti-choice lawmakers purport to except from this principle cases where the woman was raped. Virginia is just trying to make that exception cover every woman seeking an abortion, by requiring that they all be raped first! This way, abortions can still be done, and the "consciences" of the men who generally can't tolerate abortion are assuaged. Sure, some women probably object to being subjected to a state-sponsored rape campaign, but hey, omelets, eggs, and all that.

You see? It all works out in the end.

Nuh-Uh! Who Reads Comments?

Normally I think xkcd hits it out of the park, but today's contribution I think is way off target. The premise of the comic is that it costs far more money to run ads on every major political news site than it would to "pay five college students $20/hour to camp the site 24/7 and post the first few comments the moment a story goes up, giving you the last word on the subject and creating the illusion of consensus."

The alt-text proceeds to mock comment structures based on "voting" up good comments and down bad ones. But the real answer is "most commenters on major news sites are morons, and most readers of those sites have to be aware of that fact." If persistent internet trolling was enough to seriously change views, Ron Paul would be President-for-life.

The Rematch

A bill legalizing same-sex marriage has narrowly passed in Maryland's House of Delegates. It moves to the State Senate, and if it passes there, Gov. Martin O'Malley (D) (who's really come out swinging for gay marriage -- and good for him!) will sign. This, as you may recall, is a rematch of last year, where a gay marriage bill narrowly failed in the House of Delegates after passing the Senate -- so getting through the former body is a very, very good sign.

Opponents may still muster signatures to force the issue to the ballot box come 2012.

A Dramatic Change

A leading Orthodox Jewish Rabbi, Avi Shafran, was given space recently in The Forward to explain his organization's take on homosexuality. The second paragraph made the following eyebrow raising claim:

Whether homosexuality is fixed or changeable remains an open question. There are well-informed people on either side of the issue, but as of yet no incontrovertible proof of a “gay gene.” Whether the Jewish religious tradition is fixed or changeable, however, is not arguable — at least not for Torah-loyal Jews.

Skate past the first part. It's the last sentence which caused my head to tilt a little. Because I would also agree that "whether the Jewish religious tradition is fixed or changeable" is rather inarguable -- I just think the obvious answer is "changeable."

Unlike many Christian sects, Judaism has classically not engaged in Biblical fundamentalism. Rather, the Tanakh is only part of the official religious doctrine governing the Jewish community. Alongside it and carrying equal weight is the Talmud, which, in brief, is a corpus of interpretations and expansions upon Biblical doctrine extending for thousands of years.* The Talmud is basically comprised of countless Rabbis giving their own interpretations on what the Torah, the Tanakh, and other Talmudic stories mean, how they should be interpreted, extended, circumscribed, or modified. It is a vast menagerie of differing opinions, and together it paints a dramatically heterodox and pluralistic picture of what Jewish tradition "says". In essence, Jewish theology was the original common law method.

Through this, it is beyond obvious that Jewish law and tradition has changed, often dramatically, over the years, and is the furthest thing from "fixed". The Talmud is chock full of disagreements, with dissenting and concurring threads diverging into a host of different "schools". Indeed, for much of Jewish history there were two separate Talmuds (Jerusalem and Babylonian). The claim that Rabbi Shafran is making here is internally contradictory -- it itself is attempting to enact a dramatic change in how we think of Jewish traditions, replacing historic fluidity with modern (and dare I say, Christian-influenced) stasis.

* This also caused me to raise an eyebrow to the phrase "Torah-loyal Jews". That, to me, sounds like it should be the motto for Karaite Judaism, but of course, most Jews aren't and have never been Karaites. The dominant thread of Judaism is not "Torah-loyal", or at least, not exclusively so. What it is loyal to is the process of an evolving understanding and uncovering of divine principles as they instantiate themselves in an infinite number of social, historical, and political contexts.

Magic Pills of Darkness

New Hampshire State Rep. Jeanine Notter (R) has a novel argument for why health insurance shouldn't cover birth control: It causes prostate cancer.

In case we're unclear: Birth control? Almost exclusively taken by women (e.g., the pill, IUDs, Nuvaring, etc.). Prostate cancer? Only occur in men, because men, unlike women, have prostates. So unless those be some magic pills women be popping, the odds that birth control causes prostate cancer is very, very slim.

Return Slip

One interesting, albeit rarely discussed, permutation in the Israel/Palestine debate is the question of Jewish refugees. The history of Jews from the Arab world, both generally and immediately proximate to the creation of Israel, is poorly understood among the people of the world, and generally their interests are shunted aside (if not forgotten entirely) in the conversation.

The bare bones version is quite simple: There were approximately 800,000 Jews residing in various Arab countries in 1948, a figure that has crashed to less than 7,000 today. The majority were forced out in the years following Israel's independence, as anti-Semitic pogroms wracked the region and Jews fled to Israel (and other countries) for their own safety. This population displacement parallels the Palestinian refugee problem, where Palestinian residents of what became Israel also were forced to flee in the face of violence and war.

Then we have the population of Jews who lived in parts of what is now the West Bank (e.g., Hebron). The story itself isn't much different (although most of Hebron's Jewish population fled in 1929 after a particularly violent pogrom), but the basics are the same -- Jewish residents who had resided on a given plot of land forced to abandon their property and flee elsewhere. The trick comes, of course, from the fact that much of this territory now is under Israeli jurisdiction. And so this raises the question of whether they should have a "right of return".

My stance has been "no", for the same reasons I oppose return-rights for the descendents of Palestinian refugees, to wit: "I care more about protecting Jewish and Palestinian national self-determination rights and democracy than I do about letting every person live on the precise acre they wish." Insofar as "right of return" conflicts with the projects of creating and maintaining independent Jewish and Palestinian states, it's not worth it. We can query the hypocrisy of "pro-Palestinian" activists who simultaneously call for a Palestinian right of return while protesting in front of Sheikh Jarrah, but the basic principle isn't complicated.

All this is by way of introduction to this letter from the descendent of a Jewish family expelled from Hebron (via). The author is writing to formally disavow any claims to her ancestral property. Noting that her position is in principle no different from Arab families which have deeds to property in Jerusalem or Haifa, she reminds us that it is far too late to turn the clock back to 1948. The project can't be that anymore. The modern project is reaching a territorial compromise so that both a Jewish and Palestinian state can be created and flourish, and that's not going to include letting every person live on the precise parcel of land they might like. It means some Jews' whose families lived in Hebron but were violently forced out won't get to return, and it means some Arabs whose families lived in Jaffa but were violently forced out won't get to return either. It may be tragic, but it is a necessary component of a just peace. Kudos to the writer for a stark demonstration that many people are willing to make that sacrifice.

Google Strikes One For Team America

At an Iranian demonstration, a banner which reads in Farsi as "America can not do a damn thing" is rendered in English as "America can do no wrong."



It looks like the problem was with Google translator (that's how it renders the Farsi phrase into English).

Whoops!

Let Them Eat Cake

Via @AmandaMarcotte, Pat Archibald in the National Catholic Register enters a plea for a return to "pretty" in women, defined "as a mutually enriching balanced combination of beauty and projected innocence." This stands in contrast to "hot", which is not clearly defined but which he indicates is some sort of raw, sexualized energy. Back in the good old days (the 50s, natch. It's always the 50s), even our stars were more "pretty" than "hot" -- or at least many of them were. They might have still "sinned", but at least they projected "innocence".

But today, alas, women aspire to be "hot". The difference is in how men treat the two sorts of women:

[P]retty inspires men's nobler instincts to protect and defend. Pretty is cherished. Hotness, on the other hand, is a commodity. Its value is temporary and must be used. It is a consumable.

Hmmm.

We might first note that it is hardly universally accepted that the desire for projected innocence is tied into a desire to "protect". Alexander King certainly had a different spin on things -- he wrote "That gentlemen prefer blondes is due to the fact that, apparently, pale hair, delicate skin and an infantile expression represent the very apex of frailty which every man longs to violate." And alas, King wrote in the first half of the 20th century, well before women's liberation ruined everything. Archibald concedes that the prettiness of yore was often a facade, not a true "innocence"; so long as we're explicitly valuing the hypocrisy of it all, we might as well remind ourselves it extends in both directions.

But more to the point, let's talk about commoditization, shall we? If it rings odd to hear it said that the former half of the 20th century was more respectful of women's agency, autonomy, and human dignity, well, it should. Archibald says hotness is a commodity, but what he doesn't say is that prettiness (as he defines it) is too. Being hot makes men want to consume you. Being pretty makes men want to protect you. What makes men want to treat you like an independent agent with her own talents, ambitions, and desires? Apparently nothing: The choice before women is to be the cake that one has versus the cake that one eats. Regardless of whether one prefers the former or the latter, we can hardly say that either option transcends the status of a commodity.

Now, as a man I sort of resent that -- to borrow from the immortal post by Belle Waring -- I am viewed as so much like a retarded kitten in my ability to appraise people that my capacity to determine how to treat women is exhausted by their physical appearance. I have aesthetic preferences in women, same as any heterosexual guy, but I maintain enough of a trickle of blood-flow to my brain to recognize that these preferences do not, in fact, translate onto character traits, much less into "women to consume" versus "women to stockpile" (and what a choice that is!). So in this sense Archibald's prejudice extends to men nearly as much as women.

Ultimately, though, it is bad to commoditize women. It's bad to view them as perishable goods to be gobbled up, and it's bad to view them as precious gemstones to be hoarded away -- put on a pedestal that doubles as a cage. Women are humans -- they have an infinite variety of desires, talents, and ambitions that they should feel to pursue. That includes pursuit of sexual pleasure, and it includes the decision to stay "innocent" of it. It's their call, not yours. That's the difference between a person, and a cake.

Borderlands

This is one of those fascinating stories that you just don't think could happen in the 21st century: South and North Carolina still aren't quite sure where, exactly, lies the border between the two states.

They've got a bunch of surveyors out who are trying to actually retrace the steps of the original 18th century surveyors. It's tough work since the surveyors marked their progress via burn marks on trees, and those trees are no longer present some 200 years later.

Obviously, there's a humorous element to this, but unfortunately it also has the possibility to disrupt lives, given that there are some people who think they live in one state but "really" live in the other. Aside from whatever psychic damage they might receive from losing their identity as a North or South Carolinian, there are more tangible problems -- new laws, new drivers licenses, new phone numbers, new utilities -- just massive headaches all around.

NJ Senate Votes To Legalize Gay Marriage

The New Jersey State Senate has passed a bill legalizing same-sex marriage by a 24-16 margin. Governor Chris Christie (R) is promising a veto, and right now the votes aren't there to override it. But nonetheless, this is yet more evidence of growing democratic momentum on the subject. New Jersey, of course, won't have a Republican governor forever. The tide has turned, and sooner or later, these laws will pass into the dustbin of history.