Song of Songs

I've often joked that the Cantor is my ultimate synagogue nemesis -- were it not for Cantors showing off, the service would end in half the time and I'd be that much closer to the delicious bagels at the reception. To be fair, I'm a tough critic to please -- were it up to me, every song would be sung exactly as it was when I was growing up, with no alterations whatsoever. This may run in the family -- at my old synagogue, I distinctly recall that anytime the Cantor experimented with a new melody, my dad would start loudly singing the old one in reprimand. It never caused the tune to be changed, but perhaps it served as a deterrent.

Whenever I go to a new synagogue, I'd always grouse about how I preferred the singing at my home congregation. As I grow older, even the tunes at my home synagogue grow more unfamiliar, which I don't like. Our new Aleinu sounds like a funeral dirge, for example. But hearing that new tune (and others) made me wonder -- just how old are the songs we sing? Not the words, but the music? Are they hundreds of years old, recognizable in the Shetls of Europe or the villages of the Middle East? Or are they all reinvented anew by each generation of Hazzans? Do we have any way of knowing? I doubt songs such as these were ever committed to a score. It seems like one of those mysteries that may be unknowable. But maybe not -- historians have sussed out stranger facts.

One More Fast

It has been a busy few weeks hasn't it? Packing for my move, driving from Minneapolis to DC, Rosh Hashanah, moving into the new apartment, trip to Vegas, unpacking boxes ... it goes on. Today was supposed to be cable and internet installation, but, you know, it's Comcast, so obviously that didn't happen (I'm using the internet in the resident lounge, which was its own special saga). Tomorrow is Kol Nidre and Yom Kippur is on Saturday. I'm hoping to duck out of the break fast to watch the Mayweather/Alvarez PPV -- I bet a total of $80 on that fight ($40 on Mayweather and $40 on it to go 12 rounds).

How was Vegas? Well, on the gambling side, let's just say that I'm suddenly very glad to be starting work at a big DC law firm. But the food was magnificent. In addition to Gordon Ramsay steak, we also ate at Central (I'd been to the one in DC and knew I liked it), Noodles (the penang fried kway teow needed some soy sauce and sriracha, but was fantasstic once I mixed those in), Gordon Ramsay's BurGR (delicious, even it did take me way too long to recognize the play on the spelling -- we're going to try to make our own devil dogs), Julian Serrano's Tapas (awesome), and D.O.C.G. (excellent homemade pasta).

Still, I'm quite tired, and ready for all the chaos to end. We probably have to do some shopping on Sunday (our dresser didn't survive the move), but after that it's clear skies ... I hope.

Review: Gordon Ramsay Steak - Paris Las Vegas

In my life I have been to many nice steakhouses. The Palm, Morton's, the Prime Rib, the Capital Grill, Manny's, Chicago Chop House, Ray's the Steaks, BLT Steak, J & G Steakhouse, among many others. Back when Jill was a vegetarian, we actually used to go to steakhouses relatively regularly, since we discovered that steakhouses had the best vegetables. They'd invariably give you a massive baked potato and a forest of broccoli, making Jill a very happy camper. We even had an idea for a book where we would drive across the country visiting America's great steakhouses, where Jill would do an anthropological study from a vegetarian perspective (I'd provide comic relief as the dumb, carnivorous boyfriend). It was to be called Meat and Potatoes. Unfortunately, Jill is back on the meat train so the concept's gimmick is gone. But we still liked the idea.

Anyway, the point is that while I'm normally not much of a foodie, steakhouses are one area I do feel qualified to talk about.

We're in Las Vegas for my brother's 24th birthday, but Gordon Ramsay Steak was my dinner selection. Jill and I are huge fans of Chef Ramsay -- we religiously watch Hell's Kitchen and Masterchef, and have checked out his other shows too. Ramsay has three restaurants in Vegas: the Pub and Grill at Caesar's, Burgr at Planet Hollywood (where we're going for lunch today -- incidentally, it wasn't until the airport until I got the play on words), and Gordon Ramsay Steak at the Paris. The latter was the easy choice -- in addition to the aforementioned love of steak, the head chef is HK Season 10 winner Christina Wilson. Unfortunately, she's on vacation this week, so we didn't get the chance to meet her. But it was still neat to be in her restaurant.

GR Steak is right on the floor of the Paris casino. As we were walking up, a troupe of showgirls in tight football-inspired outfits came marching past blowing whistles and waving at the crowd. Though probably a coincidence, I choose to believe this is how they greet all incoming reservations. The restaurant is separated from the casino by a short tunnel (chunnel?) which represents the move from Paris to London. Thematically the decor is heavily based on red and black -- my two favorite colors -- so I already had warm feelings. The restaurant is two stories high -- a bottom floor which is wide open to the kitchen and very boldly designed, and a top floor which has a balcony and some more private, quieter rooms (we ate in the latter). The layout will be quite familiar to Hell's Kitchen fans.

On the way up, our hostess pointed out an art piece on the ceiling that she said "was inspired by the way Chef Ramsey moves his hands while creating his famous beef wellington". I thought the piece was pretty cool, but I couldn't begrudge my dining companions a bit of an eye roll. At first, this looked to be a running gag for the evening -- the folks at GR Steak were very anxious to highlight Chef Ramsay's personal involvement. There was Chef Ramsay's "personal" five course tasting menu, which was "personally designed" by Chef Ramsay, and if we got it we would get a photograph "personally signed" by Chef Ramsay. The times "Chef Ramsay" came within three words of "personally" rapidly started to reach a breaking point, and I couldn't decide if they were offensively trying to impress the rubes or defensively trying to assure us that Chef Ramsay lent more than his name to the establishment. I was actually mildly intrigued by the tasting menu, as it was clearly inspired by the Hell's Kitchen menu. Unfortunately, being unable to eat either a lobster risotto or scallops, it wasn't worth it. I'll have to get an autographed photo personally signed by Chef Ramsay some other way.

Now to the important part: the food. The opener was a variety of complimentary artisanal breads, which were all quite good. Appetizer-wise, I tried the ale onion soup and a caesar salad. The soup was, as my brother put it, very "beery" and thus more bitter than your typical onion soup. The caesar was delicious but simple, save for the included scotch egg. Overall, the appetizers were perfectly good, but did not distinguish themselves from any other nice steakhouse which does the same thing. I should also mention here the beer, wine, and cocktail list, which came on an iPad. We're not a big drinking family (and Jill hit her limit when we found a bar earlier that afternoon that offered BOGO cosmopolitans), so only my mom and my brother got drinks. My mom's Vodka Martini was a fine if normal example of the genre, but my brother confirms his red wine (I believe a Malbec) was superb.

We all ordered steak (except my mom, who foraged off the rest of us): one filet (I got American prime beef, they also offered American Kobe), one beef wellington (Jill), and two ribeyes (my dad and brother -- dad got his Pittsburgh-style). But before I talk about the steaks, let's talk about sides. Typically, steakhouse sides are massive, but, with the exception of a loaded baked potato the size of a landmine, these weren't. Our other three sides: sauteed spinach, sauteed mushrooms, and potato puree, were all reasonably portioned, but definitely not "family style" (which is to say, they were perfectly able to be spread out amongst the whole family, because "family style" usually seems to assume the Duggars are dining out). The table consensus was that the baked potato and sauteed mushrooms were amazing, the spinach okay, and the potato puree good but a little difficult to eat given how gloopy it was. Again, judging on appetizers and sides, thus far GR Steak is well within the wheelhouse of a nice steakhouse, but doesn't distinguish itself.

But then we get to the steak. Oh, the steak. All four of our steaks were ordered medium rare. All four came out a perfect medium rare. Seriously, these were basically the platonic ideal of medium rare. It might not be an exaggeration to say this was the best cooked steak I've ever had. The filet had a peppery glaze on top which would not have been my personal choice (I'm very no-frills when it comes to my steak), but was nonetheless delicious. I also got to try the wellington and the ribeye, and both were exceptional. The ribeye, in particular, seemed to be somehow almost as tender as the filet, which is a remarkable accomplishment. All four of us easily polished off our entire plate. Literally our only complaint was the oddly-shaped steak knives (the handles are perpendicular to the blade), which were hard to hold (especially it seemed for lefties).

At that point myself, my brother, my dad, and Jill were all prepared to happily enter a food coma. My mother, however, had not gotten her own entree and thus was interested in dessert. Since we were nominally celebrating Jason's birthday, we acquiesced, and the waiter was quite emphatic that we get the the Sticky Toffee pudding, which is apparently their signature dessert. It was great -- I'm not usually a fan of toffee, and the "brown butter ice cream" served to look like a stick of butter initially raised an eyebrow, but everything came together beautifully and topped off a delicious meal.

So to sum up: For me, my top two steakhouses have always been The Palm and Manny's in Minneapolis. The question is whether GR Steak could topple these venerable institutions from their perch. And for me, it's too close to call. On the one hand, I definitely prefer the sides, soups, and salads at Manny's and the Palm (if GR steak showed off the platonic ideal of a medium rare, the Palm offers the platonic ideal of a caesar salad). And as noted with respect to the filet I'd rather have it without the pepper glaze. On the other hand, ribeye-for-ribeye I think GR Steak smokes anywhere else I've ever been. And again, each steak was cooked so absolutely perfectly I was left in awe.

But who needs to choose? Manny's is delicious, the Palm is delicious, and Gordon Ramsay Steak - Paris is delicious. Any one of them will leave you going home happy, and all of them should get a spot on your must-try list.

Ambience/Decor -- 9
Service -- 8.5
Appetizers -- 8.5
Sides -- 9
Steak -- 10
Dessert -- 9
Overall -- 9

Appeal to Procedure

Some of you may have heard that a Montana judge imposed a thirty-day sentence in a statutory rape case where s teacher slept with a 14 year old student. Some of you may have then read that the judge was planning to revisit that sentence. And then finally some of you may have read today's headline, which states that "Montana high court blocks hearing on resentencing rapist of girl". And you might have every right to be upset -- except this headline is misleading.

The ruling here does not necessarily mean that the original sentence will stand. Rather, it is a very mundane point of procedure: the trial court can't revisit the sentence at this stage; rather, the remedy is for the appellate courts to review the sentence. As both the prosecution and the defense argued, allowing the trial court to redo its sentencing would dramatically muddy the legal waters on appeal and make it far harder for the appellate courts to provide a full and fair review of the original (or revised) sentence.

So boo to misleading headlines, but everybody else take a deep breath. You may need to save your outrage for later, but at least keep it in the pocket for now.

Two Tablets

L'shana tova, everyone. Two article on Tablet caught my eye. The first is a joint review by David Mikics of two books on anti-Semitism: David Nirenberg's "Anti-Judaism: The Western Tradition" and Daniel Jonah Goldhagen's "The Devil That Never Dies." The former I have and am now even more inclined to read, the latter I do not own and now know I need not intend to. And that's what book reviews are for, are they not? Check it out.

The second article is by Yair Rosenberg, responding to Peter Beinart's recent essay on the Jewish cocoon. I don't dislike Peter Beinart per se, but I agree with Jon Chait that he tends to take good points a step to far. In particular, he is far to enamored with the idea that he is a solo Jeremiah who is the first (and thus far only) prophet to notice the doom approaching the Jewish people. In any event, Rosenberg notes that while it is perfectly true that many Jewish organizations have historically been closed off from Palestinian narratives, that is becoming less true every year. At the same time, the burgeoning "anti-normalization" wing of Palestinian solidarity politics means that Jewish/Palestinian dialogue can't occur even if Jews want it to, because such talks are considered to be endorsements of the basic legitimacy of Jewish national aspirations. Hence we see how the BDS movement has made organizations like One Voice its public enemy number one, precisely because such organizations could provide the momentum for a grassroots settlement that would respect Jewish and Palestinian rights alike -- the anti-thesis of the maximalizt position taken by the BDS campaigners. As Rosenberg stresses, this is not to denigrate the obligation of Jewish groups to engage in dialogue; it is merely to stress -- as it is regrettably often necessary to do -- that the reason such dialogue is not proceeding is not simply because of intransigence on the Jewish side.

Ronald Coase RIP

University of Chicago Law Professor and Nobel Laureate Ronald Coase died yesterday at age 102. Coase was hired by the University of Chicago in 1964, despite not having a law degree. While such hires are not uncommon today, this was basically unheard of at the time. It was definitely a risk that paid off, however, as Coase is credited with basically inventing the Law & Economics movement (a feat all the more impressive given that he did it in what was basically a throwaway paragraph in a piece otherwise about telecommunications law).

Coase's two best known works were "The Nature of the Firm," first published in 1937 (though based on a lecture he delivered in 1932), and "The Problem of Social Cost," published in 1960. The latter is the most-cited law review article of all time. He was awarded the Nobel Prize in 1991, in substantial part because of the massive impact of these articles. The delay in recognition was not lost on him. As he remarked at the time: "It is a strange experience to be praised in my eighties for work I did in my twenties." Speaking of bons mots, Coase is also credited with coining the popular statistics maxim: "If you torture the data long enough, it will confess."

The "Coase Theorem" (he didn't name it), derived from his body of work, is perhaps Coase's most enduring contribution. In a nutshell, the theory holds that if a right to avoid a harm is tradeable and there are zero transaction costs, the market process will result in an efficient allocation of rights regardless of their initial distribution. The Coase theorem is often described as one of the most misunderstood and misapplied concepts in law. Cognizant of these risks, I resolved to not try to apply it at all -- a bold decision for a University of Chicago law student. Nonetheless, based on my classroom recollections I think Wikipedia's illustration of the concept is solid:

For example, two property owners own land on a mountainside. Property Owner #1's land is upstream from Owner #2 and there is significant, damaging runoff from Owner #1's land to Owner #2's land. Four scenarios are considered:

(1) If a cause of action exists (i.e. #2 could sue #1 for damages and win) and the property damage equals $100 while the cost of building a wall to stop the runoff equals $50, the wall will probably exist. Owner #1 will build the wall, or pay Owner #2 between $1 and $50 to tolerate the runoff.

(2) If a cause of action exists and the damage equals $50 while the cost of a wall is $100, the wall will not exist. Owner #2 may sue, win the case and the court will order Owner #1 to pay #2 $50. This is cheaper than actually building the wall. Courts rarely order persons to do or not do actions: they prefer monetary awards.

(3) If a cause of action does not exist, and the damage equals $100 while the cost of the wall equals $50, the wall will exist. Even though #2 cannot win the lawsuit, he or she will still pay #1 some amount between $51 and $99 to build the wall.

(4) If a cause of action does not exist, and the damage equals $50 while the wall will cost $100, the wall will not exist. #2 cannot win the lawsuit and the economic realities of trying to get the wall built are prohibitive.

Importantly, the legal allocation of rights does affect the distribution of who has to pay how much.

Coase continued to write well past the century mark -- his last book, How China Became Capitalist, was published only last year. He was a giant in his field, a giant in academia in general, and his contributions will be missed. As a friend of mine said: "May there be no transaction costs in heaven."

Greetings from (near) the District!

Happy Labor Day! We're in DC (well, technically Bethesda), staying at my parents house for the next few days as the moving truck catches up. But soon we'll be moving into our DC (well, technically Arlington) apartment. This, of course, is the first time I've really "lived" in the DC area (not counting some stints of summer employment) since I left for college. I'm very excited.

Go East, Young Man

My nine-year midwestern sojourn is coming to an end, as I move from Minnesota back to the DC area today. "Today" is a slight misstatement, since we're driving -- we'll go Minnesota to Chicago tonight, Chicago to Pittsburgh tomorrow, and a short hop from Pittsburgh to Washington Sunday morning.

Anyway, I'll be mostly out of contact during this time, but when I emerge, I'll be an east coaster once more.

"I am happy about this participation in words of Torah"

I read about this speech when it occurred, but I never was able to find an English translation until now. The speaker is Ruth Calderon, MK from the Yesh Atid party and a secular Talmudic scholar. For her inaugural speech before the Knesset, she decided to deliver a lesson on Talmud. That Calderon, a secular woman, would deliver such a speech was bold enough (and it even included a brief interplay with the head of the ultra-Orthodox Shas faction). But the speech itself, it turns out, was also a thing of beauty. I highly encourage you to click through and read it for yourself.

UPDATE: Now includes real link!

Defeat from the Jaws of Victory

The township of Southampton, New York, recently denied a request by the local Jewish community to put up an Eruv. For those of you who don't know, an Eruv is an enclosure, generally made through wire or string, which permits Orthodox Jews to do certain activities on Shabbat that would otherwise be forbidden to them (the fiction is that within the Eruv one has one cohesive "space", so carrying objects is characterized as carrying them within the Eruv, rather than between, say, two houses). I generally support accommodations such as these -- they cost little, and signal respect and accommodation toward minority communities. At the same time, American law is generally does not require such accommodations -- it is generally a legislative prerogative as to whether to grant or withhold the accommodation, and don't need to give much of a reason why. While the federal government and some states (I don't know if New York is one) have heightened protections for religious minorities, the baseline is basically that so long as the motive itself isn't unconstitutional (such as hostility towards a particular faith) and isn't wholly arbitrary or capricious, a decision to deny even a relatively minor accommodation such as this would stand.

So basically, Southampton is playing the game on easy. Just give a reason that isn't utterly ludicrous and doesn't openly flout the Constitution. You can do it right?

The zoning board had ruled that the eruv — PVC poles on 15 of Southampton Township’s telephone poles — would “alter the essential character of the neighborhood.”

In addition, the board took theological issue with the concept of the eruv itself, calling it a “loophole” that is “motivated by the personal desire … to be freed from the proscriptions of Jewish law,” the New York Post reported.

The "change the character of the neighborhood" argument ... I dunno. It might fly, given the deference that "arbitrary and capricious" implies. But the second argument about an eruv being a theological "loophole" is a huge mistake by the city that may doom their defense strategy.

It's not that their theology is wrong per se -- I've often joked that Orthodox Jews devote half their creative energies to coming up with ever-more restrictive religious proscriptions, and the other half to inventing increasingly creative ways to circumvent them. The problem, rather, is that they were doing theology at all. And that is a huge First Amendment no-no. Perhaps the clearest and most obvious Establishment Clause violation is the state taking it upon themselves to decide what tenets are valid aspects of a religious faith and which ones are "loopholes."

Without that statement, I'd guess Southampton would have had a fighting chance in court. With it -- good luck.

People I Don't Listen To

I don't have strong feelings regarding what we should be doing regarding Syria. People who I trust are similarly ambivalent, which makes me feel more secure in my own uncertainty. But there are several classes of person who I definitely don't trust:

* People who are similarly unsure regarding what we should be doing in Syria, but are quite certain that Obama should be impeached over whatever we do (or don't do).

* People who support bombing Syria because their entire foreign policy could be summed up in a Michael Bay movie.

* People who aren't sure what's going on in Syria, but are absolutely sure that the Jews are behind it.

Fortunately, this significantly narrows down the class of persons whose opinions I need to consider.

History's Top Shot

Poor Chris Cerino. In addition to having a name that's its own elementary school nickname ("Chris Cerino ... the Chris-inator ... Chris-man...."), he was runner-up on Top Shot again. It was a little hard to watch, given that you could see he really wanted it a lot more than the younger, more laid-back Phil. But so it goes. Congratulations to Phil and all the competitors on a great season. Anyway, now that Top Shot may well have fired its own "last shot," I endorse this Slate post whole-heartedly, especially the part where it serves as an introduction a non-gun-owning liberal like me to healthy gun culture. It really is a great show and a ton of fun to watch. My full recommendation.

The Qualified Candidate

Eugene Volokh points to an interesting LA Times piece about a Black student struggling at UC-Berkeley, saying it is a good illustration of Rick Sander's "mismatch" hypothesis (Volokh also links to Heather MacDonald's discussion of the piece, but I don't view MacDonald as a serious writer so I'll confine my discussion to Volokh). Volokh notes, correctly, that the plural of anecdote is not data, and that this story is merely an illustration of an alleged phenomena whose veracity is dependent on the legitimacy of Sander's arguments. And as a story, it is an interesting one -- but Volokh's read of it seems rather motivated to me, if I do say so.

The two main characters in the LA Times story are Kashawn Campbell and his best friend at Berkeley, Spencer Simpson. Campbell's struggles at Berkeley -- despite herculean efforts, he can't pass his Freshman writing course, and narrowly avoids flunking out entirely -- frame the piece and are said to exemplify the "mismatch" problem created by racial affirmative action programs. The mismatch hypothesis, stated broadly, is that allegedly non-meritocratic admissions programs end up hurting their supposed beneficiaries by placing them at institutions where they're destined to fail. In Campbell's case, for example, Volokh argues that he's clearly a bright, talented kid who would do great at Cal State but instead is almost failing out of Berkeley (I've discussed the mismatch hypothesis more generally here and here).

On closer examination, though, the analogy falters quite a bit. To begin, as the LA Times notes, Berkeley cannot actually use race-based affirmative action due to California's Proposition 209, which bans the practice. Instead, Berkeley has a program that seeks to admit students from "every California high school." This does have the effect of increasing racial diversity, due to substantial continued segregation in high schools. But it is not in itself a racial affirmative action program, and no student is advantaged on basis of race. Rather, it advantages students from impoverished, traditionally underperforming schools -- but this sort of "affirmative action", favoring students who are from bad neighborhoods and overcame rough backgrounds -- is often touted as the preferred and legitimate alternative to racial affirmative action (I don't know if Volokh approves of such alternatives to race-based affirmative action, and it's notable that Sander's mismatch arguments would seemingly apply just as strongly to such a program or other more explicitly "class-based" affirmative action initiatives, but I've never heard it used against such programs. Volokh does make reference to "white students who graduated from high school without the academic preparation needed to succeed at Berkeley" implying that they wouldn't benefit from this sort of program -- to the extent their lack of preparation was because they excelled at an underperforming school, as did Campbell, it's unclear why they wouldn't also be a valid candidate).

Moreover, even putting race aside, Campbell appears to be a conventionally attractive admissions candidate. Straight-A student, second in his high school class, impoverished background, overcame considerable adversity, (probably, given what his high school teachers said about him) superlative letters of recommendation. Volokh assumes that his SAT scores weren't that good -- only because they weren't mentioned -- but even stipulating that, unless we're going "SAT score or bust" (which nobody actually advocates) he still looks pretty good. That he's struggling is obviously unfortunate, but it seems less a product of affirmative action and more a problem of the normal indicators not telling the whole story. Indeed, from what we know it seems that Campbell's admissions profile is little different from that of Simpson, who is also Black and also grew up in an impoverished neighborhood, but is reportedly breezing through Berkeley. What distinguishes the two (other than Volokh's hypothesis about SAT scores) is that Simpson's family, despite being from a rough neighborhood, had considerably more cultural capital than did Campbell's -- something that's important, but doesn't show up on the average college application.

There are also hints in the story that more is going on here than Campbell being "unqualified." It is very evident that he's suffering from cultural shock. He feels pressure to emulate a particular style of writing he doesn't have a good grasp on, which exacerbates his general struggles with long essays. He has a very thin support structure. He's using his scholarship money to support his mother. And he reports that he doesn't feel welcome as a Black student on campus:

"Sometimes we feel like we're not wanted on campus," Kashawn said, surrounded at a dinner table by several of his dorm mates, all of them nodding in agreement. "It's usually subtle things, glances or not being invited to study groups. Little, constant aggressions."

I highlight the part I highlight because of they way Volokh responds to this claim:

I wish all the best for Campbell, who, as I said, sounds studious and excited about learning. But would you be more likely to invite to your study group (1) someone who is in danger of failing out because he’s academically unprepared for the classes he’s taking (and who might be signaling this lack of preparation based on his comments, in-class or outside), or (2) someone who you think is roughly at your level of skills or higher? I don’t think it’s exactly “aggression,” “little” or otherwise, for people to choose option 1.

This would be uncharitable even if were just Campbell making the claim. But it isn't -- it is a sentiment apparently widely shared amongst Black students at Berkeley, which makes it difficult to attribute to not wanting to study with a particular struggling student.

As for the remaining culture shock problems, they are undoubtedly issues that retard the progress of students from nontraditional backgrounds. But they're not an issue of qualifications, and unless the solution here is "elite universities should only admit students from elite prep schools and suburban public high schools", it's a problem that top universities are going to have to address.

Finally, let's turn to Volokh's suggestion that Campbell would be a better "fit" at Cal State because that school "is more likely to spend more time remedying the gaps in Campbell’s education." But if Campbell isn't the average UC-Berkeley student, he isn't the prototypical Cal State student either. Cal State-Los Angeles admits over two-thirds of its applicants, who have an average GPA of 3.14 and an average SAT (math plus critical reading) of 880. Campbell had a GPA of 4.06 in high school and graduated second in his class. With all due respect to CSLA, the remedial education programs at that school are designed to turn bad students into passable ones. Campbell is not a bad student -- by all accounts he is bright, intellectually curious, and exceptionally hard-working. The "gaps" in his education are not the same as those typically remedied by CSLA. And CSLA certainly can't provide the job opportunities, alumni networking, or intellectual stimulation that Berkeley can. The "mismatch" problem, it seems to me, is that there aren't schools "matched" to someone fitting Campbell's profile -- someone who I bet could in terms of natural talent keep up with his Berkeley peers were it not for the deficits he incurred from his background and from being such a clear cultural outlier at his university. The solution to shunt all people like Campbell into the Cal State system is not a solution at all.

I've often remarked that we don't think in mismatch terms in any context except affirmative action. Nobody ever warns the wealthy suburban kid straining to get into his "reach" school that he may be setting himself up for failure. In general, we believe that more rigorous schools are better and that its a benefit rather than a curse to be academically challenged. Campbell, of course, could no doubt transfer to Cal State if he thought it would be a better fit for him. Clearly, though, he sees value in his experience at Berkeley. And what's more, I've seen people at Carleton who were similarly situated to Campbell -- bright, talented individuals from low-performing schools who came in for a huge shock when they got to Northfield. These people had something in common -- they tended to get hammered their freshman year. And then often they had something else in common: the same talent, and fortitude, and will and skill that got them to Carleton caused them to claw back. They might not have graduated summa, but they learned and grew and became strong, successful students. Campbell, who managed to scratch out an A- when he took a course he felt comfortable in, strikes me as the sort of person who can follow a similar trajectory.

What we have in Keshawn Campbell, it seems to me, is an exceptionally bright, talented, hard-working individual who due to his background has obstacles in his path that other otherwise similarly situated students don't have. To the extent that Berkeley is supposed to identify outstanding young people and serve as a signal and pipeline to their entry into leadership roles in our society, he's exactly the right sort of candidate for admission. That it requires more intensive work on Berkeley's part to assist him doesn't strike me as a failing of the system on Berkeley's part (though perhaps of the educational system that got him there), but rather a necessary corollary to their meritocratic ambition of identify future leaders from all walks of life, proverbial "diamonds in the rough" included.

Book It for Later

As a Carleton graduate, I of course harbor a soft spot for fellow alum Rep. Rush Holt (D-NJ). That said, I never got the recent spate of liberal antipathy towards Cory Booker, whose alleged sins seem to be little different from other young ambitious politicians.

"Nor Do They Have Any White Children"

Wait, what?:

"A Portuguese Water Dog can range in cost wildly. On average, one will pay between $1,400 and $2,000. President Barack Obama has this breed of animal," according to an answer on Ask.com.

With the addition of Sunny, the Obamas now have two black Portuguese water dogs.

The Obamas do not have any white dogs.

Not a parody. Just the Daily Caller.

... Die by the Group

Quote of the evening:

In the eyes of the law the Jews do not exist as a group. They may be murdered as a group, but they may not complain about it as a group. They can be defamed as a sinister gathering of the Elders of Zion, or as ritual murderers, but there is no effective remedy against their defamation as a group.

Law and Social Action: Selected Essays of Alexander H. Pekelis 188 (Milton R. Konvitz ed., 1950).

The law, I should add, is not the only entity whose eyes have a problem.

The Believer

Newsweek has a superb profile of Israeli politician Tzipi Livni, head of the Hatnuah Party and the point person for Israeli-Palestinian peace negotiations. It's a must-read for any looking for hope in the latest round of peace talks.

For the past several years, if someone asked me who I'd vote for in the Israeli elections (keeping in mind that I'm not an Israeli, and thus have only a partial view), my answer boils down to two choices. The first is Meretz. And the second is whatever party boasts Tzipi Livni. She may just be Israeli's best hope for surviving and thriving as a Jewish, democratic, Zionist state.

Hebron as the Israel/Palestine Conflict

Marc Tracy visits Hebron and the neighboring settlement of Kiryat Arba. These are interesting places, because in a sense they represent a microcosm of the Israeli/Palestinian conflict, but with many tropes reversed.

Marc seized on a particular picture which encapsulates perhaps the center of this analogy:

The history here is more or less accurate. Hebron has had a Jewish community dating back to antiquity, but they were driven out following a 1929 pogrom. Many of the settlers there now assert the legitimacy of their claim by reference to those Jews who were forced to flee. In other words, basically a "right of return" assertion. This in spite of the fact that Hebron will assuredly be part of an eventual Palestinian state, its holy status to Judaism notwithstanding (it lies deep in the heart of the West Bank). It is also the case that the Hebron and Kiryat Arba settlers are among the most extreme in the entire West Bank, with parks and gardens dedicated to racists and terrorists.

What do we get from this? That a just resolution of the conflict means that not everybody gets to live on the precise parcel of land that they wish, even areas to which they have a valid historical claim, and that sometimes a true claim of historical dispossession can be paired with rabid, intolerable extremism today.

Poor Door

Well this is gross (via):

A luxury high-rise apartment in Manhattan’s Upper West Side is set to have a so-called “poor door” — a separate entrance for low-income residents receiving subsidized housing.
[...]
With this disparity between the million-dollar condos for purchase versus the units for rent at a phenomenally low price for Manhattan, the developer decided to design the building with separate entrances for those who own condos and those who rent at a price below market value. As one might expect, this “rich door,” “poor door” situation doesn’t sit well with some.

“This ‘separate but equal’ arrangement is abominable and has no place in the 21st century, let alone on the Upper West Side,” Assemblymember Linda Rosenthal, a Democrat, told the West Side Rag. “A mandatory affordable housing plan is not license to segregate lower-income tenants from those who are well-off. The developer must follow the spirit as well the letter of the law when building affordable housing, and this plan is clearly not what was intended by the community.”

There is a fair amount of evidence that one of the best ways of fighting entrenched poverty is economic integration (read the phenomenal Waiting for Gautreaux for some stark demonstrations). Lower-income persons who live in higher-income areas have much better life chances than persons surrounded by poverty. Part of this is simply access to better services and living conditions. But it also helps mitigate the effects of hypersegregation. A person who grows up in a middle-class (or higher) neighborhood, regardless of her own socio-economic status, is more likely to have successful role models, more likely to have friends from diverse backgrounds, more likely to have personal experience with a wider swath of life possibilities.

The "poor door" -- and the concurrent segregation of the low-income tenants -- flies in the face of these ambitions. As Rosenthal puts it, it manages to obey the letter of class integration while eviscerating the spirit.

The Problem with a Kitten is THAT

This post is not inherently interesting to me, seeing as it's fundamentally a debate over the best way to communicate that gay sex is contrary to God's plan. But it did give an interesting quotation from famed right-wing bioethicist Leon Kass:

Worst of all from this point of view are those more uncivilized forms of eating, like licking an ice cream cone—a catlike activity that has been made acceptable in informal America but that still offends those who know eating in public is offensive….

[Eating] on the street—even when undertaken, say, because one is between appointments and has no other time to eat—displays in fact precisely such lack of self-control: It beckons enslavement to the belly. Hunger must be sated now; it cannot wait. Though the walking street eater still moves in the direction of his vision, he shows himself as a being led by his appetites. Lacking utensils for cutting and lifting to mouth, he will often be seen using his teeth for tearing off chewable portions, just like any animal. Eating on the run does not even allow the human way of enjoying one’s food, for it is more like simple fueling; it is hard to savor or even to know what one is eating when the main point is to hurriedly fill the belly, now running on empty. This doglike feeding, if one must engage in it, ought to be kept from public view, where, even if WE feel no shame, others are compelled to witness our shameful behavior.

I admit it never occurred to me to think that licking an ice cream cone, or noshing on a snack while walking around town, was a harbinger of social decay. This sort of massively overdetermined analysis is replete in Kass' school of thought, and I really just don't understand it at all.

(One might also wonder about the consistency on display here. After all, couldn't one as easily say that eating things with your teeth is the natural way of doing it, the way nature intends, and all this "utensil" nonsense is just amoral human artifice? Possibly, but I prefer to think that neither God nor the moral system really concerns itself with such mundane trivialities as what sharp object we use to dissect the food we eat.)

...And We're Back

Did you miss me?

It's been slightly more than one year after this blog went dark, and now, finally, my clerkship is over. Don't get me wrong, I had a wonderful time -- so many great stories, none of which you'll ever hear because confidentiality, duh. But I missed blogging, a lot, and I missed being part of the blogging community, a lot. I even started a tumblr, which may not have been precisely compatible with the rationale for taking a blogging hiatus in the first place (I refrained from discussing domestic political issues, so I think I'm in the clear).

The other thing you may notice is that, from behind the darkness of the password wall, I actually did a little bit of blogging over the course of the year. Not much, mind you -- about a hundred posts over the year. But if you're curious what things so galled me that I felt the need to literally scream into the void about them, check out the archives.

So that's that then -- the Debate Link's long-anticipated (by me, at least) relaunch is now official.

It's good to be back.

Criticizing Israel without it Seeming Anti-Semitic is Hard (and That's a Good Thing)

Some people think it is very, very hard to criticize Israel without being told it sounds anti-Semitic.

At one level, this is a ridiculous assertion. It is quite easy to criticize Israel without even giving the whiff of anti-Semitism. Allow me to demonstrate:

The traffic in Tel Aviv is terrible, and the buses come way too infrequently to make up for it.

Easy!

Of course, that type of criticism isn't exactly what the speakers have in mind. And I can play this game for awhile, with criticisms less mundane than traffic ails: "Israel should adopt civil marriage." "Israel should never have withdrawn from Gaza." "Putting settlements in the West Bank was a major strategic mistake." The point of the exercise is to demonstrate that no, not all criticism of Israel is out of bounds as "anti-Semitic." Particular criticisms phrased in particular ways in particular contexts are, or may be, and the way you figure it out is by looking into said particular criticism and assessing it individually.

And this is an important distinction, because it places the focus where it should be: on the particular criticism being leveled, not on a supposed massed Jewish communal psychopathy that claims anti-Semitism as a reflex. The latter position is of course anti-Semitic in of itself, as it takes as its premise that Jews regularly lie in pursuit of their political ambitions. And as David Hirsh notes, it's not altogether clear why it should matter even if it were true in an individual case -- the subjective motivations of the person claiming anti-Semitism only tangentially, if at all, impact whether the statement in question actually is anti-Semitic or not. Whether the claimant honestly believes what she is saying or is lying through her teeth, there's no reason not to go through the analysis. In reality, some criticisms of Israel are anti-Semitic and some are not, and the only way to distinguish between the two is to closely examine the individual criticism in question.

All that being said, I will cop to the following: There are critical positions about Israel, which touch on issues that are exceptionally important to matters of justice, equality, freedom, and other important social questions which require extensive debate and discussion, which are hard to present without them seeming anti-Semitic.

And that's a good thing.

Why?

Well let's approach it from the opposite angle. Why would it be a bad thing? The answer, it seems to be, is that it is generally unfair to be accused of anti-Semitism (or forwarding an anti-Semitic position, or being insufficiently attentive of anti-Semitism). There is a perceived entitlement of people to not have to deal with it unless the case is exceptionally egregious. Consider Joseph Levine's controversial article On Questioning the Jewish State. Levine claimed their was an inherent conflict between the concept of a "Jewish" and a "democratic" state. And he concluded by saying that at the very least, the question had to be discussed "openly on its merits, without the charge of anti-Semitism hovering in the background." This, to me, is a bizarre assertion, for the simple reason that whether or not a position is or is not anti-Semitic seems rather clearly to represent part of its "merits." To say "forget anti-Semitism -- is this a valid moral position or not" is nonsense. One would hope that the validity of a moral position depends quite significantly on whether it is or isn't anti-Semitic!

I honestly do not understand the foundation for this entitlement. Why is this something that people are owed? Why is there any right to be free from the vicinity of an anti-Semitism claim? At best, one could say that it stems from an obligation of presumed good faith -- we should not assume our interlocutors' positions stem from evil motives. There are three problems with this argument, though: (1) It's internally contradictory, since the objection to being called anti-Semitic inevitably takes the form of claiming the accuser made the charge in bad faith, (2) It isn't altogether clear why Jews should be forced to assume good faith of non-Jews with respect to matters of Jewish equality, given that historically such trust has not exactly been earned, and (3) It relies on a particular (and particularly narrow) conception of anti-Semitism wherein it only exists if it is the product of conscious and overt antipathy towards Jews. This definition of anti-Semitism is debatable at best, and in the context of the instant discussion seems to serve more as a way of shielding a wider-ranging discussion of the subject by transforming it from a systematic discussion of what Jews are owed as equal global citizens into an investigation of the personal character of the individual.

Consequently, I reject the notion that there is any special entitlement to not have anti-Semitism raised as an issue when Israel is discussed. Indeed, as the title of the post indicates, I consider it a qualitatively good thing. The existence of anti-Semitism limits and circumscribes what arguments and claims one can validly make against Jews. Claims against Jews are constrained by the rights Jews possess -- hopefully that isn't controversial -- and the history of oppression against Jews and the ensuing power dynamics Jews experience vis-a-vis gentiles have a significant impact on what those rights are vis-a-vis the non-Jewish majority. This doesn't mean that Jews are immune from criticism, of course; rather it means that the past and present nature of anti-Semitism is a significant input into the calculus that governs what sorts of criticism are valid or not.

Anti-Semitism is an extremely important facet of any discussion regarding Israel. Any discussion of Israel is a discussion, in part, about what Jews are at liberty to do, how the political institutions that govern them can justly be structured, the sort of self-determination they are entitled to, and the epistemic status of Jewish versus non-Jewish perceptions of Jewish behavior and moral claims, among other things. In all of these discussions, matters of anti-Semitism should affect our analysis considerably. These are not the only things that matter, of course, but they do matter, and if you talk about Israel without having these considerations foregrounded in your mind, you're talking about Israel poorly.

The norm whereby anti-Semitism is always at the forefront of discussion is good because it forces people to treat it with the requisite degree of seriousness in forming their policy positions (lest they be accused of anti-Semitism). When having discussions about Israel, we want to be sure that people (and particularly critics) are thinking really hard about anti-Semitism when formulating their opinions, and the prospect that one's position will be labeled "anti-Semitic" is an excellent motivator to do just that. A reasonable position on Israel will invariably require one to seriously grapple with the ways in which historical and present anti-Semitism implicate the positions that you hold and how your arguments account for the actual facts of Jewish existence and what they need to exercise their individual and collective rights as a people.

Consider as a parallel discussions about affirmative action, which also suffer from the oft-heard claim that "one should be able to oppose affirmative action without being 'racist.'" Now, I'm a strong supporter of affirmative action. Nonetheless, I recognize that there are important debates to be had about the propriety and legitimacy of affirmative action programs, and critical positions can be held by persons who have perfectly egalitarian views towards racial minorities. It is important to have these debates, and we should have these debates. But it would something else entirely to say that we could even have an intelligible, let alone productive, discussion about affirmative action without the issue of racism entering into the picture at all. Yet as with anti-Semitism, people seem to feel they have an entitlement to talk about affirmative action without having their particular position's compatibility with racial equality called into question. The "debate" they want to have about affirmative action -- one where one is not permitted to consider the impact and continuing salience of racism or assess the validity of particular positions against the metric of racial justice -- is no debate at all; it would be incomprehensible gibberish. Keeping "racism" at the forefront of affirmative action debates ensures that an important element of the conversation which people very much would rather ignore stays at the center of the analysis. That's a very good thing.

There is no right to forward a position regarding Israel and have people ignore how it impacts and is impacted by contemporary and historical anti-Semitism. The best way to not have a position called anti-Semitic is to take anti-Semitism seriously and take a hard look at how one's beliefs and positions are responsive to anti-Semitism's existence and salience. Engaging in that deep, searching analysis will undoubtedly weed out certain types of "criticisms" which cannot be reconciled with an opposition to anti-Semitism -- and that's a good thing. And by the same token, in my experience people who do that can take a variety of positions on Israel without being called anti-Semitic -- and that's a good thing too.

Waving While Black

I'm linking to something via Jamelle Bouie, who titled the story "waving while Black." But first I want to tell a story of my own.

I grew up in the DC suburbs, in a nice house with a huge front and back yard. It had lots of trees, hills, and other assorted terrain features that made it ideal for capture the flag, tag, water gun fights, and things of that nature.

One night when I was about 15 or so, some friends and I decided to play hide-and-go-seek in the dark. It was fall and the leaves were down, and my hiding spot of choice was kneeling behind the leaf pile stacked right up against the street abutting our front yard.

It was a good hiding spot, and nobody saw me. Until I noticed a bright light shining against my back. I looked behind me and a cop car had pulled up right behind me, with an officer staring intently at me flashlight in hand.

I was pretty much a goody two shoes (never even got a detention), and even I knew how bad this looked. It was the dark of night. I was crouched behind a leaf pile, trying not to be seen, in front of a very nice house in the suburbs. I had a dark hoodie pulled tight over my head, which as we all learned from the Trayvon Martin saga is a sure sign I was trouble. So given the circumstances, gut instinct took over.

I shot to my feet, whirled around, and waved at the officer, smiling as brightly as I could.

And he looked at me curiously, and then kept driving.

I won’t say “and that’s the day I realized I had white privilege.” Putting the pieces together came much later. But looking back, it is one of the clearest examples of it I’ve experienced in my lifetime. And every time I read a story like this, I reflect on that moment, and remember just how lucky I am.

He said it happened as he was riding north on Weinbach approaching the four-way stop at Riverside Drive and the police officers were southbound.

Madison admitted that he was not going to stop at the intersection but said the officer startled him by making a sudden left turn in front of him.

“He did it real fast,” he said. “I thought it was one of the guys (police) I knew.”

At that point, Madison said he raised his hands to wave.

Madison said he has met many police officers through his job and his participation boxing in the annual Guns-N-Hoses charity fundraiser. But he said he did not know the officers who stopped him.

“The officer jumped out and says, ‘What are you doing throwing your hands up at us?’” Madison said. “He is talking to me as he is coming toward me. I tried to explain, but I couldn’t get a word in edgewise.”

He said the officer’s angry attitude made him feel angry and alone.

“It was like everything had disappeared, and I was there alone and I got scared,” he said.

Madison said he knew Bolin from their community involvements and began to call him on his cellphone hoping to diffuse the situation.

However, the officer told him to put the phone down. Madison said that when he hesitated, the officer grabbed his arm holding the phone, causing Madison to flinch.

Before he knew it, Madison said, the officer had his stun device out.

“It was literally maybe inches from my face,” he said. “I immediately threw my hands in the air. What he asked me to do I was more than willing to do. I said ‘Please don’t hurt me.’ The next thing I know I’m laying down the ground and they cuffed me.”

Cast into the Streets

Open Zion has an piece up about some lonely far-right protestors complaining 92nd Street Y (a venerable New York Jewish organization) is hosting anti-Israel speakers. The article, with barely contained glee, notes the protest consists of around 15 mostly older people, standing in the rain, fruitlessly attempting to engage passerbys and complaining about how mainstream Jewish groups won't return their calls.

Now, I'm generally quite pleased by this, because these folks sound like loons. While some of their complaints have merit (Alice Walker and Roger Waters have no place speaking at Jewish institutions), they go way beyond folks like that in fulminating about Peter Beinart, J Street, and the NIF. The fact that the protest leader founded a "Greater Israel" organization promoting settlement of the entire West Bank and Gaza isn't doing it any favors either. I'm happy to see these protesters relegated to the sideline fringe because that's where I think fringe players belong. And that analysis applies equally to their leftward counterparts, like the BDS movement.

But note that in this story we don't see the BDS folk being so marginalized. The classic trope -- Jewish organizations utterly beholden to the farthest of right-wing zealots, while anyone who so much as raises an eyebrow at the most vicious price tag militant is dragged away to a Mossad-sponsored interrogation -- is flipped on its head. Here, the far-right zealots are furiously impotent (good!) while anti-Israel groups which should be well beyond the pale of acceptable discourse are welcomed with open arms (not so good).

"Hypocrisy" is the lazy angle to take on this, so instead I'll just observe that stories like this should encourage us to problematize our reflexive instinct that Jewish institutions, always and in all places, are both "beholden to the Greater Israel movement" and "intolerant of any criticism of Israel." That belief is simplistic in its best moments and more often than not a complete distortion. Jewish institutions are a they and not an it, but even at the general level the fact is that most American Jewish institutions roughly reflect the consensus of most American Jews -- pro-Israel but also left-of-center, disapproving of Greater Israel expansionism but skeptical of Palestinian intransigence. That's position is a perfectly reasonable one and a perfectly valid starting point for beginning a discussion

Tyranny of Consensus

Erik Loomis posts a brilliant attack on the idea of consensus-based decision-making by Gerry Mackie:

In the late 1970s, some new members imported a belief popular on the liberal-left, that democracy requires consensus. Consensus groups could function, but were unstable and usually the first to fall. There are several problems. Those with the least to do elsewhere in life have the greatest power in the interminable consensus process. Trust, ironically, is absent, in that no delegation of decision is permitted. The thought of a meeting then becomes so horrifying that a larger and larger scope of decisions is left to informal leadership and clandestine process, an undemocratic outcome. Consensus is always biased to the status quo, but problems usually originate in the status quo; rapid external change worsens the conservative bias. Further, consensus invades the individual personality and demands conformity; dissenters may acquiesce but in doing so are implicitly judged to have compromised the moral ideal. The healthy legitimacy of openly holding different views becomes suspect. Finally, rational unanimity is impossible for a larger class of goals. Just to illustrate with a trivial example, suppose it is time to decide where the crew works in the Spring. Six people want to work in Montana because they have friends there. Two people want to work in California because they have friends there. Three people don’t care. Under majority rule, the crew goes to Montana, and those in the minority might feel they are owed a little deference in some future decision (know to political science as “logrolling”). Under consensus, the different sides are denied the legitimacy of their individual interests, because there is only one rational goal for the group, which one side or another must adopt, or the group disband. Under majority rule one is subordinate to shifting impersonal majorities, but under consensus one is permanently subordinated to every other member in the group.

This is from Mackie's masters' thesis, which was written circa 1990 and draws on his own experience in these collectives in the 70s. This is not some new-fangled idea, and its failures are quite well documented.

"Judged on the Merits", Part 355

Janet Yellen is one of the prime candidates to be chair of the Federal Reserve. She's certainly got the pedigree: Summa from Brown as an undergraduate and a Ph.D. from Yale, taught at (among other locales) Harvard and Berkeley, and currently a member of the Fed's board of governors. And among said governors, she's got the best track record in terms of predicting what the economy is actually going to do.

In short, it seems that by most objective metrics she's not just "a" candidate, she's the most qualified candidate.

Or, if you're a conservative, she's only being considered because she's a woman. "Gender politics" shouts the Wall Street Journal. The New York Sun was "put in mind of the cartoons" which mocked women's inability to do math, and asked if we are "entering the era of the gender-backed dollar." This is especially ironic because the folks smugly dismissing the woman with best predictive powers tend to be the same folks whose economic prognostication skills have been consistently awful.

In any event, this is yet another instance of the well-worn conservative trope -- judge people on the merits, not based on their identity -- being a false dichotomy. Conservatives time and again have demonstrated that it doesn't matter what your qualifications are -- if you're a woman, or a Latino, or African-American, or gay, or whatever group they think are today's "lucky duckies" because of their fortuitous oppression, you'll be viewed as suspect. Your qualifications will be a lie, your selection an example of affirmative action in motion. Nothing will change that.

And then, come election day, they'll wonder why their rhetoric of equality of opportunity and meritocracy fall on deaf ears. It's because it's all preach, no practice, and those victimized by it aren't idiots.

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.