There is No Position on Israel That Provides a "Get-Out-Of-Antisemitism-Free" Card

People in Donald Trump's orbit -- advisors, hangers-on, enthusiastic supporters, and so on -- keep on being implicated in antisemitism  Steve Bannon is the obvious case. But see also counter-terrorism advisor Sebastian Gorka, or former Arkansas Governor and one-time front runner for Ambassador to Israel Mike Huckabee (the guy who ended up getting the slot over Huckabee is no slouch either).

When these issues come up, conservative pundits seem to have a catch-all response. Can you guess what it is?

Here's ZOA (quoting Joel Pollak) on Bannon:

Mr. Bannon is 'an American patriot who defends Israel & has deep empathy for the Jewish people.' .... Would Trump’s extraordinary pro-Israel advisors such as Newt Gingrich, Rudy Giuliani, Mike Pence, Mike Huckabee, Sheldon Adelson, and Orthodox Jews Jared Kushner, David Friedman, and Jason Greenblatt ever allow an anti-Semite/Israel-hater to work with them?

Rep. Trent Franks (R-AZ) on Gorka:

I can attest that Dr. Gorka is the staunchest friend of Israel and the Jewish people.

Mike Huckabee on, well, himself:

[A] tiny bit of fact-checking [would] discover[] what most people in the Israel and American Jewish community know quite well, that Israel and the Jewish people have no stronger advocate than Mike Huckabee. ... Israel and Jewish people need to make friends, not insult the ones they have.

It's not even just conservatives. In a post that would be execrable if it wasn't so bizarre, Michael Tracey of the far-left "Young Turks" movement defends the Trump movement from antisemitism charges because, survey says:

[T[he current president continues to express more-or-less unflinching support for the Jewish state. ... [T]here’s scant reason to believe Trump has thought deeply enough about the subject that he should be considered anything less than what he publicly and repeatedly claims he is: stridently pro-Israel, and stridently pro-Jew.

Incidentally, it's notable that in none of the above examples was the claim of antisemitism directly tied to Israel. Bannon's antisemitism stems from his alleged distaste for Jews at his child's school and his association with the alt-right. Gorka has ties to Hungarian antisemitic organizations. Huckabee liked to compare Obamacare to the Holocaust and has engaged in "false flag" conspiracy mongering suggesting that Jews fake attacks against themselves to drum up anti-Trump sentiment.

Yet time and again, we see "pro-Israel" bona fides (usually of a very particular, rah-rah Likud sort) used to flatly reject any further inquiry into antisemitic behavior, conduct, or associations. It's a quintessential example of what philosopher Rachel McKinnon calls "allies behaving badly" -- using one's (often self-proclaimed) status as an "ally" to dismiss any inquiry into bad behavior directed at the allied group.

This response has become such an ubiquitous catch-all to dismiss the genuine problem of antisemitism on the right that I wish someone like the ADL would call it out explicitly. Their genuine efforts at targeting antisemitism will get nowhere if "support for Israel" is convertible into a "get-out-of-antisemitism-free" card. This is the reason why many Jewish groups' campaigns against mainstream right-wing antisemitism feel so limp and listless -- if they end as soon as the conservative delivers the rote reassurance that "I am a strong supporter of Israel", of course they won't go anywhere or change anything.

The truth is there is no position on Israel -- pro- or anti-, favorable or critical -- that immunizes one from antisemitism. It is entirely possible to find antisemitism among supporters of Israel just as it is to find it amongst Israel's opponents (who, for their part, also have a habit of pointing to other allegedly philo-semitic elements of their politics as a technique for dismissing any inquiry into whether their Israel politics are antisemitically-inflected. That we are, or should be, capable of understanding why the move is shady in that case should give us similar reason for pause in this one). To think otherwise requires subscribing to an unreasonably narrow view of how antisemitism manifests that assumes it must ever and always take the form of blind and unmediated Jew-hatred. We would be better served in recognizing that antisemitism is rarely unadorned; it is not just occasionally but frequently partial and contingent, attacking particular Jewish institutions and practices while professing great love and respect for others.

None of this is to say that support for Israel isn't important. It is a part of the story, and Jewish groups are well-entitled to insist that it be part of the story. But it is only a part of the story, and it cannot substitute for a holistic politics opposing antisemitism in all its manifestations. Again, it is incumbent on our community's antisemitism watchdogs -- the ADL and others -- to put their feet down and say unambiguously: "There is no -- NO -- position on Israel that immunizes one from antisemitism."

Waving "pro-Israel" as a talisman to ward of charges of antisemitism is wrong -- wrong in that it doesn't falsify the antisemitism claim, and wrong in that it bespeaks disrespect towards the Jews making the claim. But people think they can get away with it because, well, for too long mainstream Jewish groups have accepted the pro-Israel credit in lieu of actual payment of antisemitic debts. Hopefully, even those groups are beginning to see just how little that credit is worth; how ineffectual our complaints about antisemitism are when they can and are brushed aside so cheaply.

It needs to end. And it won't end until Jewish groups demand that it end.

Two Good Posts on Antisemitism

Sitting on my browser for awhile have been a pair of posts by Max Sparber, a Minnesota-based Jewish journalist who is (or was) a regular commenter on Metafilter. He wrote two posts, On Allyship and then On Allyship: Shutting Down Debate regarding how discourses surrounding antisemitism are routinely and systematically shut down in that community. I really worked hard to find bits to excerpt, and I just couldn't. They both need to be read in full.

And to be clear, these are not posts that are limited to folks who are part of or even familiar with Metafilter. I'm not myself a participant on Metafilter (I have read a few threads when someone has linked to my work), but Max's comments have general applicability -- they reflect patterns of discourse which are ubiquitous and tremendously damaging. The thread which prompted Sparber's post, "On Jews and their comments", may provide helpful background, but I don't really think it's necessary.

Solidarity: Not Just For Goyim (Today)

Last month, I wrote a post entitled "Solidarity is for Goyim". It was an essay -- more of a series of observations -- that as a Jew I scarcely even expect to receive "solidarity" in the face of antisemitic attacks. It was the product of recent events and longstanding personal experience.

I don't retract that post. But in the wake of the latest instance of antisemitic vandalism -- this time targeting a Jewish cemetery in St. Louis -- I did observe some of the solidaristic reactions that I hadn't before. Here's the Sikh Coalition. Here's a Muslim-led effort to raise funds for restoring the site. I've seen others.

I'm not saying my prior post was wrong. I'm not even saying a corner has been turned. And I'm not sure what made this event different from the others.

I'm simply saying I'm seeing something I hadn't seen before. And I'm grateful for it.

It Was Never About Free Speech

Milo's been dropped from Simon & Schuster, as well as CPAC, after clips came out showing him defending pedophilia.

This is long overdue, but it also is brutal to all the defenses given for inviting Milo onto these forums (and others -- looking at you Bill Maher) in the first place. Not because all the awful things Milo had said before made it predictable that he'd also have said this particular awful thing. Rather, the issue is that the decision to now say "too far" gives lie to standard apologia the right has been giving for trotting Milo out -- that of "free speech."

It was striking that virtually none of Milo's inviters would actually come out and endorse the content of his screeds. When asked why he was being brought to Berkeley or the public press or wherever, the answer was always "freedom of speech!" "Don't silence him!" "Hear his perspective!" Now let's be clear: "free speech" is quite relevant once Milo has been invited to give a talk or a speech. Specifically, it takes certain remedies off the table -- government can't ban the speech, private actors can't violently disrupt it, and so on. There are other remedies that "free speech" very much doesn't take off the table -- nonviolent protest, for instance, much less vitriolic criticism. Free speech represents important values, and I strive to defend them even when the subject is an awful little troll like Milo.

But while "free speech" can tell us something about how to respond to an invited speaker, it can't tell us anything about who to invite. That decision has to be made on the basis of a different set of values -- values that roughly translate to "this person has a perspective worth hearing."

And herein lies the problem. The decision to now disinvite Milo demonstrates that conservatives (and Simon & Schuster) are entirely able to make adjudications regarding the sorts of statements and advocacies which they think are worthwhile and "in-bounds" in public discourse. For instance, we now know that pedophilia is out. But we also now know that all the other things Milo had said -- the horrific racism, the blatant misogyny, the unapologetic harassment, the vicious transphobia, the nasty assault on immigrants -- all of that was in.

Milo wasn't invited to speak because of some unadorned desire to vindicate "free speech". He was invited because the people who invited him thought those perspectives, specifically, were worthwhile. Pedophilia no, racism yes. Pedophilia no, misogyny yes. They looked at the former and said "too far", which means they also looked at the latter and said "fine."

That's an evaluative appraisal that has nothing to do with freedom of speech. It speaks to the inviters' other values. And we are entirely justified in drawing conclusions about the character and the moral worth of the people who hold such values. It does not speak well.

Thinking About the Structure of Antisemitism

A Lebanese-Canadian writer, Mila Ghorayeb, has written a wonderful post on the interaction of leftist politics and antisemitism. It is a tremendous example -- albeit (by design) a first step -- of how to take seriously antisemitism as an important feature in thinking about Israel and the Israeli/Arab and Israeli/Palestinian conflict while still maintaining a significant critical perspective on Israeli governmental policy. It is particularly timely given McGill is currently being roiled by at least two germane antisemitism controversies -- a student officer who tweeted "punch a Zionist" (and has resisted calls to resign) and a policy by the McGill student paper to no longer publish columns with a "Zionist" perspective (one wonders whether Mila's piece would qualify).

One way I would parse Mila's excellent meditation -- and this is something I've sought to develop in pieces like Criticizing Israel without it Seeming Anti-Semitic is Hard (and That's a Good Thing) and Anti-Semitism as Structural and the Iran Deal Debate -- is that we need to break out of the binary mode of thinking which treats "is this [criticism of Israel] antisemitic?" as the sole operative question. Certainly, that's sometimes a relevant question, and one that we should ponder seriously. But it is a subset of a larger point, which is that antisemitism is part of the set of social conditions which significantly and materially effect Jewish life and institutional practices. Hence, if you're talking about a Jewish institution or practice (e.g., Israel or Zionism), then one of the things you should be thinking about is antisemitism because antisemitism is part of the overall set of social circumstances which create the environment and atmosphere in which those institutions/practices exist. And so I wrote:

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 one talks about Israel without having these considerations foregrounded in your mind, you're talking about Israel poorly.

Note that this paragraph does not say that "all criticism of Israel is antisemitic." What it says is simultaneously much narrower and much broader: it says "antisemitism is substantially relevant to all discourse about Israel." Not the only thing that is relevant, but an important relevancy, such that if we excise it from the conversation or table it save in cases where it is indisputable (when is it ever?), what will result is a considerably stilted and malformed conversation. This was the point of the analogy I drew to discourse about affirmative action:

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.

Note here, too, that the main question isn't and shouldn't be "is this criticism of affirmative action racist or not?" It is entirely coherent -- and I'd argue necessary -- to say both that a particular criticism might not be racist in of itself but that to be legitimate it nonetheless must grapple seriously with the fact of racism. A criticism of affirmative action that refuses to even address racism would just be nonsense (yet how often do we see attempts to do just that?). Likewise, it is conceptually possible for one to issue a criticism -- even a cutting criticism -- of affirmative action that is attentive to and responsive towards the reality of racism, and which accepts that racism is an essential part of the social milieu which sets the parameters of the debate (and, to a large extent, explains why we have it).

So too with Israel. Some criticisms of Israel are antisemitic and some aren't, and we figure out which is which by careful analysis to separate the wheat from the chaff. But even a non-antisemitic criticism of Israel might still be ill-formed to the extent that it fails to adequately account for and grapple with antisemitism as a relevant feature of the social world which should condition our views on Jewish institutions and practices. A good critic pays attention to such germane elements of conversation, and it is reasonable to demand that critics be good at their jobs (and, by extension, when critics are unreasonably resistant to incorporating this particular dimension into their analysis we might fairly wonder whether that refusal is fairly characterized as a form of antisemitism).

You've Got a Friend in Me

Michael Flynn, of late the National Security Advisor to President Trump, has resigned. Many are cheering, but Flynn still has some backers outraged that Trump cut Flynn loose so quickly -- including the chair of the Foreign Affairs Committee.

To be sure, it's the chair of the Russian Foreign Affairs Committee. But it's still nice to see that Flynn still has some friends in high places.

David Friedman Will Be Confirmed Because Republicans Don't Care About Israel

Republicans understand that Israel resides in a dangerous part of the world. Its security -- its very survival -- depends on the daily navigation of increasingly choppy diplomatic waters in one of the world's most volatile powderkegs. Republicans get that. They take these things seriously.

And that's why a Republican Senate will likely confirm a Republican President's nomination of David Friedman as Ambassador to Israel.

It was sadly predictable that the GOP wouldn't care about Friedman comparing liberal Jews unfavorably with Nazi collaborators. It was a little less predictable, but still sad, that many mainstream Jewish organizations have decided to let that slide as well. But one might have though that, with all the talk about the dangers Israel faces and the difficulties it must confront in the diplomatic arena, that the putatively pro-Israel folks might insist that America's diplomatic representative to the Jewish state not be a rank amateur. The only thing thinner than David Friedman's skin is his qualification to serve as an Ambassador. A guy who casually calls other Jews "worse than Kapos" and the ADL "morons" doesn't exactly scream "diplomatic temperament."

It's one thing to blow smoke when you're an irrelevant bankruptcy attorney in New York. As Ambassador these things have consequences. If Israel sits in as precarious a position as we're often told it is, and one cares about preserving its stability and security in the face of regional and international pressure, the idea of having someone like David Friedman sit in our embassy in Tel Aviv Jerusalem Tel Aviv should be flatly terrifying.

If one cares. If one doesn't, and Israel is just a nice talking point to rile up parts of your base, then by all means confirm away.

In any event, right now Senate Foreign Relations Committee chair Bob Corker (R-TN) is refraining from endorsing Friedman until after his committee's hearings, and ranking member Bob Menendez (D-NJ) is refraining from opposing Friedman until the same. I wrote to my Senators urging them to vote against Friedman, but I doubt we'll see any significant Republican defections.

Preach It

Regarding the DNC race, I'll just let Erik Loomis speak for me:

I am through with the discussion over the next DNC Chair. While the Democratic Party should be getting ready to win a hopefully wave election in the House in 2018, different factions of the party are relitigating the primary. SO you have this endless back and forth between Keith Ellison and Tom Perez, both excellent candidates and great progressives, which is really just an excuse for angry partisans to hate on each other. This is beyond worthless. We deserve to not control government if we can’t have enough party discipline to just elect someone to what is an overrated position that did not cost Bernie the primary but which should have someone competent in it for once.

Here’s the thing: If you think Hillary Clinton is a horrible person who is the enemy of the Democratic Party, you are the problem. If you think Bernie Sanders is a horrible person who is the enemy of the Democratic Party, you are also the problem. Quit being part of the problem and get to work doing something useful.

It's not that you can't have valid reasons for preferring Ellison over Perez or vice versa. I've voted in many Democratic primaries where my decision was based on relatively minor and idiosyncratic differences between two strong progressive candidates, either one of whom would make for a fine Representative/Senator/President if elected. This is more or less that scenario.

But the people who are insistent on turning this race into a Total War for the Soul of the Democratic Party are delusional and, more importantly, damaging. Again, preferences are fine. Being primed to scream betrayal if the eventual selection is only 98.5% similar to your ideal choice is not

Happy Birthday To Me!

It's my (actual me, not the blog's) birthday today! Board games and deep dish pizza is the plan for the evening, and I consider that a very good birthday plan.

I was going to write a post about Trump's latest blunder into one solid Israel position (a surprisingly strong critique of settlements) and out of another (the ridiculous decision announcement by Nikki Haley that we'd block former Palestinian PM Salam Fayyad -- possibly the Palestinian leader that is most amenable to Israel and America's final vision for peace in the region -- from an appointment as head of the UN mission to Libya). But one of my presents to me is to be able to ignore such churn for at least a day, and besides Kevin Drum basically gets there anyway.

Hold My Beer

Kevin Drum reads Andrew Stuttaford on Brexit, and the horrors the UK is subjected itself to in the process of trying to negotiate it. Drum concludes:

If there were any real advantage to this, it might be worth it. But just to keep Polish immigrants out? This might be one of the dumbest things any country has ever voluntarily subjected itself to. 

And keep in mind, Drum's writing as an American. So he knows a thing or two about countries voluntarily subjecting themselves to dumb things.

9th Circuit Declines to Stay Injunction of Trump's Refugee Ban

You can read the per curiam opinion here (the panel included two Democratic appointees and one Republican appointee). It is worth stressing that this is still a very preliminary stage of the litigation. But the 9th Circuit's analysis doesn't bode well for how the ban will fare "on the merits" -- particularly in how it treats the question of a potential religiously discriminatory motivation.

And I have to say, kudos to the judges (and clerks) on the panel for putting out such a thorough and well-reasoned opinion on a very significant time crunch.

The Berkeley Kids are Alright

Last term, I taught Introduction to American Politics at the University of California, Berkeley. As you can imagine, teaching "Introduction to American Politics" at the University of California, Berkeley during the Fall of 2016 was an interesting experience. Sometimes instructors eagerly grasp at the rare "teachable moment" that falls into our laps; last fall was one long (long) "teachable moment" when it came to American politics.

This term, I'm teaching "Just Political Participation." And of course, what do we get in our first month of term but a scheduled speech by Milo and ensuing protests -- a fantastic illustration of many of the course themes in a class about "Just Political Participation". The academic spirits have blessed or cursed me to be a current events commentator. So this week, I decided to devote class to discussion of Milo's (canceled) talk, and the respective choices of the Berkeley administration, the Berkeley College Republicans, and the protesters (both violent and non-violent).

Berkeley students, of course, have a bit of a reputation on the national stage -- basically, they are presumed to embody whatever the day's shibboleth for radical leftism is. In the 1960s, it was radical free speech, yesterday, it was safe spaces and trigger warnings, today, it unwillingness to engage with alternative views and an outright endorsement of beating up anyone to the right of Bernie Sanders.

This was not my experience. Whenever current events have been discussed, my students have consistently shown a curiosity about the world around them and a willingness to engage with arguments and positions different from their own, and this week was no different. The students leaned left (as college-attending millennials tend to do), but the predominant position in both my classes was opposition to violent protests coupled with utter contempt for Milo and the politics he represented. Some persons took outlier positions on either of these matters, and their views were given respectful consideration. Nobody's views could be predetermined by their personal "identity" background -- there were students of color who had planned to attend Milo's talk because they were curious to hear what he had to say and there were white students emphatically attacking it as hate speech. On that score, alone, what we saw was a testament to the importance and value of diversity in the Berkeley community.

The conversation was wide-ranging and intellectual. People talked about the tactical benefits and drawbacks of protesting (this post is germane), as well as the dignitary issues when persons targeted by Milo's particularly odious brand of bullying are forced to tailor their responses so that Milo doesn't reap benefits (this post is germane). There were differing views on whether the violent aspects of the protests were exaggerated by the media or genuinely reflective of what was going on; persons with these differences engaged respectfully with one another. Persons concerned about violence conducted by the protesters thoughtfully engaged with those who wondered why other forms of violence (such as that by police suppressing protest, or by Milo's own supporters backing him up, or by his listeners harassing targeted minorities in his wake) got less attention. Nuanced positions that often don't get articulated (such as the view that the UC-Berkeley administration had no business shutting down Milo's talk, but that Berkeley students were nonetheless obligated to get out onto the street and make their own views known) received airing and were debated. We got to talk about comparative rules on hate speech, the benefits and virtues of the American rule, the value and the limits of the "marketplace of ideas" metaphor, and many other things besides. And I got perhaps the most amount of nodding when I urged them to resist simplistic solutions that "make a hard question easy." They wanted complexity, nuance, consideration, and thought.

All and all, I came away very impressed. Perhaps I shouldn't have been so surprised, though. The University of California, Berkeley, is one of the world's great public universities. I tell all of my students, at the start of each term, that the fact that they are at Berkeley means they are among the very brightest and most thoughtful persons of their generation, and that I consequently expect all of them to contribute the rare and valuable perspective they possess to class discussions. This week, my students rose to the occasion in fantastic fashion. Kudos to them. The Berkeley kids are, it turns out, all right.

Not Anti-Semitic, Just Anti-Rothschild

The latest UK Labour antisemitism controversy comes from Essex Councilor John Clarke, who has some interesting thoughts about the Jews Rothschilds.

The councillor, who is also chair of governors of local Essex primary school White Notley, and the local Parish Council, promoted the tweet, which is headlined “Israel owns the senate, Congress and the Executive” of America… but who owns Israel?”.

The text of the post reads: “The Rothschild Family.. has been creating almost all of the world's money at interest for a couple of hundred years”.

It adds that they “have used usury (money lending) alongside modern Israel as a imperial instrument to take over the world and all of it’s [sic] resources, including you and I… and if you have a problem with that, you’re and anti-Semite.”

Antisemitic? Clarke "assures" you that it isn't!

Challenged by users about the post, Clarke, who is the current chair of Whitham branch of Labour, and was the constituency’s prospective parliamentary candidate, repeatedly denied being anti-Semitic.

After sending the tweet, he was challenged, and replied by saying: “It would appear I am being called Antisemitic… I can assure you I am NOT”.

Probed further he said: “I agree original account probably Antisemitic. I am anti-Rothschild not Antisemitic. End of.”

He added: “Antisemite smear in constant overuse as those who use it expand their power base”, and that he objects to “Rothschild & co. against their greed, monopolistic exploitations & unchecked power.”

You know, it's strange but until today I had no real idea who the Rothschilds were historically or what they were up to today. I actually took the time to wikipedia them, and it looks like nowadays they're pretty ordinary set of quiet rich folks (if you're Clarke, sub "quiet" with "shadowy"), who just happen (for reasons entirely unconnected to antisemitism, naturally) to lie at the center of a host of outlandish conspiracy theories positing their world domination.

In any event, I learned something new. And speaking of new, here's a new permutation on the classic Livingstone Formulation:

[Clarke] concluded by saying he would block those who “accuse me of Antisemitism merely to close down legitimate criticism of Israel &/or Rothschild family. End of.

In any event, I'm sure Labour will treat this issue with all the seriousness of purpose and progressivism that it has characterized its handling of all the other antisemitism complaints that have wracked its membership.

Heads Trump Wins Tails Immigrants Lose

Donald Trump is not happy that courts have enjoined parts of his refugee ban.

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

— Donald J. Trump (@realDonaldTrump) February 5, 2017

To be sure, I don't think it is wrong for a President to express dissatisfaction with a judicial ruling. I don't even think it is wrong for a President to claim that a judicial decision will lead to bad outcomes (I do think it is wrong to impugn the basic legitimacy of the legal system, as Trump has repeatedly done from assailing the "Mexican" judge in the Trump University case to referring to the "so-called" judge who enjoined the refugee ban).

But it is worth unpacking exactly the argument Trump is setting up here. Now that his executive order has been enjoined and refugees and visa holders can enter the United States as they could before, President Trump wants us to hold the judge who issued the injunction (and the entire "court system") responsible if something bad happens. Based on past behavior, we can be pretty confident he would do this regardless of whether his EO would have kept out the perpetrator or not. The fact of a terrorist attack, in a world where Trump's EO isn't in effect, would demand that we impose such an EO.

Imagine, however, that the EO had remained in force unmolested, and we still experienced a terrorist attack. Would the lesson Trump would have us draw is "clearly, my EO wasn't effective in blocking terrorists and should be rescinded"? Of course not. In that circumstance, Trump would say "see -- this attack demonstrates why the ban on refugees and visits from these Muslim countries is essential!" (Undoubtedly, the exact phrasing would be far less comprehensible).

In other words: If the EO is not in effect and we experience a terrorist attack, that would prove we need the EO. If the EO is in effect and we experience a terrorist attack, that would ... still prove we need the EO.

(And, we might add, if the EO is in effect and we don't experience a terrorist attack, that would prove the EO is working and needs to be maintained).

The point is, there's virtually no set of facts wherein, under Trump's logic, we shouldn't be banning Muslims. The game is rigged, it's up to us not to play it.

Mandatory Swastika Recommendations

A student in Massachusetts constructed a swastika in the hall. Two teachers talked about it (one by broaching the topic of antisemitism in class, the other in private conversations with teachers and another student); a third rescinded her letter of recommendation for the student (contacting colleges to explain why).

All three teachers have now been disciplined by the school. The first two teachers received disciplinary letters, the third has been suspended from teaching.

This is outrageous. I can -- barely -- wrap my head around some discipline for the two "talkers" on student privacy grounds if (a) they mentioned the swastika-creating student by name and (b) it was not generally known that he was the perpetrator. I still would be very, very dubious, but I can see a superficially not-entirely-frivolous rationale there.

But the suspension of the teacher who rescinded her letter of recommendation is far more troubling. While we don't often talk about "academic freedom" in the context of secondary school, it does exist and this is a great example of it. A teacher's decision to recommend a student for college or a job is an exercise of their personal judgment as academics and directly puts their reputation on the line. There can be no obligation to "go to bat" for a student if the teacher has lost confidence in the qualities that triggered her recommendation in the first place. It is beyond unreasonable to mandate that a teacher continue to back a student who is either pro-Nazi himself or so negligent with respect to the sentiments of others that he just doesn't care about the hurt and offense he causes.

By and large, the story here seems to be that the school district wanted to sweep this incident under the rug and several teachers declined to assist it in doing so. And when the perpetrating student's mother called and complained, the district swung into action to ensure that his not-right to have a favorable recommendation wasn't jeopardized just because he threw up some Nazi symbolism. It's grotesque. The Boston Globe describes the case as "difficult terrain", but it wasn't all that "difficult" until neo-Nazism managed to squirm back into the mainstream.

The teachers here are unionized, and I hope they grieve the hell out of this one.

UPDATE: Yep, the union is interceding on behalf of all three teachers.

Berkeley's Partially Pregnant Protests

There's an old saying that a woman cannot be "partially pregnant". Either she is, or she isn't. I'm not sure it's impossible to have a "partially peaceful protest", but at the very least it is obvious that a few well-positioned agitators can, if they choose, subvert the peaceful desires of the majority and make a nonviolent protest violent.

When Milo's speech was announced at Berkeley, I took the boring position of agreeing with Chancellor Dirks' statement more-or-less down the line: It is true that, upon invitation by a legitimate college organization Milo had the right to speak and Berkeley had no authority to block him. It is also true that the decision by the Berkeley College Republicans to invite him speaks volumes about their character as an organization, and they can rightfully be condemned for their choice.

As many of you know, Milo's speech was eventually canceled as the protest turned violent -- apparently at the instigation of a small group of "black bloc" anarchists who were filmed attacking police, property, and bystanders. It is unclear at this point how many of this cadre are themselves Berkeley students -- they may be, but it is also the case that the East Bay has a significant "homegrown"  anarchist set which is well aware that it can get a lot more attention for its antics if it performs them on our campus. "Unclear" means "unclear": it may be that most of the violent actors were Berkeley students, it may be that virtually none of them were. But there is little controversy that most of the people protesting were not violent nor were they interested in utilizing violence. It is also very clear that the violence was not only against property; while I don't think that in of itself should matter, I have seen some smarmy posts that have ignored the interpersonal elements of the "black bloc" attacks.

It shouldn't surprise you that I am deeply opposed to the violent silencing that went on here. Yet I think it is worth unpacking exactly who was silenced here. Milo was, certainly, and that was wrong -- even though he's a repulsive little troll who never should have been invited in the first place. But it's also the case that the majority of protesters had a message they wish to express that was also violently erased. Violent protests and non-violent protests express different messages; here, the few who imposed the former subverted the speech of the latter. To act as if the former and the latter were simply one indistinct entity -- the "protest" -- is to give a violent minority an authority and authenticity they do not deserve. And to speak as if the only "victim" of the violence last night was Milo or those who wanted to hear him speak is to facilitate the very deliberate erasure that the "black bloc" -- and the right-wing media, for that matter -- wishes to impose upon the majority.

The fact of the matter is that there were three speeches scheduled at Berkeley last night. One was by a racist, misogynist, hateful right-wing troll. One was by a group of bandana-clad rabble-rousers who wanted to (in the words of their banner) "become ungovernable" through violent suppression. And one was by a community resolved to peacefully tell the first speaker that his views were not welcome at Berkeley.

The last one was the one with majority support. But the middle one was the only one we ended up hearing.

Conservatives, Ranked By Infuriatingness

Someone on Twitter wrote the other day that journalists are missing a big story regarding just how furious the Democratic base is right now at Republicans and conservatives. We often talk about the angry protesting left as being the Jill Stein remnant or obscure hippie cranks (hence how they're often dismissed by saying "oh, if only you had voted!"); but the fact is that this anger is real and palpable amongst the run-of-the-mill, institutionally-oriented Democratic voter.

That includes me. There are a lot of types of conservatives. and I'm furious with just about all of them right now, because just about all of them are -- in their own special way -- abdicating basic duties to their country with scarcely a nod to the putative principles they endorse. That said, there are gradients. So, for your cathartic pleasure, here is how I rank the different types of conservatives -- from most to least infuriating.

(1) Racist Republicans. We can debate until we're blue in the face just what proportion of Republicans are racist, or whether any person who backs Donald Trump can claim to be "anti-racist" with a straight face. But no matter how that discussion shakes out, there are clearly conservatives right now who are unquestionable bigots (and incidentally, those conservatives who are aghast that anyone would call them a bigot for voting Donald Trump would have a lot more credibility if they acknowledged this obvious fact). Steve Bannon, Steve King, and Ann Coulter, to name a few, are more or less open White Supremacists, and as such are existential threats to the American creed of equality under the law. Donald Trump was someone everyone put in this category right up until he became the Republican standard-bearer ("Much of the conservative movement has spent the last two years slowly transitioning from "it's an outrageous slander to say that a racist cartoon character like Donald Trump represents the conservative movement" to "it's an outrageous slander to say that the American conservative movement is 'racist' or 'cartoonish' just because it adopted Donald Trump as its representative.").

Honestly, the best argument for keeping this group out of the #1 slot is that "angry" might not accurately capture my sentiments. I'm "angry" at people I harbor any expectation of good behavior from. I can't even spare anger towards these people. They're nothing but an enemy that must be crushed.

(2) The Conservative "Intelligentsia". One of the more depressing facts of motivated cognition is that it is more effective in persons who are smarter and/or factually informed. They more intellectually adroit you are, the easier it is to tie yourself into pretzels to justify the unjustifiable and to equate the non-equivalent. The conservative brain trust has and continues to expend their significant intellectual firepower on ever-more convoluted apologias for the movement they're a part of and the politics that they practiced. They know better, they're generally not in office so they face no electoral pressure or backlash -- they're just that devoted to selling out. There is a special promotion (call them slot #1.5) for the subset that spends 1% of their column blandly asserting that "this isn't to say I support Trump," then demands credit for it even though literally nothing else they do attempts to block or undermine his support in any significant way. Also, anybody who responds to the latest Trump outrage by wailing "but OBAMA!!!!!!" on social media is automatically an honorary member of this group. "Honorary" because most of those people could in no way be deemed part of any "intelligentsia" -- so we'll give them slot #2.5.

(3) MINOs. Moderates in name only. A commenter on Lawyers, Guns and Money described a moderate Republican Senator as one who "talks about voting against Republicans before voting with Republicans." Amen to that. Susan Collins has made her whole career on that sleight of hand -- supporting every GOP filibuster and obstruction and policy objective while occasionally being kind of angsty about it. Nobody this side of Paul Ryan has a reputation so far removed from her actual concrete voting record, and it's disgusting. She's voting nay on DeVos, though (even as she voted in her favor in committee). If Susan Collins thinks not approving a plagiarist as Secretary of Education makes up for years upon years of being a down-the-line GOP vote, she's got another thing coming.

(4) "I Can't Believe the Leopards Ate My Face!" "I voted for you, Mr. Trump -- how could you do the horrible thing that was exactly what you said you'd do if I voted for you?" Oh really? Turns out, taking Trump literally was taking him seriously. I'll still fight to get your healthcare back, let your family back into the country, preserve your control over your own body -- whatever hobbyhorse suddenly made you realize that "I just want to a send a message to Washington" isn't the best way of choosing the leader of the free world -- but if anyone deserves to experience the full brunt of right-wing pain it's this group.

(5) The Fallen Angels. At various points throughout the last election cycle (primary and general), various conservatives went out of their way to boldly declare that they would not allow Donald Trump to subvert the basic fabric of our democratic and constitutional structure, that they would provide oversight, that they would ask tough questions, that they would ensure that checks and balances would be a reality and not a dead letter. Some of them -- back when Trump's defeat seemed inevitable -- even indicated they might not vote for them. Virtually all of them have come crawling back into his corner, and have more or less backed him to a hilt ever since. Some check. This group would rank higher if I ever had more than a fleeting belief they'd actually follow through.

(6) The Elder Statesmen. Some of the greybeards in the Senate are very concerned with tradition. With comity. With rules. With bipartisan respect. They are gravely worried at the potential flouting of norms which kept government from being simply a partisan aff-- wait, some of those rules might interfere with the right-wing agenda? Poof -- away they go (what's the over/under on the survival of a Supreme Court filibuster if Democrats try it on Gorsuch? A week?)! Now, where were we? Oh, right: "Blocking an unquestionably qualified judicial nominee simply because one does not think the current President should fill the seat would violate a Senate tradition that has been the rule for 0 consecutive years!"

(7) The Rank-and-File. Foot soldiers, mostly. Still contemptible, but at least they were consistent. Well, except with respect to ethics in government. And federalism. And limited government. And the filibuster. And belief in objective facts about reality.

(8) The Honest Resistance. I can count this group maybe on one hand, but there are people who are genuinely appalled for genuinely conservative reasons at the direction Donald Trump is taking the country. What is essential about being a member of this group is that it takes responsibility for the direction of its own party. It's not the Democrats fault, it's not Obama's fault, it's not the fault of mean protesters or silly left-wing course syllabi. If Republicans are going off the rails, that's a Republican problem that demands that Republicans take ownership over fixing it. In the short term, that's going to mean taking some serious lumps and doing things that make it harder to win elections and get even legitimate conservative policies passed. I wish them the best of luck, but I'm highly dubious of their success.

(N/R) The ones who are now Democrats. See #8. Unless you're willing to own your party, GTFO of it.

Canadian Trade School Announces, Retracts Ban on Israeli Students

The Island School of Building Arts in British Columbia rejected the application of an Israeli student who wished study woodworking at the school.

According to emails obtained by the Jerusalem Post, the school says flatly that it was "not accepting applications from Israel" "due to the conflict and illegal settlement activity." In further correspondence, a school official expressed regret but contended that "This is a question of staying in line with our moral compass, which will always be important to us. We are still inclusive and cannot support that which is not inclusive."

After the story became known, B'nai Brith Canada interceded and the school backed off with apologies. As B'nai Brith observes, it is illegal in BC to discriminate on basis of national origin.

In conclusion, the BDS movement targets institutions, not individuals.

Maybe the Head of the World Jewish Congress Should Actually Represent Jews?

Donald Trump's Holocaust memorial statement did not mention Jews. This was no oversight; the administration insists it did it deliberately.

Most Jewish groups are incensed, and rightfully so. There is a grand total of one Jewish group that has decided to have Trump's back on this.

It isn't the craven Republic Jewish Coalition.

It isn't the risible Zionist Organization of American (though they are the only Jewish group of note backing Trump's refugee ban).

It is the World Jewish Congress, under the leadership of Trump friend and ally Ron Lauder. They released a statement attacking pretty much the entire Jewish community minus them as "play[ing] politics." Specifically, Lauder wrote that "There is enough real anti-Semitic [sic] and there are enough true threats facing the Jewish people today. Our community gains nothing if we reach a point where manufactured outrages reduce public sensitivity to the real dangers we confront."

This is not the first time that Lauder has decided to give Team Trump a "abuse-the-Holocaust-free" pass. They also immediately came out in support of David Friedman's nomination as Ambassador to Israel, in spite of Friedman's grotesquely antisemitic comparison of Jewish J Street members to kapos -- Nazi collaborators.

The WJC's motto is "All Jews are responsible for one another." The WJC no longer lives out that commitment, and that lies at Ron Lauder's feet. It won't back liberal Jews when they're subjected to vicious antisemitic smears by conservatives, and it won't defend any Jews when they're spurned by Donald Trump. So what good is the WJC?

Three-quarters of American Jews voted against Donald Trump. It is not too much to ask that our communal organizations be representative of actual Jewish viewpoints. If Lauder wants to prioritize friendship with his college buddy over being responsible for Jewish safety and being responsive to Jewish concerns, that his prerogative -- but then he has no business being at the helm of a substantial Jewish organization.

As a Jewish leader, Ronald Lauder is a disgrace. He needs to go.

Justice Accused: The Virtues of Foot-Dragging

News reports saying that judges have "stayed" Donald Trump's executive order banning immigration from several Muslim-majority countries, as well as a temporary halt to all refugees, are somewhat misleading. The stay only applies to the narrow class of individuals who are currently in the US but being detained at the airport -- basically, those persons who were in the air at the time of the order. Persons who had valid visas but remain abroad -- whether it is green card holders seeking to return home or refugees awaiting their flight to safety -- are not covered.

The question I have is whether any judge will enjoin that portion of the order -- the one currently blocking valid visa holders abroad from coming to the United States.

It's a tough sell legally. Courts have been reluctant to enforce constitutional rights outside of American soil. In general, a person in a German or Syrian airport has no rights an American court is capable of enforcing. Add that to the "plenary powers" doctrine, which suggests that the federal government has virtually untrammeled power over immigration, and the legal case looks grim. Hence we have precedents that say that the United States can exclude immigrants based solely on nationality -- even though such discrimination would be clearly unconstitutional in a "normal", on-American-soil case. And that's a good thing for Trump, given that his advisors have publicly stated that the order he promulgated was deliberately designed with anti-Muslim sentiment in mind.

Yet one could argue that the cases which explicitly allow such discrimination predate the judiciary's modern jurisprudence on matters of race and other "like" identities. Our presumption against permitting laws which are motivated by, or discriminate on basis of, racial, ethnic, religious, or national-origin concerns are much stronger than they were back when the Court was upholding the Chinese Exclusion Act.

Is this a winning argument? I'm honestly dubious, though I'd submit that it isn't frivolous. But let's say it's wrong. What if a district court judge nonetheless accepted it, and issued a stay prohibiting American officials abroad from enforcing the order as against persons who had hitherto valid visas? Eventually, she'd probably be reversed -- something that happens to district court judges on the regular. In the meantime, perhaps some more refugees would be able to get on flights in the ensuing confusion. Some more people who we could save, would be.

Robert Cover's book Justice Accused deals with abolitionist judges tasked with enforcing the Fugitive Slave Act -- what strategies did they take? How did they manage their competing commitments to their deep moral principles and the formal legal structure they were embedded in? A similar situation was faced by consular officials during the Holocaust -- the heroes were those who kept issuing visas to Jewish refugees even when they lacked authorization from their home governments. Their victory was not that they eventually "won" in the formal legal sense; they did not persuade their superiors to adopt a different view. Their victory was that in dragging their feet a little longer, in kicking up that extra bit of dust, a few more people were saved than otherwise would have been.

The challenges being launched now might not change immigration or constitutional law to protect against Donald Trump's predations. It is worth stressing that in a democratic state, the fundamental responsibility for maintaining a just state lies with the people in their democratic capacity -- if judges cannot or will not bail us out, the wrong still primarily lies with us, not them. Judges are not cure-alls for our own democratic failures. But between now and the final decision, they still have a role to play as bureaucrats capable of doing what bureaucrats do best: dragging their feet and gumming up the works. It's not the heroism we want. But it may be the heroism we need.

Chancellor Dirks on Milo Coming to Berkeley

Milo is coming to Berkeley, at the invitation of our College Republicans. The UC-Berkeley Chancellor, Nicholas Dirks, has issued a statement that in my view is just about perfect:

• It's right on the law: Berkeley is legally prohibited from canceling the speech, obstructing the speech, or otherwise discriminating against the speech in providing accommodations in any way.
• It's right on the ethics: Law notwithstanding, Berkeley shouldn't cancel or obstruct the speech. Nor should it obstruct protesters wishing to lawfully protest the speech (so long as said protest itself does not prevent the speech itself from occurring).
• And finally, it's right on the values: What Milo represents is deeply antagonistic to the values that should motivate a well-functioning academic community. It speaks exceptionally poorly of the Berkeley College Republicans that they issued the invitation. Once we get past the basic threshold free speech question, we can place our focus where it should be: on what Berkeley Republicans consider to be valuable and meritorious contributions to campus political debate. If this is their appraisal, then they are justly judged harshly for it.

So: Kudos to Chancellor Dirks for getting it right, and shame on Berkeley Republicans for getting it wrong.

Is It Possible To Confirm a Supreme Court Justice

Presidents are going to nominate Supreme Court Justices who, roughly, correspond to their political beliefs. There is no use complaining about that. And there is a solid case to be made that, where the nominee is not otherwise unqualified or (perhaps) a shrieking radical, members of the opposition should not actively block the confirmation.

That norm had been fraying for quite a few terms now. But the treatment of Merrick Garland has completely annihilated it.

The fact of the matter is that Democrats legitimately feel robbed of a Supreme Court Justice right now. There was a vacancy in a Democratic administration. The nominee was a liberal, but not one that even Republicans contended was either unqualified or some sort of radical. Garland was a Breyer, not a Kennedy, but he wasn't a Reinhardt either. There wasn't even the pretense that GOP obstruction had anything to do with Garland's own merits as a potential Justice. They just decided that they weren't going to vote for, or allow a vote on, or even consider someone a Democrat nominated. Hell, Ted Cruz went as far as to suggest Republicans could justly prevent a Democrat from ever appointing anyone to the Supreme Court ever again.

Given that, how can anyone look at Senate Democrats and tell them with a straight face that they shouldn't just line up to block whomever Trump nominates? It's not just "they did it first," it would also function as a form of restorative justice. Again, from their vantage point this is a stolen seat -- full stop. And we just learned there is no political consequence for this sort of obstruction.

Checking the National Review's History on Privilege

On January 26, 2016, David French wrote a column in The National Review seeking to explain the rise of Donald Trump and the alt-right. His culprits are the predictable sort: "[T]he progressive movement that pushes explicitly race-based organizations such as La Raza or Black Lives Matter while specifically scorning whites, Western civilization, and so-called white privilege[.]"

I won't relitigate the issue of conservative fobbing off of personal responsibility, you know my thoughts on that. Rather, I want you to keep in mind his sneering dismissal of "so-called white privilege" as we fast forward almost exactly one year, to today, when French published another piece called "The Racial Poison of White Privilege". It contains one supremely fascinating line:

Discussion of “white privilege” has gone from interesting and thoughtful to stupid and malicious.

This isn't just any line. It's the one The National Review chose to highlight in promoting the post. It is also, I strongly suspect, the first time that French or The National Review has ever characterized discussion of white privilege as "interesting and thoughtful" in any context. When, exactly, did David French think "white privilege" was a useful thing to discuss? Apparently not last year, when it was a ridiculous "so-called". And I haven't found any other indicators that there was some happy period where David French thought the concept of "white privilege" was yielding "interesting and thoughtful" insights.

"White privilege" was a stupid and ridiculous idea, until it became mainstream enough for conservatives to endorse some mythologized older version of it as a cudgel against its contemporary application. Oh, for the good old days when we had thoughtful discussions on white privilege! Of course, in said good old days French and his buddies mocked and derided the idea in precisely the same language they do today.

This is perhaps the quintessential National Review move. It famously did the same thing with respect to civil rights: opposing it until it grew old enough that the memory of "good" civil rights protesters could be used as a prop against the "bad" race agitators of today. Then all the sudden we got sober lectures about how civil rights used to be a thoughtful and moral project, but now has been hijacked by malicious and unsophisticated rabble-rousers. There's no actual change in position -- the reason they dismiss today's civil rights movement is virtually identical to why they dismissed yesterday's. But that doesn't stop them from appealing to some idealized time when the civil rights cause was worth supporting (by other people).

From civil rights to the concept of white privilege, these ideas somehow manage to be only good in retrospect. At the time, they hate them in exactly the same terms and for exactly the same reasons they hate them now.

Basically, today's National Review column is taking what they opposed yesterday and endorsing it against the reforms of tomorrow. Rinse, wash, repeat indefinitely.

On the Ethics and Effects of Punching Nazis

I used to live next to a Nazi.

By "lived next to a Nazi", I don't mean that I lived near someone who had outlandishly right-wing views. Nor do I mean that I lived near someone who identifies as part of the alt-right (though I'm fine generally characterizing such persons as, at the very least, heirs to Nazism).

What I mean is, a few months after moving to Minneapolis, I discovered that a former SS officer lived in a house a few doors down from mine.

Over inauguration weekend, alt-right leader Richard Spencer was punched on camera. Now, the internet is now debating whether it's okay to punch Nazis. I gather I'm in a minority of my peer group in not endorsing punching Richard Spencer. Some of those reasons are very pragmatic -- this post by Ken White gives a good rundown. But other reasons relate to my own reaction upon learning of my Nazi neighbor.

When I found out who was living next to me, what stood out most of all was a strange feeling of vertigo. I felt like I should do something about it. But what? Part of me was just curious to meet him, hear his story. Part of me wanted to meet him, but simply to throw in his face that I was alive. Part of me wanted, yes, to smack him. Part of me thought that went a bit far and would settle for egging his house.

Part of me said "he's in his 90s, what's the point of haranguing him?" Another part replied "he's a Nazi, he's not entitled to 'live out his days in peace'!"

Ultimately, I didn't do anything. I didn't walk by his house, I didn't knock on his door. I didn't talk to him, or stare at him, or punch him, or acknowledge him in any way.

Why not?

Some people might say that, by punching a Nazi, I'm "resorting to their level." But that's not necessarily true. As many of the pro-Nazi-punching set have observed, there are times when it is absolutely fine (and consistent with being a good liberal) to punch (or otherwise commit violence against) Nazis. When Nazis are assembling war machines, and marching across continents, it is entirely right and just to assemble armed force to counter them. Americans didn't become Nazis by entering into World War II. We had to punch Nazis then, and it was entirely consistent with good old-fashioned American values to do it.

The concentration camps didn't afford Jews many opportunities to punch Nazis. But it did force Jews to react and respond to Nazis. Often, we had to grovel, beg, barter, or obey. And even when we resisted, we were still resisting Nazis -- our actions were responsive to what they were doing. We hid because they made us hide, we ran because they made us run, we fought back because they left us no other choice. Everything we did, we did because of the circumstances Nazis put us into. Do you think the average Jew in 1935 wanted to spend the next decade furiously scampering for her life?

But one of the perks of winning World War II is that I don't have to let Nazis dictate how I behave. I can do what I want! And if I don't like punching people -- and I don't -- why should I let a Nazi make me do it?

I've often quoted Carol Gilligan's remark that power means "you can opt not to listen. And you do so with impunity." Generally, I quote it as an indictment of the powerful -- they can choose to ignore marginalized persons without consequence. But there is another, liberating dimension to the same observation: disempowered groups are frequently forced to listen. Part of empowerment, for many, is precisely to be able "not to listen" with impunity. The most total victory I could ever possess over Nazis is to be able to ignore them entirely.

Ultimately, I ignored my neighbor because I had no interest in either making nice conversation with Nazis or staring them down, in punching them or in egging their houses. I left him in peace not because it was "the right thing to do", but because it was what I wanted to do. And the days where a Nazi could make me do something I didn't want to do were over.

If this strikes you as a contingent observation, you're right. The world today is not the same as the world even five years ago, and the degree to which we can simply ignore Nazis has dissipated significantly. It may be we are entering a different space, one in which we have to punch Nazis. We should acknowledge that this is a loss, not because there's a deep tragedy in Nazi-punching, but because it is a sad day whenever Nazis are in a position to make us "have to" do anything.

But for the time being, I don't think I have to punch any Nazis. And that's lucky for me, because I actually do like the norms that say we don't respond even to detestable speech with violence, that we defeat noxious ideologies with better arguments and better politics rather than with brute force. If I'm forced to abandon those norms -- and I agree there are times where they do not fit -- that would itself show the gravity of the circumstances we've found ourselves in.

I do have to pay attention to Nazis, and that's regretful. And perhaps things will deteriorate further, and I will have to actually physically fight Nazis. The day that happens is the day that Nazis are sufficiently powerful such that I will have to take actions I really would rather not. But I'm not going to give them that victory for free. I am lucky to still live in a world where Nazis are very limited in what they can make me do. And so I will continue, as best as I am able, to do what I want to do, without regard to what some Hitler Youth wannabe is spouting off on.

Solidarity is for Goyim

Apparently there was another instance of Nazi flyers appearing on Berkeley printers and fax machines. I hadn't heard about it; the Berkeley administration didn't see fit to tell us. This isn't the first time this has happened. I asked Jill, and she said it's actually a rather regular occurrence at this point. It's virtually just background noise.

I thought about this in tandem with those bomb threats that raked across Jewish Community Centers this month -- dozens of them, coordinated, nationwide. It was, unsurprisingly, all over the Jewish media. Did it also resonate among our putative allies? I remember Carly Pildis' pleading tweet:

I am looking for ANY social justice/human rights/anti-racism/anti-oppression group to stand in support with our community today.

— (((Carly Pildis))) (@CarlyPildis) January 18, 2017

Did she find any? I don't know. There was a powerful statement from the Ahmadiyya Muslim Community USA. But it does seem exceptional. Maybe there were more. I do know that it scarcely even occurred to me to look for such solidarity. I've become conditioned not to expect it. It's not that other groups never have our backs, but it's a rare enough occurrence that it doesn't factor into my default strategies for protecting Jews.

I keep going. Researching this post, I Google "solidarity with Jews." The first hit is a link titled "Jews lead march for solidarity with Muslims." A noble undertaking to be sure, but that's not solidarity with Jews. Solidarity, apparently, is something Jews give. It is not something we receive.

I continued to think. I remember the email I wrote following the election to the UC-Berkeley Vice Chancellor of Equity and Inclusion, when her message to the community offering support to (a lengthy list of) threatened campus populations failed to include Jews. I remember how, just a few days after that dust-up, my union sent its own email standing in solidarity with an even larger group -- still managing to omit Jews.

Meanwhile, I came across an event hosted by the Berkeley Fellowship of Unitarian Universalists' Social Justice group featuring notorious antisemite Alison Weir. Weir regularly collaborates with neo-Nazis and White supremacists. She questioned the Garland nomination because there were too many Jews on the Supreme Court. She contends that the medieval "blood libel" -- responsible for countless antisemitic massacres across history -- is accurate. She has referred to Judaism as a "ruthless and supremacist faith." I know Unitarian Universalists -- including clergy who do solidarity work. In accordance with said solidarity, they have supported sit-ins in front of Jewish communal organizations who cut ties with the Movement for Black Lives after the latter accused Israel of genocide. Will they address the log in their eye?

Maybe. Maybe not. It's a busy time for folks combating hate, after all. So many groups need solidarity.

Of course, there's a pattern at work here. Berkeley doesn't publicize the fact that its printers are regularly appropriated to launch antisemitic Jeremiads. It not being publicized means that persons who might be receptive to a claim of solidarity aren't on notice that Jews are in need of it. Not thinking that Jews are in need of it, they don't view the absence of distinctively Jewish voices or campaign as a loss or gap. Indeed, being blissfully unaware of the continued fact of antisemitic oppression, they may think of Jews as in the category of those who should solely be givers of solidarity and support. The politics of Jewish invisibility continues unmolested.

This narrative may seem too innocent, though I would not be averse to citing some James Baldwin: "It is the innocence which constitutes the crime." Yet it is not entirely even criminal innocence. There are affirmative beliefs about Jews that contribute to the problem. Solidarity with Jews means breaking down the sense that Jews are already spoken for, are anti-discrimination winners, are if anything too greedy in what we demand from our fellows. It requires overcoming the deep Gentile Fragility (if I can appropriate a term) that has a hair-trigger around claims of antisemitism. It requires active work and active unlearning of established patterns. It requires acknowledging that antisemitism is not an external infection but emerges out of our own movements and our own practices. Opposing antisemitism will sometimes mean reassessing things precious to us. It will sometimes require costly grace.

Some might say that, until we are included as equals in communities of solidarity, we should not contribute our energies to the fight. Why should we fight for others who will do nothing for us? A tempting proposition, but not one that appeals to me. I engage in such a fight for self, because it's right, not because of what I expect in return. Nor does it mean I claim that Jews have it worse than anyone else, that we are uniquely threatened. Every group faces its particular set of challenges, the glass blocking the way is as always sometimes visible and sometimes obscure.

But let's be clear: Swastikas are appearing on campuses, on fraternities, in Jewish neighborhoods. Bomb threats are being called in by the dozens on Jewish communal centers. Jews are being compared to Nazis by persons on the right and left -- persons who will in the next breath loudly proclaim their allyship to the Jewish people. Social actors shun Jewish spaces, activists blacklist Jewish voices. In our own way and in our own context, Jews are among those groups under threat. We are not people that can be justly excised from communities of solidarity. We have the right to demand inclusion.

But we aren't included yet. Right now, solidarity is for goyim. A provocative indictment for solidarity activists to grapple with, but that is my charge.

It's Impossible To Be Antisemitic, Part 2246

Hey, remember that time an Australian theater refused to allow a (non-Israel-related) Jewish group to put on performances commemorating the Holocaust because the theater thought it would be incompatible with their opposition to Israel? Now, an Australian mayor declined to attend a ceremonial synagogue service because of "the gross and illegal occupation of the West Bank which creates intense international division and bitterness and, unresolved, will cause endless terrorism around the globe, including here."

Think he's antisemitic? Wrong! Always wrong!

“Many people hold very strong views about, in this case the occupation of the West Bank. Many people who are indeed Jewish do so, and I am myself half-Jewish. To infer from a view about occupation that someone is anti-Jewish…it’s just ridiculous,” [Mosman Mayor Peter] Abelson said.

One almost might think that attendance at a non-Israel related Jewish event in Australia could be meaningfully distinguished from one's views about the occupation of the West Bank. Of course, one might have also thought that firebombing a synagogue could be meaningfully distinguished from one's views about Israeli military campaigns in Gaza. Alas.

They're Getting Bolder

Two weeks ago a slew of bomb threats hit Jewish Community Centers across the country. Today, there was another wave of threats, at least 32 JCCs targeted nationwide. And they're getting bolder: whereas the first set of calls were recordings, this time around the threats were delivered live.

I have numerous friends -- Jewish and non-Jewish -- whose kids have been evacuated from their preschools due to these vile acts. They're wondering how to explain to a four-year old why they suddenly had to depart their school. The kids at that age, thankfully, are generally unaware of what's going on. But it's not just little kids. A Jewish Day School in Minnesota (near where I used to attend synagogue) was affected; eighth graders were reportedly carrying barefooted preschoolers across the snow to reach safety in a nearby empty building.

This is part of the reality we live in now. This is part of the reality which we voted in now.

Stop Caricaturing Intersectionality!

My new post for The Forward's "Sisterhood" blog (and my first time writing for Forward!) focuses on "intersectionality" and how virtually none of its critics understand what it means. It's not about the mythical Oppression Olympics where we race to find the proverbial disabled poor Black lesbian trans woman. It's about understanding the unique experiences that emerge from the confluence of different identities -- that to be (say) a "Jewish woman" is not simply to add the categories of "Jew" and "woman" together. This has much to say about the status of Jews in the modern world -- including the antisemitism we continue to regularly face, which very often intersects with and leverages the other identities we inhabit to devastating effect.

Indeed, if anything the Jewish "problem" with intersectionality shouldn't be that there's too much of it but too little -- all too often, Jewish experience is not included under its ambit (something symptomatic of a larger exclusion within the "identity politics" field). There are exceptions -- I note Marla Brettschneider's recently published Jewish Feminism and Intersectionality, and the column I wrote with Analucia Lopezrevoredo on intersesctionality and Mizrahi Jews -- but there remains much work to be done.

Still unsure if you should click the link? Check out these endorsements in the comments!

• "I daresay the writer could benefit from a chemical lobotomy." -- Gnarlodious
• " Intersectional Feminism.... kind of like Nazism but without the open mind." -- Joshua Seidel (Josh is that weird guy who identifies as "Jewish alt-right", so in fairness he would be the expert on open-minded Nazism)
• "Intersectionality is another loony leftist lie." -- Rob

Tough to argue with that!

Can Jared Kushner Be Barred From a White House Position?

Writing in The Forward, Akiva Shapiro suggests that the anti-Nepotism law which purports to bar Jared Kushner from a White House position is an unconstitutional impingement on the executive's appointment power. Is he right? I actually think the argument has significant legs,* but I do have some questions.

Shapiro contends that "[b]y design, the President must have the freedom to use whatever measures he sees fit in making any and all nominations and appointments." He cites Hamilton in Federalist 76 as saying that the President has the sole discretion in determining who should be nominated for an office, and contends that the Constitution's explicit limit on appointing a sitting Senator or Representative to an executive office also implicitly denies that there are any other limits on who the Executive can nominate.

This is well and good as far as it goes, and I find it persuasive in the case of Senate-confirmable appointments (where the appropriate check on the President's appointment power is the Senate's authority to vote yay or nay on the nomination). But Kushner's position does not demand Senate confirmation. Indeed, what makes this a difficult legal question is that, unlike appointing someone to a cabinet position, a role like Kushner's is not explicitly envisioned in the Constitution (thus making it difficult to glean what the constitutional rule is).

To clarify, let's go to the constitutional text: Article II, Section 2.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Kushner's prospective role as a political advisor is not (for reasons not worth getting into) an "Officer of the United States," and so does not need Senate confirmation. If he is an inferior officer, then Congress can decide who gets to appoint him -- the President, the courts, or the heads of departments. Here, of course, it is the President who gets to appoint his chief advisors. But in this context can Congress impose restrictions on who can be appointed?

Possibly. In United States v. Perkins, the Court considered whether Congress could impose restrictions on the removal of an inferior officer whose appointment went through the head of a department. Distinguishing the case of a Senate-confirmable appointee, the Court wrote:

We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.

The head of a Department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments but in all that is incident thereto.

116 U.S. 483, 485 (1886) (emphasis added).

On the one hand, Perkins is very different from the present case: It is a removal, not an appointments case, and it is departmental rather than an executive appointment. But the italicized language suggests that where an actor has "no constitutional prerogative of appointment" -- that is, where it is up to Congress to decide who gets to make an appointment -- then Congress has the authority to set the conditions upon which the appointment is made. If Kushner is an inferior officer, then, and subject to congressional rules regarding who gets to make the appointment, he may consequently be subject to congressional rules regarding who is allowed to receive the appointment as well.

This, in turn, assumes that Kushner is even an "inferior officer". Inferior officers, the Supreme Court has observed, are those "whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmond v. United States, 520 U.S. 651, 663 (1997). A purely political advisor doesn't seem to fit this mold either; there is no Senate-confirmable officer he serves under. And if Kushner wouldn't be a principal or an inferior officer, then there aren't any constitutional rules speaking to his appointment one way or another. This goes to the larger point that the modern executive branch qua branch, with its wide network of aides and advisors, really isn't contemplated in the Constitution at all.

So the question is, for those government officials whose appointment process is not spelled out in the Constitution, is it permissible for Congress to impose certain rules prohibiting nepotism or favoritism? In normal circumstances, I think the answer is yes, but I'm in agreement that the particular case of a close presidential advisor may warrant special attention. The existence of these sorts of advisors is thought to be intrinsic to the functioning of the Presidency as an institution, and it stands to reason that there at least the President must have absolute discretion in deciding who he will and won't receive advice from (this is similar logic to how we get the concept of "executive privilege", which is also unwritten in the Constitution). Under this view, it actually matters a great deal that Kushner won't be receiving a salary: it is one thing to guard against relatives receiving payouts from the public fisc, it's quite another to say that the President is forbidden from getting advice from someone just because he's a relative. Arguably, what matters most in the analysis here is what perks Kushner gets by virtue of his formal White House title that go above and beyond his pre-existing ability to advice the President at the pleasure of the President.

One final observation is worth making, then. Last week I observed that there is, in fact, very little law or regulation that requires good conduct out of our politician -- much less than one might expect. Much of what we take for granted as basic norms political behavior -- including, perhaps, not turning the executive branch into an arm of one's private or familial business -- are just that: norms. They exist because they are accepted to exist and because we don't tolerate departure from them. Which means that when someone tries to test those norms -- not releasing their taxes, indefinitely refusing to confirm a judge, appointing relatives to high-level governmental positions -- they don't enforce themselves. It's up to us to do it.

On this note, it is worth emphasizing just how dangerous the collapse of GOP commitment to nonpartisan constitutional, ethical, and ideological principles witnessed over the past eight years and now culminating in their utter capitulation to Trump is. Oversight doesn't happen unless the overseers decide to make it happen. Congressional checks don't happen unless Congress decides to act as a check. Democratic accountability doesn't happen unless the demos decides to hold people accountable. When these things don't happen, there is very little that formal law and rule can do to prop up what we let down. I get the sense that some people feel comfortable pushing the envelope around our political norms because they believe that nothing truly bad will happen; if things go too far someone will step in and self-correct. This just isn't true, and in many ways the election of Trump is proof of that. People let the conspiratorial conservative id rampage about unchecked because they assumed that it wouldn't really lead to anything too terrible -- surely, it wouldn't actually yield a President Trump. Well it did, because there's no deux ex machina to save us from what we've already proven we're politically willing to tolerate.

* In fact, I think it's all moot because I suspect Shapiro is correct in his prediction that no plaintiff exists with standing who could challenge Kushner's appointment.

Undocumental

I just want to warmly welcome to the blogosphere Undocumental, written by my friend Joel Sati. Joel is an undocumented immigrant from Kenya (he's open about this and it is a central theme of his writing and activism, hence why I share it), residing in America since age 9.

As it happens, Joel also went to high school only a few miles away from me in Montgomery County, Maryland. He graduated from Montgomery College (he attended after finding out -- in the midst of senior year college applications -- that he was undocumented and therefore many of the higher education options available to his classmates were closed to him) and the City College of New York. Joel is currently a PhD student in Jurisprudence and Social Policy here at UC-Berkeley, which is where we met, and I am privileged to call him a friend and colleague.

Welcome!

Booker!

Cory Booker is very likely to be a top-tier Democratic candidate for President in 2020. This comes with scrutiny and questions, as it should. And so it is perhaps unsurprising that Booker has gotten a lot of recent attention for, on the one hand, his testimony against Jeff Sessions and, on the other hand, his vote against allowing the importation of prescription drugs from Canada.

On the latter point, I've found the defenses I've read so far of Booker's vote relatively limp. That said, I think the best take has come from (of all people) Erik Loomis:

Cory Booker has a reasonably high chance of being the Democratic nominee in 2020. There are good reasons for this. He gave a great speech at the DNC that really rallied everyone who heard it against hate. Given the amount of hate that is coming, this is a good thing. His testifying against Jeff Sessions was excellent. He is charismatic and has a great chance of reviving the Obama coalition. That charisma and leadership potential is absolutely crucial for whoever the nominee is going to be. 

At the same time, the nominee is almost certainly to be someone who can speak to some sort of economic populism. Maybe that can be Cory Booker. But he has a lot to answer for. His embrace of charter schools and the inherent anti-unionism involved in them made him a heck of a lot of enemies. So have his close ties to Wall Street. And now we have him voting against allowing the importation of prescription drugs from overseas. All of these are real problems for him and should make us ask him very hard questions. I get that he is from New Jersey. He is also basically untouchable in that state. He can defy Wall Street and the Big Pharma companies based in New Jersey to run for the presidency. He needs to if he indeed is going to do that. Unfortunately, he does not seem to understand that. And thus he is going to be rightfully criticized from the left.

So it strikes me as entirely right that liberals should be putting pressure on Booker to adopt better positions on economic matters. Maybe they'll be successful, maybe they won't. Most likely, we'll see some tack to the left but less than many in the base would have liked -- which is the nature of the beast.

What I will predict is that, even if Booker does perform admirably between now and 2020, there is a cadre of "progressives" for whom it will never be enough -- his past positions make him an inherent nonstarter. They will say that Booker is only pandering, that he isn't a true believer -- not understanding that the point of political action is to get politicians to decide that your position is one worth pandering to. The difference between liberal and conservative politicians isn't that the former come preloaded with the dream progressive agenda. The difference is that liberal politicians are susceptible to liberal political pressure in a way conservatives aren't. Whatever else he is, Cory Booker is a liberal in this respect -- he can be influenced from the left.