Judicial Activism and Nazi Germany

Justice Scalia reportedly credited "judicial activism" of the style he attributes to modern liberals as being a driving force for the Holocaust.

This is an interesting critique less because of its inflammatory nature, or even because of its hypocrisy given the highest profile SCOTUS case of the last term was the notably originalism-less Shelby County decision, and more because of how it clashes with prior contributions to the "your preferred school of judicial interpretation is responsible for the rise of Nazism" school of critique. The most famous of these was the argument by natural law scholars (such as Lon Fuller) against legal positivists (such as H.L.A. Hart). A key point of disagreement between the two was whether an immoral "law" truly could be considered law. Fuller said no, while Hart contended that Fuller's position mistook what the law ought be from what the law is. Fuller rejoined that it was this outlook that allowed Nazism to be sanctioned by Germany's judiciary, as they felt obliged to follow the law as written.

I'm not saying I side with Fuller in this debate. I only observe that historically, the criticism leveled at WWII German jurists was not that they were too willing to adopt contemporary standards of "moral authority", but rather that they were too content to apply the law as it was written and understood by those who drafted it. Justice Scalia's argument is, to my knowledge, a distinct outlier and I'm curious to know what support, if any, there is for his position.

Project Runway Season 12: First Thoughts

Already the designers are a blur. But these are my quick thoughts after the first episode:

* I knew Kate would be the returning designer, simply because her season was the most recent and so she's fresh in folks minds. That said I can't say it's unfair, given that the "Team" twist of Season 11 was wonky in general and ended up screwing her specifically. Also, I never got the "bitch" vibe from Kate that apparently everyone else did. She always seemed like a nice enough kid.

* I thought there were a lot of strong looks on the runway this time out, although the fact that two of the strongest outfits (Sue's and Bradon's) led off the show certainly contributed to that.

* I didn't think Angela deserved to go home, but I'm a sucker for a hood that reminds me of Assassin's Creed (also, she was really cute). Still, once they didn't send home Sandro and his crotchless wonder, I knew she was going home. Timothy may be annoying as hell, but judges always prefer ideas to bland at this stage.

* Speaking of Sandro and the black censor bar -- I'm wondering if that wasn't played up for effect, simply because the judges didn't mention it at all. Maybe they just didn't want to humiliate the model further (and she certainly seemed self-conscious, although she walked through it like a trooper), but it still seemed odd that it wouldn't even be noted either in the critique or discussion. Since they did get past it, though, I agree that underneath all the chaos there was a cool "pin-up girl on the side of the fighter plane" look to that swimsuit.

* And speaking of Timothy, what a sanctimonious little troll he is. Put aside the Austin Powers teeth, he's so pretentious and so doesn't have the talent to back it up. His model looked like she wanted to slit his throat, and I wouldn't blame her at all. You knew if he went home he would have blamed the model for not doing his little "performance" -- dude, if your designs need a choreographer to be tolerable, maybe bone up on your design skills. Also, there were no paratroopers at Hiroshima.

* I think they struck the right balance with Miranda -- I couldn't see her being sent home, but they needed to throw an elbow to remind folks not to cheat on the challenges.

* Also, I can already tell I'm going to love the Miranda/Timothy vibe. When they first revealed that they knew each other from Milwaukee, and Timothy was happy to see her and Miranda was ice cold, I was like "geez, what's your problem girl?" It took approximately 10 minutes for me to firmly swing around to her position.

* Alexandria (who in my head is already "Evil Uli") designs like her personality. Precise, all-business, sharp lines, very tailored. It's good, but sometimes it stops being beautiful and starts being just intimidating.

* The designer who wasn't top or bottom that stood out to me the most was Ken. I thought the collar was cool and maybe even a bit avante-garde, and managed to stand out from a very strong pack. Still, I have no problem with Bradon winning. That was a great, inspired look.

* Nobody did parachute pants! Why?

Stand Your Factual Ground

Sociological Images has a terrifying graph that documents racial disparities in justifiable homicide verdicts

Before I go any further, I want to stress that while this graph focuses on "Stand Your Ground" laws, contrary to popular belief that law was not the primary player in the Zimmerman trial. This graph is instructive not because of what it says about SYG specifically, but rather because of it what it documents about racial disparities generally.

That being said -- this is a scary graph. White-on-black homicides in all jurisdictions are far more likely to be considered "justifiable", but the disparity skyrockets where there is a "stand your ground" provision. What's more, blacks scarcely benefit from SYG at all, at least when the victim is White.

Reasons and Doubts Part II: After the Verdict

I posted this on my facebook wall, but it really is more of a post-verdict follow-up to this post.

* * *

In an idealized criminal justice system, 100 guilty men go free lest one innocent be convicted.

In an idealized criminal justice system, defendants are acquitted even when we believe they really did it, because one cannot dismiss an alternative account as unreasonable.

In an idealized criminal justice system, verdicts are rendered not just based off a gut sense of "justice", but based on careful weighing of all the evidence to determine if it does not just make guilt probable, but "beyond a reasonable doubt."

I've seen many people talk about the Zimmerman verdict with respect to these idyllic values of criminal justice. And they aren't wrong to do so.

BUT

We do not have an ideal criminal justice system. As a clerk, do you know how many cases I see where I read the record and go "beyond a reasonable doubt? Really?" It's not that I can't imagine they're guilty, or even that I don't believe they're guilty, but it's not like I can't imagine they're innocent either. Do you know how often I've seen a conviction reversed based on sufficiency of the evidence? Never. As a country, we have no problem convicting people -- some people, anyway -- based on factual records which by any objective metric leave considerable doubt.

We do not have an ideal criminal justice system. At least, not for everyone. The above principles, which should make guilty verdicts quite hard to achieve, are not enforced regularly or evenly.

After all, what doubts are "reasonable"? Narratives which are naturally coherent in our mind. Threat assessments we can imagine ourselves making. Stories in which we can imagine ourselves playing the leading role. All of these concepts are mediated through minds which remain deeply infected with racial bias.

As the Tampa Bay Times documented at the start of this case, a successful "stand your ground" defense is considerably more likely if the defendant was black. Blackness, in the aggregate, impacts our assessment of a reasonable threat, and impacts our assessment of how likely it is that there was a threat in the first place. This finding is no outlier -- anyone with a familiarity with the literature knows just how racialized our perceptions are in this arena. It is willful ignorance to pretend that "reasonable doubt" means the same thing for blacks (defendants or victims) and whites.

This critique isn't answered by referencing our high ideals, for it demands the question, "who is entitled to these ideals? Do we actually take them seriously?" No, we don't. For some defendants and for some victims, we rely on gut feelings and are stubbornly unwilling to imagine alternatives as "reasonable". For others, we demand prosecutors have an armory of smoking guns. The issue isn't about which system is better. The issue is about the distribution. We've established a two-tiered criminal justice, where some people get the benefit of our highest, most civilized ideals, and others don't.

The moral to all this isn't necessarily "George ZImmerman should have been convicted." But we can't keep on heaping black bodies upon the altar of a criminal justice ideal we don't actually have any intention of meeting. At some point, the "equal" and the "justice" have to be harmonized. Right now, they are badly out of alignment,

Reasons and Doubts

Sometimes I wonder what it would be like to serve on a jury. When I have this thought, it's invariably followed up by amazement that juries ever convict anyone. It's the "beyond a reasonable doubt" standard that trips me up. Officer Jones says he caught Smith with marijuana; Smith says Jones planted the evidence. Adams says he saw Green leaving the scene of the crime, Green says he was nowhere nearby. Daniels says Johnson attacked without provocation. Johnson says it was self-defense. It's not that I can't believe person A over person B. But can I really say that it's not even reasonable to think B is telling the truth and it's A who's lying? Sometimes there's a mountain of physical evidence that sufficiently tips the scales. But often it's simply about what narrative one believes.

I was thinking about this when reading Jack Chin's post (and the ensuing comment thread) on the Trayvon Martin case. Chin now has doubt as to whether the evidence is sufficient to establish "beyond a reasonable doubt" that a felonious murder was commited (particularly given Florida's putative standard whereby self-defense must be affirmatively disproven). I've had similar thoughts. It's not that I don't believe that Zimmerman killed Martin in circumstances which would constitute a murder. But can we say "beyond a reasonable doubt" that this is what happened? I'm not sure.

More troublesome is that Chin seems to think that an acquittal might be good for people of color because it would reject the validity of convicting a defendant based on "impeachment and insinuations about motive in the absence of meaningful evidence that they actually committed crime." Given that minorities are more likely to be vulnerable to this sort of prosecution, Chin argues, permitting Zimmerman "to be convicted based on thin and ambiguous evidence . . . will harm blacks and the poor much more in the long run." The problem is that acquittals are not precedents -- no black defendant will be able to point to a George Zimmerman acquittal and say "therefore, you must acquit me too." It's not as if Chai Vang was able to cite Bernard Goetz.

This observation leads to a more fundamental one. "Reasonable doubt," I suspect, is about whether juries can envision other plausible narratives of the events other than those which lead to a conviction. An all-White jury hopefully can envision "paranoid White vigilante attacks and kills unarmed Black teen" as plausible given the undisputed facts, but it probably can also envision "Black teen attacks Zimmerman and Zimmerman, in fear of his life, pulls the trigger." With two plausible narratives, one which leads to a "not guilty" verdict, then there is "reasonable doubt" and there cannot be a conviction. If the races were reversed, however, and a Black man jumped an unarmed White teenager walking home from the convenience store, there isn't even a controversy about this case. The only "plausible" narrative to the White jury's eyes would be "Black thug kills innocent White kid." An attempted "self-defense" narrative would be laughed out of court. "Reasonable doubt" is not entirely disconnected from the individual facts of individual cases, but it also has much to do with the limits of our imagination, and those boundaries are set by forces long predated voir dire.

One can say, perhaps rightly, that Zimmerman should not pay the price simply because we do not do justice to Black defendants. But the systematic inequality would still remain, and this case most certainly will not be "precedent" that will help any minority defendant.

Transportation Gridlock

I want to give some props to Robert Farley for writing a very rare sort of post: Taking a topic I don't really care about but am predisposed to adhere to a particular narrative, and clearly explaining why my instincts are too simplistic.

His target is a David Ignatius column on proposed Air Force cuts. The Air Force had proposed reducing large quantities of its transport aircraft (C-130s and the like). Congressmen and Governors objected, particularly because such aircraft often are used by local national guard units for civilian aid missions. The theme of the column is how meddling politicians are blocking cuts even the Air Force wants and maintaining a bloated military because they want to preserve local pork.

I will cop that, as a complete non-expert, that narrative appeals to me too. I think our military budget is bloated, and I'm inclined to attribute large parts of this to politicians thinking parochially. And I'm particularly prone to think this when a service branch is blocked from making cuts it itself thinks are warranted.

Farley takes me to task, and his analysis is worth reading in full. The short version is that the Air Force has a long-standing ideological aversion to transport and other "support" roles, that the Air Force's conception of its own needs is as parochial and self-interested as any other segment of bureaucracy, and that the only way to resolve competing conceptions of how our military resources should be prioritized is through the political process (and if the result of that process is that more dollars flow to planes that can be used to fight fires and conduct local search and rescue, and fewer to long-range strategic bombers, that's not necessarily a bad thing).

Again, good analysis aside, it's always good to have casually-formed and weakly-supported intuitions popped -- and it's not the easiest thing to do (particularly when its convincing a liberal that we should keep military hardware that a service branch claims it doesn't need on the advice of politicians). For accomplishing this somewhat rare feat, I give a hearty salute to Mr. Farley.

Shining Moments

As he departs office as President of Iran, Mahmoud Ahmadinejad reflects on his greatest accomplishments:

Outgoing Iranian President Mahmoud Ahmadinejad said during a farewell ceremony that publicizing his Holocaust denial was a major achievement of his presidency.

“That was a taboo topic that no one in the West allowed to be heard,” Ahmadinejad said in a speech Sunday, according to the Iranian Fars news agency. “We put it forward at the global level. That broke the spine of the Western capitalist regime.”
Ahmadinejad’s remarks on the Holocaust appeared on the Fars news site in Arabic, but not on its English website, which covered other aspects of the speech.

Some things never change.

But perhaps more interesting was the response of the incoming Iranian President:

President-elect Hassan Rohani described Ahmadinejad’s anti-Israel remarks as “hate rhetoric” that had brought the country to the brink of war, the German news agency dpa reported.

Some things change quite a bit. Very interesting.

Happy Fourth!

To what few people still read this, hope you're having a Happy Fourth of July!

Jill and I already began celebrating earlier this week with a commemorative exchanging of gifts. Jill gave me a box filled with debris, and a day later in exchange I gave her a scale model TIE Fighter!

AIPAC Shuns Settlement Org

JTA has an interesting article up on Jewish organizations which responded to Secretary of State John Kerry's call to support a two-state solution. These groups -- mainstreamers such as the AJC, ADL, and JCPA -- all have quite vocally denounced certain segments in the current Israeli government (primarily Naftali Bennett and his buddies) who oppose the creation of a Palestinian state.

But the more interesting tidbit, from my vantage point, was a bit buried. Often times, AIPAC is cast in these dramas as a pure malevolent force that completely kowtows to Israel's far-right. If you thought, the following might be a bit of a shocker:

Each of the groups that repudiated Bennett framed their statements in the context of Kerry’s bid to restart the peace process and come as Israeli settler leaders opposed to a two-state solution are making their case in Washington. Dani Dayan, a leader of the Yesha Council, the West Bank settlement umbrella body, met last week with top Republican lawmakers in Congress.

[...]

AIPAC, notably, declined an invitation to attend the meeting June 27 between Dayan and top Republicans, including Rep. Ed Royce (R-Calif.), the chairman of the House Foreign Affairs Committee; Rep. Ileana Ros-Lehtinen (R-Fla.), the chairwoman of the committee’s Middle East subcommittee; and Rep. Pete Roskam (R-Ill.), the party’s chief deputy whip.

Instead, the Zionist Organization of America and the Republican Jewish Coalition led the Jewish contingent at the meeting. The ZOA has counter-rebuked the Jewish groups that criticized Bennett and Danon. Foxman, the ZOA said in a June 24 release, was “suppressing opposition to a Palestinian state.”

Not only is it important that the pro-settlement wing of "pro-Israel" be marginalized to crank groups like ZOA and the RJC, this also fits within my broader strategic vision of driving a wedge between AIPAC and its right-ward critics. The more centrist Jewish organizations, including AIPAC, view ZOA and its ilk as foes rather than friends, the more willing they'll be to work with center-left groups in order to protect Israel's longetivity as a Jewish, democratic state.

Spot the Problem!

Regarding Tom Osborne, former Nebraska football coach and then Republican congressional representative:

The penultimate chapter in the book, “A Difficult Road to Walk,” is an in-depth exploration of Osborne’s Christianity — he notes that he never infringes on Sundays during the season, so his players can attend services, “Protestant, Catholic or Jewish”

Via.


Hunting for Assimilation

This Phillip Weiss essay about Justice Kagan's recent forays into hunting feels like it could stumble across an interesting observation were it not so resolutely opposed to it. Indeed, Weiss' final paragraph (where he -- natch -- explains how this all inexorably points to the end of Zionism) is almost incomprehensible. Nonetheless, I do think Justice Kagan's experiences in this area raise some very important points about assimilation and the status of Jews in America.

The question of Elena Kagan and hunting first arose during her Supreme Court confirmation hearings, the result of rural-representing Republicans who were concerned that Kagan would be hostile to gun rights while on the Court. The problem was that Kagan came from a particular culture -- east coast, urban Jewish -- that really doesn't have much of a tradition with regard to firearms. And hunting, in particular, is discouraged amongst observant Jews. Nonetheless, Kagan gamely volunteered that she'd be willing to try hunting, and that promise smoothed (albeit certainly didn't clear) the path to her eventual confirmation.

This story always resonated with me because I have also thought a bit about how the "gun question" might sink my own fantasy confirmation hearing.* Like Kagan, I have very little gun experience -- limited to once at summer camp when I was in 4th grade (I'm quite proud to report that one shot did strike the edge of the paper). And I have no interest in going hunting -- frankly, the idea makes me a little queasy. So what could I do to assert my red-blooded Americaness? Somehow, I don't think professing my love for the History Channel's Top Shot is going to cut it.

To be fair, I don't disagree with Weiss that trying something outside ones comfort zone displays a laudable flexibility when one is about to be installed in such a powerful decision-making position. But there is another way of looking at this, which is that, despite her incontestable status amongst America's rarefied elite -- Harvard Law School Dean, Solicitor General, Supreme Court nominee -- Kagan's Jewish culture still rendered her an untrustworthy outsider. If she wanted to truly be accepted as "one of us", she would have to distance herself from being distinctively and differentially Jewish.

As best I can tell, Weiss views this as a good thing. Kagan is a "Jew who was granted enormous power and who then felt a keen responsibility to represent a broader constituency than her own group." Dominant groups in America don't face these sorts of choices, because they perform their status as part of that "broader constituency" simply by living their lives. Their Americaness is an entitlement, while Jews have to earn it by casting aside their Jewishness. Jews, as a small minority in America, cannot be Jews qua Jews while legitimately exercising power. We must become "just" Americans. The "melting pot", assimilationist ideal is fundamentally incompatible with the distinctiveness of minority and marginalized groups.

Contra Weiss, this does not show that "Zionism is doomed." If anything, it shows Zionism's enduring appeal for Jews, because Zionism holds out a promise to Jews that they need not make this choice. A Zionist state is to Jews what America is to Antonin Scalia -- a place where he can just be Antonin Scalia and it is entirely normal and unremarkable. That's going to be very appealing to a lot of people.

* Of course, in the real world my lack of gun ownership would play no role in sinking my judicial candidacy. This blog's archives would more than suffice my chances of ever being confirmed, or even nominated.

Not This Again....

Alec MacGillis does not think Maryland Gov. Martin O'Malley is a real candidate for the 2016 Democratic presidential nomination. Part of his rationale is simply that O'Malley is too "staid" and is a boring public speaker. The resurrection of "do you want to have a beer with him" logic, which drove me into fits of insanity when it was applied to Al Gore, is enough on its own to make me want ot drop MacGillis into a vat of acid.

Now, I might -- might -- be able to forgive MacGillis here simply because what he's saying might be descriptively accurate (he is not the only source I've read that has negative things to say about O'Malley's ability to connect with audiences). What's more baffling is the argument that O'Malley won't "excite" the Democratic base because he focuses too much on the utilitarian efficacy of his proposals. In essence, MacGillis seems to think that emphasizing how one's plans make the world better is incompatible with normative liberalism. It's very weird -- over and over again MacGillis concedes that O'Malley's managerial instincts have made Maryland a much better place, but he almost says it with a sneer, as if performance was not a valid metric to measure Democratic politicians. I really don't get it at all.

James Madison was a WOLVERINE

Interesting tidbit from Justice Scalia's Windsor dissent: He seems to endorse congressional guerilla warfare against the presidency as the right way for separation of powers questions to be hashed out between the legislature and executive.

Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition,"The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing toconfirm Presidential appointees to the elimination offunding. (Nothing says "'enforce the Act" quite like
". . . or you will have money for little else.").

Slip. op. at 14.

I bet I can guess his vote in Noel Canning.

A Few Thoughts on Today's Race-Related SCOTUS Cases

The Supreme Court released three race/discrimination decisions today. The most prominent, Fisher v. University of Texas, also turned out to be the least meaningful -- the Court just remanded to the 5th Circuit to properly apply the strict scrutiny test. The second, Vance v. Ball State University, narrowed the definition of who is a supervisor for purpose of Title VII harassment claims. Finally, in University of Texas Southwestern Medical Center v. Nasser, the court tightened the causation requirements for retaliation claims made under Title VII. Some scattered thoughts below:

* Everybody thought Fisher would be a death knell for affirmative action. Instead, we got a very narrow decision that remanded to the 5th Circuit. I'm fine living to fight another day. And Justice Kennedy continues to confound -- he has yet to uphold a race-conscious affirmative action program, but he has also steadfastly refused to write an opinion closing the door to them entirely.

* Justice Scalia has been on the Supreme Court since 1986. Justice Thomas has been on the Supreme Court since 1991. Both have been the Court's highest profile exponents of constitutional "originalism," and both have also been the Court's primary cheerleaders for a "colorblind" constitution. Yet in all their years on the Court, these two good ships have yet to cross paths. Both Justices wrote concurrences in Fisher (Thomas' was more substantive), and that streak remains intact: Neither Justice has yet attempted to render an originalist justification of constitutional colorblindness.

* Part of Nasser's justification for the heightened causation requirement is the Court's worry about frivilous lawsuits, which the Court wants to see dismissed at summary judgment (pp. 18-19). This is infuriating on several levels. First, I'm not convinced there is any higher risk of frivilous filings in the retaliation context as in anywhere else. As I've argued earlier, there are good reasons to believe that persons do not bring discrimination cases unless they have a strong suspicion that they have been unjustly terminated. Second, there is a fair amount of evidence that people (judges included) are in fact too prone to dismiss discrimination claims as unwarranted because it interferes with their desire to view the world as just. This risk is amplified when there are other factors which could (but do not necessarily) explain the adverse decision (see the work of Katie Eyers on this).

Third, the problem of frivilous lawsuits shouldn't really be affected by this decision because the type of evidence which could support a jury verdict that an unlawful motive contributed to an adverse employment decision is no different than that which could support a verdict that it was the but-for cause of the decision. Once evidence is presented that retaliation was "on the mind" of the decision-maker, it is seemingly for the factfinder to decide how much of a role that factor played vis-a-vis other potential justifications for the adverse action. Nor will plaintiffs be able to self-regulate, because informational asymmetries prevent them from knowing their claim is precluded by a but-for cause defense. A plaintiff has only a limited ability to divine what is truly on the mind of her employer or detailed personnel records providing a basis for comparison. What an employee knows, generally, is (1) the fact of a discrimination complaint, (2) the response of the employer (presumably negative), and (3) the fact of the adverse action. In other words, she can know with some degree of certitude that her initial complaint was on the mind of the decision-maker when the alleged retaliatory decision was made, but has little knowledge of whether it was a but-for cause. Hence, we're likely to see more cases filed that end up being nowhere near the legal dividing line between good and bad cases, not because of plaintiff bad faith, but because of asymmetrical knowledge.

Guys and Dolls

An ongoing linguistic dilemma I have is how to generically refer to females of my rough age. "Girl" is inappropriate because they're adults. "Woman" seems overly formal and like they're middle-aged. For men, "guy" works really well, and I'm generally a proponent of converting "guy" into a gender neutral term (e.g., "the guys in my law school class" referring to everyone in the law school class, not just men). But others object to this. "Gal" is the obvious feminine counterpart to "guy", but I can't take "gal" seriously -- I feel like I'm in a Western movie.

So my co-clerk and I decided to go on Thesaurus.com and look for synonyms. Here's what we got for "gal":

babe, bimbo, chick, dame, dish, doll, doxy, female, floozy, gal , girl, honey, lady, lassie, miss, moll, skirt, sweet thing, tootsie.

By contrast, here's "guy":

bird, bloke, boy, brother, bud, buddy, cat, chap, chum, dude, feller, fellow, gentleman, individual, male, person.

So a "guy" is a "person," but a "gal" is a "bimbo." Okay then.

AJC Tackles Naftali Bennett

After Israeli minister and Jewish Home chieftain Naftali Bennett declared outright opposition to the two-state solution, the American Jewish Committee's David Harris had some harsh words for Bennett:

“Minister Naftali Bennett's remarks, rejecting outright the vision of two states for two peoples, are stunningly shortsighted,” said AJC Executive Director David Harris. "Since he is a member of the current Israeli coalition government, it is important that his view be repudiated by the country's top leaders."

“Bennett contravenes the outlook of Prime Minister Netanyahu and contradicts the vision presented earlier this month to the AJC Global Forum by Minister Tzipi Livni, chief Israeli negotiator with the Palestinians,” Harris continued. "Livni stated clearly that a negotiated two-state settlement is the only way to assure that the State of Israel will remain both Jewish and democratic. That is a view we at AJC have long supported.”

"We are under no illusion about the difficulties of achieving a two-state accord," Harris concluded. "But Bennett's alternative scenario offers only the prospect of a dead-end strategy of endless conflict and growing isolation for Israel."

But ... but ... I thought Jews weren't capable of criticizing Israel or its leaders!

Bennett's statement reflects a deep divide within Bibi's cabinet, between right-wing hardliners who cling to a vision of Greater Israel and centrist realists who understand that Israel can be Jewish, a democracy, or in control of the West Bank and Gaza, but not all three. Fortunately, Bibi has so far rejected pressure from his right flank to disavow a two-state solution, and did in fact specifically disavow Bennett's comments. But it is good to see a major pillar of the American Jewish community stick to its guns on this issue.

Price on Their Head

Israel is toughening its laws against so-called "price tag" militants, moving to draw parity between these terrorists and Palestinian terrorists who assault Israeli civilians.

Excellent news. These thugs are a major destabilizing force in Israel and in Palestine, and interfere with Israel's ability to effectuate a peaceful end to the occupation and the installation of a two-state solution. They are no different in any relevant respect from Hamas, and shouldn't be treated any differently either. It's good to see Bibi's government getting the message on that score.

The Unbully Pulpit

President Obama endorsed the "Gang of Eight" immigration bill in a speech yesterday. Jamelle Bouie is in a panic:

In no way is it an exaggeration to say that President Obama’s speech came at the worst possible time. Later this afternoon, the Senate will take a procedural vote that will determine whether or not chamber decides to begin debate on the Gang of Eight bill.

Insofar that Rubio, Jeff Flake, Lindsay Graham and others were having a hard time bringing conservatives to their side, it’s now even more difficult. And if House Republicans take this as a cue to reflexively oppose reform, it puts Boehner in a tight spot—does he try to build a GOP majority for the bill? Does he abandon the “Hastert rule” and pass a bill with Democratic support! Or does he leave the effort altogether?

If this sounds dramatic, then you are drastically underestimating the anti-Obama furor of the Republican base, which has ended political careers for the sin of being friendly with the president. If Obama wants comprehensive immigration reform to pass, he needs to stay completely out of the way. If he wants to claim some credit, he can do so at the signing.

Whether I agree or disagree with this analyiss, it is kind of astonishing. And of course, Obama's decision might be tactical -- every time the right-wing lets its crazy loose with respect to immigration, another million Latinos become lifelong Democratic voters. Particularly if the President is convinced that he's got a working victory margin, he might not mind letting the GOP humiliate itself one last time.

But even taking this phenomenom at face value, what I find most interesting about it is how it falsifies the lazy beltway wisdom that Obama's problems all stem from his lack of engagement with the opposition. If only he was nicer to Republicans; if only he had more dinner parties; if only he went on more golf outings. Now he endorses a bill that prominent Republicans have worked on, and the new CW is that Obama can't get within 50 miles of something if it is to have a chance of passage. Apparently, the right doesn't just want to be wooed by Obama at all. They just don't like the guy.

You're Hot and You're Cold....

Now this is a story. Palestinian Finance Minister shows up at a BDS conference. Participant asks minister why they're still engaging in security cooperation with Israel, because BDS is a totally non-violent movement that absolutely does not support an ongoing aggressive campaign of terrorism against Israel. Minister insults participant for asking the question. Minister is kicked out of the BDS conference, because BDS absolutely speaks for "Palestinian society", absent the government the majority voted for. Then PA thugs grab and beat up the questioner (which I don't support either, but one notes that BDS chieftain Omar Barghouti is a grad student in Israel and has yet managed to avoid being assaulted by the Shin Bet).

Waiting for a Sign

America's policy towards Syria has been rather ambivalent. And most Americans seem to share in that ambivalence. It's not hard to understand why -- it's a complicated problem with a lot of moving parts and competing interests at stake. On the one hand, Assad is most certainly a bad guy. On the other hand, the rebels are an amalgamation of different factions ranging from genuine reformers to Islamist radicals. On the first hand, Assad's forces have been continually massacring civilians. Then again, the rebels hands aren't exactly clean either. American intervention might stop some of the more egregious atrocities; but of course America is belatedly discovering that we're generally not as good at intervening as we think we are. Stepping in could send a message that America will stand up for the innocents in the middle east, or it could be seen as yet another imperialist intrusion.

So it's complicated, and I don't begrudge anyone for thinking that it's complicated and not having firmly set views. What I do find somewhat amusing -- to the extent one can find humor in this tragedy -- is how some people clearly want to take a firm stance, but can't figure out what stance that is because the only thing that drives them is opposition to some third party who remains infuriatingly neutral.

For example, some leftists are very desparate to stake out a position opposing "Zionist" interference in Syria. Unfortunately, they're stymied by the fact that Israel doesn't have a clear favored side. Israel's relationship with neighbors like Syria is complex -- while obviously Assad is no friend of the Jewish state, he's also the devil they know, and instability on Israel's borders is a more immediate threat than the relatively manageable current Syrian regime. The result is that Israel generally doesn't care what happens inside Syria so long as their own border remains secure and weapons aren't transferred over to Hezbollah (this same logic, incidentally, is why contrary to popular belief Israel was not a prime cheerleader for the Iraq invasion). But you can see certain folks just straining to identify which side Israel supports -- propping up their puppet Assad or tearing down their enemy Assad -- so they can go all in on the other side.

I feel like I'm seeing a similar dynamic with respect to congressional Republicans and Obama. A lot of them seem quite anxious to attack our Syria policy, save for the part where they don't know what they think it should be. Are we abandoning democratic revolutionaries because we don't have a stomach for a fight? Or are we supporting the new al-Qaeda and giving comfort to terrorists? Since the Obama administration hasn't taken a decisive step, they're at a loss. It is, in a sense, a sterling example of the maxim that "today's conservatism is the opposite of what liberals want today: updated daily" (specifically, the impoverishment of conservative ideology when it isn't clear what liberals want today).

Power to the UN

Congratulations to Samantha Power, author of "A Problem from Hell: America in the Age of Genocide", who's been tapped as our next UN Ambassador. I can scarcely think of anyone better qualified.

Incidentally, I'm already hearing chatter from the unhinged-right that Power has supported invaded Israel. I happen to know precisely where this myth comes from (since I regrettably lost a friendship over my admittedly quite intemperate reaction to it the first time it popped up during the 2008 primary campaign): a 2002 interview where Power was asked a "thought experiment" about how she would respond to Israel/Palestine "if one party or another [starts] looking like they might be moving toward genocide?" In that hypothetical situation, she stated we would need to support (among other things) "what will have to be a mammoth protection force, not of the old Rwanda kind, but a meaningful military presence."

Needless to say, supporting military intervention in a thought experiment regarding a genocide (and the question doesn't specify who is committing it) is a far cry from an ongoing desire to invade Israel.
Samantha Power Gets Nod as U.N. Amb

Immodest Robes

TPM tries to read the tea leaves on the Supreme Court's upcoming affirmative action decision, but I was more struck by this throwaway line:

Numerous legal scholars thought the five conservative justices on the Roberts Court — not best known for judicial modesty — would end Grutter now.

I don't disagree that the Roberts Court is not exactly a beacon of "judicial modesty." But remember when it was? Or more accurately, remember when it was thought that it would be? A lot of folks thought that would be a defining feature of the Roberts Court. Maybe that was always an unreasonable belief; maybe the whole idea of "judicial modesty" is conceptually incoherent. I do find it interesting, though, that the conventional wisdom regarding the Chief Justice and his cohorts has done a complete 180, such that now folks can just casually presume agreement with the statement that they're the furthest thing from "modest."

Pinkwashing Machine

I don't get "pinkwashing." As a concept, I mean. I don't get the supposed logic behind it. It is, as best I can tell, the only movement explicitly predicated on its adherents being morons -- at least if you take it at face value. If you don't take it at face value, it gets more pernicious still. But I race ahead of myself.

"Pinkwashing" is the supposed phenomenon whereby Israel uses its relatively good record on gay rights to distract people's attention away from the occupation. As supervillain strategies go, this seems relatively benign. Moreover, I can't imagine this is Israel's actual thought process. Picture the scene: The elders of Zion are meeting. They have the banks, the media, Hollywood -- all the tools of the global Zionist network -- at their disposal, and are trying to figure out how to keep Palestinians immiserated for as long as possible. The conclave is completely stumped until suddenly, Shmuel hits on a solution: Be nice to gays! It's to progressives like cat videos are to the rest of the world -- once they see it, they won't be able to think about anything else! Boom, problem solved -- until those meddling activists saw through the cunning plot and cried "pinkwashing."

This is a joke. For "pinkwashing" to make sense in the manner its proponents claim that it does, one basically is admitting that holding onto two thoughts is one too many. It's a claim that you are entirely incapable of walking and chewing gum at the same time. This doesn't happen in other contexts. If I wax lyrical about something I like about the United States -- our First Amendment right to free speech, for example -- I have yet to be accused of "washing away" the plight of the homeless. Our political discourse patterns regularly manage to hold multiple thoughts about the United States at the same time -- things we like, and things we dislike, and things we're ambivalent about. Amazing, I know. And I can do the same thing about Israel too -- I can like some of its characteristics, be ambivalent towards others, and outright oppose some more. It's really not that difficult.

Unsurprisingly, there is something more going on here, and that something is the "delegitimization" debate. Pinkwashing activists, I have to believe, aren't so delusional as to seriously believe that celebrating Israel's gay rights record actually prevents us from thinking critical thoughts about Israel's treatment of Palestinians. What they do think -- accurately -- is that viewing Israel positively in even a single dimension prevents us from holding onto the viewpoint of Israel as an inherently evil and fundamentally irredeemable state. Israel is fundamentally different from other states in that it is a paragon of wrongdoing -- it is rotten to the bone and must therefore be eradicated. Remember how the Church of Scotland viewed the liberal elements of Israel's declaration of independence? Seemingly proof that Zionism can encompass positive liberal elements, the Church instead dismissed them as external to and in tension with the Zionist project. Pinkwashing is the same thing. If Israel seems to be doing good, it's a trick or a distraction.

If one views Israel as of the same class as other countries -- a mixture of right and wrong, good and bad, then Israel's positive gay rights record poses no threat (what a strange reaction, incidentally, to instinctively recoil when a country does good!). Normal politics is not like a PGA Tour event where countries try to move up the leaderboard in the search for "best". In normal politics, we try to encourage the good and fix the bad, and recognize that no matter what field we work in we will invariably see a mix of both.

But the anti-pinkwashers don't view Israel as normal politics. The idea that Israel can do good really is a threat, because when it comes right down to it they really do have a problem with thinking two thoughts at once. Israel only allows for one thought: "evildoer." There's no room for engagement, no room for discussion, no room to consider the angles. Israel is evil, and anything that complicates that picture must be ruthlessly suppressed until the cancer can be eradicated. Even if individual "pinkwashing" activists don't hold that as their politics, that's the tenor of their discourse.

Is it any wonder, then, that most Jews react with such hostility to the pinkwashing charge? It's hardly because they want a world in which there are no critical thoughts about Israel -- Jews are perfectly capable of criticizing Israel, and again, I can't imagine anyone is dumb enough to think that "pinkwashing" would actually succeed in this endeavor even if that was the goal. Rather, the reason this politics is rejected is because it is fundamentally eliminationist in character. They understand that the conceit of "pinkwashing" really relies on a view of Israel as a wholly and purely demonic entity that must be dismantled and destroyed.

To the extent we care about what the Jewish community thinks about Israel (and many people -- pinkwashers generally included -- really don't), that discussion isn't going to go anywhere until it's accepted that Jewish views don't stem from a place of ignorance, delusion, or mass communal psychosis. When we perceive a discourse or a politics as a threat to us, that understanding should be accorded deference. Not unlimited deference, and not unthinking deference, but deference none the less. Jews reject the pinkwashing narrative because Jews understand that the pinkwashing narrative comes from a fundamentally malignant place; one that views Jewish communal projects not as flawed but as a flaw, not as having done wrong but as simply being wrong. There's no reason for us to view it as anything other than bigotry. And that's how I see it too.

Redlines

Eric Yoffie says what I've been pleading for someone to say: Synagogues (or other Jewish communal spaces) are not open-mic nights. There is no obligation to let everyone speak. The Jewish community should welcome vigorous debate (it wouldn't be much of a Jewish community if we didn't), but it is also entirely appropriate to police the borders of that debate, and to declare that certain views are simply unwelcome. We should oppose ethnic hatred, racism, and bigotry. We should oppose those who object to Jewish self-determination or who think Jews can justifiably be murdered for having the temerity to live in their homeland. We should oppose those don't think Israel should be allowed to exist as a secure Jewish democratic state.

And to wit, Yoffie says: J Street yes, BDS no. CUFI yes, Pamela Geller no. And I agree with that. I'm no fan of CUFI, to say the least, but so long as it doesn't endorse one-stateism or other bigoted proposals, I'll disagree with them on the stage. And J Street and I also have our quibbles, but same deal. Meanwhile, I am a strong supporter of recognizing that the BDS folk and Pam Geller are more or less cut from the same cloth, in part because it causes both parties' heads to explode (both groups are also prone to calling for the other to be excluded while wailing about "censorship" or "muzzling" when they're left out).

So all in all, I consider Yoffie's typology to be pure win.

Scold in Chief

I am in absolute agreement with Ta-Nehisi Coates' discussion about how President Obama talks to the Black community. For all the talk about how President Obama is too solicitous to the "blahs", it is evident that he holds them up to a far higher standard than he does other communities. Which isn't necessarily a bad thing, but it is a notable thing, and sometimes it can be a counterproductive thing. As Coates points out, there's nothing intrinsically worse about dreaming to be the next LeBron James as the next Peyton Manning, or the next Kanye compared to the next David Bowie. And I've always wondered how, if at all, the whole "reading a book is acting White" is anything more than a localized instantiation of the more general truth that nerds are unpopular.

Again, perhaps this sort of "tough love" outlook is a net benefit for the Black community. It certainly tracks what White people say they want Black people to say to their own community (though it is perhaps unsurprising that Obama gets no credit for it). But I can't help but note that we are much less approving of this sort of approach when it is directed at ourselves. "Tough love" when directed toward Blacks is "blaming America first" or "politicizing a tragedy" when it comes to Whites.

Chaos Muppets

Impeachment is the word of the day, as after faux-scandal after faux-scandal have failed to stick, Republicans have finally found a government act that everyone agrees was an abuse of power (the IRS audits). Now, from what we know if the IRS scandal at this stage talk of impeachment is obviously ludicrous. Nonetheless, Jon Chait argues that Republicans should let the crazy fly.

It's an interesting question, to be honest. Our constitutional system depends on norms to function, and what we've seen these past few years is what happens when these norms start to breakdown -- when it becomes acceptable to try and kneecap entire wings of government by refusing outright to confirm any agency appointees, or to hold the entire economy hostage through the debt ceiling, or, for that matter, by tossing "impeachment" around every time Obama hears a sneeze without saying "God bless you." Our political system (defined crudely as who wins and loses elections), by contrast, is zero-sum -- it doesn't matter how much the American people hate you so long as they hate the other guy more. Chaos, as Littlefinger reminds us, is a ladder, and a calculated decision to sow chaos certainly can end up redounding to one party's benefit. The system is calibrated to respond to people who stay within well-defined borders, and when a player comes along who openly flouts those rules, he can gain a distinct advantage. This is why the Joker is Batman's most dangerous foe -- his behavior defies even those norms which govern how criminals behave.

But that chaos can aid its progenitors does not mean it always will, and the truly chaotic actor is by definition incapable of ceasing setting fires just because its no longer in his interest. The problem for Republicans is that I don't think this is planned chaos. The Clinton impeachment, for example, was obviously farcically weak on its merits, but at least it could be plausibly sold as a political strategy. It turned out to be a bad gambit -- the American people reacted badly, and the GOP was tarred as a bunch of overzealous hypocritical loons -- but they at least could claim that outcome was apparent only with the benefit of hindsight.

By contrast, today it seems quite clear that all the impeachment chatter is not a calculated strategy but simply an uncontrollable reflex. Impeachment was uttered about Solyndra and Fast and Furious. A number of high-profile Republicans have contemplated it for one alleged offense or another. World Net Daily convened a panel to discuss impeaching Obama over no less than a dozen different "scandals" ranging from the Libya war to Cap and Trade. Rob Portman gets elder statesman points for not being ready to commit to impeachment yet.

Republicans were convinced in 2012 that Benghazi was their ticket to victory, and were shocked that American voters didn't seem to think the Obama administration did anything wrong. One could say they've learned nothing. But I think the problem is deeper. The impeachment talk is no longer a political strategy -- its just the raw result of the conservative id flailing about, and Republicans can no longer keep it under control.

Our Divine Constitution

It wasn't the first academic piece I had accepted for publication (that would be "When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, which came out in the Dartmouth Law Journal when I was still at Carleton).

It wasn't the first piece of academic scholarship I published in a true law review (that would be my law review comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement). Nor was it the first piece I published as a professor (The Perils and Promise of the Holder Memo), or even the first full-length piece I had accepted for publication (Sticky Slopes, which I believe is scheduled to come out this October).

But nonetheless it is a milestone, and I am pleased to announce the publication of my first full-length law review article to actually hit the presses: Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).

The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

As always, I'd love you feedback.

It's been a really hard year this year, and it did not go the way I had hoped (to put it mildly). But I can do this, and this article will be the first of many.

To Know is not To Understand

Reprinting a status update from David Hirsh, whose Engage organization is simply an indispensable resource for those concerned with anti-Semitism and are looking for an unabashedly progressive and unapologetic approach to combating it:

There is a huge reluctance amongst many antiracist Jews to see antisemitism; to understand it; to oppose it, to defend their fellow Jews, to educate their fellow antiracists. They have lost the ability to sniff antisemitism. They know, without knowing, that to do so puts them outside of the intellectual and political world in which they live. They know, without knowing, that to see, understand, sniff or oppose antisemitism is considered vulgar, selfish, dishonest, dishonourable, disgraceful; It is the end of them being considered progressive, intelligent, antiracist, engaged. The act of knowing is itself punished by exclusion, yet this fact itself does not help them to know.

I'm reminded of a story recounted by Steve Cohen (the British Marxist, not the Tennessee Congressman), who famously described himself as an "anti-Zionist Zionist" ("at least that should confuse the bastards"), about a review of his classic pamphlet "That's Funny, You Don't Look Anti-Semitic". If you click the link and/or read the pamphlet (which you should -- it's one of the most important works of modern anti- anti-Semitism ever written), it is evident immediately that Cohen is a sharp critic of Israel and Zionism -- to a far greater degree than I support, and in ways that I ultimately think are incompatible with Jewish and human equality. But despite this I've always considered Steve an ally, because it is very clear that he thinks critically about anti-Semitism and is unafraid to call it out and does not shy away from the fact that the existence of anti-Semitism does and should alter what sorts of political programs, tactics, and commitments are permissible. 

Anyway, Cohen publishes his pamphlet, which is quite open in its critique of Zionism in the midst of leveling an equally open critique of anti-Semitism amongst anti-Zionists. And the reviewer acknowledges his critique of Zionism, but dismisses it as hollow because he also criticizes anti-Semitism. The exact words were "It is not enough to trot out platitudes, as he does, about being against Zionism and in support of the Palestinian struggle.".And so Steve replied:

So I'm not allowed into the club even though I fulfil the entry requirements. I'm not allowed in because I recognise and oppose the existence of anti-Semitism on the Left—and this therefore renders all support for Palestinians a "platitude". Well it ain't me who's here confusing anti-Semitism and anti-Zionism.

I encountered a similar situation a few years ago. I had been writing a lot on another blog about anti-Semitism, and a commenter asked me "no offense, but is there any criticism of Israel that you wouldn't automatically consider to be anti-Semitic?" And I told her, guess what? Offense taken. First, because caring about anti-Semitism should not give any inference about what positions I take on Israel (much less an unyielding one that cannot tolerate any criticism); second, because I'd spent considerable time documenting and explaining why I thought various things were anti-Semitic, and now I'm told that this some sort of "automatic," thoughtless, kneejerk expression; and third, because I had (at the time) a searchable blog that made it quite clear that I criticized Israel myself quite regularly. No matter -- opposing anti-Semitism itself was enough to render me a suspicious character in her eyes.

There's a saw about the modern right that it isn't so much "racist" as it is "anti-anti-racist." It doesn't really care one way or the other about racism, but it is very committed to attacking those who attack racism. I feel similarly about much of the left (Jewish and otherwise) with regards to anti-Semitism. It's not so much that they themselves are anti-Semitic (though some are), but they seem to positively recoil if anyone might think they could be so gauche, so (dare I say) provincial, as to actually fight against anti-Semitism. Combating anti-Semitism is viewed as a dead giveaway for all manner of mendacious positions -- an inability to criticize Israel, a desire to see Palestinians dispossessed, silencing of people of color, hatred of cosmopolitanism, outdated tribalism -- take your pick. And if, as in Cohen's case, those charges are manifestly untrue -- it still doesn't matter. The pretension at being progressive is but a platitude.

If I sound too harsh towards the Jews Hirsh is talking about, I don't mean to be. To be Jewish anywhere in the world (except that one place the existence of which non-Jews are so angry about) is to be ultimately at the mercy of others. Knowing how not to get kicked out of the club is a survival skill, and Jews know that talking too loudly about anti-Semitism (and for some, any talk is too loud) is a quick way to be shown the exit. The instinct they feel to duck is a perfectly sensible one. But as Hirsh says, the knowledge that to remain in the majority's good graces they have to sing the majority's praises is a sign of the fundamental inequality they experience. And when they promote the majority's narrative that combating anti-Semitism is a far greater problem and graver evil than anti-Semitism itself, they do damage to other Jews. They block the emergence of a serious, unflinching, and badly necessary conversation about anti-Semitism, and they contribute to the expulsion of those who labor so hard and so courageously to bring that conversation about in what remains deeply infertile soul.

An Israel Roundup

A smattering of Israel links sitting on my browser:

Left and right groups agree: Israel is freezing new settlement construction.

Norm Geras has a great article up in Fathom about Israel as an "alibi" for anti-Semitism.

In a similar vein, Eve Gerrard has her own piece about the "pleasures of anti-Semitism". She identifies three: "the pleasures of hatred," "the pleasures of tradition," and "the pleasures of moral purity". The last of these is the one that I see as the most important and most striking.

Stephen Hawking canceled an academic trip to Israel, in what was initially reported to be a boycott move, then a health decision, and now is back to being a boycott statement. Carlo Strenger pens an open letter in response, calling the boycott movement a "way to ventilate outrage about the world's injustices where the cost is low."

The Attorney General of Israel just issued a sweeping and sharp directive aimed at mandating gender equality in sectors of Israeli society where Haredi influence has long propogated segregation.

... and one more: leading Shas MK urges Bibi to accept the Arab Peace Plan. I keep on forgetting that Shas in the opposition right now.

With Friends Like These....

A Facebook friend, with the ever-so-wry "just sayin'", just posted a quote attributed to a certain Father John Sheehan, S.J.:

“Every time anyone says that Israel is our only friend in the Middle East, I can’t help but think that before Israel, we had no enemies in the Middle East.”

As a pure statement of history, this is of course false. The U.S. has had its share of pre-1948 enemies in the Middle East (the Barbary Pirates, the Ottoman Empire in WWI, various Arab factions which sided with the Nazis in WWII, etc.).

But pushing beyond that, I think this statement needs to be unpacked a bit even if we took it at face value. The argument being made by our friendly Jesuit priest is that prior to Israel's establishment, we were all buddy-buddy with the dominant powers in the Middle East, but that all went to hell once the Jews had the temerity to establish their own state. Damn Jews.

This, of course, is an interesting view over how we should think about "friendship," to wit, that the most important consideration is whether it allows us to maintain and preserve preexisting relationships of power. Which ... okay, so that's one way of looking at it. Charles De Gaulle did say that "nations do not have friends, only interests." But I'd hope that's not the only way that we would think about how we select our friends.

Consider the following statement as a parallel:

"Every time anyone says that Blacks are Democrats' only friends in the South, I can't help but think that before Blacks were allowed to vote Democrats had all the votes in the South."

As a historical matter, this is at least as true (and probably more so) than Sheehan's statement. And some people do seem to resent Blacks for that, and essentially blame them for the Democratic Party's misfortunes in the American South. But most of us, one hopes, would recognize that supporting civil rights was the right thing to do regardless of whether it ultimately helped or hindered Democratic electoral fortunes. And if we're looking for someone to blame, it should be the White voters who decided that supporting civil rights was a dealbreaker, not the African-Americans who had the temerity to want to be treated as equals.

How much of the current strain between America and the countries of the Middle East can be attributed to the existence of Israel is debatable, but it is fair to say that most of these countries are less than keen on the friendship or the existence of an Israel at all. And they expressed that antipathy quite cogently, in the form of a series of wars and ethnically cleansing 99% of the Jewish population from the Arab World. Such actions don't always result in American opposition, particularly when (as noted) such opposition places us in conflict with the local elites. But where it does, it seems weird to object on the grounds that we weren't sufficiently solicitous of the preexisting hierarchy.

After doing all this work, I got interested in the provenance of the quote itself and who this "Father John Sheehan" is. And that is a surprisingly difficult proposition. The quote shows up a lot on Google, but it is almost invariably unsourced except to say "John Sheehan, S.J." The closest thing I've found to a source is a citation to Volume 21, No. 2, p. 34 (2002) of the Journal of Historical Review. The problem being that the Journal of Historical Review is the house journal of Holocaust-deniers -- it's a conspiracy website with footnotes. Meanwhile "John Sheehan" might as well be "John Doe" if you're thinking of generic name for a Jesuit Priest -- while that could just explain why it's so hard to find the particular "John Sheehan" who said it, it also might explain why there seemingly is no information of the "John Sheehan" who supposedly said it.

The bottom line is that I think the quote is a hoax -- it flies around various anti-Zionist and anti-Semitic circles, but I don't think it's real.

This story does come with a happy ending though: I posted all of this (including my sense that the quote was fake) on my friend's Facebook wall, and you know what she said? She thanked me for my sleuthing, admitted she had probably taken in, and resolved to be more careful next time (and affirmed that the quote did not express her views on the American/Israeli alliance, which she says should be preserved).

Quote of the Evening

Tonight's quote of the evening was found while reading Joseph William Singer's The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984), which ranks quite high on my list of "titles I'm bitter are already taken." But the quote itself isn't from Singer, but rather Nelson Goodman:

A rule is amended if it yields an inference we are unwilling to accept; an inference is rejected if it violates a rule we are unwilling to amend.

Nelson Goodman, Fact, Fiction, and Forecast 64 (4th ed. 1983).

I Would Come Here

Why am I blooging this? Because it makes me happy, that's why. Do I need another reason?

If he could only afford it, Geoff Ramokgadi says he would temporarily transplant himself to Hungary and launch a grassroots drive to eradicate rising anti-Semitism here.

Ramokgadi, a black convert to Judaism, represents one of the smallest Jewish communities of the world: the 14-family-strong Jewish community of the Kingdom of Swaziland.
[...]
Rather bewildered by the recent surge in anti-Jewish sentiments in Hungary, Ramokgadi says he would like to engage in dialogue with the locals here to figure out what lies behind the trend. “We must sit down the people here and ask them, ‘Why are the Jews being singled out? Where should they go?’” he says. “Yes, Israel is a country for them, but here is where they are born, so why are they being treated like aliens?”

Walking down the street the other day, recounts Ramokgadi, he encountered two boys who were playing guitar and asked to join them. “They saw my tag and asked if I was Jewish. I told them I was. Then I took out 10 euros and handed it to one of the boys. He was about to cry when I did that. It all starts with changing one person. One person changes another and then you have shalom. This is all I want. If only I had the money, I would come here.”

Some days my mood is "I bet if I could just talk to these people, they'd see I'm a human just like them" and some days my mood is "they'll never change, so I'll just curse them into hell from here." I like the former mood better.

Keep on representing the Tribe, Ramokgadi.

The Oppressor Class

Phoebe Maltz nails it, discussing the creation of a late 19th century German colony established, in part, to keep good Aryans away from those meddlesome Jews:

Anti-Semites weren't - aren't - just people who think they're better than Jews. They're people who think they're being oppressed by Jews.

This is part of the reason why anti-Semitism so easily finds footing among certain branches of the far-left. To be sure, it's also why anti-Semitism finds footing among the far-right -- the right certainly has no trouble imagining untrustworthy aliens who threaten Our Way of Life. But the left's rhetoric of opposing "oppression" and "hierarchy" can easily incorporate anti-Semitic prejudices insofar as they buy into popular narratives of Jews and the quintessential oppressing class.

This also relates to some popular prescriptions of how Jews can end anti-Semitism (much like ending rape or ending racism, this is of course typically presented as the obligation of the victim rather than the perpetrator). Jews will cease being hated when they cease possessing power, whether it be social (control of Hollywood), political ("the Jewish lobby"), national (Israel), or what have you. See, for example, this piece of work (proof that finding yourself on a Google Book Search isn't always a happy day). A Jew who has the temerity to succeed (and in particular, succeed at persuading others) is a Jew who is playing to stereotype. A polity where Jews are successfully convincing non-Jews to adopt policies Jews find amenable is a polity that clearly, clearly, has been damaged or diseased in some way. How else could Jews possibly win but by dirty pool?

The corollary is that Jews have a normative obligation to be weak, to be at the sufferance of others. It is wrong for Jews to win, and it is extra wrong for Jews to win based on their own decisions and determinations (as opposed to being gifted a privilege by the benevolent majority). Jewish power is always taken to be Jewish oppression; hence, the bare fact that Jews sometimes are in a position where they don't have to answer to the Gentile world is itself an outrage. This is why so much of the "critical" (so to speak) assault on Jewish institutions focuses not on what they do, but the fact of their continued existence. That Jews have institutions which can make decisions which impact the world without -- gasp -- gentile permission; this is the anathema. The problem is when Jews are subjects -- actors who have the ability to influence the world around them. The solution is to make them subjects -- subjugated and controlled by others who know best.


My Problem With Podhoertz's "Negro Problem"

Norman Podhoertz has a retrospective commemorating the 50th anniversary of his famous essay "My Negro Problem-and Ours". The original essay I may have read and forgotten -- I've certainly heard of it. This reflection is certainly interesting as a historical artifact -- it's always interesting to know more about the circumstances around which such a piece is written. But at least judging by how Podhoertz talks now, it's difficult to think he's really got a good insight into the "negro problem." I'm dubious, for example, that there exists a single Black person (well -- I take that back -- if I've learned anything from Jewish politics, there's always one) that really thinks racial relations have actually deteriorated since 1963. And whether or not the rise of out-of-wedlock births in the black family is having some antisocial effects, to declare it "the root cause of all the ills that plague the black community" smacks of someone who really doesn't want to think hard about this question anymore.

I've never quite understood why the nonracist wing of the conservative movement didn't embrace the black power agenda, and reading this essay just deepens the dilemma. Podhoertz gives their actual ideology the short shrift -- the black power movement thought that whites were incorrigibly racist, but their solution was simply to be left alone. Blacks get to run their own schools, blacks get to run their own communities. White racism was only a problem insofar as it was coupled with whites dominating blacks. This is easily compatible with conservative views of federalism, individual liberty, and community control. It is not easily compatible with conservative views of racial supremacy, the need to civilize the savage man, and the sense that white freedom included the freedom to dictate terms to blacks. In that respect, Podhoertz's protests to the contrary notwithstanding, the modern GOP really did take on a healthy dose of John Calhoun.

Of course, this "dilemma" is easily resolved in the descriptive sense: Nonracist Republicans didn't promote the ideology of black power because they preferrred to make a successful run at the votes of Southern racists. That's what the southern strategy was all about. But it's still a bit surprising that there wasn't at least a little more pushback. One gets the since from reading Podhoertz that even the Republicans who friends with Black intellectuals at the time weren't really invested in the struggle, and today they're so alienated that they just don't care about it at all.

Dispatches from the Elders

The Church of Scotland takes on Jewish claims to the land of Israel. It's strategy for doing so is to put forward an extreme irrendetist and biblical-literalist position, characterize this as "the position of Zionism," and then proceed to reject it outright. One might immediately raise an eyebrow at the phrase "the position of Zionism," since "Zionism" is not a monolith and lacks a central governing authority that could present such a singular and specific "position." Or perhaps they got a text from the Elders of Zionism laying out the official white paper? Anyway, the Church kind of recognizes the problem, as it concedes that various Zionist leaders adopted much more nuanced positions that were quite attentive to the importance of establishing a liberal democratic state. Indeed, it notes that these positions were enshrined in Israel's declaration of independence. But somehow, it retains the confidence that these statements create "a tension . . . with the state of Israel’s ethno-national, Zionist goals," rather than creating a tension with the Church of Scotland's overly narrow and ahistorical definition of what Zionism is. And so "Zionism" remains incompatible with any conception of good -- a uniquely Jewish evil that Christians must demolish and Jews must "repent" of.

Of course, there's nothing wrong in the abstract with attacking far-right renditions of Zionist ideology. I do this with at least as much regularity as I attack the resurrection of Christian anti-Semitic ideologies. There is, however, a huge problem with launching this attack as if it is a hit on the sine qua non of Zionism. Structuring the assault that way results in a misappropriation of huge swaths of Jewish experience, and leads the Church here to make a considerably wider-ranging "critique" (if one wants to call it that) of the Jewish peoples' purported "particular exclusivism," our sense of ourselves as "victims and special," and our alleged "specialness." They demand of Jews an obligation to stop believing that we are "serving God’s special purpose and that abuses by the state of Israel, however wrong and regrettable, don’t invalidate the Zionist project." Meanwhile, the Church endorses a return to a "radical critique of Jewish theology and practice." I can't wait to see how that turns out.

Scottish Jews are understandably aggrieved, and accuse the Church of "claiming to know Judaism better than we do." This, of course, is probably the trademark of Christian approaches to Jewish institutions of all stripes (see also the UK's Methodist Church), and so it is hardly a surprise to see that rear its ugly head again. One does continue to marvel at what makes Christian organizations think we will read such a message and think "by golly, they must be right, because if there's one group I trust to issue accurate assessments about moral questions in general and Jewish experience in particular, it's institutional Christianity!" The arrogance, if nothing else, is as astonishing as ever.

Perhaps the Church could take some of its own advice about asymmetries of power and note its own privileged position in getting to interpret the meaning of Jewish history and Jewish ideologies. But somehow, I'm doubtful.

The Good News Club

Two pieces of good news related to the Holy Land. First, incoming Justice Minister Tzipi Livni indicated that she'll be cracking down on Israeli "price tag" militants. "Price tag" refers to the cost these radical settlers claim they impose on Israeli actions seeking to undo the occupation, and the result is they've attacked both Palestinian and Israeli targets alike in a sweeping spree of terrorism. I've been quite adamant that Israel needs to come down hard on these thugs, and I've also been a long-time fan of Livni. Good to see she's stepping up.

Meanwhile, the Arab League has announced that it would be willing to accept variations from the '67 borders as a basis of a new Palestinian state. The swaps would have to be agreed-upon and "minor", but since '67 borders-with-agreed-upon-swaps is the acknowledged formula by everyone even remotely serious about securing the democratic self-determination of Jews and Palestinians alike, it's good to get another stakeholder on board.

The Appearance Gap

During the recent Kamala Harris incident (wherein Barack Obama, in the course of calling Harris "brilliant", "dedicated", and "tough", also called her "the best looking attorney general"), a common reaction was that Obama's statement was an innocent compliment and any negative reaction was just over-sensitivity (see here for an example). What's the harm in a nice compliment?

The answer was always that such remarks -- even when complimentary on face -- make it harder for women to be taken seriously and thus hurt their entry and advancement in professional spaces. And lo and behold! New research bears this argument out (via). The study tracked what happened in a hypothetical match-up between a male and female candidate depending on whether the women's appearance was remarked upon. It found that when the female candidate's appearance was mentioned -- regardless of whether the mention was positive, negative, or neutral -- it caused a material drop in her poll numbers. To be sure, the study did not similarly measure the effect of mentioning the male candidate's appearance, so we don't know if men would be burdened in the same way. But since it is fair to say that a woman's appearance is far more likely to gain attention in the media than a man's, the finding is still important even if the effects would theoretically be entirely gender-blind.

The Laboror and the Field

Ta-Nehisi Coates post on Dr. Benjamin Carson is heart-breaking because, for whatever reason, I suspecting exactly this about Dr. Carson.

For kids like me who came up in Baltimore during the '80s and '90s, Carson has special importance. Whenever the black folks at our summer camps or schools wanted to have a "Be A Credit To Your Race" moment they brought in Dr. Carson. I saw him speak so many times that I began to have that "This guy again?" feeling. As an adult, knowing how much it takes to speak in front of people, I can recognize that Carson's willingness to talk to black youth (and youth in general) came from a deeply sincere place. There were no cameras at those summer camps and school assemblies. No one had money to pay him. But he showed up. And that was what mattered.
[...]
It's perfectly respectable to think Obamacare is bad for the country. It's less respectable to claim that Obama isn't an African-American. It's perfectly respectable to believe in a flat tax. It's less respectable to tell a room full of white people that Obama, isn't "a strong black man" or that he has "never been a part of the black experience in America." It's respectable to believe that the Ryan Budget is the key to the future. It's less respectable to believe that equating same-sex marriage with child-rape puts you on Harriet Tubman status.

The corollary of that last metaphor -- the idea of liberalism as a plantation -- is especially noxious and deeply racist. It holds that black people are not really like other adult humans in America -- people capable of discerning their interest and voting accordingly -- but mental slaves too stupid to know what's good for them.

When Ben Carson uses this language he is promoting himself at the expense of the community from which he hails. More, he is promoting himself at the expense of the community in which I once saw him labor. That is tragic.

I think an interview session between Coates and Dr. Carson would be fascinating; all the more so because of Coates' experience as a child who saw him as a role model and recognized the sincerity of his labor.

Any Jew knows and respects the value of dissent, but any Jew also can recognize a member of the tribe who simply revels in the role of providing a Jewish voice for what non-Jews love to hear. Their role isn't to persuade Jews, it's to give non-Jews a Jewish facade to justify maintaining their prior beliefs about Jews and ignore any Jew who tells them differently. That role also exists in the Black community, and it was the part Dr. Carson chose to play. It's all the more tragic because as Coates' personal experience with Dr. Carson years ago documents, it wasn't always thus. Dr. Carson once (and for all I know, still does) labor in his own community -- with the cameras off, with the goal of making his people stronger. That I might disagree with some of Dr. Carson's prescriptions on what constitutes strength does not make that endeavor less laudable. But the fact that Dr. Carson has done the right thing does make it hurt more when he does wrong.

Jew is Always the Right Answer

I once played a round of pub trivia with the category "conspiracy theories". I proposed that we just answer "Jews" for every question. What are the odds we'd be wrong?

I bring that story up again with reference to this post:

There’s a post going around that rightfully brings up how unfair it is that when a Muslim is charged with a crime it is Islam, not the individual, that goes on trial. But it emphasizes that by asserting that when a “Jew kills someone” (and there a religious Jew with peyos and a kippa and the white shirt - black pants uniform is drawn shooting a fallen child with a rifle) “religion is not mentioned.”

The image itself I take issue with and how it’s another example of portraying Jews as child killers, though I have no doubt the intent was to hi-light how Israeli soldiers have killed Palestinian children without Judaism as a religion being vilified in the West.

But it’s also incorrect. When a Jew does something wrong, kills someone, or commits a crime, it is near always mentioned. Jews around the world live terrified, waiting for the day some Jew does something wrong and we’re all blamed and condemned. When I hear about something horrible happening, whether it be a killing, a political scandal, embezzlement, or just someone making a stupid comment, I close my eyes and think, please don’t let it have been a Jew, please don’t let it have been a Jew, please don’t let it have been a Jew, because I know that if it was, we’re all in trouble.

Obviously amen to that, and I would add that there is something particularly pernicious about taking a shot at Jews for mistreatment of Muslims that is not, primarily, instigated by Jews. Instead of a clear line of accountability, the grievance seems to be against Jews for having the temerity to actually (supposedly, and in fact inaccurately) be respected as equals.

But of course as the post notes, we're not actually exempted from these blanket judgments when one of the tribe does wrong. Indeed if anything I'd say what makes Jews special is that we're subjected to that treatment even when none of ours had anything to do with the underlying event. Muslims as a whole get blamed for al-Qaeda. Louis Farrakhan spouts bile, and all Blacks are repulsive "reverse racists." And Jews face that too, of course: our bad parts (Bernie Madoff, Jewish slumlords) get attributed to the whole too. But that's really just the tip of the iceberg -- we're also blamed for atrocities committed by other people. A white guy from New Jersey slaughters kids at a Connecticut school? Jews. Muslim extremists attack the twin towers? Jews. Hugo Chavez dies of cancer? Oh you better believe it's Jews (link warning).

To my knowledge, this does not happen to other groups. And the fact that the (grotesque) blanket condemnations of Muslims is held to be in contradistinction to the alleged privileged position of Jews, when in fact this particular facet of oppression may target Jews more severely than any other group, is deeply worrisome. It signifies at best a fundamental blindness to the reality of anti-Semitic discourse, and at worst a form of ingrained anti-Jewish hostility that sees this treatment as normal, even desirable.

A Danish Jew in Denmark

A Danish Jew experiments by walking through a Copenhagen neighborhood while wearing a kippah.

Krasnik set out to walk two kilometers down Nørrebrogade, through a neighborhood he used to call home, in the city in which he was born and raised, wearing a yarmulke. The discomfort began quickly. “The first Arab guys I talked to happened to be in a very infamous, violent gang” that controls a large chunk of the drug trade in Nørrebro. Krasnik asked them what they thought would happen to him if he were to continue walking through the neighborhood wearing a kippah. “I mean, you’re Jewish,” one said to him. “But how can we know that you’re not Israeli?” If you’re an Israeli, Krasnik was told, “we have a right to kick your ass.”

Not being an Israeli—Krasnik specified that he was, in fact, a Danish Jew—he escaped without a beating. It was an inauspicious start, but he forged ahead and was soon confronted by another group of young immigrants. “Some young people, boys, started to shout ‘are you Jewish?’ and were giving me the finger,” he recalled. “One of the younger guys, a Somali, came over and asked me, ‘Are you Jewish?’ I said, ‘Yes of course.’ And he ran back to the group and said, ‘Go to hell, Jew.’” No one tried to hit Krasnik—it was early afternoon, and the street was bustling—but the journalist had the feeling that physical violence loomed.

“I started to feel … unpleasant,” he told me. “I thought: If I keep doing this for an hour or two, something will happen. And if I did this everyday, I would get my ass kicked around.”

On the final leg of his 2-kilometer walk, he approached a small grocery store, where five or six young men—“probably 25 years old, of Pakistani or Palestinian background”—were loitering outside. They too quickly spotted his yarmulke. “They stopped me immediately and asked, ‘Are you Jewish?’ And when I said yes, they said ‘Take that [kippah] off.’ One was shouting from behind, ‘You’re from Israel!’ I said, ‘No, I’m from Denmark and I live just down the road.’ ”

The remainder of the story is equally harrowing: principals advising Jews not to enroll in their schools, anti-Semitic incidents doubling, Jewish groups forbidden from displaying Israeli flags at a multicultural festival (which contemplated excluding Jews entirely), and protesters hurling rocks at the Israeli embassy. This all has been met with ambivalence, at best, from the Danish government.