The Protests, The War

This will be a somewhat longer post than usual, and it has been an extraordinarily difficult one to write.

As a retired faculty member of Indiana University, and a former Executive Director of Indiana’s ACLU, I have been appalled by IU’s over-the-top response to the student protests on the Bloomington campus. The late-night change of a 55-year-old policy,  the decision to invite a police presence, the horrifying confirmation that a sniper was positioned on a nearby roof–all of this in response to what observers described as a peaceful protest–is incomprehensible.

Other institutions of higher education have similarly over-reacted–but still others have not. At Dartmouth, Jewish and Middle-Eastern professors have co-taught a class exploring the conflict and its history; at the University of Chicago, where my granddaughter is a sophomore, the University has issued a statement reaffirming students’ right to protest while making it clear that demonstrations “cannot jeopardize safety or disrupt the University’s operations and the ability of people in the University to carry out their work.”

You don’t have to agree with the message being conveyed in order to support the right to protest. In the immortal words of Oliver Wendell Holmes, freedom of speech is meaningless unless it is also “freedom for the idea we hate.”

I have refrained from posting my own concerns about the conduct of a war that has divided America’s Jewish community as much as it has the broader polity. But Josh Marshall of Talking Points Memo recently shared his reactions, and I share them. (Marshall is Jewish). He begins his essay by noting that much of the anti-Semitism being voiced has come–at least at Columbia–from non-students on the periphery of the protests. He also points to the naiveté of students calling for the elimination of the State of Israel, attributing the slogans to “the kind of revolutionary cosplay that is often part and parcel of college activism.”

Is this anti-Semitic? Not as such. It’s a political view that the Israeli state never should have come into existence in the first place and that the events of 1948 should simply be reversed by force, if a solution can’t be voluntarily agreed to. But since a bit over half of Jews in the world live in Israel, that is a demand or an aim that can’t help but seem wildly threatening to the vast majority of Jews in the world, certainly the ones in Israel but by no means only them.

Marshall discusses the decades-long administrative changes in institutions of higher education that have made so many universities ill-equipped to deal properly with this particular moment, and then he turns to the war itself.

If it is true that the groups spearheading the protest expressly hold eliminationist goals and beliefs about Israel, it is just as clearly true that the real energy of these protests isn’t about 1948 or even 1967 — they are about what people have been seeing on their TVs for the last six months. And that is a vast military onslaught that has leveled numerous neighborhoods throughout Gaza, led to the substantial physical destruction of much whole strip and lead to the deaths of more than 30,000 people. That’s horrifying. And people know that the U.S. has played a role in it. It’s not at all surprising that lots and lots of students are wildly up in arms about that and want to protest to make it stop.

To me, you can’t really understand the situation without recognizing that Hamas started this engagement by launching a massacre of almost unimaginable scale and brutality and then retreated to what has always been its key strategic defense in Gaza, which is intentionally placing their military infrastructure in and under civilian areas so that the price of attacking them militarily is mass civilian casualties that are then mobilized internationally to curtail Israeli military attacks on Hamas.

This is unquestionably true and no one can honestly deny that this is Hamas’s central strategic concept: employing civilian shields to limit Israel’s ability to engage Hamas in military terms.

But that being true doesn’t make tens of thousands of people less dead. And most of the dead aren’t Hamas. So if you’re a student you say — along with quite a few non-students in the U.S. — all that stuff may be true, but what I’m seeing is the ongoing slaughter of thousands of innocents and I absolutely need that to stop, especially if it is being carried out directly or indirectly with arms my tax dollars bought….

The last six months has thrown me very hard back on to defending the existence of Israel, its historical connections to Jews in Europe and the Middle East before the 20th century, its origins as the political expression of a people who are in fact indigenous to Israel-Palestine. And that’s because all of these things are now questioned and attacked as core questions.

But the reality is that these conversations, often harrowing and angry, are simply diversions from anything that creates a path forward from the terrible present. There are two national communities deeply embedded in the land. Neither is going anywhere even though there are substantial proportions of both communities who want that to happen to the other one. There’s no way to build something sustainable and dignified without both peoples having a state in which they have self-determination and citizenship. That’s the only plausible endpoint where violence doesn’t remain an ever-present reality. How you get there is another story. And yes, if you think one unified state makes sense, God bless you. If you can get majorities of both groups to agree to that, fine. I don’t live there. If that’s what they want, great. That’s almost certainly never going to be the case. And it’s a failed state in the making.

But none of these arguments about 1948 or 1967 or indigeneity or “settler colonialism” really impact or have anything to do with getting to some two state/partition end point. And no I’m not saying for a moment that that will be easy to get to. It seems terribly far off. But fantasies and alternative histories won’t get us there.

I am older than Marshall–old enough to remember my mother sobbing while reading “The Black Book” after the end of WWII–a compendium of reporting on Nazi atrocities. I remember the little blue box she kept, in which she collected dimes and quarters to plant trees in Israel, and I remember the fervent hopes of family members for the establishment of a place where Jews would be safe. Back then, none of us could have conceived of an Israeli government dominated by a Bibi Netanyahu, whose twenty years of shameful policies toward Palestinians have actually strengthened the Hamas terrorists, not to mention being utterly inconsistent with Jewish law, culture and tradition.

On this blog, I often repeat the mantra “it’s complicated.” And the situation in the Middle East is nothing if not complicated. Nothing–not history, not Netanyahu’s behavior before or since–justifies the barbarity of October 7th. That said, neither does that barbarity justify the horrors that have been unleashed on the Palestinian civilians in Gaza–just as shameful incidents of anti-Semitism on the nation’s campuses do not justify wholesale assaults on peaceful protesters.

A final reminder: the Christian Zionists in and out of Congress who support anything and everything that Israel does are motivated by their belief in the prophecy that all Jews must be “returned” to Israel in order to usher in the Rapture. Jews who accept Jesus will be “Raptured up,” while the rest of us will burn in hell. Unconditional support for Israel is necessary to bring that about–such support is most definitely not evidence of loving-kindness for the Jewish people.

At the end of the day, I keep thinking about that plaintive question from Rodney King, after he’d been beaten by officers of the LAPD: “Why can’t we all just get along?”

If only I had an answer to that…..

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Way To Go, Idaho Democrats!!

Americans who support a woman’s right to control her own reproduction have been following Supreme Court arguments in a recent case out of Idaho, in which the Court will decide whether federal rules requiring doctors to take measures to save women’s lives and health are superceded by Idaho’s law forbidding abortion unless necessary to save the woman’s life–a law that prevents medical intervention until the threat of death is dire.

This anti-woman law is hardly the only evidence of the extreme Rightward turn of Idaho’s GOP, a turn that–together with a “compete everywhere” strategy– the state’s Democrats believe will help the party win seats in the upcoming election.

As Politico has reported,

Democrat Loree Peery knows she’s a long-shot candidate for the Idaho Legislature.

But when her state House representative introduced a bill in February expanding an anti-cannibalism law — action prompted by a prank video — Peery decided she had to try to oust the far-right incumbent, Heather Scott.

“You can’t win if you don’t run,” Peery said, adding that Scott’s focus on irrelevant issues like cannibalism shows she isn’t a serious lawmaker. “It forces the Republicans to work, it forces [Scott] to get out there and talk to people so they can see what she’s about. It forces Republicans to spend more resources on the races.”

Peery, a retired nurse, is one of dozens of Idaho Democrats seeking an office in Boise for the first time. Under new leadership, the Idaho Democratic Party has deployed a grassroots recruitment strategy to put a record number of candidates on the ballot. In fact, there’s a Democrat running in every district for the first time in at least 30 years.

Idaho’s Republican super-majority–like Indiana’s–is obsessed with culture war issues. The draconian abortion ban is front and center, but Idaho Republicans–like those in Indiana–are also focused on attacking LGBTQ+ rights and punishing librarians over violating book bans. There is also what Politico calls “bitter infighting” between the conservative and (somewhat more) moderate flanks of the GOP.  As a result, Idaho Democrats see an opportunity to present voters with a different vision for the future of the state.

High visibility events like the just-concluded Supreme Court abortion argument and the Court’s recent refusal to stay enforcement of a ban on gender-affirming care while the case is being litigated, have allowed Democrats to make their case to a wide public.

As the Politico article pointed out,

It’s also not just Idaho. More Democrats than usual are running in states with GOP-dominated legislatures like Tennessee, Iowa and North Carolina. Democrats have made gains in recent years in state legislative races — flipping chambers in Minnesota, Pennsylvania and Michigan — after more than a decade of nationwide GOP dominance. But Republicans still control 55 percent of state legislative seats, compared to 44 percent for Democrats.

Idaho’s Democrats aren’t delusional; the article notes that they are frank about the very low odds of sweeping the election in November. Instead, they’ve set a modest goal of knocking out the GOP’s supermajority over the next decade. And they’ve embraced the critically-important strategy of competing everywhere. 

More than 50 obstetricians have stopped practicing in Idaho since the state’s abortion ban, which makes it a crime with a prison sentence up to five years for anyone who performs the procedure. Most of those remaining doctors practice in the most populous counties — and only half of the state’s 44 counties have access to an obstetrician.

“It’s really been a hair on fire situation, even for people who are not historically Democrats,” said state House Rep. Ilana Rubel, the Democratic minority leader. “[Republicans] have really overshot the mark in a big way and we’ve seen in other states when Republican supermajorities do this, they can lose.”
 
There’s some evidence that Democrats’ assessment of Idahoans’ mood may be right. A long-running public policy survey conducted by Boise State University found — for the first time — that more respondents said they feel the state is on the wrong track rather than headed in the right direction. Among those unhappy with the state’s trajectory, the top reason cited was Republicans’ conservative supermajority.

Idaho’s GOP is also experiencing brutal infighting. If the political ads we’re seeing in Indiana are any indication, so is Indiana’s.

What Idaho Democrats understand–and Hoosier Democrats evidently don’t–is that you can’t take advantage of the GOP’s mounting problems if you don’t field opposing candidates. You can’t win if you don’t run.



 
 

 


 
 
 
 

 
 
 
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What It Means To Recognize Complexity

I could have written the introduction to a recent New York Times column by Frank Bruni. In fact, I’ve written some posts that sound eerily familiar! Those of you who’ve read this blog for a while will recognize the similarity; here’s his lede:

I warn my students. At the start of every semester, on the first day of every course, I confess to certain passions and quirks and tell them to be ready: I’m a stickler for correct grammar, spelling and the like, so if they don’t have it in them to care about and patrol for such errors, they probably won’t end up with the grade they’re after. I want to hear everyone’s voice — I tell them that, too — but I don’t want to hear anybody’s voice so often and so loudly that the other voices don’t have a chance.

And I’m going to repeat one phrase more often than any other: “It’s complicated.” They’ll become familiar with that. They may even become bored with it. I’ll sometimes say it when we’re discussing the roots and branches of a social ill, the motivations of public (and private) actors and a whole lot else, and that’s because I’m standing before them not as an ambassador of certainty or a font of unassailable verities but as an emissary of doubt. I want to give them intelligent questions, not final answers. I want to teach them how much they have to learn — and how much they will always have to learn.

When I was still teaching, I echoed every bit of that message–adding to the repeated admonition about complexity a lawyer’s reminder that issues are inevitably fact-sensitive. In other words, “it depends.”

Bruni’s essay goes on to address something my previous posts did not–why the recognition of complexity matters. It’s about humility. As Bruni says, recognizing that “it’s complicated” is a bulwark against arrogance, absolutism, purity and zeal.

As eminent jurist Learned Hand famously put it, “The spirit of liberty is the spirit that is not so sure it’s right.”

Arrogance, absolutism, purity and zeal…could there be a more succinct, more accurate description of the crazies in the Senate and especially the zealots in the House of Representatives who are currently preventing thoughtful governance? (We should have a t-shirt with those words printed on it sent to Indiana’s own version of Marjorie Taylor Green, Jim Banks…)

Bruni asserts–I think properly–that humility is the antidote to grievance, and that grievance is the overwhelming political motivator these days.

We live in an era defined and overwhelmed by grievance — by too many Americans’ obsession with how they’ve been wronged and their insistence on wallowing in ire. This anger reflects a pessimism that previous generations didn’t feel. The ascent of identity politics and the influence of social media, it turned out, were better at inflaming us than uniting us. They promote a self-obsession at odds with community, civility, comity and compromise. It’s a problem of humility.

 The Jan. 6 insurrectionists were delusional, frenzied, savage. But above all, they were unhumble. They decided that they held the truth, no matter all the evidence to the contrary. They couldn’t accept that their preference for one presidential candidate over another could possibly put them in the minority — or perhaps a few of them just reasoned that if it did, then everybody else was too misguided to matter. They elevated how they viewed the world and what they wanted over tradition, institutional stability, law, order.

Bruni reminds readers that successful government requires teamwork, and that any significant progress requires consensus. “Governing, as opposed to demagoguery, is about earning others’ trust and cooperation. Exhibiting a willingness to listen to and to hear them goes a long way toward that.”

The entire linked essay is worth reading. Its message is especially pertinent to Hoosiers as Indiana winds down to the May 7th primary election. The vicious, nasty, dishonest ads being aired ad nauseam by Republicans running for Governor and for Congress are reminiscent more of monkeys throwing poo than messages from serious individuals willing to act upon their understanding of the common good. These contending political accusations display no hint of humility, no recognition of complexity, not even a nod toward civility. (Research suggests that voters’ response to such negative campaigning isn’t a vote for the particular monkey throwing the poo, but rather a decision to stay home on election day. That’s an unfortunate, but understandable, reaction.)

America faces complicated, pressing issues. We really need to stop electing purists and zealots who are ill-equipped to understand the complexity of those issues and too arrogant and absolutist to engage in the democratic negotiation and compromise necessary to solve them.

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The Policy Dilemma

Ever since the Internet displaced slick magazines and daily printed newspapers, wise readers have heeded the warning to avoid the comments.  Something about the anonymity of online responses evidently unleashes some truly hateful impulses. Consequently, except for comments on this blog, I tend not to read the opinions posted by readers of various articles and op-ed pieces. But I do read the “Letters to the Editor” published in the printed magazines I still receive, and I recently read one that deserves wider distribution.

It was printed in the New Yorker, and in a few brief sentences, the writer outlined a central conundrum of policymaking in democratic systems. The letter was a response to an article by Sam Knight about the “uneven performance” of Conservative rule in the United Kingdom. The letter-writer wrote:

But Knight overlooked one force that has shaped the country’s trajectory: the extent to which its government has, since the seventies, transformed from a representative democracy, in which major decisions were made solely by elected officials with support from the civil service, to a popular democracy, in which some of the biggest questions are decided by popular vote rather than by Parliament.

This transformation has created a truly irrational system, which takes important questions influenced by many complicated variables and boils them down to simple binary decisions to be made by people who may not be thoroughly informed. Democracy should remain an ultimate value in the U.K., but, if it is to persist, it must produce positive results for its citizens—something the Brexit referendum clearly has not done. Alas, the supporters of referendums lose track of the ultimate justification for a democracy—namely, that our elected representatives know that we, the voters, can throw them out if we think they are managing the country badly. It is simply wrong to equate this truth with an unproven assumption that voters also have the collective wisdom to regularly make wiser choices about complex issues than our representatives do.

Conservatives in the U.S. have historically insisted–correctly–that this country was not intended to be a pure democracy, but a democratic republic. (I’m not sure everyone making that assertion could have explained the difference, but that’s another issue…) The Founders created a system in which we citizens (granted, then only citizens who were property-owning White guys) democratically elected members of the polity to represent us. The idea was that we would vote for thoughtful, educated, hopefully wise individuals, who would have the time, disposition and mental equipment to analyze complicated issues, deliberate with other, equally-thoughtful Representatives, and negotiate a policy thought likely to address that particular problem.

Direct democracy would put such questions to a popular vote, and complicated issues would be decided based upon the “passions of the majority” that so worried the men who crafted our Constitution.

The Founders’ system makes eminent sense–but it only works when two elements of our electoral system work.

First of all, it absolutely depends upon the qualities of the Senators and Representatives we elect. And second, it depends upon the ability of the voting public to oust lawmakers with whose priorities and decisions they disagree– lawmakers who are not doing what their constituents want.

Those two elements currently do not work, and those electoral dysfunctions explain the inability of our federal legislature (and several state legislatures) to function properly–i.e., to govern, rather than posture. Gerrymandering is at the root of both of these failures, and the reason for the vastly increased resort to popular referenda and initiatives.

Thanks to partisan redistricting, far too many of the people elected to the House of Representatives (Senate elections are statewide and cannot be gerrymandered) are simply embarrassing–ideologues and outright lunatics performing for the base voters of their artificially-constructed districts. People like Paul Gosar and Marjorie Taylor Green, or Indiana’s version of MTG, Jim Banks, all of whom endangered America’s international interests by holding up and then voting against critical aid to Ukraine, among many other things–are examples of the intellectually and emotionally unfit and unserious “look at me” wrecking-ball caucus.

Gerrymandering also limits voters’ ability to rid ourselves of these impediments to rational governance.

There are other aspects of our electoral system that desperately need revision or elimination: the Electoral College comes immediately to mind. But the elimination of gerrymandering–partisan redistricting–would go a very long way to re-centering the system and encouraging thoughtful, reasonable people on both the Left and Right to run for office.

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And Then There’s The Court…

Equal Justice Under Law. That motto is both aspirational and descriptive; in four words, it summarizes the whole point of the rule of law–the founding premise of America’s Constitution and Bill of Rights. Well-paid lobbyists may influence legislation to give Group A an advantage over Group B, elected officials may listen more carefully to people who wrote big checks to their campaigns, but citizens are supposed to be able to appeal for justice to the nation’s courts, and those courts are supposed to  administer equal justice under the law.

Granted, it has never worked that seamlessly. Judges are human, with human biases and foibles. Laws are often opaque. Access to the nation’s courts requires resources–either substantial funds or representation by one of the country’s public interest law firms, like the ACLU or Lambda Legal. But for a long time, America’s courts–especially its federal courts–have been there to redress inequality and corruption and instances of fundamental unfairness.

Now, thanks in large part to Mitch McConnell and Donald Trump, the Supreme Court itself has been corrupted. Any doubts on that score were laid to rest during the Court’s eye-opening and frequently chilling hearing on Trump’s ridiculous “immunity” claims. Those claims had been summarily and properly dismissed by the lower courts, and I fully expected the Supreme Court to follow suit. After all, the Court’s unnecessary delay in addressing the claim had given Trump what most observers knew he really wanted: a delay. The appeal was a transparent effort to postpone Jack Smith’s case until after the election, and most of us who were following the case expected the Court–having given him that delay– would rule on the merits by affirming that no one is above the law.

I will leave further discussion and analysis of that oral argument to the multitude of observers who found it appalling, because I want to address other aspects of the high court’s corruption that are relevant to the widespread loss of respect for that body and to the growing calls to expand its membership.

Over the past few years, Americans have learned about the truly gob-smacking conflicts of interest, money-grubbing and pious dishonesty of Clarence Thomas and Samuel Alito. The head of the Alliance for Justice pulled no punches:

Today, our republic is buckling under the weight of those misdeeds, as Americans no longer trust their Supreme Court to be a citadel of democracy and justice. Quite the opposite — they have come to expect the worst from our pay-for-performance judiciary. Are we really going to stand idly by and do nothing about this corruption?”

A recent article from The Intercept pointed to a lesser-known but no less troubling influence of money on the Court. The article focused on a case challenging two states’ efforts to limit social media moderation of user-posted content (which Texas Attorney General Ken Paxton equated to “censorship) then turned to the broader issue of influence.

After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.

Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.

The article quoted Sarah Lipton-Lubet, president of Take Back the Court,

“It’s no secret that the many of the rich benefactors cozying up to the conservative justices are the same people who fund right-wing organizations with business before the court. But too often, stories about the Supreme Court don’t connect these dots — and as a result, they leave us with an incomplete picture.”

A reform bill authored by Senator Sheldon Whitehouse–described in the Intercept article– would be a good first step, but it is past time to consider enlarging the Court and imposing 18-year term limits on Justices, among other measures that are being considered. (When lifetime tenure was established, people didn’t live as long as they do today. Eighteen years is sufficient to accomplish the goal of lifetime terms, which was to insulate the Justices from political pressure.)

The Court has never been the unblemished guardian of liberty that we like to think, but its current, shameful partisanship and outright corruption are a new low. It’s time for a change.

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