"Navigating Intersectional Landscapes" for Jews: Half Bad, Half Good, Sadly Incoherent

The Reut Group, in partnership with the JCPA, has written a new set of guidelines for Jewish community professionals seeking to deal with the "challenge of intersectionality" to Jewish engagement on Israel.

It's a fascinating piece, in that I disagree with much of the diagnosis but agree almost entirely with the prescriptions. Normally one sees the opposite -- agreeing with the problem but disagreeing on how to solve it. Here, I think the guidelines do an exceedingly poor job in identifying the issues but -- miraculously -- ends up urging action-items that are very close to what I'd propose anyway. It creates a whiplash document which is myopic in the first half and insightful in the second half. It's a 43-page document that should be started at page 23.

Start with the positive. The guidelines decisively reject uncompromising approaches that effectively write-off huge swaths of the Israel-critical Jewish community unless they agree to become Bibi-cheerleaders. It says that communal "redlines" and definitions of Israel "delegitimization" should be drawn narrowly and with an eye toward a big tent, and suggests that this tent should include even harsh Israel critics (the "wedge" point, the guidelines suggest, should be peeling off "harsh critics" from outright radical anti-Zionists -- the former kosher, the latter not). It notes that many Jewish youth express feelings of "betrayal" when their only pre-collegiate education on Israel consists of simplistic cheerleader narratives, and thus insists we'll need to prepare them for tough conversations. It speaks out against the propensity of some Jewish writers and organizations to effectively carpet bomb the slightest whisper of "anti-Israel" activity from progressive writers and political figures, especially from racial minorities, and says that we should be more willing to unite around issues of common concern even when there are sharp disagreements over Israel. Critics of Israel should be encouraged to structure their concerns in ways that manifest continued engagement (e.g., BLM-sympathizers should aid Ethiopian Jews protesting police violence; immigration activists should work on behalf of Eritrean asylum-seekers, all in ways that try to shore up and bolster humanitarian and liberal institutions currently operating in Israel).

Overall, the document preaches a message of engagement and putting in the work, and understands that overreaction can be as damaging as the initial blow. Finally, while framed around the "challenge of intersectionality", the article doesn't present intersectionality as solely an enemy to be destroyed but rather a resource to be harnessed -- you beat bad intersectionality with better intersectionality (though I might suggest here that part of that project is starting to wean ourselves off the reflexive treatment of intersectionality as a "challenge").

All of these are things that I like. But it's weirdly difficult to see how they got to this fabulous destination given the route that they took in identifying the problems they purport to tackle. The first, diagnostic half of the document almost entirely fails to recognize the fact that Jewish anxiety around Israel stems from tensions emanating from two sides, not one. Yes, there's the problem of people on the far-left demanding Jews "check their Zionism at the door", or submit to humiliating ideological litmus tests before being acknowledged as one of the good Jews. But there's the equal problem of people in the pro-Israel community demanding Jews "check their progressivism at the door", insisting that they are traitors to the Jewish people if they insist on applying progressive values to issues surrounding Israel or even, sometimes, just for being progressives generally. Both sides of this are troublesome, and both sides contribute to the problem.

I suppose the authors might argue that the goal of this document is simply to focus on the "intersectional" aspect of the challenge, and grappling with the challenge of rigid and uncompromising pro-Israel fanaticism is best given its own treatment. One problem with this apologia is that I've never seen a document of this sort written by a body like the JCPA which takes as its "challenge" the way rigid and uncompromising pro-Israel fanaticism prompts American Jewish disengagement. You can't argue for division of labor if you never actually assign anyone to cover the other half of the work. Moreover, the very topography of the document seems to make this problem incognizable: its taxonomy of "American Jewish tribes" re: Israel -- "aligners", "moderate critics", "harsh critics", and "radicals" -- is presented as a continuum from most safe to most threatening. "Aligners" -- those who "consider Israel to be an integral part of their Jewish identity and generally support the State of Israel" -- lock down one side of the spectrum and are presented as wholly unproblematic and uncomplicated figures, as against the "critics" who, though not portrayed as "enemies", are viewed as at-risk.

Yet pretty much any of us in the "moderate" or "harsh critic" camp have a lot of experience with an unnamed and unmarked fifth tribe -- the "zealots". These are the people who radically identify not just with "Israel" but with its most extreme, irredentist settler right, and who actively seek to sabotage or demolish any Israel discourse -- in the Jewish community or outside -- that is viewed as a threat to the Greater Israel project. It is a problem, and an increasingly unforgivable problem, that we refuse to call this group out or treat it as if it isn't a meaningful player. Is it representative of the majority of "pro-Israel" Jews? No. Is it at least as prominent, toxic, and destructive as the anti-Zionist "radicals" that are the "bad guy" focus of documents like this? Yes.

For many Jews, then, the forces which end up yielding disengagement from Israel aren't (just) looming pressures from the far-left, which they may be closer to or more distant from as they traverse from "aligner" to "moderate critic" to "harsh critic". Rather, it's bidirectional -- the left-radicals tug us from one side and the zealots from the other, and (pinching towards the center of the continuum, if not necessarily the political spectrum) we see ambivalence or apathy from the "aligners" or the "harsh critics" who seem unwilling to challenge the bad behavior of their neighboring extremists.

The result is a feeling of being "pulled apart" on the issue of Israel -- "engaging" with Israel means choosing between two equally unappealing forms of zealotry. This was a major theme of the "safe and on the sidelines" study on Jewish student disengagement that came out of Stanford a few years ago: simply put, students felt like Jewish life on campus meant enlisting in a war. Go to the various social justice groups, and they were asked to join a war on Israel. Go to Hillel, and they're called to join a war for Israel. But these students didn't come to college to fight a war, they came take some classes, have some beers, make some friends, and get their psychology degree. They aren't averse to Israel being part of their Jewish lives per se, but they are averse to becoming ideological soldiers in a brutal trench war, and they felt that both "sides" of the fight refused to leave room for anything but fanaticism. So they disengage.

If you want to write about why some Jews are disengaging from Israel, approximately half the story hence has to target overly zealous and uncompromising efforts by putative "Israel supporters" to impose a "my way or the highway" approach that should be and will be flatly unacceptable to huge swaths of contemporary American Jews. The prescription section gestures at this by insisting that "red lines" and "Israel delegitimization" be drawn narrowly. But the failure to explicitly grapple with the far side of the problem comes at cost -- the document is notably vague in actually laying out what is and isn't a legitimate operating case of "delegitimization", and offers virtually no guidance as to how to respond to those forces in the Jewish community which have recklessly and harmfully expanded the in a bid to exclude giant swaths of the Jewish community (consider the mostly successful efforts to bar J Street from the "communal circle" at the institutional level). Likewise, the document commits one of my cardinal sins in that it does not even acknowledge, much less explore, the possibility that there ought to be right-ward "redlines" -- positions associated with the "pro-Israel" right that, if taken, preclude them from being considered members-in-good-standing of the Jewish communal world. It's not an accident that our redlines are only applied to JVP and not ZOA.

If you only read the diagnostic part of document, you'd come away with the impression that the only reason Jews (and non-Jews) are drifting from Israel engagement is because of unreasonable haranguing from an ideological left that thinks Israel can do no right. The idea that the right side of the political spectrum bears any responsibility for the problem -- including the erosion of Israel as a "bipartisan" issue -- is scarcely even gestured at. The simple reality that a deeply conservative government imposing deeply conservative policies and which has deeply entrenched itself as the dominant force in Israeli politics is going to eventually become deeply unpopular with progressives is not even acknowledged. At some point, asking progressives "why don't you like Israel?" is like asking them "why don't you like Mississippi?" It's not some mysterious-cum-mystical antagonism -- it's because they're both conservative places enacting conservative policies which progressives aren't going to like! There's no strategy for arresting that trend that doesn't entail, at least in part, trying to insist on more progressive policies in those locales.

The astounding lack of attention to the way right-wing forces have their share of responsibility for undermining American Jewish engagement with Israel is only underlined by perhaps its only exception. Buried in footnote 21 (in approximately 3 point font) we see this doozy: "Israel’s lack of a credible and persistent commitment to the two state-solution has become a significant stumbling block in Israel’s relations with World Jewry. Any form of annexation in the West Bank would dramatically and potentially irreversibly accelerate that trend." Yeah, no kidding! Talk about hiding elephants in mouseholes! But taking that seriously means that, if your goal is reversing the disengagement of world Jewry from Israel, you need in part to tackle "Israel's lack of a credible and persistent commitment to the two-state solution" -- and that includes taking on the members of the pro-Israel community who outright oppose a two-state solution and are seeking to affirmatively undermine it at every turn. Yet even as one-stateism has become Republican Party dogma, it gets virtually no attention in favor of an entire section on the "Corbynization" of progressive politics -- a serious problem in the UK, but utterly marginal as a feature of American politics. This sort of abject failure of perspective has long since passed the point of indefensibility.

In essence, prescriptively the document seems to tacitly acknowledge that there are a host of bad practices, most of which generate from overzealous efforts to defend a "pro-Israel" position, which end up backfiring and driving Jews and non-Jews away from even a complicated respect for Israel as a state. But it refuses to actually come out and name the problem in the diagnostic section, instead presenting the challenges as emanating almost univocally from the intersectional left. The result is a document that is functionally incoherent -- and I fear that the generally salutary actions it recommends will end up being corrupted and perverted because of an inability to honestly reckon with the full scope of the problem.

At the meta-level, one of the biggest challenges facing Jewish communal cohesion, unity, and engagement -- on Israel or anything else -- is our ongoing practice of giving destructive right-wing forces free passes. We dedicate pages upon pages of agonizing over every fringe-left march or protest or chant, but when the time comes to apply that same discerning analysis to our right-ward colleagues, we clam up. As many good ideas are contained in the prescriptive sections of this guideline, for me it stands out as embodying that trend, and it's one we just can't tolerate anymore.

This doesn't mean suddenly letting bad behavior on the left go unchallenged. But it does mean we need to start developing principles and guidelines that clearly and unambiguously dictate what sort of behavior from the Jewish right crosses the line, just as we already do with the Jewish left. And when the Jewish right does go past its red lines, we need to simply get over our sniveling fear of calling it out by name.

The Terrible Need for "Bad Cops" in Politics

There is one aspect of politics that might stress me out more than any other. It's the necessity of "bad cops".

By "bad cops", I mean hacks that make tendentious arguments that nonetheless serve to push the Overton Window in a desirable direction. I mean flamethrowers who make unreasonable demands out of their party which nonetheless provide countervailing pressure against pushes from one's political opponents. I mean primary challengers against okay-ish incumbents by novices who'd have no idea what they'd do with the car if they caught it, but who manage to put a little healthy fear in entrenched politicians.

I'll give an example: I think the New York gubernatorial race last cycle went about as well as possible. Andrew Cuomo is a talented politician, but his first two terms as governor were spent undermining progressive priorities in a way that really shouldn't be happening in as a blue a state as New York. Cynthia Nixon has no political experience and probably would not make a good governor, but by mounting a credible primary challenge from the left she put enough of a scare into Cuomo that he's been far, far better in his third term. So for me, the ideal outcome is exactly what happened: Nixon runs a credible campaign but loses. Scared Gov. Cuomo > Gov. Nixon > Complacent Gov. Cuomo.

But there isn't any real way to "support" a primary by a candidate who you don't want to win, you just want to be "credible". You can't vote for someone unless they get more than 40% of the vote. And sometimes these things backfire -- Jeremy Corbyn's initial nomination into the UK Labour leadership race, after all, was made by MPs who didn't really want him to win but thought his presence would generate a healthy "debate". Oops. The point is, these things are unstable. You never know when the hack arguments suddenly start being taken seriously as policy (or law) or when the flamethrowers will suddenly seize control of the ship.

Now to be clear, I'm not saying every controversy stemming from the wing to the center is "bad copping". For starters, the center can also "bad cop" towards the wings ("hippie-punching" is a good example).  More to the point, there are obviously perfectly good objections that can made to established practices (and, for that matter, perfectly good primary challenges against incumbents).

But certainly there are cases where we know what's going on is theater -- where the leadership really got the best deal that's feasible, but nonetheless it is beneficial in the long term for some people to yell "sell outs!" because it ends up improving the negotiating position the next time around.

And that's what drives me up the wall: it can and likely is simultaneously true that this sort of agitation is both objectively unreasonable (on occasion, conspiratorial) and that it is politically efficacious towards collective party goals. Even if you don't think that Pelosi is a sellout for not having impeached Trump within her first three months, it's probably useful for Democrats to have a loud and raucous contingent saying Pelosi is a sellout for not impeaching Trump in her first three months -- in spite, not because, of the fact that this is a clearly unreasonable demand. Again, it's healthy for Pelosi to have a little fear bit in her from her left flank. But it'd be supremely unhealthy for the dog to actually catch the car. The mainstream Republican Party certainly benefited from Tea Party extremism. Maybe they thought they were using it cynically, just as their bad cop. But it turned out, they couldn't actually control it, and the damage it's done to the country may well be irreparable.

Again, using the bad cops is deeply unstable and risky (as the Corbyn example shows as well). Whether it's a posture taken cynically or earnestly, fraying norms around factual argumentation and reasonable expectations about political behavior are not easily mended once their tactical value has been exhausted.

Who Wants This?

Reports are that Tom Steyer, a billionaire famous for pushing the impeach Trump movement (and for being part of the triumvirate of Jewish-descended financiers -- alongside George Soros and Michael Bloomberg -- that Republicans love to portray as the mysterious cabal of greedy rich-os bringing down America and all we hold dear), is going to announce a run at the Democratic nomination for President.

Why? Why?

Every time I see a new announcement of a Presidential campaign, that's all I can ask. Why? But in particular:

(1) Why does Steyer think that there is a lane for him? What niche is he filling that isn't present in the 25(!) other candidates already running?

(2) Why does Steyer think there will be any enthusiasm for him? What makes him think that there is any non-trivial number of Democratic voters thirsting for an as-yet-not-present option in this race?

That second question is what really baffles me. It'd be one thing if there was some sense in the primary electorate that all the choices are mediocre and a desire for a titanic savior figure. But from what I've seen, if anything the mood runs in the opposite direction -- most Democratic primary voters like too many candidates. They're for Biden right now, but they're also warm on Booker and Harris. Or they like Warren, but also Sanders and Castro. Or they're torn between Buttigieg, Harris, and Inslee. Even the Sanders voters -- perhaps thought to be the most personally wedded to him specifically -- seem to be warming up to Warren (and, in more bizarre cases, Gabbard and/or Gravel of all people).

And at the same time as they're "suffering" from a glut of choices, the prevailing sentiment I've seen is eye-rolling at the ridiculous number of people in the race. Even if Steyer had some unique characteristic that could otherwise make him standout, it's going to be virtually impossible for his announcement to be greeting with anything other than "oh God, another one?" At this point I almost want to give props to Mark Zuckerberg of all people, who at least had the good grace to listen when it became apparent nobody was interested in him running for President. So far, anyway.

This all seems so obvious to me that I don't understand how it isn't obvious to Steyer, or Bullock, or Moulton, or Bennet, or Hickenlooper, or Ryan, or any of the obviously-not-going-to-come-close-to-winning candidates who are or are considering running for the nomination. Who do they think wants them? Who do they think wants more candidates?

Harris, Warren the Big Winners from the First Debate Round

The polls are in, and the big winners from the first Democratic debate(s) are Elizabeth Warren and especially Kamala Harris (as I said -- don't listen to me).

Of course, it's still very early. But right now there's a four person race between Biden, Sanders, Warren, and Harris -- and a pretty steep drop-off after that.

For me, that means that the biggest loser from the first debate was not actually Joe Biden, but Pete Buttigieg. Buttigieg had been right up there in the front-runner conversation, and now he's on the outside looking in. Beto O'Rourke was in a similar circumstance, although he had already seemingly started to fade -- a lackluster debate performance only confirmed the trend. But that Buttigieg, who did not seem to perform particularly poorly (though hardly scintillating either), got separated out from the top-tier of candidates is much more of a problem.

While Sanders is still part of the Big Four, I'm not sure that this is good news for him either. He's already at near-maximum name recognition, and it's far from clear from whom he'll draw supporters as other candidates drop out. The most promising target is Warren -- but now it's more likely that Warren will last to the end, and maybe Sanders will start bleeding his support to her.

The other big mover people have mentioned coming out of the first debate was Julian Castro, but it mostly looks like he went from "complete non-entity" to part of that mid-tier group that's outside-looking-in (like Booker, O'Rourke, and now Buttigieg). Definitely an improvement for him, but not the surge we saw out of Harris.

As for Biden, I agree with Paul Campos that he's in the position of having a massive early lead that you know is going to get eaten away -- the only question is how fast. I don't think he's going to be able to hold it. But he's actually in a fundamentally different position and I'd say better position than Sanders, who affirmatively needs to grow and doesn't have a clear route to doing it. Biden just has to stem the bleeding for long enough that the clock runs out -- though I have to say, that isn't the most inspiring way to limp into a general election.

Should the University of Alaska Go On "Strike"

The University of Alaska system is facing a massive crisis as Republican Governor Mike Dunleavy just vetoed $130 million dollars in state funding (this was part of a much broader ax Dunleavy took to the state budget as he seeks to divert money away from public services and towards the cash payout Alaskans receive from the state each year). Along with a $5 million cut the university had already absorbed, this amounts to a cut of over 40% of its state funding.

You can read the letter the university President sent out here; it paints a pretty grim picture. It's well beyond a hiring freeze or furloughs -- the president is indicating the university might have to declare a state of financial exigency, discontinuing entire programs and laying off tenured faculty members. It's the type of body blow a university might never recover from.

Given the increased hostility the GOP has directed towards the entire idea of higher education, one suspects that might be the point. But I'm wondering whether it might be worthwhile to call the bluff. Instead of furloughs or firings or program terminations, the hot take play for the university leadership might be to vote to suspend operations outright. Announce the university is not a viable academic entity at the level of funding the Governor has deigned to allocate, and shut down the university until a more reasonable budget is restored.

In essence, it's a strike -- but a strike implemented and approved by the university leadership (so arguably more of a lock-out, but really the entire idea is pretty sui generis, as far as I know).

This is a spitball idea -- I'm not wedded to it, and I can imagine any number of details I don't know which might suggest it's a bad idea. Certainly, it'd be a deeply painful move that would ask for immense sacrifice from university students, staff, and faculty. But then, so would capitulating. It's a high-stakes gamble, but it might be worth the risk. If it wants to remain a viable institution of higher education, the University is more likely to survive a temporary cessation of operation than it is wholesale destruction of entire departments, programs, academic and career support services, and the tenure system. The latter would represent the obliteration of the university in all but name. But if Alaska politicians want to destroy the University of Alaska, they should be forced to face that consequence outright.

SCOTUS Strikes Down Economic Protectionism in Tennessee

This week, in Tennessee Wine and Spirits Retailers v. Thomas, the Supreme Court struck down a Tennessee ordinance which prohibited new residents from obtaining a liquor store license until they had resided in the state for two years (in a particularly galling twist, they can't renew the license until they have ten years of residency -- even though liquor store licenses have to be renewed annually. Yes, that means there is a seven year no man's land in between.). The vote was 7-2, with Justices Gorsuch and Thomas in dissent.

I want to flag this briefly, and particularly the dissents of Gorsuch and Thomas. To be clear: I firmly believe that good policy and proper legal interpretation are not coterminous categories. The question before the Court was (a) whether laws like this violate the "dormant commerce clause" and (b) whether the special legal regime the Constitution provides for alcohol regulation in the 21st Amendment alters that analysis. I'd have to read the case more carefully to decide where I come down on it, though in my extremely brief browse I think the majority has the better of the argument.

But this nonetheless serves as a good example of a simple point: there is no straight line connection between conservative jurisprudence and economic liberty. In many circumstances, there is a more straightforward left-libertarian alliance against unnecessary government licensing regimes which serve only to obstruct disfavored classes from economic opportunity. Sometimes, conservatives will join them (the majority opinion here was written by Justice Alito); in the right circumstances sometimes one sees a massive cross-party consensus on these issues. But there remain plenty of cases where conservative politics and conservative legal analysis implies propping up economic protectionism and government red tape. Any assumption of a natural alliance between economic freedom and conservatism is a myth.

The UK's Wild Corbyn-Loss Labour-Win Scenario

A new poll-projection suggests the LibDems may well take the Islington North constituency off Labour.

Why is that worth mentioning?

Because Islington North would be Jeremy Corbyn's district.

It's hard to assess the reliability of this source, which apparently is a projection off of larger data, rather than a direct poll of the district. But it's far from beyond the realm of possibility. Islington, like much of the London environs, broke hard for the LibDems in May's European Parliamentary elections, as frustration with Labour's tepid response to Brexit (itself a function of Corbyn's barely disguised pro-Brexit preferences) boiled over. Indeed, the LibDems actually won Islington.

One would think that losing the party leader's historically-safe seat would only happen as part of a historic anti-Labour wave. This instinct would seemingly be buttressed by Corbyn's record-setting public unpopularity (which manages to plummet past Theresa May's own disastrously appalling favorability ratings).

But things are a bit wilder than that.

Like most of the U.S., UK parliamentary elections occur on a "first past the post" basis -- basically, whoever gets a plurality wins (even if they fail to get 50%). And if you look at recent polling of Westminster voting intentions, what one sees is an almost ludicrously tight four-way race between Labour, Conservatives, LibDems, and the Brexit Party, each of whom is hovering at a +/- 20% vote share. In such an environment, it's almost anyone's guess who will emerge on top. Labour (or any other party) could slip into office with barely 30% of the vote, even if it is reviled by most of the electorate even in the districts it wins.  And for Labour, in particular, it's probably best positioned to pull off this little trick in swingish districts outside London where its Brexit-ish stance isn't utterly toxic (i.e., the opposite of Islington). It's entirely possible that Labour could perform "well" nationwide (by which I mean, it manages to hold its core support group together against a LibDem challenge while Brexit and Tories rip each other to shreds) while still losing seats in London -- including Corbyn's.

Indeed, if the dominoes fall right this could even result in a bizarre "minority rout" election, especially if the Labour/LibDem fight yields a clear winner and the Tory/Brexit party fight doesn't (or vice versa). Then we can imagine one party scoring massive gains even as it is actually wildly unpopular with the very electorate it is "winning". While that's less likely, one can easily manage a series of bizarre outcomes that seem to lack any sort of rhyme or reason as huge numbers of seats are decided by whoever manages to eke out a plurality in a four-way contest.

Honestly, the sheer uncertainty of it all makes me kind of wish the UK would adopt proportional representation, if only out of a sense of self-preservation. The way things are set up now is not built for a four-party race -- it's massively volatile.

I Watched a Debate! Part 2

I watched the first debate, so I kind of felt obligated to watch the second as well. Fair is fair (though I did miss the first half hour). Tonight certainly felt a little more eventful and punchy than last night -- in part because Biden was such an inviting target. It was a bit surprising to Harris take the lead on the Biden pile-on, though. I would also say there was a wider range of views expressed on stage than there were last night, where it really was a near-universal convergence on a broadly progressive vision.

Most importantly, I think there was more of a "shake-up" tonight compared to last night, where for the most part everyone just treaded water. Here we saw a candidate who had struggled to gain traction really shine (Gillibrand) and two who had been near the top really stumble (Harris and especially Biden).

Now for individual assessments:

• Joe Biden: Not a good night for him. True, he was in a tough spot, as he clearly had a target on his back and was taking a lot of heat from other candidates. But he didn't do himself any favors, either. He was garbled, he had little narrative other than "I was next to Obama when he did a bunch of great things", and his exchange with Harris on school busing was the worst moment in the debate that didn't involve Marianne Williamson speaking. This is the sort of performance that a lot of us feared would start his inevitable unraveling. C
• Bernie Sanders: While not exactly scintillating, I'd say this was a successful night for Sanders. Somebody drilled into him that he needed to not be overtly antagonistic to the other Democrats on stage, and he for the most part stayed disciplined on that score. The ending bit where he specifically complimented the other "good ideas on stage", before pivoting to his need for a political revolution, was the right frame. And while I don't think he really stood out, he didn't need to stand out -- he just needed to stand back and watch Biden go into free-fall. A-
• Kamala Harris: One of my early favorites, but I have to say I was not impressed. She seemed shaky and unsure of herself, like her nerves had gotten to her. She improved as the night went on, and got lucky that Biden's truly terrible answer on busing bailed her out at one point, but overall she did not seem ready for primetime and that surprised me. C+
• Pete Buttigieg: He's a good speaker, but not a lot else was going on. He'd clearly prepped the hell out of the question on the shooting in South Bend, and the answer wasn't bad, but he got baited into being defensive in an exchange with someone (Bennett?) that did not go in his favor. Still, on the whole, he probably held steady. B
• Kirsten Gillibrand: She was, in my view, the breakout winner. She was smart, composed, and substantive, and had a clear narrative around protecting women and families. I liked Gillibrand before, but had kind of written her off because she wasn't getting any traction in the polls. I wonder if she might see a bump after tonight. I thought she was really strong. A+
• Michael Bennet: Seemed like a fine, basically progressive generic White guy, which isn't good enough for a guy like him in a field like this. C+
• Eric Swalwell: Had a bunch of smirky little lines that weren't as clever as he thought. Otherwise unremarkable. C
• John Hickenlooper: He really seemed committed to red-baiting, and I do not think it's a winning strategy. He's, at best, third on the depth chart for the "moderate" lane behind Biden and Klobuchar, and Klobuchar in particular would wipe the floor with him (possibly literally, if he forgets to bring a salad fork). D+
• Andrew Yang: He's at his best when talking about the freedom dividend, which makes sense since that's his signature. On any other issue he sounds like a tech bro who thinks doing well in Silicon Valley qualifies him to run the world. Do you remember when we were all aghast at Mark Zuckerberg running for President? This is the same thing, except less interesting. I do not think drawing a straight line from "enthusiasm on Reddit boards" to "Democratic debate stage" is proof that our democracy still works. C
• Marianne Williamson: Who is this women? What is that accent? Why is her first call as President to the Prime Minister of New Zealand (to say "nuh-uh -- we're the best place to raise a child!")? It was physically uncomfortable listening to her tonight. I don't know what specific conspiracy theories she believes in, but I have no doubt she believes in some. F

At this stage in the game, I'm mostly concerned with winnowing the field down to something manageable so we can actually have a reasonable nominating contest. So here's my take on who (from both evening's debates) should drop out (or at least be cut from future debates), based on their performance and my assessment of whether there's any plausible route for them to make a serious play in the contest.

• Drop-outs: Williamson, Swalwell, Hickenlooper, Ryan, Delaney.
• Bubble (they should probably all drop out too, but it's early and I'm feeling nice): Yang, Bennet, Gabbard, Inslee, De Blasio.

UPDATE: Reading through others reactions, wow am I ever in the minority re: Harris (and again -- I'm a Harris fan! She was my off-the-blocks favorite! So this isn't anti-Harris hostility). And obviously it matters more what others think than what I think. Likewise, nobody else seems to have even noticed Gillibrand, let alone given her the sort of breakaway credit I did.

Yesterday I think my views aligned with the CW, today clearly they don't. But since most of my appraisals were based on my assessment of "will this appeal to people", you should take the crowd's wisdom over mine. Harris surge!

SCOTUS Just Set Off an Arms Race

On partisan gerrymandering, Anthony Kennedy was maximum Anthony Kennedy -- puttering around, leaving open the possibility that there could be a constitutional objection without ever pulling the trigger on any individual case -- until finally he left the court, leaving the matter unresolved and the door open for the Court to do whatever it wanted.

Today, John Roberts slammed that door shut, holding on behalf of 5-4 conservative majority that partisan gerrymandering was a non-justiciable political question.

When I was but a wee lad, first encountering the political question doctrine, I did so in the context of the "one person one vote" cases. Many states had gerrymandered their legislative chambers (and sometimes congressional districts) with wildly uneven population figures -- one state senator might represent 2,000 people, another 200,000. It was a ridiculously perversion of democracy that vastly under-weighted the voting power of certain (usually urban) residents.

But in Colegrove v. Green, the Supreme Court said that it couldn't touch the issue -- it was a "political question", for which the remedy had to come through the democratic-legislative process. This, of course, was a joke: those very legislators the Court suggested appealing to were the prime beneficiaries of the gerrymandering, and by virtue of the gerrymandering were immune to even huge majoritarian pressure to redraw the lines. Of all the places to demand especial deference to the legislative process, drawing district lines is perhaps the most ridiculous. I've always taken a dim view of the political question doctrine, no doubt because Colegrove gave such a negative first impression.

It is fair to say, then, that today's decision is the worst political question ruling since Colegrove. Chief Justice Roberts even includes the same limp apologia that individuals upset with partisan gerrymandering can appeal to the legislature for change -- again, the same legislature whose power is constituted through the gerrymander. As Justice Kagan notes in dissent, this is -- to reiterate -- the worst possible location to apply the political question doctrine. And the majority's claim that the issue is just too-gosh-darn convoluted for judicial review defies credibility. Much the opposite: lower courts had been successfully converging on reasonable, common-sense standards for adjudicating these claims. The reason that the Court decided to make its political question determination isn't because there were no available justiciable standards; it's because it was afraid that there were were available justiciable standards.

So where to now? In some states, state-level litigation remains available -- though this is patchwork (it's obviously not going to go anywhere in, say, Wisconsin). Other options include using referendum to bypass the gerrymandered legislature outright and place redistricting in the hands of a non-partisan commission -- though the constitutionality of that move was only recently established via 5-4 vote in Arizona State Legislature v. Arizona Redistricting Commission, with Roberts among the dissenter and Kennedy writing the majority opinion. Fortunately, we can rely on the Roberts court to show a healthy respect for preced--sorry, I can't actually finish that sentence.

The reality is, in most states, the main effect of the Court's decision won't be to trigger some fantasy-land popular resurgence that manages to somehow leverage democratic forces of accountability on an issue that is literally designed to insulate legislators from democratic accountability. The main effect will be to trigger an arms race. And as bad as things are now, they can get much worse.

You think the 7-1 Dem/Rep gerrymander in Maryland is bad? Here's an 8-0 map -- what wonders you can do if you can just chop up the Eastern Shore to bits! What's to stop them? Why, honestly, should they stop? Do you honestly think Republicans in Florida will hesitate on this? The rational move for legislators is to try and maximize partisan gerrymandering, to lock in their own power and kneecap the opposition.

And let's not overlook the looming threat to the Voting Rights Act here. Nominally, one effect of the Court's decision is to channel more gerrymandering claims into claims of racial bias rather than partisan bias, since the former remains justiciable while the latter isn't. But we're already seeing Republicans responding to those claims by explicitly saying "our goal wasn't to disenfranchise Black voters, it's to disenfranchise Democrats -- who just happen to be Black." Put aside the Court's general hostility to the Voting Rights Act, and the overall theme of the Jurisprudence of the Second Redemption ("It is impossible for any amount of evidence to establish any government actor has ever done anything racist ever -- with the exception of when they try to help Black kids go to college"). This partisan-not-racist rationale is actually reasonably plausible -- and the Court couldn't have more openly endorsed this strategy if it had waved a green flag and sung an ode in its praise.

This Court has issued many disastrous decisions. Some of them are minor in scope but stand out for their cruelty. Others are far-higher profile in the damage they've done to our national fabric. Most of them, though, at least have the "virtue" of being the product of democratic processes that can be undone through democratic processes. This decision -- which very much should be seen as a companion to Shelby County -- degrades and decays the basic democratic quality of the American form of government. It actively resists the prospect of democratic revision; it actually encourages and will no doubt accelerate the de-democratization of the American state.

It is impossible to overstate how dangerous this is. Our country already has many -- too many -- areas designed to subvert and undermine the majority will (the Senate, the Electoral College, the colonies in DC and Puerto Rico, among others). We are sliding -- and the Court is facilitating the slide -- towards systems of permanent minority rule, where the majority is by design and in perpetuity blocked from exercising power. That cannot stand. The best we could hope for is that this pressure eventually would be released by the judicial system. With that vent now blocked, I fear we might in the future -- perhaps not the far future -- see a far more tumultuous explosion.

I Watched a Debate!

I normally am not a big fan of political debates, and that goes triple when there are still approximately sixty-seven candidates in the field and maybe five with an actual chance of winning.

But I was invited to a debate-watch party tonight and, deciding to be a sociable sort, I went. Here's my thoughts:

• Everybody played nice. There weren't a lot of sharp shots or jabs between the candidates; there seemed to be a real desire amongst everyone to keep it positive. As someone who very much values "no fighting", I liked to see that.
• It also seemed to be the case that the candidates all converged around a pretty similar progressive vision. We saw minor skirmishes around, e.g., abolishing private insurance outright versus retaining it alongside a public option -- but if that's the "debate" in the Democratic Party, then we really have seen a major progressive victory.
• That said, one consequence of this general positivity and agreeableness was that there often weren't clear differences between the candidates, or opportunities for anyone to really stand out. I didn't really see much reason to reshuffle my preferences. And so I suspect and worry that this nice-nice won't last, as candidates realize they need to take swings in order to differentiate themselves.

For the most part, then, my sense was that all the candidates did "fine". "Fine", of course, is much better for a candidate polling well like Warren than it is for a candidate who needs to break out of the pack, like Ryan.

• Elizabeth Warren: Defined "fine". Surprisingly vague on policy details given that she "has a plan" for that. B+
• Cory Booker: While I liked the "identity politics" focus -- special shoutout for specifically giving mention to violence facing Black trans individuals! -- I can see how others might view it as pandering. It did sometimes seem calculated. But I thought he was pretty good. B+
• Julian Castro: A lot of people are saying he had a particularly good night. I didn't think he really stood out, but he was treated like he was on the A-list tier, which might ultimately be more important. Probably benefited most from this debate having only one of the true top candidates (Warren) on stage. B+
• Amy Klobuchar: Seemed a bit shaky to me. On the one hand, she's clearly the "moderate" voice of the group, on the other hand, it still was a pretty emphatically progressive vision -- we're talking a narrow band here. B
• Beto O'Rourke: Of all the (broadly defined) "top tier" candidates, seemed to have the worst night. Nothing abut him stood out, he felt very generic and empty suit-ish. Just run for Senate already. C
• Bill De Blasio: Probably the most pugnacious candidate on stage, and not coincidentally also the candidate who I shifted most on -- alas, from "not thinking about" to "actively disliking". I guarantee you put this guy in a room with five women and he'd never let any get in a word edgewise. He really tried to steam-roller the moderators. Had a bunch of lines that I suspect would've been bigger applause lines if the audience wasn't already primed to hate him. D+
• Jay Inslee: Second to De Blasio on the "pugnacious" quality. Somewhat volatile -- on the one hand, did a very good job emphasizing his progressive record as Governor. On the other hand, he's running a campaign based on climate change but went for the cheap-shot applause line on the "greatest existential threat facing America" question. C+
• Tulsi Gabbard: No less terrible than she was before, but now I also think she might be a robot. Her first answer, nominally replying to a question about women's equal pay but entirely about her record of military service, certainly won the award for least responsive answer of the night. Got real lucky that the genocide/responsibility-to-protect question wasn't directed her way (which it absolutely should have). D+
• Tim Ryan: Seemed to have those Michele Bachmann eyes. Rails against coastal "elitals", though I suppose I'm outing myself as one for pointing it out. Still, boo for being a divider. C-
• John Delaney: It's really impressive how this guy is from my home state, has been running for President since approximately the Iron Age, and yet I still can't remember anything about him. I didn't recognize him when they first cut to him for an answer, and then, five minutes later when they returned to him, I had already forgotten who he was again. Poor guy. D+

New Developments in the Right To Discriminate

A new survey measures people's attitudes towards businesses discriminating against various types of customers -- gays and lesbians, transgender individuals, atheists Muslims, Jews, and African-Americans. There are some really interesting takeaways.

• Republicans are -- across the board -- more likely to favor permitting discrimination than Democrats or Independents. This is true across all customer-identities.

• However, Republicans also exhibit considerably more variance across different groups -- tolerating discrimination against certain sorts far more than others. At the top end, circa 45% favor permitting discrimination against gay, lesbian, and trans individuals. At the bottom, only 18% favor it when it comes to African-Americans. Meanwhile, Democrats never stray out of a tight 14% - 19% band for any group -- suggesting a cadre that (perhaps for some libertarian freedom-of-contract reason) supports the "right to discriminate" on principle.

• Given the recent high-profile controversies about businesses serving gay customers and the extent to which GOP politicians have sought to make it into a culture war front (ex: Indiana, Masterpiece Cakeshop), I wonder if the commitment to the right to discriminate against LGBT individuals is having the effect of "dragging up" GOP support for a similar right as against other groups -- people believing that if they don't support a "right to discriminate" against Jews, then there can't be a right to discriminate against gays either. This hypothesis, however, clashes with the willingness of many Republicans (noted above) to just happily accept the double-standard.

• That said, again given the degree to which the GOP has sought to put the right to discriminate against LGBT customers into the news, I'm actually shocked that the figures here are so low. Again, we're talking (slightly) less than half of Republican voters, and less than a third of Americans total. There's actually a pretty strong bipartisan consensus against the position GOP politicians have been staking out.

• In the religion-bowl, Atheists are disliked more than Muslims are disliked more than Jews. The difference is very stark among Republicans (37% support a "right to discriminate" against Atheists, 32% against Muslims, 24% against Jews) but much narrower among the population writ large (24/22/19, respectively).

Duncan Hunter Screws His Wife, and Apparently Every Other Woman in His Vicinity

When Rep. Duncan Hunter (R-CA) was charged with misusing campaign finance funds, he made headlines by quickly moving to throw his wife under the bus. It was an impressively classless move even by his standards, but now we might have some insight as to why his forever partner received such limited loyalty. Apparently, Rep. Hunter used his misappropriated campaign cash to finance five -- five -- different affairs.

His I-have-to-imagine-soon-to-be-ex- wife has already plead guilty and is apparently cooperating with the prosecution.

Lori Lightfoot Goes Orthodox

I just wanted to flag this nice little story about the new Chicago Mayor, Lori Lightfoot, who took a trip to visit the small Orthodox Jewish enclave in West Rogers Park and apparently blew away the locals.

[Rabbi Shlomo] Soroka said that Lightfoot herself pitched the visit to West Rogers Park, the city’s biggest Orthodox enclave, after the Poway synagogue attack in April.

“It was her idea – ‘What do you think about me coming to visit on a Shabbos and seeing firsthand what you’re describing, and impart to the people a sense that the mayor cares,’” Soroka recounted.

[...]

Lightfoot spent part of the Sabbath afternoon after synagogue services concluded walking the streets of neighborhood, meeting with leaders and talking with passers-by, learning about their security concerns and some of the particular needs of Orthodox communities, like eruv wires. 

The visit was not publicly announced by City Hall; there are no pictures of the visit on the mayor’s social media pages, and the mayor’s press office did not respond to a request for comment.

But Soroka said the lack of a photographer on Shabbat showed Lightfoot’s sensitivity to community concerns, as well as proving that this was a genuine concern to her and not just for show. 

“In advance of the visit, we requested that we shouldn’t have photographers on the Sabbath, to keep with the sanctity of the day – it may not violate the letter of the law, but the spirit of what it’s supposed to be,” Soroka said. “And that’s a tall order….Pictures are important and messaging is important. And the message I got back is, ‘She’s not coming for the photo op, and if this is something that’s a cultural sensitivity, she would like to respect that.’” 

People who were there told the Forward that Lightfoot was a big hit with the crowd. A rabbi gave her a blessing that God should grant her wisdom; people on the street offered her water bottles; someone else gave her two challahs, a bottle of wine, and a saltshaker “because she’s going to shake things up,” Soroka said.

The story also notes that no Chicago mayor had done such a visit in decades, including its recent Jewish mayor Rahm Emanuel. I'm neither Rahm's biggest fan nor his biggest detractor, and I do think that some of Rahm's absence is attributable to (as the article notes) the suggestion the members of ethnic minorities sometimes don't feel the specific need to reach out to their own community.

That said, I do think Lightfoot is demonstrating a distinct shift in style here, particularly her decision to avoid doing it is a photo-op or a big press flaunt. She's just quietly going about her business, listening to constituents, and apparently blowing crowds away. Good on her. And it's nice to see a story about politics that really is just ... nice, in a completely uncomplicated way.

David's Candidate Tiers

When it comes to the 2020 Democratic Primary, I'm doing my best to follow Walter Lippmann's advice: I'm holding my opinions of the candidates lightly, and abandoning them (the opinions) gladly. My working assumption is there are a lot of good candidates in the race, and for the most part I'd happily support any of them, and my main priority is not getting so wedded to any one person that I grow antagonistic towards the rest. And so while I am starting to form nascent preferences, my "tiers" of support I think basically reflect this outlook.

Earlier, I gave my (extremely early-bird) predictions. This, by contrast, reflects my preferences (albeit preferences which account for who I deem to have a realistic shot at winning). More or less, I've divided the candidates right now into five groups:

Tier A: These are the candidates I'm most excited about or who seem most likely to garner my vote in the primary. Right now, this class is comprised of Kamala Harris, Elizabeth Warren, and Cory Booker.

Tier B: These are the candidates who have something in their profile detracting them from the top tier, but whom I'm still basically fine with. This would include Buttigieg (too inexperienced), Biden (too old-fashioned; too gaffe-prone), Sanders (too hostile; too fractious), and Klobuchar (too moderate). Still, if any of them win the nomination, I won't be cranky.

This tier also includes candidates who seem otherwise quite attractive, but for whatever reason don't appear to be getting any traction -- for example, Castro, Inslee, and Gillibrand. But if any of them do catch fire, they'd get serious consideration for "A" status.

Tier S: "S" stands for Senate -- this is the group of candidates who I'm annoyed with only because I think they should be running for Senate instead. This includes O'Rourke, Hickenlooper, and Bullock. In all of these cases, if they did somehow win the nomination I wouldn't be mad, but since I doubt they will and they're passing up races they actually could win that Democrats desperately need, I'm mad now.

Tier U: The "unknown" group. This includes the multitude of random people who are running for President for reasons best described as "inexplicable", and whom I have no interest in learning more about. Swalwell, Ryan, Yang, and Delaney fit in this group, among others.

Tier Z: The candidates I'm actively hostile towards. This is basically "Tulsi Gabbard", though to the extent that Mike Gravel is a living human and not a teen prank I guess he's probably here too.

Happy Birthday Blog!

Once again, I missed the blog's birthday (it's June 15, FYI). It turned fifteen years old this year!

A pretty impressive run, if I do say so myself.

Anyway, I'm off to my 11th year college reunion (it's my wife's 10-year, hence the odd-number appearance). I consider that appropriate, as I started this blog the summer before I entered college. And look at me now!

My Not-Statement on Immigration Detention Centers as "Concentration Camps"

Some of you might have seen that Rep. Alexandria Ocasio-Cortez described the immigration detention centers the U.S. is housing migrants in as "concentration camps", invoking the slogan "Never Again".

Here is my not-statement:

I generally dislike Holocaust comparisons in public debates. That's true for a variety of reasons. For one, these comparisons frequently undersell the magnitude of the Holocaust as planned, conscious, industrial-scale mass extermination -- it stretches far beyond even truly horrible acts of authoritarianism. Moreover, I oppose the perceived entitlement claiming my people's genocide as a sort of communal property available to any and all political commentators searching for a particularly evocative exclamation point; an entitlement which frequently expresses itself as a resentment towards Jews seen as hoarding this precious "resource" to ourselves.

However.

I also think that these misgivings of mine -- ultimately, disputes over choices of rhetoric -- are of completely trivial importance compared to the urgent and pressing need to oppose the brutal and inhumane policies the Trump administration is enacting on the American border. They should take up none of our time, they are in the grand scheme of things utterly insignificant compared to the need to focus on opposing these wrongs. This is called keeping a sense of perspective. It's not that the arguments against a "concentration camp" comparison are impossible to make -- though neither is it self-evident that these centers are not "concentration camps" either; the comparison is not absurd-on-face -- it's that they just Don't Matter. There are circumstances when it is important to "police" Holocaust comparisons -- most notably, in cases of Holocaust Inversion where terms associated with our own mass extermination are turned against other Jews. This is not one of those cases.

It is fine to dislike the use of "concentration camp" comparisons in this context. But anyone who thinks that litigating the question "is it proper to refer to these detention centers as 'concentration camps'" is more important, or as important, or maybe not quite as important but still within the same order of magnitude of importance, as full and unqualified opposition to Trump's border practices deserves naught but our contempt and scorn. If you want these comparisons to be made cautiously, great, I agree. If you think that investing energy in policing whether this or that comparison was sufficiently "cautious" is a worthy use of your time that can justify departing even for an instant from unflagging opposition to Trump's border policies, then you need to re-examine your priorities.

That not-statement is the only statement that I'm interested in hearing about "concentration camps".

First on the Agenda: Statehood for the Colonies

Sometimes, the moral thing to do conflicts with the expedient thing to do. That's a hard position to be in.

Sometimes, though, the moral thing to do is also the expedient thing to do. That's a really easy thing to do.

Statehood for American colonies -- that is, all the places under permanent American jurisdiction that lack full voting rights in Congress (most people think of DC and Puerto Rico, but I'm a hardliner: statehood for Guam!) -- is the latter case. It is clearly and incontestably a moral obligation -- a democracy cannot permanently deprive persons under its dominion of representation -- and it is also likely to result in a bunch more Democrats, particularly in a Senate that is right now geographically-skewed in favor of a population minority. Indeed, Mitch McConnell was "admirably" forthright in admitting that this was pretty much the only reason Republicans oppose statehood -- it'd result in new Democratic Senators.

Of course, that's actually an exaggeration -- Puerto Rico's current non-voting member of Congress is a Republican. So it's entirely plausible that the GOP could compete in Puerto Rico, if they cared to try.

But even if they couldn't -- and there's something embarrassing about the speed at which Republicans race to concede that they think there's no chance they could ever appeal to a non-White voter -- it wouldn't change anything. Democrats struggle to get elected in Wyoming, which is unfortunate, but I admit it never occurred to me that as a consequence we should try to deprive Wyoming of electoral representation. And I'm so old, I remember when the Senate was defended based on the need for "geographic diversity" and "protecting the minority" -- rationales which if anything underscore the necessity of giving Puerto Rico (and Guam, and the U.S. Virgin Islands, and American Samoa....) representation in that august body.

L'Étoile du Nord Roundup

Greetings from Owatonna, Minnesota. I'm here at my in-laws house in the interregnum between a family wedding on the north shore last weekend and a Carleton Reunion next weekend. The former represented my first trek to the far north of Minnesota, and it was truly gorgeous -- really embodying my favorite type of nature (to wit: very green and very forested).

* * *

Everybody seems to hate the "electability" argument for Joe Biden, but Kevin Drum asks whether anyone is actually making it. My hypothesis is that Biden's stance atop the polls baffles a lot of political observers -- how is he so seemingly popular with Democratic primary electorate, given his many weaknesses -- and so they infer that many of his supporters back him reluctantly as the safe, "electable" choice (for my part, I think it's still name-recognition, and he'll fade as the primary season moves forward).

Corey Robin has interesting-looking book coming out on Clarence Thomas as an Afro-Pessimist -- an outlook which very much coheres with my own.

Fascinating dialogue between Yossi Klein Halevi, author of "‘Letters to My Palestinian Neighbor," and Mohammed Dajani, who decided to respond. It's long but very much worth your time.

Jonathan Adler tracks some non-standard splits in the recent SCOTUS decisions and wonders if a new "pragmatist" axis is emerging.

Lest we were worried that the DC Dyke March's ban on Jewish Pride flags was the start of a trend -- looks like that isn't happening. Most Dyke Marches around the nation are not following their lead.

There's No Wrong Way To Terrorize a Black Guy in the Eighth Circuit

Last week, the Eighth Circuit released an opinion in Clark v. Clark, a case involving a law-abiding Black gun owner in Missouri. Police responded to claims of gunshots in the vicinity of a Missouri rest stop. On arrival, they encountered Gregory Clark, a Black man sitting a table outside the building. Seeing they were officers, Clark immediately handed over his driver's license, retired military ID, and concealed carry permit, and also informed them he was armed. He was questioned if he had heard any gunfire (he hadn't) and where he was going (Chicago).

Then the police ran his identification (which came back clean). Clark was apparently not wild that the police ran his ID, which he thought was potentially a case of racial profiling, and asked a question gesturing in that direction ("[would you] have done that to anyone else?"). The officer responded poorly, angrily replying "don’t play the race card with me", and returned the identification cards back to Clark.

The police then left Clark, and Clark in turn returned to his vehicle and drove away in the direction of Chicago. The police trailed him, and Clark began to fear for his life. He made a U-turn, and officers continued to follow. After more cop cars began to arrive on the scene, he pulled over to the side of the road and placed both hands outside of the window to show he wasn't holding his gun. Officers nonetheless approached the car with weapons drawn, one pointing his gun at Clark while ordering him out of the car. After a bit more confusion and discussion, it was eventually determined that Clark had committed no crime and done nothing wrong, and he was allowed to leave once more.

The Eighth Circuit, in an opinion by Judge Erickson joined by Judge Colloton, concluded that the entirety of the police conduct -- which culminated, let's recall, in the police pointing their weapon at a Black man who had done absolutely nothing wrong and had seemingly taken every conceivable step to scream out "I am not a threat" -- was wholly lawful.

And that's why I flag this case. In an alarming number of circumstances, there is nothing a Black man can realistically do to avoid having a gun pulled on him by police. He can be entirely law-abiding, forthright about his (legal) gun ownership, compliant with police demands, going out of his way to and keep his hands clear -- doesn't matter. And likewise, he cannot seek to avoid police interactions -- even knowing (apparently accurately) that they put him at risk of having a gun pulled on him for no reason whatsoever. Judge Erickson, for example, argued that both Clark's highway U-turn to avoid the police, and his affirmative decision to put his hands out the window to show that he wasn't holding his gun, were "unusual and may be indicative of guilty conduct."

Chief Judge Smith disagreed -- and it is perhaps not coincidental that Judge Smith is the only African-American Judge on the Eighth Circuit. In his view, while the initial encounter at the rest stop was lawful (and I agree -- while I understand why Clark might have felt aggrieved, he was the only person in the vicinity where gunshots had been reported and he admitted he was carrying a gun), the police response to Clark on the highway was not (Judge Smith ultimately would have found that the officer nonetheless enjoyed qualified immunity).

Put simply, Clark is allowed to not want to interact with the police. African-American men have excellent reason to try to avoid police encounters for fully innocent reasons like "wanting to avoid an elevated chance of having a gun pulled on you" -- as this case well demonstrates. But there's really nothing they can do to avoid it -- including "literally trying to avoid it".

Meanwhile, today the Eighth Circuit en banc dismissed, by 5-4 vote, Dorian Johnson's claims against Ferguson, Missouri and Officer Darren Wilson for conduct stemming from the infamous shooting of Michael Brown (Johnson was walking beside Brown during the incident). Johnson alleged that Wilson ordered the pair to "get on the fucking sidewalk", then abruptly parked his car in front of the duo, blocking their path, struck Brown with the car door, got into a scuffle with Brown, and ended up firing his weapon at the pair (missing Johnson but striking and killing Brown). Nonetheless, the Court concluded that the pair had not been seized because (a) Johnson did not need to "remain by Brown's side" while Wilson and Brown fought and (b) the position of Wilson's police car did not literally block them entirely from fleeing the area.

The dissenters (Judge Melloy writing for Chief Judge Smith and Judges Erickson and Kelly) simply make mince-meat of this argument. The touchstone question for a seizure is whether the officer's actions would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business". There might not be a single area of constitutional law with more ludicrous precedents than this -- the sorts of scenarios where courts say, with apparent straight faces, that people would feel free "to ignore the police presence" are beyond absurd (to take one example, cited in the dissent: in United States v. Hayden, we were told that any reasonable person would feel free to ignore the police when the officer pulled up alongside the defendant, shined a flashlight on him, and screamed “Police!”). Yet even here, the facts clearly "communicated an intent to use a roadblock to stop Johnson’s movement," and therefore a seizure.

The argument that the roadblock did not literally prevent all modes of escape from the area should be too ludicrous to reply to if the majority did not rely on it. Not only is that unrealistic in practice -- just how tight must the dragnet be, then, before it is conceded to be impossible to escape? Must the officers all lock arms in a circle? -- it has nothing to do with the legal inquiry, which is whether a reasonable person would understand the officers as trying to communicate an order to stop. Abruptly driving your police car to place it directly in front of your quarry's path does that, and it's not close. There's virtually no question that had Johnson attempted to "simply ignore" Wilson's directives the officer would not have thought "well, that's perfectly innocent conduct reflecting his right to ignore me under the Constitution" (look what happened to Clark!).

Of course, it's possible that in this case the extremely high-profile and heavily-reported nature of the controversy might have influenced the court's decision -- in particular, they might believe that the facts might not have been as Johnson alleged. But it is hornbook law that at this stage in the proceeding judges must accept Johnson's factual allegations as true -- disputes of fact are addressed at a later stage. And that matters because this case sets a precedent, which in turn applies to other cases down the line where the facts haven't been as thoroughly hashed out in the media as here. It is not just Dorian Johnson but any person who finds a police car screeching to halt inches in front of them after being screamed at by the officer who now will find that -- contrary to any actual "reasonable person's" perspective -- it would be wholly unreasonable for them to believe that the police were communicating that they needed to submit.

I'd say that the majority might have allowed itself to be swayed by the public nature of the controversy, except that gives them far too much credit. The fact is, the Eighth Circuit has near-infinite tolerance for police excesses directed against the citizens in its jurisdiction, in cases of any degree of public prominence. Clark is a low-profile case and Johnson is a very high-profile one, but they're tied together by the unifying cord of all the Eighth Circuit's jurisprudence in this area: extreme, complete, and unshakable deference to the police over and against ordinary citizens.

On the Oberlin Verdict

You might have seen the news that a bakery won a $44 million dollar judgment ($11 million in compensatory damages, plus $33 million in punitive damages) against Oberlin College (under Ohio law, the punitive damages are capped at $22 million, so that will likely be reduced).

The short background is this: An Oberlin student tried to buy alcohol at the bakery with a fake ID. The ID was rejected, and he tried to leave with the bottle anyway. A store employee gave chase, a scuffle ensued, and the student and two friends (all who were Black) were arrested. Many on campus believed the incident was one of racial profiling, and protests by Oberlin students against the bakery quickly ensued. The bakery was labeled a "racist" institution, and the college briefly suspended its contracts with the bakery.

Ultimately, the students plead guilty to a crime; and follow-up investigations suggested that there was no pattern of profiling by the bakery.

Under these facts, it seems pretty clear that the bakery was treated poorly by the Oberlin community. That said, a damage reward of this magnitude poses a massive threat to free speech on campus -- a concern that many of those crowing over the verdict seem worryingly unconcerned about.

The evidence that Oberlin, as an institution, was responsible for the allegedly libelous statements by the students (and we should wonder whether claims of racism--an evaluative opinion--can qualify as libelous, though in context it's arguable that here it was an opinion based on undisclosed facts) is quite thin. Not non-existent, but thin. The administration let students use the copiers. They didn't censor the student government (an independent body) which issued a condemnation of the bakery. Administrators were "present" at the protests and didn't try to shut them down. One reportedly helped pass out fliers, and then wrote a remarkably bratty message considering "sic[cing] the students" on a dissenting professor before deciding that the college needed to "put the matter behind us."

Some of this -- like the "sic" message -- is genuinely bad behavior. Some of it is the college not proactively censoring its students. None of it comes close to justifying an eight-figure damage verdict.

But if the idea is that this verdict "sends a message" to colleges, what is the message they're likely to receive? Put differently, what is the compliance takeaway here, if you're a college administrator?

Here's a hint: it isn't "don't libel local businesses". It's "don't do anything -- whether in the form of action or inaction -- which could even hint at tolerating speech that the most hostile possible jury could consider to be libelous towards a sympathetic plaintiff." The latter is quite different from the former.

One thing I've learned from spending some time in "free speech" oriented social movements is that free speech has a lot of fair-weather friends. There are some principled actors. There are many more whose avowed commitment to free speech is in fact wholly one-sided, and in fact are eagerly insistent that colleges and universities in particular act against student or faculty speech that they dislike. They want faculty to be fired and students to be punished, suspended, or expelled; they want their clubs defunded and their newspapers pulled from the shelves; they harbor a deep populist resentment towards the entire modern educational system which yearns for an outlet.

That doesn't describe everyone, but it describes enough potential jurors that -- when tens of millions of dollars are on the line -- colleges are pretty much going to be forced to accommodate them. All the more so in communities where town-gown relations are frayed. I've heard that was already true in Oberlin. Certainly, the decision by a local judge to disallow the students what seemed to be a perfectly normal plea deal because doing so would supposedly validate the student protests -- something that I've mostly seen to underscore the community "standing up" to campus bullies -- to me instead underlines a deep-felt hostility and antipathy towards Oberlin, a desire to show those snooty hippies what's what.

(Likewise, if my alma mater of Carleton College -- which in many ways has a similar profile to Oberlin as a rural, highly-ranked national school with a liberal student body, an elite reputation, and iffy town-gown relations -- got sued by a local business, I imagine any trial attorney they'd hire would try to do anything and everything to keep the case away from a local jury).

And when you're trying to comply with that juror in mind, the need not to just avoid bad actions, but also avoid anything that the most negative possible factfinder could stretch to interpret as bad, ends up encompassing a lot of wholly innocent (or even laudatory) conduct. For example, having administrators observe student protests without interceding might seem to be a responsible, mature decision -- unless a hostile jury views it as a tacit endorsement and wonders why the administrators didn't try to proactively tamp down on the student speech. Which, in many circumstances, would itself be a free speech violation -- a fact which in turn emphasizes the impossible situation colleges will find themselves in.

Or another: in a bid to reduce tensions, Oberlin tried to cut a deal with the bakery where it wouldn't push to criminally prosecute first-time shoplifters. The bakery refused, saying shoplifting was a major source of lost revenue. They had every right to give this answer, but again, I've seen Oberlin's gesture interpreted in the most hostile possible light -- as granting all of its students a "get out of shoplifting free" card -- as if nobody had ever heard of alternatives to prosecution for first-time, low-level, non-violent offenses (let's not forgot the other side of the coin of bringing the full hammer of criminal law down upon every single shoplifting case).

I actually suspect that at least some, if not all, of the verdict won't survive an appeal. The damages are just so wildly out of sync with the college-qua-college's bad conduct, and the line between what the college did and the alleged libel so attenuated, that it seems very vulnerable. Plus, the conservative lawyers who've been backing the bakers have already got their headline, so I think they'll be more amenable to settlement than they had been before.

All of this is fully recognizing that the bakery was -- again, to reiterate -- treated poorly by the Oberlin community. The sort of conduct that many Oberlin students engaged in isn't just righteous anger or blowing off steam -- it hurts real people and impacts their real livelihood. But this verdict isn't about making a wronged bakery whole. It's a shot across the bow at institutes of higher education which many people simply loathe -- loathe for censoring speech and loathe for tolerating it, loathe for strangling student freedom and loathe for letting students run wild, loathe for their liberal uniformity and loathe for their diverse students bodies, loathe for thinking they're special and loathe for not making their specialness sufficiently accessible. That sort of loathing isn't healthy. And when it can get its hands on massive tort verdicts, it's positively dangerous.

Off To Minnesota

It's double-Minnesota-trouble!

I'm heading off to Minnesota tomorrow. First item on the agenda: a wedding in Lutsen (way in the northeastern corner of the state). That's this weekend. But next weekend is my college reunion, down in Northfield (pretty far south, relatively speaking). We'll be staying with my in-laws in Owatonna (as featured in the New York Times!) for the interim.

So I'll be pretty busy. Looking forward to the trip, but not looking forward to the long flight or equally long car rides. Minnesota is actually pretty big, especially once you stop ignoring the northern two-thirds of it!

What Do Holocaust Museums Do?

I thought this was a very powerful line from Dara Horn's criticism of Holocaust museums as a presumed panacea for curing antisemitism:

That the Holocaust drives home the importance of love is an idea, like the idea that Holocaust education prevents anti-Semitism, that seems entirely unobjectionable. It is entirely objectionable. The Holocaust didn’t happen because of a lack of love. It happened because entire societies abdicated responsibility for their own problems, and instead blamed them on the people who represented—have always represented, since they first introduced the idea of commandedness to the world—the thing they were most afraid of: responsibility.

Then as now, Jews were cast in the role of civilization’s nagging mothers, loathed in life and loved only once they are safely dead. In the years since I walked through Auschwitz at 15, I have become a nagging mother. And I find myself furious, being lectured by this exhibition about love—as if the murder of millions of people was actually a morality play, a bumper sticker, a metaphor. I do not want my children to be someone else’s metaphor. (Of course, they already are.) 

Arkansas Anti-BDS Law Exposes Rifts in the First Amendment -- and Anti-Discrimination -- World

Arkansas is one of several states to have passed laws restricting state contractors from engaging in BDS (its law is, I think, unique in that it doesn't prohibit such contracts outright, but instead requires that the contractor give the state government a substantial discount). It is also unique in that it is, to my knowledge, the only state that has so far prevailed in litigation -- a decision that now goes up to my old court, the United States Court of Appeals for the Eighth Circuit.

Aside from its juicy public salience, the case is interesting for how much it has divided First Amendment scholars -- and not along "typical" lines. The Knight Institute for First Amendment Law at Columbia filed an amicus brief urging that the Arkansas law is unconstitutional, signed by some major First Amendment luminaries. These include Katherine Franke -- a prominent BDS supporter -- but also Geoff Stone, who was keynote speaker at the annual conference of the anti-BDS Academic Engagement Network a few years back, as well as UC-Berkeley Law Dean Erwin Chemerinsky, another high-profile boycott opponent.

Meanwhile, another smaller group of First Amendment scholars filed their own brief defending the constitutionality of the law. While it's only signed by three people, they're quite serious names in their own right: Eugene Volokh (UCLA), Andrew Koppelman (Northwestern), and Michael Dorf (Cornell). Volokh is a libertarian-conservative, but Koppelman and Dorf are high-profile liberals -- and Koppelman in particular is a major figure in anti-discrimination law.

And the threat to anti-discrimination and public accommodations law is the major theme of their brief (in this, it is actually Volokh's sign-on to the brief that is most intriguing, as he has long been concerned that anti-discrimination laws intrude on First Amendment-protected speech). Dorf wrote an explanatory post that he opposes laws like Arkansas as policy, but crafting a doctrine that renders them susceptible to First Amendment challenge but doesn't open a wide door to challenging a raft of anti-discrimination law is hard -- and harder still with a Supreme Court that seems very thirsty in the latter regard. Says Dorf:

I agree that there is no compelling interest justifying the Arkansas law or others like it. Indeed, I think such laws are unwarranted. I oppose them on policy grounds. I also agree that there is a compelling interest in public accommodations laws. However, one must think strategically about such issues. The question is not what some liberal law professors regard as a compelling interest but what a majority of the Supreme Court will ultimately regard as compelling. I have no confidence that the Court would find a compelling interest in forbidding discrimination on the basis of LGBT status.

This dovetails with a more general worry about the Lochner-ization of the First Amendment -- something I've written about as well -- which ought give pause about expanding the sorts of expressive-refusals which qualify for First Amendment protection. The more we're willing to code conduct as speech because it's done for expressive purposes -- well, one can refuse to care for a trans patient for expressive reasons; one can refuse to enroll in Obamacare for expressive reasons; one can refuse to offer contraceptive coverage to one's employees for expressive reasons; one can refuse to transport a Muslim or Jew or Christian in your taxi for expressive reasons ... it goes on. Some of these we already are seeing, and seeing ratified by the conservative judiciary. If that's a trend that alarms you, one might hesitate about creating new doctrine that appears to accelerate it.

This is a risk I think that the anti-anti-BDS campaign simply has not paid sufficient attention to, in part because it bristles at the suggestion that it is defending a form of "discrimination". But the fact that it's been generally overlooked is precisely why it's so important that it be expressly grappled with as the doctrine starts to settle. There are, after all, elements of BDS campaigns which in my view represent quite straightforward cases of national origin discrimination, and to the extent that people are starting to reflexively cry "First Amendment" because the discrimination is expressively-motivated, that's a big problem.

To be sure, I'm not fully convinced by the Volokh/Koppelman/Dorf argument (and there's a serious problem with the "dueling hypocrisy" issue surrounding Masterpiece Cakeshop). There clearly seems to be something different about applying an "anti-boycott" law to a consumer buyer versus demanding a business be neutral in who it sells to (much less hires). How does one even police a consumer boycott (people don't buy Sodastreams every day!)? Perhaps the issue is that the laws targeting a consumer boycott takes otherwise clearly lawful conduct (not buying a Sodastream) and subjects it to civil sanctions solely based on the surrounding expression (I'm not buying a Sodastream because I'm anti-Israel, versus because I don't like carbonated beverages).

Yet as I've previously observed, this actually isn't that far off what discrimination law does on a daily basis: it's legal to fire someone, but not legal to fire someone if one's doing it to "express the message" that "I hate Latinos". The latter, too converts conduct from licit to illicit based on something that very easily could be described as "expressive". This is why I find this issue to be genuinely nettlesome.

Of course, Dorf himself notes there might be a valid First Amendment claim against these laws "if the record contained evidence of censorial motivation on the part of the [state] legislature," namely, if the law was passed "for the purpose of suppressing the message sent by boycotts of Israel rather than because of what they regarded as the economic impact of boycotts of Israel." I think the evidence of such an expression-based motive is pretty strong in many of these cases (note how easily it could be avoided if legislators took my advice in crafting these bills!). So perhaps that's our out.

But the crux of the issue, for me, is that however this gets resolved, the resolution better take an eyes-wide-open approach to how the new doctrinal rules interrelate with anti-discrimination law, especially in the context of the ascendant conservative judiciary. So I am very glad that we are seeing someone raise the issue of how the anti-anti-BDS argument might threaten anti-discrimination law.

There are very good reasons why we intuitively think of boycotting as an expressive act that should be protected. There are also very good reasons why "boycott = expressive" runs the risk of taking a torch through important areas of anti-discrimination and public accommodations law. It is hence very important -- especially if we end up taking the boycott-protective position -- that we do so in a way that is careful and conscientious of the discrimination issue.

Botswana Court Decriminalizes Homosexuality

The law, a relic of British colonialism which carried a prison sentence of up to seven years, was tossed by the high court as a violation of the dignity, privacy, equality, and liberty to gay and lesbian:

"A democratic society is one that embraces tolerance, diversity and open-mindedness," Justice Michael Leburu said, according to CNN. Discussing the broad costs of discrimination, he added, "Societal inclusion is central to ending poverty and fostering shared prosperity."

Botswana is Africa's oldest continuous democracy.

Is Biden Lying About Bipartisanship?

Kevin Drum makes an interesting point, regarding Joe Biden's oft-mocked paeans to bipartisanship and the supposed willingness of Republicans to "work with him" once the Trump era has passed.

I have no idea what Joe Biden “really” believes about working with Republicans. But I will say this: he’s a politician. There’s zero reason to think he truly believes what he’s saying here. There’s also zero reason to think he doesn’t believe it. The fact that he said it is simply a null input. 

At the same time, Biden isn’t an idiot. Of course he knows what the modern Republican Party is like. But like Obama before him, he also knows that lots of people really like to hear paeans to bipartisanship. We political junkies may hate it, but ordinary people who don’t inhale cable news are suckers for the idea that we can all get along if we just give it a try—and there are way more of them than there are of us. Biden knows this, so that’s what he tells people. Whether he really believes it or not matters not a whit.

It is strange, when one thinks of it, that the possibility that Biden is simply mouthing a platitude that appeals to Joe Average Voter but which he knows full well is probably BS doesn't even occur to us. After all, I myself have talked a bit about the importance of being earnest -- of keeping a straight face and talking about bipartisanship and norms and neutral rules of procedure, even if one really is planning to string the opposition up by its entrails.

I'm not saying Biden is making this play. He's certainly the sort of beltway lifer that could be convinced that the modern GOP can be bargained with. But he also might be the sort of savvy inside player who understands that's now impossible. The whole problem is that either possibility should observationally yield Joe Biden singing the praises of bipartisanship.

The Role of Jewish Activists at the DC Dyke March

One thing that's been bandied about in the controversy about the DC Dyke March's decision to ban Jewish Pride flags (for being allegedly too similar to an Israeli flag) is the role that Jewish members of the DCDM played in proposing the policy, defending it public, and later in enforcing it, as part of the group of bouncers seeking to keep Jewish counterprotesters outside of the event.

But "role" is a vague term, and I'm curious about the specifics. Specifically, I can imagine three potential roles the Jewish members could have played in bringing about the Jewish Pride flag policy.

1. The policy banning Jewish Pride flags was proposed by other members, and the Jewish members agreed to it, ratified it, or otherwise signaled it was permissible.
2. Some policy regarding Jewish symbols was proposed by other members, and the Jewish members modified or modulated it -- possibly to make it more limited (i.e., initially it was a ban on all Jewish symbols), or possibly to make it more expansive (i.e. initially it was solely a ban on the Israeli flag, as such).
3. The Jewish members proposed this policy sua sponte -- it was their idea to have a policy whereby Jewish Pride flags were banned; DCDM wasn't really considering having a policy regarding Jewish Pride flags until the Jewish members brought it up.

In all of these, to one extent or another, the Jewish members might be thought of as having "set up" the DCDM, at least to the extent they presented the policy as a valid compromise that would be viewed as permissible within the Jewish community when anyone could have known it would provoke a furious backlash. But in some they have considerably more agency than others.

On that note, though, the third possibility -- or the "more expansive" iteration of the second -- is the most interesting, because it raises the possibility that the DCDM as a whole viewed itself as deferring to its Jewish members and might have even been taken aback by the strength of the broader communal response. That's hard to process because it's so obvious to us the way in which a policy like this is harmful to Jews, polices Jews, and gatekeeps Jews. But I have to remind myself that most non-Jews don't know that much about Jews, and in particular don't know enough to necessarily realize that the Jews in their little circle who are assuring them "this is fine, this is okay, if anyone gets upset it's just the usual right-wing rabble-rousers" aren't actually representative.

And likewise, remembering that Jews generally pay more attention to Jewish issues than non-Jews means the Jewish DCDM members were among the most likely to have vivid memories of Chicago, and most likely to have strong opinions about what the Jewish Pride flag represents. It strikes me as entirely plausible that they leveraged their "insider knowledge" to present a narrative where this flag was the banner of the infiltrators and the pinkwashers -- a threat that they knew of and were doing the service of warning DCDM about in advance. From their vantage, they were dissipating a threat to Palestinian or Arab safety at the march that otherwise might have gone unnoticed -- like someone who knows a subtle "insider" gesture of White supremacy that, precisely because of its superficial banality, can normally be made in public settings without challenge.

Or maybe not. The Jewish members could have been in reactive role, agreeing with a proposal made by others, and had little to do with placing this issue on their agenda. Most obviously, this could have been a position spearheaded by Palestinian members (or people who identify strongly as "pro-Palestinian" -- though the latter group, of course, overlaps significantly with the Jewish members). As I said, the particular role that the Jewish members played in promulgating this policy is opaque -- other than that they stood (literally) on the front lines to defend it.

But I don't think that it's implausible that their role was a relatively active one -- that at least in part this happened because they wanted it to happen. It is an interesting fact about what I call "dissident minorities" that they often have a material interest in not making the spaces they occupy inclusive to the broader membership of their minority group. A DCDM where more Jews feel comfortable marching is a DCDM where these Jews, in particular, are less influential and less powerful. And so, far from being the brake that prevents the space from going to far, often times they're the accelerator pushing it forward and the bouncers standing between their "compatriots" at the entrance (as was quite literally the case here).

So it's reasonable to wonder if that's what was going on here -- anti-Zionist Jews, in a sense, egging the march on, trying to maneuver it into an antagonistic position towards the broader Jewish community while simultaneously using their own identities to ratify the legitimacy of the posture.

I'm Taking A Break

I just took my Twitter account private (thread here) and announced that I'm taking a break from that site for an indeterminate period of time.

I do not intend for that break to apply to the blog -- though since virtually everyone who reads my blog nowadays gets to it via Twitter, it may be a bit of a moot point (ironically, since the blog auto-posts to Twitter, anything I write here becomes the exception to the general "Twitter break").

In any event, I wrote a long (like, 3,500 words long) essay explaining exactly why I was departing -- but it's sitting in my draft folder for now. Maybe I'll publish it later. Maybe not. Maybe I'll do it with some deep editing. Depends on how I feel.

I am going on vacation later this week -- a wedding in (far) northern Minnesota (like, way-past-Duluth-northern-Minnesota), followed by Carleton reunion. So even absent this formal break, I might have been quieter anyway.

I mentioned in the thread that I was -- in large part due to how I was relating to Twitter -- feeling sad, and that's true, but I do want to stress that I'm not in any serious emotional crisis or anything like that. So, while I would appreciate any nice thoughts that might be sent my way, I don't want any of y'all to worry on that front.