The Religious Liberty Commission's Coming Attack on (Non-Orthodox) Jews

Donald Trump has named a set of appointees to his newly formed Religious Liberty Commission. This article does a good job covering much of the "Jewish" angle of the appointees, noting their general Orthodox slant and connections to various right-wing advocacy groups. None of that is surprising, particularly given the sharp split within the Jewish community where the Orthodox minority strongly supports Trump while the non-Orthodox supermajority despises him.

But there was one name that wasn't mentioned in the above story that I think deserves special attention from the American Jewish community: Josh Blackman, a professor at South Texas College of Law, who was appointed to the committee's legal advisory board. And the reason his appointment deserves special mention is simple: Blackman has argued that non-Orthodox Jews -- which is to say, the vast majority of American Jews -- should be categorically barred from making religious liberty claims. A "religious liberty" commission with him guiding the ship is a commission that presents a clear and present danger to the basic standing of American Jews like myself.

Blackman's argument against permitting non-Orthodox Jews access to religious liberty protections is breathtaking in its audacity and sweep. His view is that since only Orthodox Jews consider themselves bound by halacha, they are the only Jews who can ever sincerely claim to ever be "burdened" by impositions on their religious exercise. Non-Orthodox Jews are, in his view, relegated to little more than a cultural grouping or philosophical debate club; we are dismissed as incapable of having legally cognizable religious commitments at all. And when we dare purport otherwise, Blackman suggests, we should be seen essentially as liars -- opportunistically "gerrymandering" their claims to fit the Supreme Court's new free exercise jurisprudence.

Blackman's position represents an extreme version of burgeoning hostility on the political right towards non-Orthodox Jews perceived as politically liberal. It's no accident he was a central figure I highlighted in my "Liberal Jews and Religious Liberty" article as providing the "intellectual" architecture for de jure discrimination against non-Orthodox Jews, In particular, I argued in that article that a key component of the new conservative orientation regarding Jews was a decided belief that non-Orthodox Jews are not really Jews at all. In an ironic recreation of Karl Lueger's infamous "I decide who is a Jew!" declaration; conservatives are now declaring that the Jews they don't like don't count as Jews to begin with. 

Consider Trump's recent claim that Chuck Schumer was "not Jewish anymore" because of his opposition to Trump's MAGA agenda. It wasn't just random flailing. It was part of a pattern of denying that liberal Jews are properly viewed as Jews at all. This denial is critical to metabolizing the dissonance between conservative's imagined identity as warriors against antisemitism and the reality that they loathe the overwhelming majority of American Jews. Where they can successfully deny that most Jews even count as "Jews", this dissonance can be relieved, and their love for "Jews" can coexist with their hatred of actual Jews. 

Blackman is a leading figure seeking to promote a vicious and reactionary form of "religious liberty" where the bulk of the Jewish community are not only not protected, but are in fact among the primary enemies, all while draping itself in the mantle of "fighting antisemitism". It's despicable, and to anyone with a modicum of respect for the Jewish community as it is actually constituted it should be viewed as a form of antisemitism in its own right.

Blackman's appointment thus should be seen as a dramatic escalation of President Trump's war on the Jewish community. If adopted, Blackman's position would exclude the vast majority of American Jews out of the protections of the First Amendment and other religious liberty protections. At the very least, his appointment further underscores the degree to which the Trump administration's rhetorical claims about opposing "antisemitism" are coupled with disdain, even outright hostility, to most American Jews. But if his legal views are accepted, it would officially codify discrimination against non-Orthodox Jews into the body of American law.

This is not a drill. The Jewish community needs to know: if you are Reform, Conservative, Reconstructionist -- if you're a member of any or all but one preferred denomination of Jewish religious practice -- the Trump administration is laying the groundwork to strip you of your Jewishness and treat you as an enemy. Plan accordingly.

The Counterrevolution Eats Its Own: Conservatives Turn On Yale Law Conservatives

A few years ago, I had the distinctly bizarre experience of being the target of a particularly devoted internet troll.

The interesting thing about him, though, was that he initially presented himself as an ally. He saw that I was publicly Jewish and was (at the time) a graduate student at UC-Berkeley, and was eager to hear tale of how horrible my life must be, stuck in such an antisemitic cesspool as Berkeley.

I answered honestly: my experience was mixed. There were definite problems with being Jewish at Berkeley, and I had little patience for those who denied it. I had some discomforting encounters, and I had a particularly tense relationship with my own graduate student union. But at the same time, being Jewish at Berkeley also was not nearly as bad as sometimes portrayed in the media. Berkeley is a big place, and every department is different. What happens in the anthropology department didn't necessarily travel to my home in the political science department. There were professors I had read about who had done terribly antisemitic things, but I had never met them (again, big place!). And my professors were generally quite supportive of my work on antisemitism, even when it may have clashed with some presumed progressive shibboleths. On the whole, the portrayal of Berkeley as a sort of warzone for Jews, where one could not reveal one's faith or (God forbid!) interest in Israel and antisemitism without being ripped to pieces by one's peers, was quite far from my experience; even as I could not say either that there was no fire whatsoever behind the smoke. As I said: a mixed experience.

This, I rapidly found out, was the wrong answer. My interlocutor quickly decided that the only way I could be a Jew at Berkeley and not be beaten down, miserable, and ready to flee for my life was if I was an antisemitic sympathizer myself. And so, a troll was born.

I'm reminded of this story via Josh Blackman's defense of Judge James Ho's announcement that, going forward, he will refuse to hire any Yale Law School graduates as clerks. Judge Ho objects to what he sees as Yale's indulgence of a campus protest culture which he believes has created a toxic and unproductive intellectual climate for campus conservatives. His boycott is an effort to induce and/or coerce Yale into adopting a harsher line (one wonders, if the boycott fails, will divestment and sanctions follow?).

The immediate irony, of course, is that the students most directly effected by Judge Ho's announcements are the putative victims of the campus culture he decries -- the beleaguered Yale Law conservatives. After all, the presumably liberal protesters likely were neither applying to nor would have been hired by Judge Ho even before now. And the irony goes deeper. Refusing to evaluate applicants from Yale "as individuals" and instead impute to them the sins of their broader group rests uneasily with the putative meritocratic individualism extolled by Ho and his allies. After all, isn't it precisely that form of rugged individualism that at least allegedly marks off the core of Ho's ideological disagreement with Yale liberals? Perhaps, channeling Ilya Shapiro, we might ask whether, by enacting a preemptive group-based exclusion that limits the pool of candidates to be considered, Judge Ho has ensured that the "lesser" clerks he does hire "will always have an asterisk attached" to their accomplishment (surprising no one, Shapiro has enthusiastically endorsed Ho's decision to depart from strictly individualist meritocratic consideration).

But so it goes. Perhaps these Yale conservatives, though victims, must necessarily be victimized still further for the greater good. Excluding them is a necessary sacrifice for the cause of restoring Yale's good name and academic reputation. There may be bigger values at stake here that meritocratic individualism.

Enter Blackman. Blackman does not view Yale conservatives as victims. Blackman wants them to know that they deserve what's coming to them. They deserve to be excluded, they are getting no more than their just deserts. 

How can this be? And how can it be reconciled with allegedly defending Yale Law conservatives from the predations of their peers?

The answer is simple. Blackman thinks there is one and only one reason why a conservative student would attend Yale in the year 2022: because they're prestige whores. That, to Blackman, is the singular and defining feature of a Yale conservative. And as prestige whores they can and should be punished for their failure of moral character.

That's harsh, but that's the argument. Read for yourself:

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige....

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character.

There are, of course, many reasons why a conservative student might elect to choose Yale over Harvard or other competitors. Perhaps there are particular professors they are eager to work with and learn from. Perhaps they are attracted to Yale's small size. Perhaps they are eager to test their beliefs inside a true bastion of liberalism (this, running in the opposite direction, was part of why liberal me decided to attend the University of Chicago, with its reputation as a conservative citadel). Or perhaps -- and I suspect this is the most unforgivable sin of all -- they do not find Yale's intellectual climate to be quite as inhospitable as it is portrayed in the sensationalist media. Perhaps they, while being conservative, disagree with the conservative orthodoxy on this subject. Perhaps they've come to a different conclusion from the "politically correct" answer, just as I came to my own conclusions about the state of life of being a Jew at Berkeley.

But just as with my assessment of Berkeley, all of these are, of course, the wrong answers. If you are a conservative and you are not fleeing Yale as fast as your legs will take you, the only explanation is you are a morally bankrupt sellout. As Blackman illustrates, there is no tolerance for deviation from the right-wing orthodoxy on this point. If you are a conservative and you do not subscribe to this orthodoxy via your continued attendance at Yale, you are a villain, you are a traitor, you are a RINO, you are an enemy of the movement, and you deserve what is coming to you. And this from the supposed allies of conservatives on campus! How quickly the alleged defenders of intellectual heterodoxy collapse back into singular, ideologically convenient explanations which can brook no departure.

We have seen how quickly alleged concern for "free speech" on campus collapses into calls for censorship, ostracization, and exclusion that dwarfs any of original sins allegedly enacted against campus speech in the first place. This is of a piece with that trend. The counterrevolution eats its own. It always has, and it always will.

Rats Flee Floating Ship

You might have heard the story break that the Heritage Foundation, America's leading right wing "think tank", has just been hit with a rush of high-level resignations across several key programs. The resignations were precipitated by Heritage's president, Kevin Roberts, legitimizing the rise in antisemitism explicit antisemitism even more explicit antisemitism on the mainstream right by ostentatiously defending Tucker Carlson friendly interview with neo-Nazi extremist Nick Fuentes.

(Among those resigning is Josh Blackman, and I have to say, caring about other Jews makes a nice change of pace for him).

The scope of the resignations has understandably led folks to frame the events as "turmoil" at Heritage, and there's no doubt they're losing a lot of big names who have decided that Heritage's increasingly open embrace of open nativism and ethnic supremacy is too much for them. And the natural thing to conclude in the wake of such turmoil and disarray is that Roberts has made a major strategic error; failing to recognize that even now there are some things that are still "too far" for even the most hardened conservative loyalist.

But l disagree with that take. To the contrary, I think Roberts is right. This was no blunder, this was strategy, and Roberts is absolutely going to be vindicated in the end.

Now, obviously, when I say Roberts is right -- he's not morally right. He's morally abominable; his positions, reprehensible. But that goes without saying; if he was morally upstanding, he wouldn't be leading the Heritage Foundation.

No, what I mean is, Roberts is right in his assessment of where the conservative movement is going and what it wants. No matter how august their titles and pedigrees, the people departing are not going to cripple Heritage; they will not dim its star in the least. Heritage will be able to replenish it ranks just fine (it helps that mediocrity is not a barrier to success there), and its influence in the halls of conservative power will not wane.

Roberts has calculated that open embrace of White nationalism and nativism is the ticket to success in the contemporary conservative movement. I think he is right in that wager. It is the same calculation made by J.D. Vance -- a man whose completely venal lack of principles makes him, if nothing else, a useful barometer of how the right-wing winds are blowing -- when he jumps all in on White supremacist bullhorns. Roberts knows full well what young Republicans truly think, and what they truly think is that they hate Jews, think Hitler is underrated, revel in being called racist, believe women should get back in the kitchen, and think anyone who isn't a "heritage American" has no rights the white man is bound to respect. These people -- the new GOP base -- will not follow their elders in fleeing Heritage. To the contrary, they will be even more excited to join forces with it.

This is the Republican Party's present and future, and Roberts is making a calculated decision to get out in front of it. It's not surprise that one of the staffers rising to fill the power vacuum after all this is E.J. Antoni, he of the creepy love affair for an iconic Nazi battleship. Antoni's Nazi fascination is exactly what Roberts is looking for, because it's exactly what contemporary conservatism is looking for. The people who don't like it? They're yesterday's conservatives. Their departures mean nothing.

So I suspect that the Heritage refugees will find that, their years of slavish service to the conservative cause notwithstanding, they are now functional irrelevancies. They're not going to pull a Bill Kristol and have a late-stage redemption arc. They're not going to have meaningful influence or clout in contemporary conservative circles either, as they no doubt fantasize. They'll be nobodies. Some will rage impotently against the dying of the light, some will quietly choose to fade away. Some number will, if past history is any guide, come sheepishly crawling back into the fold -- the fate of many a "NeverTrumper" whose "principled" opposition was actually pure opportunism that sadly misread the prevailing political winds. None of them will do much of anything to alter or even ameliorate the tsunami of racist, nativist, antisemitic, and misogynist antagonism that is the sole driving force of the modern conservative movement.

So yeah -- don't see this as the Heritage Foundation being torn asunder. This is the Heritage Foundation perceiving the new conservative normal -- a normal of unapologetic authoritarianism, atavistic ethnic hatred, gutter racism, smirking antisemitism, and vicious nativism -- and deciding it wants to be at the vanguard.