Incredible Disappearing and Reappearing Authors

The Texas judge, Matthew Kacsmaryk who issued a trainwreck of a decision trying to ban the abortion pill is separately in the news for potentially hiding an article he authored while being considered for his judgeship. The basic gist of the story is that he submitted an article to the Texas Review of Law & Politics, a conservative law journal, attacking legal protections for trans Americans. While the article was being edited he removed his name from authorship and replaced it with two colleagues (Stephanie Taub and Justin Butterfield), allegedly so he could avoid disclosing the article to the U.S. Senate, which was in the process of considering his nomination to a life-tenured district court position.

Many people think this seems pretty sketchy. I'm inclined to agree. But I want to see if I can drill down as to why, because I have conflicting intuitions about some similar fact patterns, and so I'm not sure what's driving my judgments here. So let's work through some hypotheticals.

Let's call the two relevant authors K and J. Fact pattern number one is going to be essentially what Judge Kacsmaryk is accused of having done:

1. K writes an article, submits it to a law review, and has it accepted. After it is accepted, K decides he doesn't want his name associated with piece during the pendency of his judicial nomination, so he arranges to remove his name and have J -- not previously listed as an author -- be the public author on the piece.

And here is, as far as I can gather, the explanation of what happened from Judge Kacsmaryk's supporters -- i.e., this is his defense/apologia:

2. J writes an article, but K submits it to the journal under his name as a "placeholder". After it is accepted, K eventually removes his name and has it replaced by J, who was the legitimate author of the piece.

People are reasonably focusing on Kacsmaryk trying to hide information from the Senate. But there's also a more basic academic ethics problem here, that's present both in the accusatory and "defense" version of the story. Simply put, if J did sufficient work on the article to be legitimately credited as a co-author on the piece, why wasn't her name on draft to begin with? And if J didn't do sufficient work to credibly be deemed a co-author, it's dishonest to present her as having written the article. 

Indeed, at one level the "defense" story is worse, because the paper was initially submitted under false pretenses -- K is by stipulation not the actual author, but his name was the sole author listed on the piece when it was submitted and accepted. I have been a law review editor and advisor, and of course have written numerous law review articles (and have many colleagues in each of those roles) -- I have never heard of this "placeholder" authorship idea. The only reason I can imagine someone doing it is to try and get a paper accepted by a journal based on the prestige of the (non-)author's name. Absolutely not okay.

So from that vantage point, either way you slice it Judge Kacsmaryk seems to have done something shady. But I want to tweak the scenarios a bit, because as I said some small changes at least for me change my intuition sharply, and I'm not sure what to draw from that. Consider this variant:

3. J and K write an article together, and submit it with both their names on it. The article is accepted, but at some point in the editing process K decides he no longer wants his name on the piece. The article is ultimately published under J's name only.

This intuitively feels less problematic, but I'm not sure if my intuition is correct. The driver, I think, is twofold: J was always presented as an author of the piece, and the piece is being published under the authorship of someone who we know was (one of) the author(s). Is that enough to make this okay?

One reason I'm inclined to approve this is that the alternative seems odd to me: a piece that J co-authored can never be published if K doesn't want to move forward, even if K is fine with the article being published (so long as his name isn't on it). That seems wrong to me; I don't like that form of limbo. It's different if K was the only real author; I'm not convinced he can hand off his solo work to someone else and say "publish it in your name." But if J was already one of the authors on the piece, I don't feel as bad about letting her take over sole authorial credit (with K's permission) if K wishes to withdraw. Think of it as a sort of joint tenancy in the paper (or, if you prefer, joint and several liability over the paper's contents). Each co-author has full claim over the entire paper; we don't try to subdivide and say "this part is J's share, this part is K's share." And so if K pulls out of the paper, it is fine for the entire paper to revert to J.

If we do think of scenario 3 as problematic, then the question is what, if anything, can cure the problem.

4. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. They withdraw the piece from the journal it is accepted at. Later, J (with K's permission) submits it to another journal with J listed as the sole author.

To the extent our problem with #3 is that the accepting journal was under the impression that J and K were both authors, #4 fixes that by only representing J as the author from start to finish.  To the extent that we think that the problem is that K "really" was an author on the piece and it's misleading not to include him as such, then #4 fixes nothing, but then we still have this weird limbo problem.

Which brings us to scenario 5, which is some form of disclosure short of co-authorship:

5. J and K write an article together, and submit it with both their names on it. After it's accepted, K decides he no longer wants his name on the piece. J continues on with publication, but in the acknowledgements he states that he collaborated with K on an earlier version of the piece and that K gave permission for the piece to be completed on its own.

This seems like the appropriate move to make. 

For what it's worth, I was in a somewhat similar situation with my "Epistemic Dimension of Antisemitism" article. I initially was working on the project myself, later asked on a colleague as a co-author, and we submitted the piece to a journal under both our names. That publication venue petered out during the editing process (through nobody's fault), and my co-author in the interim changed jobs to one where it would have been awkward for her to be writing pieces like that. So, with her permission, I continued on with the project solo, and when it was finally published (in a different outlet) I included in the acknowledgements a line saying "Special recognition is due to [former co-author], with whom the author collaborated on an earlier version of this project and who graciously gave permission to the author to complete it on his own." 

That, to me, was an adequate resolution to the issue (though maybe people disagree): my name listed as the author, but with disclosure. And the disclosure solution, to be clear, only "works" (to the extent you think it does) insofar as I was always at least in a co-authorial position in the article. So it doesn't cover Kacsmaryk's case insofar as there was a complete replacement of authorship -- persons who were not listed as authors magically "became" the author (whether that's because the true author, Kacsmaryk, disappeared, or because the actual true authors, Taub and Butterfield, were inexplicably left off the draft in its initial submission).

But Taub and Butterfield's article also does not contain any acknowledgement or reference to Kacsmaryk whatsoever (which surprised me). And it is worth noting that, even had he been thanked in an acknowledgements section by the "new" authors, that probably would not have drawn Senate scrutiny (certainly not the same degree as if the article went out under his name). That is to say, leaving aside the "who are the true authors of this article" question, my solution to this problem probably would have "worked" as a means of throwing the Senate off the scent. Which maybe undermines it as actually a valid play; or it just suggests that the norms associated with being considered for a life-tenured judicial position are more stringent than normal academic conduct.

Corruption in the Family

By now, you've no doubt heard about the ongoing corruption controversy regarding Justice Thomas failing to disclose numerous financial gifts from a billionaire conservative friend. To a large extent, the usual suspects are lining up to criticize Justice Thomas and the usual suspects are organizing to defend him. But I want to focus on one thing in particular, embodied by this tweet from former Thomas clerk and Notre Dame Law Professor Nicole Garnett.

I've known Justice Thomas for over 25 years. He is the rare person whose goodness matches his greatness. It breaks my heart that so many are willing to go so far to attack a good, and great, man for political gain.

— Nicole Garnett (@nsgarnett) April 13, 2023

I am sympathetic to Professor Garnett here. I truly am. I've often pondered how I would respond if a loved one -- a mentor, relative, parent, friend -- was credibly accused of corruption or some other dire crime. How would I handle it if the judge I clerked for, the late Diane E. Murphy, whom I absolutely adored, turned out to have accepted millions of dollars in "gifts" without proper disclosures?

Even in writing that sentence, I wanted to hasten to add "now, I could never imagine Judge Murphy doing such a thing." Which is true, I can't imagine it. Judge Murphy was an extraordinarily kind, generous, and humble person; universally respected by peers of all ideological persuasions. She was the furthest thing from a financial grandstander.

But that's just the thing: in most cases like this, the crime is unimaginable to the perpetrator's loved ones right up until it's revealed. It is a myth, I think, that most wrongs of this nature are only committed by persons whom, once the truth comes out, their closest relations will be like "you know what? He did seem the type." It's always going to be a shock to someone.

Be honest with yourself: when it comes to the people closest to you, would you actually know if they were doing something wrong akin to what Justice Thomas is accused of? "Know" not in the loose sense of "I know their character," but in the strong sense of "I'm familiar with their accounting practices"/"I've seen their disclosures"/"I know what's going in and out of their bank accounts"? We don't know. It would come as a shock. If you woke up tomorrow and your parent was arrested for skimming money from their job, you'd be blindsided, and not really because you have a blind spot as far as your parents are concerned. The truth is, you would have probably had no way of knowing what they were up to until the investigation actually broke. It really would be unfathomable, even were it true.

So I do sympathize with Professor Garnett. I don't think she's myopic in identifying Justice Thomas as a personally warm and generous human being (something I've heard from multiple sources). I don't think it is a function of self-delusion that she didn't see this coming.

But the fact is that, for essentially every scandal like this, the perpetrator has loved ones for whom the scandal comes as a terrible, unfathomable surprise. That doesn't mean it didn't happen. That doesn't mean it wasn't wrong. For the individuals affected, the dissonance between the person they know and the crime alleged is beyond abnormal, it is a terrible, almost irresolvable discordance. From the vantage of broader society, that discordance is utterly and mundanely normal -- it characterizes every single case.

And so ultimately, this response to Professor Garnett gets it exactly right:

Justice Thomas might possibly be — and we’ve heard this from multiple sources — the kindest, most generous justice on the Supreme Court.

That doesn’t change the fact he’s involved in a massive ethics scandal of his own making. https://t.co/eO6YYXWe7c

— Fix the Court (@FixTheCourt) April 14, 2023

Why Does DEI Make Good Free Speech Advocates Go Bad?

Keith Whittington, Princeton professor and chief of the Academic Freedom Alliance, has been reviewing various state-level attacks on academic freedom. Today he visits Texas, which has a trio of bills under consideration that all put public universities under their sights in various ways. Whittington is generally skeptical of all these proposals, but he does have kind things to say about portions of one of the proposed laws, SB17.

That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."

[...]

From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.

(Whittington also raises the alarm about shifting review power to the boards of trustees).

I want to flag Whittington's claim that the DEI ban is "all to the good" (even if, perhaps, too draconian in its enforcement mechanisms). It is not all to the good! It is very bad, and pointedly, it's very bad for reasons that Whittington identifies elsewhere in his post! This is yet another example of how the anti-DEI obsession amongst some "free speech" advocates has caused them to endorse policies and practices whose impingement on academic freedom would otherwise be nakedly obvious.

Among the things prohibited by this part of SB17, universities would be prohibited from soliciting or acting on any statement regarding an applicants "views on, experience with, or past or planned contributions to efforts involving diversity, equity, and inclusion, marginalized groups, antiracism, social justice, or views on or experience with race, color, ethnicity, national origin, or other immutable characteristics."

As a constitutional law professor whose work focuses significantly on questions of race, equity, inclusion, and so on, I shudder to think how an interview with me would go if the hiring committee were forbidden from asking about or considering my views on these topics. What, exactly, would we talk about -- the Dodgers? And while for someone in my shoes there is an obvious relationship between the banned topics and my disciplinary work, there are also areas where this is germane for professors of any academic affiliation -- most notably, in discussions of pedagogy. As I've written before, it cannot be the case that university actors are forbidden from caring about questions like "will the job candidate do a good job creating an equitable and inclusive environment for our diverse academic community?" But SB17 strongly suggests that such concerns would, in fact, be legally proscribed.*

This is why I've written before regarding how anti-DEI bans are inevitably academic freedom trainwrecks. They're justified as checks against "compelled speech", but in practice they serve (and intentionally so) as massive chills on important facets of academic conversation. And the thing is, Whittington is well aware of the mechanics here -- he explains them ably in his critique of the companion SB16 bill. SB16 purports to forbid professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief." Here's what Whittington says to that proposal:

It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.

Emphasis added, because that's the rub. If it's just an attempt to forbid compelled speech -- someone being forced to swear allegiance to a particular ideological framework -- it's redundant except for its knock-on chilling effect. But of course, the law isn't just about the specific "compelled speech" case -- it is designed to and inevitably will curtail very normal academic conversations.

Yet this exact same problem besets the DEI ban. If it's just about forbidding a requirement that prospective professors genuflect before a graven image of Derrick Bell as part of the application process, then it's unnecessary and only serves to create an additional halo of chilling effect. But SB17's DEI ban doesn't "just" do that; it by its terms stretches to cover any "statement" on matters of diversity, equity, inclusion, race, or other like topics -- topics that a hiring committee regularly and appropriately should be considering. For example, as someone who has served on a hiring committee, I very much want to be able to inquire into whether (to pick a recent example) a candidate openly believes Jews should never be hired again. It is important and good that a person like that not get hired; I absolutely can and should be giving preference to candidates who do not take that sort of view! And more broadly, we can and should be able to consider and debate over whether given candidates will do a good a job facilitating an effective academic and pedagogical environment for diverse communities. That's normal, and that's salutary, and that would likely be either forbidden or at least significantly chilled by application of Texas' proposed DEI ban.

Again, the logic for why the DEI ban is problematic is contained in Whittington's own post. He should be able to spot it, and yet it says that the provision (absent the penalty provisions) is "all to the good." FIRE went through the same thing a few weeks ago, drafting a trainwreck proposal against DEI statements that -- were it on any other topic -- FIRE would be screaming bloody murder about the obvious academic freedom impingements. Something about the DEI issue is corrupting free speech advocates, causing them endorse obvious violations and ignore flagrant threats. They're going to need to address this blindspot sooner rather than later, because this fever doesn't seem to be going away.

* SB17 has a provision that exempts requests for information regarding "pedagogical approaches or experience with students with learning disabilities." That narrow and highly specific carveout strongly suggests that inquiring generally how a prospective professor would seek to facilitate an effective and inclusive classroom environment for students of diverse backgrounds would now be verboten.

Guns as Escalators, Guns as Deescalators

Professor McGonagall's face was pinched and angry. "You are not to use the Time-Turner in that fashion, Mr. Potter! Is the concept of secrecy not something that you understand?"

"They don't know how I did it! They just think I can do really weird things by snapping my fingers! I've done other weird stuff that can't be done with Time-Turners even, and I'll do more stuff like that, and this case won't even stand out! I had to do it, Professor!"

"You did not have to do it!" snapped Professor McGonagall. "All you needed to do was get this anonymous Slytherin back on the ground and the wands put away! You could have challenged him to a game of Exploding Snap but no, you had to use the Time-Turner in a flagrant and unnecessary manner!"

"It was all I could think of! I don't even know what Exploding Snap is, they wouldn't have accepted a game of chess and if I'd picked arm-wresting I would have lost!"

"Then you should have picked wrestling! "

Harry blinked. "But then I'd have lost -"

Harry stopped.

Professor McGonagall was looking very angry.

"I'm sorry, Professor McGonagall," Harry said in a small voice. "I honestly didn't think of that, and you're right, I should have, it would have been brilliant if I had, but I just didn't think of that at all..."

-- Harry Potter and the Methods of Rationality, Chapter 17

"Mr. Potter, you have taken to using the Time-Turner as your solution to everything, often very foolishly so. You used it to get back a Remembrall. You vanished from a closet in a fashion apparent to other students, instead of going back after you were out and getting me or someone else to come and open the door."

From the look on Harry's face he hadn't thought of that.

"And more importantly," she said, "you should have simply sat in Professor Snape's class. And watched. And left at the end of class. As you would have done if you had not possessed a Time-Turner. There are some students who cannot be entrusted with Time-Turners, Mr. Potter. You are one of them. I am sorry."

"But I need it!" Harry blurted. "What if there are Slytherins threatening me and I have to escape? It keeps me safe -"

"Every other student in this castle runs the same risk, and I assure you that they survive. No student has died in this castle for fifty years. Mr. Potter, you will hand over your Time-Turner and do so now."

-- HPMOR, Chapter 18

"Harry Potter," Professor Quirrell said.

"Yes," Harry said, his voice hoarse.

"What precisely did you do wrong today, Mr. Potter?"

Harry felt like he was going to throw up. "I lost my temper."

"That is not precise," said Professor Quirrell. "I will describe it more exactly. There are many animals which have what are called dominance contests. They rush at each other with horns - trying to knock each other down, not gore each other. They fight with their paws - with claws sheathed. But why with their claws sheathed? Surely, if they used their claws, they would stand a better chance of winning? But then their enemy might unsheathe their claws as well, and instead of resolving the dominance contest with a winner and a loser, both of them might be severely hurt."

Professor Quirrell gaze seemed to come straight out at Harry from the repeater screen. "What you demonstrated today, Mr. Potter, is that - unlike those animals who keep their claws sheathed and accept the results - you do not know how to lose a dominance contest. When a Hogwarts professor challenged you, you did not back down. When it looked like you might lose, you unsheathed your claws, heedless of the danger. You escalated, and then you escalated again. It started with a slap at you from Professor Snape, who was obviously dominant over you. Instead of losing, you slapped back and lost ten points from Ravenclaw. Soon you were talking about leaving Hogwarts. The fact that you escalated even further in some unknown direction, and somehow won at the end, does not change the fact that you are an idiot."

[...]

"The next time, Mr. Potter, that you choose to escalate a contest rather than lose, you may lose all the stakes you place on the table. I cannot guess what they were today. I can guess that they were far, far too high for the loss of ten House points." 

-- HPMOR, Chapter 19

Yesterday, the New York Post ran a story about an incident in Florida where two drivers got into a rolling gunfight with one another, exchanging fire that injured both drivers' daughters (a 14-year old and 5-year old girl). While both drivers were initially charged with attempted murder, one driver -- the one who opened fire first -- had the charges dropped after prosecutors decided he had a valid self-defense claim since the other driver was the initial aggressor (allegedly trying to "run him off the road" and hurling a water bottle at his truck).

Hale tried to run Allison [the driver who had the charges dropped] — who was driving a Nissan Murano with two passengers — off Highway 1 near Calahan with his Dodge Ram pickup truck, which had four passengers, police said.

At one point, Hale drove alongside the Murano, rolled down his window and began shouting at Allison to pull over as Hale’s wife made an obscene gesture.

Allison rolled down his window to shout back when a plastic water bottle was thrown from the truck into the SUV, according to the Nassau County Sheriff’s Office in Florida.

[...] 

[Then, Allison] fired a semiautomatic handgun at [Hale], hitting Hale’s daughter, who was sitting in the back seat, and then sped off, police said.

When Hale realized the girl was hit, he sped closer to the SUV and began firing several rounds from his semiautomatic — one of which struck the 14-year-old girl. 

I was thinking about this incident, and to a lesser extent the recent case in Texas where a man was convicted of killing a protester who allegedly brandished an assault rifle at his car after the shooter reportedly drove his car into the crowd (this is the case where the Governor has promised to pardon the killer), and thinking "what would happen if none of the parties had guns?"

In the Florida incident, I do not think -- even accepting that Allison was "acting in self-defense" -- "thank goodness Allison had a gun -- who knows what would have happened if he wasn't armed!" My strong intuition -- albeit not one that can be proven -- is that if Allison was not armed, this incident would have resolved as a "normal" case of road rage, and in particular, we would not have seen two young girls be shot in their parents' cars. To be clear: Allison seems to have been the victim of terrible, threatening behavior by Hale. But the presence of guns (and it was Allison who fired the first shot) escalated the situation. It did not keep anybody involved safe; it made a bad situation far, far worse.

If Allison had no gun, the most likely result is that he would have just had to endure Hale's predatory road rage (at least until a filing a police report later). There is something disconcerting, I imagine, to saying, in effect, that this would have been the right choice. It entails, to be very colloquial about it, agreeing to "lose" to a predator. Allison firing at Hale represents an (escalatory) effort to fight back; to continue to resist; to win. Should Allison have "picked wrestling", even though it allowed Hale's predations to prevail (at least in the immediate moment)?

I think the answer is yes. At the very least, it's the choice that doesn't result in two children being shot. More to the point, it's the choice that millions of Americans who don't have guns would have had to have made in that same situation. Millions of Americans go through life without guns. When we encounter a road rage scenario like the one in Florida, we can't use a gun "in self-defense" because we don't have one. But as much as it might be humiliating or scary or infuriating to feel impotent in that scenario, it seems clearly better than what happened here when guns did enter the picture.

Proponents of gun rights as a means of self-defense imagine a template case as a scenario where a person is threatened and, had they not had the gun, they would be subjected to severe bodily injury or death. The availability of the gun "deescalates" (that's not quite the right word, but I don't have a better one) the situation insofar as, instead of the innocent victim being severely injured and/or killed, it is the wrongful perpetrator that suffers that fate.

But there are no doubt some number of circumstances -- and I don't know how one could measure it, but I suspect it's a greater number -- where the availability of a gun, even under the "self-defense" rubric, does not deescalate but escalates a situation. A scenario that would have resolved as a lower-level indignity or violation becomes one where someone is shot or killed.

Sometimes, we might say that for some sorts of criminal activity, a violent response is justified and socially beneficial even if it is in some sense escalatory (e.g., many argue this for a homeowner shooting a burglar, notwithstanding the fact that robbery is a "lesser" violation than shooting someone). Nonetheless, when I think back to the occasions where I've been a victim of violent crime, I do not think "if only I had a gun." To the contrary, whether or not on those occasions I would have been legally permitted to "stand my ground", I think it is absolutely for the best that I did not blow away either the homeless man or the drunk college students who assaulted me. It is clear to me that in those circumstances, I should have done what I actually did do, which is pick myself up and walk away. I should have "lost".

Not everyone agrees with me -- a law school classmate told me that if he was shoved to the ground as I would, he would "legitimately fear for his life" and would be justified in responding with lethal force. Perhaps if he had been in my shoes and armed, four people who we know did not need to die would be dead. I lacked the means (or desire) to respond with lethal force, and the result was the people who we know did not need to die, didn't die. Where the presence of guns converts more scenarios like that -- ones where we could just walk away -- into ones where someone or multiple someones are shot or killed, that is I think a clear net loss for society.

Again, I don't know how to measure this. But it seems clear that, just as there are some circumstances where having and using a gun averts the more tragic outcome; there are other circumstances where having and using a gun causes the more tragic outcome -- and (this is important) even under cases which fall under the rubric of self-defense.

The opening excerpts from Harry Potter and the Methods of Rationality (which I highly recommend) are about instances where Harry is, in a brute moral sense, right to resist. Professor Snape and other Slytherins are wronging him, abusing him, in a manner that in a just world he should not have to tolerate. And yet, the moral of these passages is that reckless escalation even in response to injustice or wrongdoing has immense risks; it puts even more stakes on the table that aren't always justified or commiserate to the underlying, initial abuse. Hale seems to have badly abused Allison. But Allison could not just let it lie; he escalated dramatically by firing a gun from a moving vehicle into another car. The danger that posed -- to Allison's own family, to Hale's, to other travelers or passers-by -- is almost incalculable, and hardly seems proportionate to the (very real) wrong and abuse Allison endured. If Allison lacked a gun, he would not have been able to initiate that escalation. And at least two children would not have been shot.

You Can't Message Your Way Out of Your Own Heartfelt Extremism

Following their preferred candidate getting absolutely blitzed in a swing-state judicial election due to his anti-abortion extremism, conservatives are now trying to argue that they need to pivot to better messaging on abortion. 

There are a whole host of reasons why this won't work, starting with the fact that their favored "moderate", "compromise", "good message" alternative is Lindsey Graham's proposed nationwide compulsory women-maiming law. But another reason why it won't work is that the Republican Party cannot control the behavior of its own membership -- most notably, those in the GOP's YOLO Joker caucus (federal judiciary division) -- who insist on nothing short of the absolute most draconian limits on reproductive care imaginable:

A federal judge in Texas blocked U.S. government approval of a key abortion medication Friday, siding with abortion foes in an unprecedented lawsuit and potentially upending nationwide access to the pill widely used to terminate pregnancies.

The highly anticipated ruling puts on hold the Food and Drug Administration’s approval of mifepristone, a medication first cleared for use in the United States in 2000. The ruling will not go into effect for seven days to give the government time to appeal.

U.S. District Judge Matthew J. Kacsmaryk, a nominee of President Donald Trump with long-held antiabortion views, agreed with the conservative groups seeking to reverse the FDA’s approval of mifepristone as safe and effective, including in states where abortion rights are protected.

On the one hand, Republicans need to find a way out of the abortion trap. On the other hand, unaccountable hack judges in Texas are banning abortion medication nationwide based on completely spurious, results-oriented reasoning, guaranteeing that the GOP's forced labor agenda stays front and center in all of its extreme, uncompromising splendor indefinitely.

The Texas injunction now is paired with a dueling injunction from a district court in Washington, which forbids any alteration by the FDA to the status quo (at least in the plaintiff states in that litigation; the judge declined to make his injunction nationwide). This means the case almost certainly is headed to the Supreme Court sooner rather than later. Will the Court actually follow the law for once, or will we get another (to borrow from Josh Blackman) "epicycle" as rule of law bends itself to satisfy the whims of anti-abortion extremists cloaked in Article III garb? Stay tuned.

Rate That Apology, Part 12: Dan White

On April 5, at the onset of Passover, Labour Party leader Keir Starmer sent a message of welcome to the Jewish community: "Today I am sending my warmest wishes to members of the Jewish community as you prepare to celebrate the festival of Pesach. Chag Sameach."

Perfectly lovely, perfectly anodyne.

Replying to that tweet, Dan White, a journalist who claims to be a member of ITV's "diversity board", wrote to Starmer:

Did you see what happened at Al-Aqsa mosque while Palestinian worshippers are celebrating the holy month of Ramadan? Your silence is disgusting.

And now he's apologized:

Asked to explain his comments, White, told Jewish News: "I can only apologise for the ill timing of my tweet."

"I am not and never have been antisemitic."

"My response was not aimed at the community, but at the silence from all political parties around the conflict which is happening."

"I accept my response was badly timed, I can only apologise profoundly for it. My mental health sometimes makes snap decisions. As I said I am believer in peace, worldwide. I am sorry again for the ill timing and any offence."

Four paragraphs, all terrible. The pro forma "I am not antisemitic" is the usual level of eye rolling. Placing the blame on his "mental health" is accountability dodging (and for what it's worth, "mental health" doesn't make decisions. Dan White makes decisions, for which Dan White should learn to accept responsibility for).

However, I want to focus mostly on this framing of the problem as one of "timing". The tweet's problem was not "timing". If White had on April 5 just written a general message to the effect that Starmer or other British politicians are not paying sufficient attention to violence against Palestinian worshippers, and someone said "how dare you say something like this on the eve of Passover", that would be an objection about timing -- and an ill-taken one, since the fact that we're near the onset of Passover does not make it inappropriate to level commentary on violence occurring in Jerusalem right now.

But again, that's not the problem here. The problem is not when White wrote the tweet. It's where he did it -- in reply to an unrelated message of support for the British Jewish community in celebration of one of our holidays, having absolutely nothing to do with Israel whatsoever. The practice where anytime anyone talks about Jews in any context folks come swinging in with "what about Palestine?", is antisemitic per se, as much so as the Texas Republican who opposed a resolution honoring Muslims celebrating Ramadan because there are Muslim terrorists in Iraq.

If there's any saving grace for White, it's that the replies to Starmer's tweet are positively crawling with trolls saying much the same thing. Some consolation.

Grade: 2/10

The Tennessee Three: Whataboutism as Fascism Apologia

You've no doubt heard at this point about "the Tennessee Three", three Democratic members of the Tennessee State House facing an expulsion vote for their role in a protest against gun violence that occurred on the state legislative floor. Expulsion is a rarely-invoked procedure in Tennessee, typically reserved for obvious cases of criminality of misconduct (e.g., a bribery scandal) in cases that garner bipartisan support. To use it to kick out minority party members for a raucous protest the majority found embarrassing is a huge overreach, an exploitation of the GOP's supermajority status to further undermine basic democratic principles.

I wanted to flag a particular comparison Tennessee Republicans are using to justify their conduct -- comparing the protest to the attempted insurrection on January 6:

House Speaker Cameron Sexton compared the incident to Jan. 6: "What they did today was equivalent, at least equivalent, maybe worse depending on how you look at it, to doing an insurrection in the State Capitol," he said.

Sexton also noted that Jones and Johnson had previously been "very vocal about Jan. 6 and Washington, D.C., about what that was."

There was, of course, no insurrection here: the protest had no ambitions of overthrowing the government. But there's something revealing about this rhetorical move that I think typifies the way conservatives are normalizing and justifying fascist behavior.

Even now, many Republicans are kind of willing to concede that there was something ... untoward about January 6, and the broader campaign of election denial that spawned it. "Kind of" because they face tremendous pressure to outright endorse it, as Sexton's "maybe worse" aside makes clear. But to the extent they to recognize that there's something wrong with what happened on January 6, what they want to do is present things like January 6 as an ordinary sort of ugliness, the sort of foul or misconduct one can see from all parts of the political spectrum. Yes, maybe the January 6 thing went a bit too far. But it's not distinctive; this is a problem one can see across the aisle too. Look at Black Lives Matter protests -- why aren't they being treated like the insurrectionists? Maybe Trump shouldn't have denied the election, but is it really any different from Al Gore demanding a recount in 2000? Trump stole classified documents; well, what about her emails? Whatabout, whatabout, whatabout.

By transferring these egregious examples of anti-democratic thuggery into the realm of "normal" politics, Republicans justify treating them via the "normal" (partisan) political process. Sure it might be a bit distasteful, and more than a little opportunistic, but hey, that's politics. There's nothing exceptional here that demands standing on a broader principle. Everything blurs into an indistinguishable mush of "sometimes politics gets ugly." And in that universe, well, it's just realistic that Republicans probably won't pay much attention to their "normal" nips that might cross the line. Cynicism styles itself as realism, but it's really just cowardice.

None of this is to say that straightforward political thuggery isn't sufficient explanation for why Tennessee Republicans are acting the way they are. But there is a broader justificatory narrative being crafted here. The Tennessee Three isn't just about state and national Republicans being contemptuous of democratic norms (though it's certainly about that too). It's yet another effort to pull the extreme conservative threats to basic rule of law principles out of the realm of "extreme" and blur them into the normal hurly-burly of every day politics. Exploiting the media's instinct to "both sides" everything, the GOP will just troll all the way down

Wisconsin Man's Upward Fall Arrested

Democracy may finally be coming to Wisconsin, as Janet Protasiewicz defeated arch-conservative Daniel Kelly to flip a key seat on the state supreme court.

The Wisconsin Supreme Court has been a national embarrassment for years. This was the court where a justice tried to choke out one of his colleagues, after all. More recently, it was by far the court that came closest to endorsing Donald Trump's authoritarian campaign to overturn the 2020 election. Members of the conservative faction have since openly questioned the validity of President Biden's victory, putting them far outside even the conservative judicial mainstream and marking them as little more than partisan thugs.

Can you imagine the sort of totalitarian hellscape where the votes of the majority play essentially no role in determining who wins elections? pic.twitter.com/VScxrZV5CR

— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) July 8, 2022

And yet, even among this sorry bunch, Daniel Kelly would have stood out.

I first wrote about Daniel Kelly when he was initially appointed to the Wisconsin Supreme Court by then-Governor Scott Walker. He had made an argument comparing affirmative action to slavery, something that -- even restricted to the "civil rights programs are the new slavery!" field -- was jaw-dropping in its stupidity (and "civil rights programs are the new slavery!" is already a field saturated with stupidity).

Over the course of his career, and over the course of this campaign, Kelly has proven himself to be the definition of a mediocrity who's managed to fall upward via the beneficent hand of the right-wing gravy train. His academic pedigree is undistinguished. He had no judicial experience when he was appointed to the court by Walker in the first place, and after his (first) defeat he stayed plugged into Wisconsin GOP politics by providing legal advice to the effort to steal the state for Trump after Joe Biden's 2020 victory. And of course, all have now witnessed his petulant response to being defeated by Protasiewicz:

"I wish that in a circumstance like this, I would be able to concede to a worthy opponent," he said at an event held at the Heidel House Hotel in Green Lake. "But I do not have a worthy opponent to which I can concede."

Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable and despicable." "My opponent is a serial liar. She's disregarded judicial ethics; she's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin."

Adding: "I wish Wisconsin the best of luck, because I think it’s going to need it."

[...]

"The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," he said. "I respect the decision that the people of Wisconsin have made, but I think it does not end well."

If ever there was a definition of "lacking in judicial temperament," he personifies it.

Yet beyond that, Kelly is a familiar, if not archetypical figure. He is suffused with entitlement for that which he has not earned, and consumed by rage when he doesn't get it. There are thousands -- millions -- of men (almost always men) just like him. Most don't go on to become state supreme court judges, though many do bully themselves into positions far beyond their talents or capacities by a mixture of being useful to the right people and being an impossible menace when they don't get what they want. When they do, finally, see their upward fall arrested, they are incredulous and infuriated at the injustice of it all. Hell hath no fury like a mediocre White man scorned.

Indeed, perhaps Kelly's only mistake was being appointed to the Wisconsin Supreme Court instead of the Seventh Circuit Court of Appeals -- a position from which he could never be dislodged no matter how apparent it became that he was ill-suited for the position. On the federal bench, with life tenure, he could have prowled and fulminated and lashed out with impunity, forever; secure in the knowledge that it would be constitutionally impossible to ever hold him accountable. One can only imagine the law school classes he would have baited and berated.

But alas, Daniel Kelly is a creature of the state bench, and in Wisconsin, supreme court justices must meet the approval of the voters. Twice now, the voters have resoundingly rejected Daniel Kelly as unsuited for the role of state supreme court justice. Kudos to them. And while Democrats are celebrating Protasiewicz's win, the bigger winner is the small-d democracy that has been under siege in Wisconsin for far too long.

Post-Conference Roundup

Last week, approximately 35 speakers (and dozens more guests) came to Lewis & Clark Law School for the 2nd Annual Law vs. Antisemitism conference. It was an event I'd been planning for over a year, and I'm pleased to report it was a rousing success. The panels were scintillating, the conversations crackling, and the two keynotes (by the ADL's Steve Freeman and civil rights activist Eric Ward) blew the doors off the joint. I could not be prouder.

Unfortunately, as the conference approached I could feel myself getting a cold, and so I did that deal-with-the-devil bit where I just willed myself to not be sick for the conference, and my body was like "okay, but you're going to pay for that come Tuesday." So the day after the conference I was sick as a dog. But now I'm mostly better -- just some residual congestation.

Anyway, here's a roundup:

***

Haven't seen the clip, but apparently a protester held up a "Jews control the USA" sign on the CNN segment reporting on Trump's indictment today. So that's fun.

Iowa school hit with bomb threats over LGBT book after "LibsOfTikTok" sics her goons on them.

In other "is killing students in school controversial?" news, Nashville students walk out of class to protest for gun reform following the Covenant School shooting.

Also in Tennessee: a federal judge has enjoined the state's new draconian "anti-drag" law as likely violating the First Amendment.

As a now-certified Caitlin Clark fan, it's beyond evident that folks calling Angel Reese "classless" for doing the same mugging that Clark had done all season are, well, they're not hiding the ball. And for what it's worth, there's zero evidence that Clark in any way needs or supports y'all white knighting on her behalf -- I guarantee she can take what she dishes out. (Surely, we can all agree that the only thug on the court yesterday was Kim Mulkey).

Israel looks set to give its resident fascist his own personal state-backed paramilitary squad. What could go wrong? Nothing, because "wrong" implies that the the utterly predictable consequences aren't intended.

A beautiful story of a transwoman recounting "coming out" to her 100 year old grandpa. His memory clearly already is a blessing.

Oh, and I published a new article! "Microaggressions as Negligence" is now out in the Journal of Social Philosophy.

Caitlin Clark is a Crossover Sensation

I was watching boxing today -- the Anthony Joshua/Jermaine Franklin card -- and on the boxing blog I follow the fans between fights were just shooting the breeze about just how good Caitlin Clark is. And not that boxing fans can't follow women's basketball, but it was still striking to see that sort of crossover appeal in this particular forum. She really has the potential to be a true breakthrough sensation.

Obviously, Caitlin Clark is very, very good. First ever 40-point triple double in NCAA tournament history. First player to have two consecutive 30-point triple doubles. She's a threat on all angles. She can create off the dribble as well as anyone I've seen. You can't even say "well, a team just has to stop one person", because she's a fantastic passer as well. And on top of that, she's got a bit of menace to her which I love. She's just a ton of a fun to watch play ball. Her performance against the #1 seeded South Carolina was a tour de force.

The Iowa/South Carolina match was a fantastic game of basketball. Indeed, my only sour note about it is the degree to which the post-game coverage has emphasized it as (in the New York Times' words) "the upset of all upsets", something that nobody saw coming, an impossibility made real. No, it wasn't. To be sure -- it absolutely was an upset. South Carolina was the favorite, and deservedly so, given its absolute dominance on the court this year. But going into the game, South Carolina's victory was not treated as a foreordained conclusion, precisely because Caitlin Clark would be on the floor. To the contrary, the game was promoted -- correctly -- as must-see TV, a "clash of the titans" pitting the tournament's clear best team against the tournament's clear best player. This was not Purdue/Farleigh Dickinson, where nobody outside the FDU locker room could have possibly seen the upset coming. This was seen as a very competitive matchup precisely because everyone knew Caitlin Clark really was that good. And she proved that yes, she was that good.

"Why Some Men Are Above the Law"

In 2016, the eminent philosopher Martha Nussbaum publicly recounted for (I believe) the first time her "Bill Cosby" story -- not about Cosby, but about her being raped by a different famous "TV dad" in the late 1960s. The title of the story was "Why Some Men Are Above the Law", and Nussbaum takes little time to address the myriad reasons why she never did report the attack until some fifty years later. 

One obvious reason for her reticence, Nussbaum noted, was the near-certainty that her attacker would "either to portray me as an extortionist or to sue me for defamation." On this point, Nussbaum said something -- in a parenthetical aside no less! -- that I've found myself returning to year after year:

(The famous are indeed unusually exposed to extortion, and that vulnerability itself is an aspect of their impunity: everyone easily believes that this is what a complaining woman is after.)

This is something I've turned over and over in my head. The famous are exposed to extortion; that is the reality. It is a true vulnerability; it isn't made up. And yet that vulnerability becomes itself a form of impunity: because it's always so obviously possible for them to be accused in bad faith, any accusation immediately falls under a shadow of suspicion.

I thought of this again today, when it was announced that a different television personality would be indicted for various crimes by the state of New York. Donald Trump's defenders have quickly raised hue and cry over this being a political witch hunt, dirty politics, a partisan plot (this, of course, does not even get into the de rigueur allegation that it's a Soros-led plot). I heard it said that Barack Obama will be the last president not to be indicted upon leaving office, as surely this is the new normal in tit-for-tat partisan squabbling.

The thing is, the critics have an inkling of a point. Donald Trump, by his station, is more vulnerable than the average Joe to being targeted in a political prosecution. The prospect of partisan motivations does loom larger. But that vulnerability is part of the impunity; the fact that this specter can never quite be dispelled is ultimately what has let Trump run riot over the civil and criminal laws of this country for years. No matter what he does or how brazen he gets, we'll always have to (rightfully!) second-guess whether we're letting politics overcome law -- far more so than in a standard criminal case.  It is the same ultimate story that Nussbaum told. And for too long, it has let Donald Trump stand above the law.

Schoolchildren Shouldn't Have To Live Like Jews, Part II

This weekend, Lewis & Clark Law School hosted the 2nd Annual Conference on Law vs. Antisemitism, a conference which (I don't think it's immodest of me to say) I did the lion's share of organizing.

Part of that organization was making sure, at the outset, to contact Lewis & Clark campus security to inform them of the event and have a security plan in place. This included having a security officer on site, requiring registration and check-in, alerting the Portland Police Bureau of the event and having them monitor the chatter of "certain" sites to ensure we weren't going to be a target, and other sundry efforts to address what I called our "elevated risk profile" compared to a standard law school event.

All this, to me, felt very normal and unremarkable. I'm hosting a conference on antisemitism -- of course I need to take extra steps to ensure that it is secured.

The day-of grunt work for the conference was provided by a set of Lewis & Clark law school student volunteers, most if not all of whom were not Jewish. They all did, to be clear, a fantastic job. But I think it is fair to say that for them, this sort of extra security was very much not normal. Which I recognized, and at various points during the run-up, I'd update them on the various security measures we were emplacing, trying to balance between "we're a conference on antisemitism, there's inherently heightened risk" and "but there's no reason to fear, most likely nothing bad will happen, this is all just precautionary." I was aware that my normal is not their normal.

The conference went very well, and without any problems or disruptions of any sort. As is the case, 99% of the time. The vast majority of cases where a synagogue brings in extra guards to watch over high holiday services, nothing bad happens. We just had a great event. So I felt kind of bad, forcing all these student volunteers to deal with the anxiety of all those extra security precautions. My normal shouldn't have to be their normal.

After Uvalde, I wrote a deliberately provocative post titled "Schoolchildren Shouldn't Have to Live Like Jews." The basic thrust of the post was to argue that all the various ways Jews have enhanced local security, "hardened the target", etc. etc., are not good models for how to protect schoolchildren from mass shootings. That they're normal for us -- a beleaguered, regularly threatened minority group -- should not make them normal for everyone. 

Less than a year later, in the wake of yet another school shooting, this time in Nashville, I couldn't help but return to the same thought. I mourn for the families, not just for their immediate loss, but for the extra wave of grief they will endure upon realizing just how little the American people care about them. But the fact is that when the only response to a shooting is "more guns" -- taking the firefight as inevitable and just hoping it occurs earlier in the process -- we're tacitly (or not so tacitly) conceding that "we're not going to fix it". It is taken for granted that to have your children in public schools is to run the risk of having them gunned down -- a price that too many politicians treat as one families are agreeing to pay, as opposed to being coerced into accepting (witness Tennessee Republican Rep. Tim Burchett's blithe response when asked how to "protect people like your little girl": "Well, we home school her.").

It doesn't have to be like this. Our normal shouldn't have to be their normal.

California Jewish Community Continues To Win the Ethnic Studies Controversy

A few years ago, I was heavily quoted in a great Haaretz article titled "How California's Jewish Community Won the Battle Over the State's Ethnic Studies Program". While I had at that point left California, I had previously been heavily involved in the Jewish community efforts to ensure that the ethnic studies curriculum not only did not discriminate against Jews, but also told the full, robust Jewish story as part of the California educational experience. Despite the efforts by some to fear-monger Those efforts were broadly successful, making the California Ethnic Studies battle one of the Jewish community's great victories.

The implementation of the ethnic studies mandate has not been without friction, not the least because some districts are not adopting the model curriculum the Jewish community worked so hard to develop. I haven't been following the ins and outs as closely now that I've left the state, but I still do hear some things. And to the end, I want to share an email I recently received from the San Francisco Bay Area JCRC, addressing "rumors" regarding ethnic studies in the Mountain View Los Altos High School District (MVLA).

The rumors circulating about the ethnic studies program at Mountain View Los Altos High School District (MVLA) have become a cause of concern in the Jewish community. We are in regular communication with district leadership and have made a formal request to review classroom teaching materials. Based on publicly available information, we have so far seen no evidence of antisemitic or anti-Israel content.

The controversy over this curriculum is causing great division in the district, and we have received numerous emails and calls of concern. Unfortunately, the tone of the conversation is hurting families and educators and we are calling on concerned community members to stop reaching out to the district directly and to allow JCRC to continue our work with district leadership. We reject public attacks on the district as counterproductive to our community’s aims at this time.

The email goes on to clarify that, apparently contrary to certain rumors, the ethnic studies curriculum in MVLA does include discussions of antisemitism and Jewish experience and is not currently tied to the so-called "liberated ethnic studies" curriculum. At this point, the email suggests:

Objections to MVLA’s curriculum appear to be ideologically-based, with some questioning the inclusion of concepts such as systems of power and oppression, concepts that are included in the California Ethnic Studies Model Curriculum. While segments of our community may object to teaching these concepts, these concerns are not related to Jewish identity, antisemitism, or Israel, and should not be conflated with anti-Jewish bias.

Why do I flag this email? Because I think it helpfully highlights several trends and activities worth underscoring.

First, it is illustrative of how the institutional California Jewish community has been consistently excellent on this issue -- vigorously advocating for Jewish communal rights, while refusing to give into or endorse fear-mongering or conspiratorial nonsense. They deserve tremendous applause for this -- you and I know full well that is not something that can be taken for granted.

Second, it is laudatory that the statement correctly distinguishes between mere ideological opposition to teaching about things like "systems of power and oppression", and having leveled a colorable claim of antisemitism. Political disagreement with certain frameworks used in ethnic studies is not tantamount to identifying actual antisemitic content. This is not to say that such concepts cannot be deployed in antisemitic ways. But frequently right-wing Jewish critics of ethnic studies skip past that step and simply assert that the existence of these concepts is inherently antisemitic without any need to show actual, particularized antisemitic content (for my part, I have no idea how one could possibly understand antisemitism without conceptualizing it as a "system of oppression"). 

Third, it highlights how counterproductive ill-informed rabble-rousing around these issues are. It is almost certain that the success of the Bay Area JCRC and affiliated groups in creating a healthy ethnic studies framework for the Jewish community is in no small part attributable to the direct relationships and consultations its had with MVLA officials. Those relationships and consultations are strained when a bunch of yahoos bombard the school board with whatever the latest misleading Tablet Magazine screed is. Even in cases of genuine antisemitism, this approach often is wildly counterproductive and harms those it purports to "protect". 

Much like the folks who decided the best way to support Berkeley Jewish students was to drive a Hitler billboard truck onto campus, these interventions are not ultimately about trying to improve the climate for Jews. They're accelerationism -- trying to increase the temperature in a bid to hasten the crisis point where things boil over. Just as the last thing that the Berkeley Hitler truck purveyors want is a world in which Jews feel comfortable at Berkeley (if Jews are comfortable at Berkeley, then a heaping pile of right-wing narratives attacking higher education go kaput), the last thing the rabble rousers want in Mountain View is for ethnic studies to be able to comfortably incorporate Jewish perspectives (if it does, the whole narrative that ethnic studies is and must ever be antisemitic falls away).

It is, to reiterate, fantastic that California's Jewish community has not, by and large, fallen into these traps. Good behavior deserves plaudits, and I applaud the Bay Area JCRC for the tremendous, superb work they've done on the ethnic studies issue for years now.

America Sees Florida Man, Is Creeped Out

It looks like the Ron DeSantis bubble might have already burst. After a brief period where he looked like a viable GOP challenger to Supreme Overlord Donald Trump, his poll numbers even amongst Republicans are cratering.

There's something about this which is just tickling, and it's not only that it couldn't happen to a more deserving autocrat. The media enthusiasm for DeSantis was based on his big reelection win in Florida -- if he can win by that margin in a "swing" state, surely he's a force to be reckoned with on a national level! That logic was always a bit faulty, and instead of DeSantis' Florida-appeal translating nationwide, what  actually happened was that America saw what apparently appeals to Florida voters and was reminded again that Floridians have weird, creepy tastes and can't be trusted. 

Turns out a regime based on government-period monitoring, assaulting Mickey Mouse, banning books on Roberto Clemente, outlawing Black history, and censoring Michelangelo isn't a recipe for national success! Who knew?

Conservatives need to get out of the gulf-coastal-elite bubble and recognize that what plays in Tallahassee doesn't appeal to the rest of America.

— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) November 9, 2022

Michigan Republicans To Michigan Jews: Get Lost

The opening to JTA's story about Michigan Republicans comparing the state's new gun control laws to the Holocaust reads as follows:

 The official Twitter account of Michigan’s Republican Party posted an image comparing gun control to the Holocaust on Wednesday. Then, following condemnations of the post by Jewish groups, the party doubled down on its message.

It’s the latest example of Holocaust imagery being utilized to deliver a partisan political message.

It is the latest example of Holocaust imagery being utilized to deliver a partisan political message. It's also the latest example of Republican politicians responding to Jewish concerns by saying "get bent".

Of course, saying "F U to the Jews" isn't surprising coming from the Michigan GOP, which is now led by election-denying conspiracy theorist Kristina Karamo:

Karamo, a Trump-backed election denier, has in the past been accused by the Anti-Defamation League’s regional director of invoking antisemitic tropes about Jewish power. During her campaign for secretary of state last year, Karamo accused the Democratic incumbent, Jocelyn Benson, of being a “puppet” controlled by Jewish billionaire George Soros. She also has claimed Benson, who is Jewish, and the state’s Jewish attorney general, Dana Nessel, are “all part of the Soros minion club.” 

Still, it's worth noting that those condemning the Michigan GOP statement include not just mainstream Jewish bodies and organizations, but also prominent Jewish Republicans including the Republican Jewish Coalition. This, of course, only accentuates how the Michigan Republican Party and Karamo are making a conscious choice to extend a big ol' middle finger to all the Jews, even their nominal friends.

I'll reiterate once again that one of the biggest points of differentiation between the status of Jews in the Democratic Party and the status of Jews in the Republican Party is that Democratic Jews, when we have inward-facing concerns, still can get a hearing from people who care about what we think. It's not always smooth or frictionless, but that fundamental bondedness that stems from decades of relationship-building and solidaristic organizing is still present. By contrast, when Jews face antisemitism from the Republican Party, the institutional GOP's immediate, reflexive, and typically solitary response is to close ranks and lash out against the messenger. We've seen it before, and we're seeing it again here.

When The Worst Person You Know is the Victim of Unjustifiable Cruelty

There's a lot of making fun of Bethany Mandel right now. On the whole, it is entirely deserved. I've partaken myself. I have no particular sympathy for the idea that she deserves kid-glove treatment when she bombs on live television. She's a public figure who made a high-profile screw up in her effort to promote greater histrionic racist fearmongering. She can take her lumps.

That said, in all such matters there are things that should be out-of-bounds. Attacking her for being an observant Jew would seemingly be one. Attacking her for being the victim of sexual abuse is an obvious second. And yet. In the course of a larger bid to give Mandel "some more of that sweet sweet publicity she so craves," Paul Campos includes a passage that I think is clearly one of horrific, unjustifiable cruelty no matter who the target is.

.... Bethany has been pumping out lots of Orthodox babies at an impressive rate: six is the current count I believe (Her father was Jewish, her mother was Catholic, and she converted to Orthodox Judaism when she married Seth. During the conversion process, her rabbi used a hidden camera to film her while she prepared for the ritual baths Orthodox women are required to take to wash away all those cooties).

I thought about just ignoring this -- it's not my blog, I have no connection to Campos, and I certainly have no interest in white knighting for Bethany Mandel. But really, this is gross, and it needs to be called out as gross without letting it pass. In context of an entire blog post dedicated to making fun of Mandel, bringing in the fact that she was the victim of terrible abuse by a trusted spiritual advisor is entirely gratuitous and cruel. It is not presented in any way that suggests this fact is different from all the other facts Campos musters regarding why Mandel is worthy of contempt.  To the contrary, it is presented as yet another reason to mock and look down on Mandel, as part of a broader (and also appalling) narrative of contempt geared at Orthodox Jews. We should never treat sexual abuse that way. Never. No matter who the victim is. Nor should we tolerate this sort of antipathy at any religious community -- again, no matter who the target is.

So yeah. There are so many great reasons to look poorly on Bethany Mandel. She offers new ones virtually everyday. Given that bounty of options, if you decide to pick out that she was the victim of sexual exploitation as part of your bouquet, that says some truly shocking things about your character far more than hers. Don't do this.

Sorry Because You Got Caught

Often times, when a public figure is revealed to have engaged in some misconduct and is in the process of apologizing, you will hear dismissal of that apology via some variation of "he's only sorry because he got caught."

I've been reflecting on this for the past few days, because I think it is a more interesting problem than often given credit for. What are the conditions for which we might think sorrow is genuine notwithstanding the fact that it follows after "getting caught"?

After all, temporally-speaking I suspect it is the case that most public gestures towards repentance only follow getting "caught" or called out. It's not impossible to repent for wrongdoing without ever being caught -- one can turn oneself in -- but most of the time the former follows the latter. And I actually suspect it is true that most people who are not caught doing X wrong are unlikely to unilaterally engage in public actions of repentance. At most, they'll feel ashamed and bad in private. Which is not nothing, and can yield genuine changes in behavior. But it's also typically not viewed as sufficient expressions of remorse for the person who is "caught".

So if most public figures are, in some sense, "only sorry because they got caught", does that mean that most public figures are insincere in their apologies? Or that their apologies are inherently unreliable and insufficient?

I don't think that can be right. The very fact that the vast majority of repentance work occurs after being caught should make us leery about saying that such work is inherently suspect when it follows being caught. For most people, "getting caught" is a triggering event in a process that one hopes will lead to genuine repentance, remorse, and repair. It strikes me as implausible to dismiss any gestures of remorse that follow getting caught, unless we think most human beings are basically incapable of true remorse but are low little sociopaths.

This doesn't mean that any individual person -- observer or (especially victim) is obliged to "forgive" a public wrongdoer upon the first gesture of apology. Your relationships are your business, and if you decide that you need to write someone off temporarily or permanently due to something they've done, that's up to you. I think we vastly overweight obliging forgiveness. Himpathy and all that. And more over, "being sorry" doesn't liquidate one's obligations to try and make right what one has done wrong. Repentance should come at cost.

But on the flip side, there's a version of the "we're too quick to forgive" politic that acts as if people are at best suckers, at worst complicit, if they don't view essentially all efforts at remediation and reparation as so much manipulation -- being taken in by someone who is "only sorry that they got caught." And to that, I'd also say "your relationships are your business," you're allowed to believe that someone is actually remorseful and wants to go through the steps to make a repair. If you're the victim, it can be doubly traumatizing to hear that you're a dupe or a sellout for trying to work with the wrongdoer to mend the break. If you're an observer, you can't forgive on behalf of the victim, but you're allowed to come to your own judgment about what the wrongdoer is trying to do and assist them on a journey towards repentance.

The Effects of Whitening Jews

The ADL just released some interesting new data its compiled on antisemitism. I'm still working my way through it, but I did want to flag one experiment it did which to my mind led to some fascinating results on the interplay of Jewishness and Whiteness.

Before I talk about the study, some background. Many -- myself included, in my "White Jews: An Intersectional Approach" -- have hypothesized that in the contemporary American context Jewishness is viewed as amplifying Whiteness. That is, whereas in years past Jews were seen as paradigmatically non-White, today Jews are seen as paradigmatically White -- so much so, that even persons who might otherwise be identified as non-White will instead be coded as White once it becomes known they're Jewish. I quote one writer as arguing explicitly that "the simple attribute of being Jewish functions to whiten Sephardic and other non-white Jews,” and suggest that "All Jews are 'White Jews' in this sense—non-White Jews are deemed White in their Jewishness."

From this, we can generate a hypothesis:

Hypothesis 1: All else equal, respondents will be more likely to perceive someone they know to be Jewish as White than a person whom they know not to be Jewish.

But what is the impact of this Jews-as-White association?

Here, we can think of two stories, which I'll dub the "traditional" and "revisionist" accounts.

The traditional account suggests that as Jews became perceived as White, it opened doors and diminished antisemitic prejudice. Being seen as part of the "in" group ameliorated antisemitic otherization and reduced antisemitic stereotype, as Jews became viewed by the White majority as "one of us".

The revisionist account, by contrast, suggests that Jews being perceived as White licenses certain forms of antisemitism. As Jews become seen as White, they're no longer viewed as a marginalized group worthy of protection and instead become "fair game" for otherization and discrimination that would allegedly not be tolerated if they remained recognized as a distinct minority.

These two accounts aren't necessarily competitive. In most renditions, the revisionist account is sequential to the traditional one: that is, the argument goes that in the mid-20th century "Whitening" Jews may have been a boon for Jews, but in the 21st century (with the rise of multiculturalism and "woke" politics) it has become a liability. Or one might believe that both hypothesis are true for different sorts of persons: White people viewing Jews as White diminishes antisemitism (since it implies viewing Jews as part of their group); while non-White people viewing Jews as White will enhance antisemitism (since it implies Jews are not part of their group and are part of the dominant White group)

So we have two more hypotheses:

Hypothesis 2a [traditional]: Perceiving Jews as White will result in comparatively lesser levels of antisemitic stereotyping.

Hypothesis 2b [revisionist]: Perceiving Jews as White will result in comparatively greater levels of antisemitic stereotyping.

Keeping this in mind,  here's what the ADL did. First, they showed subjects the following photo of a racially-ambiguous person:

Some subjects were told the subject was Israeli Jewish, some were told he was Iraqi Arab, and some were told he was American. They were then asked to answer whether the pictured person was "White" or not.

Respondents were far more likely to code the person as White if he was identified as Jewish. That there was no significant distinction in answers between the "Iraqi Arab" and "American" labels suggests that this is a function of Jewishness "Whitening" the subject. This, in turn, provides strong evidence in support of Hypothesis 1.

But what was the result of this perception? Hypothesis 2a (the traditional account) suggests that viewing the person as White should be associated with reduced antisemitic views (he's an "insider", "one of us", or a member of a respected, preferred group). Hypothesis 2b (the revisionist account) suggests the opposite: that viewing the person as White should be associated with increased antisemitic views (he's a member of the dominant caste, an oppressor).

The study found that for White respondents, viewing the pictured person as White was associated with significantly lower levels of antisemitic sentiment -- supporting the traditional account. But perhaps this is not too surprising -- the sorts of White persons invested in denying Jewish Whiteness may be especially prone to antisemitic aggression. We might think that non-White persons, for whom being White is of course not an assertion of commonality,  would push in the opposite direction. But the study found that, for non-White respondents, viewing Jews as White had no relationship to the prevalence of antisemitic attitudes. This significantly weakens the evidentiary support for the revisionist hypothesis even in its supposedly strongest turf (21st century non-White respondents).

I'll want to dive into this in more detail, of course. But what a fascinating contribution!

We're Grown-Ups Now, And It's Our Turn To Decide What That Means

Years ago, I wrote a review of a greasy spoon diner I ate at in Oakland called "Pretty Lady". My wife and I had intended to go to a trendy spot called "Brown Sugar" which specialized in contemporary twists on classic American blah blah blah, but the wait was two hours, we were hungry,  and so we just found a random restaurant nearby that sounded like it could cook a decent brunch. Pretty Lady was a small place, and its shtick was that the older Asian lady who ran the place would insist on giving every patron a fist bump before she took their order. It was corny and ridiculous, but it made me smile. So we both gave her a fist bump, and then we ordered our fried egg sandwiches, which were perfectly fine but nothing remarkable or especially distinct from any other reasonably competent fried egg I've had. 

Anyway, in my review I gave the place four stars -- remarking that while based on food quality alone, it was probably more of a three star, "there is something to be said for a nice hole-in-the-wall that just makes you feel happy from the moment you walk in to the moment you leave." It's possible that the highly accoladed Brown Sugar and its fancy, deep, sophisticated takes on the American brunch, would have been a life-altering experience. And perhaps giving plaudits to a restaurant for a fist-bump and a basic fried egg dish isn't as sophisticated as uncovering the sublime flavors and textures of this year's James Beard award chefs. But I was just happy to be happy, and I thought Pretty Lady deserved to lauded for the simple act of inspiring happiness.

James Greig in Dazed has an article criticizing "adult babies" who, even into their 20s and 30s, enjoy childlike things (Harry Potter, action movies, stuffed animals, etc.). His is not primarily an aesthetic critique, though. He thinks this is politically objectionable. The propensity of adults to consume child-culture -- which covers everything from young adult novels to acting "cute" -- is part of a broader pattern of self-endorsed helplessness; a way for people to come to terms with (rather than challenge) their lack of agency and take pleasure in failing to accept responsibility:

[E]ven if the economy is foisting an extended adolescence on us, we can still choose to assert our dignity and refuse to become “baby adults” or 26-year-old teenagers, helpless and dependent. Make no mistake: the capitalist elites want you to think of yourself as a silly little goose. “From a psychoanalytic perspective, self-infantilisation makes uncannily good sense. It is a kind of identification with one’s own powerlessness, and so gives it a veneer of active choice,” says [philosopher Josh] Cohen.....

What would rejecting this helplessness look like? The right see adulthood as a process of settling down, getting married and having children; in effect, conforming to conventional gender roles and being productive members of the workforce. We obviously don’t have to buy into that, at any age. But we can aspire towards a different form of maturity: looking after ourselves, treating other people with care, being invested in something beyond our own immediate satisfaction. Infantilising yourself can often seem like a plea for diminished responsibility. Most of us will have encountered someone who, when criticised for behaving badly, appeals to their own vulnerability as a way of letting themselves off the hook. No matter what they do or the harm they cause, it’s never fair to criticise them, because there’s always some reason – often framed through therapy jargon or the language of social justice – why it isn’t their fault. Childishness grants them a perpetual innocence; they are constitutionally incapable of being in the wrong. 

But we will never make the world better if we act like this. Thinking of yourself as a smol bean baby is a way of tapping out and expecting other people to fight on your behalf. 

So here's the thing: the purely political register of this, I endorse -- indeed, I've written regularly about the "infantilization of the American right", in terms that largely echo Grieg's. I absolutely agree that we each have a responsibility to make our own choices in fashions that care about our loved ones and those around us in a respectful fashion; we can't just throw up our hands and act as if we lack agency altogether. But once this political observation proceeds into a cultural critique -- grouchy assertions that kids adults these days are watching the wrong movies/listening to the wrong music/adopting the wrong hobbies -- then I think it is exactly as tendentious and dull as any other moral panic which adopts largely the same tenor.

For starters, one of my bedrock social principles is a strong presumption against begrudging people joy where they find it. There's not so much happiness in the world that we should be too keen on finding reasons to take away people's joy. In this, I think Grieg significantly misdiagnoses why it is that this "childlike" properties hold appeal for many adults. I don't think it is wholly or even predominantly about some fetishization of our own helplessness. I think we're seeing instead an appreciation for uncomplicated joy (and the parallel inability of some progressives to understand why joy-qua-joy is good). 

Not everything has to be a grimdark march through serious themes where every halfway decent character ends up brutally murdered by an uncaring universe. Nor, for that matter, does it have to be a complex and shaded exploration of deep philosophical precepts that can generate a dissertation or twelve. Some people do enjoy these things (I often do), and that's great! But other people enjoy other things, and that's fine too. People like Star Wars because it's fun, and it makes them smile, and it doesn't need to do more than that. To be clear: we need to do more than that in the totality of our lives. But that doesn't mean every constituent element of our lives must be a complete balanced diet all in itself. That something "just" sparks joy is absolutely a sufficient reason to like it. Grieg seems to view unmediated joy as the experiential equivalent of empty calories -- we should strive to consume more nutritious fare. I'm inclined to think of joy as an essential vitamin that is an indispensable part of this complete breakfast. How one ingests that vitamin is fundamentally up to us.

The link between the cultural and political critique presumably is that the consuming the "merely" joyful leads to the sort of political infantilization that we both agree is so toxic. But there is no reason why simply "taking joy in things" necessarily leads to the sort of self-infantilization that Grieg critiques. And that's true even if part of its appeal is harkening back to moments of fewer responsibilities and concerns. We go to baseball games in part because it reminds us of bonding moments with our parents, or of how simply meeting your favorite player could be enough to send you into a happy tizzy for a week. Does this nostalgic appeal mean that adults who remain baseball fans are indulging in "a way of learning to love your oppressor"? Is the best way of describing baseball fandom "tak[ing] an acute loss of agency and control and transform[ing] it into a state to be desired and enjoyed"? Or is the small-brain description -- that adults watch baseball because it makes them happy, and that's quite the sufficient justification on its own -- perfectly comprehensive? Some people can write epic narratives that connect baseball to the weighty philosophical themes of life -- some do the same for Star Wars or Harry Potter -- but realistically speaking that's not why most people watch baseball. But good news! That baseball is mostly enjoyed for simpler reasons doesn't mean that baseball fans are progressively losing the ability to take responsibility in other domains! We're perfectly capable of partitioning here.

Generational grousing notwithstanding, there is not anything new about most adults regularly enjoying the simpler pleasures (medieval jousts, too, largely demurred from exploring complex and morally shaded themes). Other than adjusting the relevant titles, there is no time period where pompous sniffing about the need to put down Harry Potter and pick up Henry James could not be heard. But the best thing about being adult is our capacity to choose for ourselves what makes us happy -- nobody forces us to play the piano or go to karate practice; we do those things or not because we are in a position to decide what fulfills us. When an adult enjoys Super Mario Brothers, that's not them "choosing" helplessness, it's them choosing joy. Our obligations in a political register extend well beyond this. But in terms of culture, hobbies, and pastimes, Grieg more or less is indignant because people are being happy wrong -- and that's a criticism I just refuse to share.