Will Matt Gaetz Finally Cause the Senate GOP To Stand Up To Trump? My Money's On No!

I really thought I'd laid the bar on the floor, but somehow Donald Trump has already burrowed under it by announcing (former*) Florida Congressman Matt Gaetz as his pick for attorney general. I had the pleasure of sharing this news with several of my law school colleagues, where it literally provoked a laugh-out-loud howl of incredulity.

It wasn't just my people though. Senate Republicans also seem rather blindsided by the pick:

The selection of Mr. Gaetz blindsided many of Mr. Trump’s allies on Capitol Hill. The announcement was met with immediate and unvarnished skepticism by Republicans in the Senate who will vote on his nomination. Senator Susan Collins of Maine said she was “shocked” by the pick — and predicted a difficult confirmation process.

[....]

Senator John Cornyn, Republican of Texas, when asked about Mr. Gaetz’s selection, said, “I don’t know the man other than his public persona.”

Mr. Cornyn said he could not comment on the chances that Mr. Gaetz, or Tulsi Gabbard, Mr. Trump’s pick for director of national intelligence, would be confirmed: “I don’t know — we’ll find out.”

“He’s got his work cut out for him,” Senator Joni Ernst, Republican of Iowa, said as other senators dodged questions from reporters.

Representative Max Miller, Republican of Ohio, told reporters that many members of the G.O.P. conference were shocked at the choice of Mr. Gaetz for attorney general, but mostly thrilled at the prospect that he might no longer be a member of the chamber.

The House, Mr. Miller added, would be a more functional place without Mr. Gaetz.

He predicted a bruising confirmation fight, adding that if the process revealed evidence to corroborate the allegations of sex trafficking against Mr. Gaetz, he would not be surprised if the House moved to expel him, as it did with Representative George Santos. Mr. Santos lost his seat after the Ethics Committee documented violations of the chamber’s rules and evidence of extensive campaign fraud.  

But things aren't all bad. You'll never guessed who raced ahead of the pack to greet Trump's failson pick with open arms:

One of the few lawmakers to offer a positive assessment was a staunch Trump ally, Senator Lindsey Graham of South Carolina, who called Mr. Gaetz “smart” and “clever” but predicted tough confirmation hearings.

So, how long will it take for the Senate GOP caucus to fall in line? I'm guessing it'll happen before the first confirmation hearing. (That is, if we have confirmation hearings).

Oh, and speaking of organizations that have put their dignity in a lockbox, we did finally learn what bridge is too far for the ADL, which blistered the Gaetz selection because of his "long history of trafficking in antisemitism," including "defending the Great Replacement Theory." How he's distinguished from the ADL's glowingly-praised Elise Stefanik, who also promoted Great Replacement Theory, was left unsaid.

* Gaetz hastily resigned his seat following the announcement, also getting ahead of a planned House Ethics Committee report that was set to issue findings on Gaetz's myriad, er, "controversies" -- including allegations of sex trafficking minors. Score one for QAnon!

Yet More Trumpist Humiliation of the ADL

I really don't intend for my post-election coverage to be so ADL-centric. But I can't help but be struck at the degree to which Trump's Jewish and Israel-related decision-making might as well be solely based on how to personally humiliate the ADL, and prompt them into embarrassing and degrading acts of submission and hypocrisy, to the greatest extent possible.

For example, Trump's announced pick for UN Ambassador is New York congresswoman Elise Stefanik. One of my basic rules of 2024 political observation was that "one does not, under any circumstances, have to hand it to Elise Stefanik," who defined the term bad-faith grandstanding when it came to her supposed objections to campus antisemitism even as she was directly promoting dangerous antisemitic conspiracy theories on her own. 

But alas, the ADL eagerly jumped in with praise for the selection, allowing us to juxtapose this:

next to this:

Like I said -- just abject, humiliating supplication. It couldn't be more pathetic.

Or consider the position of United States Ambassador to Israel. If ever past was prologue, this is it. The first time Donald Trump was elected, he appointed an ambassador to Israel who referred to liberal Jews as "kapos". The ADL maintained a studious silence, a choice which I maintained "sold out" a substantial swath of the Jewish community that it purportedly was tasked to protect.

This time around, the nominee is going to be former Arkansas Gov. Mike Huckabee, who has an even more illustrative history with the ADL. You see, back in 2011, the following sequence occurred:

1. Huckabee made spurious and offensive analogies to the Holocaust (comparing it to, of all things, the national debt).
2. The ADL publicly took exception.
3. Huckabee threatened the ADL.
4. The ADL scampered backwards and issued a groveling apology.

So here, at least, the ADL already got ahead of schedule, and I look forward to some embarrassingly effusive praise directed towards Huckabee to emerge forthwith.

What we saw in 2016, is only going to be worse in 2024. That's true on many levels, but for the ADL in particular it is evidently apparent -- they will sell us out. They will take vulnerable American Jews, who are rightfully terrified about emergent Christian nationalism and White supremacy and violent extremism and, yes, left-wing campus antisemitism too*, and they will leave us to twist. They will do it regularly, and repeatedly, and without hesitation, and for an embarrassingly cheap payoff.

* I include this because, by cuddling up to the far-right powers that be, the ADL will necessarily kneecap any ability to effectively fight campus antisemitism, though they certainly will retain the capacity to yell about it. The sorts of tactics which actually might tamp down on and respond to campus antisemitism, versus the sorts of tactics which yield good Fox News ragebait and can justify blowing up the Department of Education, are not compatible with one another, and the ADL is going to lash itself to the latter at the expense of the former. While there still may be utility in what the ADL can do for someone like me on the local level, in terms of a cohesive, national strategy I do not have any more confidence in the ADL's ability to effectively protect me from campus antisemitism than I have confidence in its ability to protect me from conservative antisemitism.

Turkey Implements the Stefanik Principle

One of the more common refrains I heard by persons who wanted to defend Elise Stefanik's bad faith grandstanding on campus free speech was the supposedly rhetorical question "how hard is it to simply condemn 'calls to genocide'?" The problem -- well, not the problem because that implies there is only one, but a problem -- is "who decides what count as a 'call to genocide'?" 

We already knew, for instance, plenty of campus actors characterizing Israel's conduct in Gaza as "genocidal"; and it was not long before South Africa brought its own "genocide" charge against Israel before the ICJ. If, as is not improbable, the ICJ rules that at least some of the genocide claims against Israel are "plausible", one can only imagine the turnabout that will occur by the usual on- and off-line subjects who just witnessed pro-Israel activists claim the skins of several high-profile academic actors on the principle of "zero tolerance for permitting speech 'supporting genocide.'" This turnabout was absolutely predictable and while I'm not sure "deserved" is exactly the right word to use here (given that the persons who will be victimized will almost certainly not be named "Chris Rufo" or "Bill Ackman"), it's hard to deny the karmic significance.

But we don't even need to wait that long to see this poisoned tree bear fruit. In Turkey, an Israeli national playing for a Turkish soccer club flashed a signal after scoring a goal meant to represent solidarity with the Israeli hostages who remain in Hamas' captivity. As a result, he's been arrested by the police for "supporting genocide", with threats of further recriminations by the Turkish Justice Minister as well as a promise by his team's president that he'd be kicked off the squad. It's entirely unsurprising that, in the wrong political climate, merely signaling sympathy for Israeli hostages will mark one as a genocidaire (hey, who remembers that essay just days after 10/7 that arguing that even grieving dead Israeli civilians was a means of fueling the Israeli death machine?). Again, all of this was obviously predictable in advance, and while I doubt Turkey is taking its cues from Congress' most craven opportunistic weasel, it still demonstrates the naivete of anyone who thinks that the answer to Stefanik's "genocide" question was "simple".

Hostage Situation

While it wasn't on my formal list, I propose that one of our collective new year's resolutions be to remember that one does not, under any circumstances, have to hand it to Elise Stefanik:

Rep. Jamie Raskin (D-Md.) went after Rep. Elise Stefanik (R-N.Y.) on Sunday after Stefanik called those found guilty of crimes related to the Jan. 6 Capitol riots “hostages,” claiming that her divisive remarks are part of her efforts to join former President Trump’s 2024 ticket.

[....] 

“I have concerns about the treatment of Jan. 6 hostages,” [Stefanik] said. “We have a rule in Congress of oversight over our treatment of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.”

In the immediate aftermath of January 6, Stefanik was vocal in demanding the Justice Department prosecute those responsible “to the fullest extent of the law.” But that was then, and this is now, and now Stefanik sees an opportunity to pander.

That Stefanik is a craven opportunistic weasel is too clear to need remarking on at this point. Kudos also to Raskin for taking the obvious but nonetheless necessary shot:

Raskin also demanded that Stefanik apologize for her comments, pointing to approximately 130 hostages held by Hamas in Gaza amid the brutal war with Israel.

“People convicted of violently assaulting police officers and conspiring to overthrow the government are not ‘hostages,’” he said on X. “Stefanik must apologize to the families of 130 people being held hostage by Hamas right now. Her pandering to Trump is dangerous.”

Israelis being raped and brutalized in Hamas captivity are "hostages". Insurrectionists imprisoned after being duly convicted for crimes following due process of law are not. Simple. And while Stefanik's casual insult towards actual hostages is hardly the primary story, anything that dims the ill-gotten luster Stefanik "earned" via her bad faith grandstanding about campus antisemitism is worth applauding.

(Actually, I'll make one more observation here, which is that somehow prison abolitionists -- who might agree in concept with characterizing workaday criminal convicts as "hostages" and certainly would support greater scrutiny of how we treat prisoners -- have somehow managed to resist any "well, I may not like her, but you've got to hand it to Stefanik ..." temptations. Fancy that.).

Bad Faith Grandstanding on Campus Free Speech is Rewarded

The President of the University of Pennsylvania, Elizabeth Magill, has resigned in the wake of her testimony before Congress about university responses to campus antisemitism.

This is terrible news. To be sure, I don't think Magill is obligated to stay in a position where she feels she either can't be effective or can't function; she has no obligation to stick things out in what I can only imagine is right now an impossibly toxic atmosphere. But still, Magill deserved better; she said absolutely nothing wrong in her testimony. Yet the bad faith grandstanding of the likes of Elise Stefanik -- an antisemitic conspiracy-mongerer in her own right -- has claimed a high-profile victim.

I published my post Thursday before reading Ken White's more colorful response to those smearing Magill, but I endorse it in full. There have definitely been other prominent free speech advocates who have taken the right line here, including Eugene Volokh and David Lat. 

But others are not rising to the moment. I flagged in my last post Keith Whittington for wrongly and misleadingly making Magill rather than Stefanik into his standard-bearer for greater campus restrictions on speech -- even if we think Magill was wrong to begin bending to Stefanik's threats, it's evident that Magill did not originate them. To the contrary, the backlash against Magill -- which Whittington tacitly tried to latch on to -- was and is entirely about her perceived unwillingness to bend sufficiently on protecting free speech. Anyone who was joining the dunk party on Magill was, implicitly or explicitly, endorsing the very unambiguous politics of free speech censorship that Stefanik was explicitly promoting. I can't top Ken White here: "You — and I say this with love — absolute fucking dupes."

Now that Magill has resigned, here is how Whittington reacted to the news:

It's hard to imagine missing the point by a wider margin than this. Whittington's worried that Magill's resignation will be "construed" as a "mandate to shrink the space for free speech" and to "cater to the sensitivities and political preferences of donors and politicians"? Yeah, no kidding -- it will absolutely be "construed" as doing both of those things because that's exactly what prompted it. The lesson that was meant to be sent and which will be learned is "shrink the space for speech when politicians and donors demand that you do so." There's no ambiguity here; that's the entirety of what happened. Anyone who didn't want that to happen should have come out firing in defense of Magill and in opposition to the roiling censorial mob that Stefanik effectively incited.

Magill felt compelled to resign because she publicly articulated -- in the most hostile room imaginable -- the free speech values that Whittington claims are essential. That's it. And that Whittington still cannot name the actual enemy here -- cannot state clearly that Magill got it right, is being punished for getting it right, and it is rabble-rousing Republican demagogues who showed their whole face in terms of demanding censorship under the guise of protecting Jewish students -- is shameful.

I'm also not feeling especially patient towards some of the other common lines I've heard that try to rationalize why it's okay to blame Magill as having done something wrong. One common response I've seen is to say that the witnesses were poorly prepped for the particular environment of a congressional hearing; with better preparation, they could have avoided the "traps" laid out in front of them. I'm doubtful: I think it is the hubris of very smart people in particular that think they can go into a demagogue's home turf, where they're entirely in control of the proceedings, can control the flow of questioning, can reclaim time whenever they want, and outmaneuver their "traps". It's the same hubris that makes liberals think they can go on Fox News and "outdebate Hannity". No you can't, and it's not because Hannity is some secret genius. It's that he has the home field advantage -- he knows how to play this particular game better than you, precisely because it's a "game" that does not in any way reward intellectual honesty or virtuosity.

A similar argument is that, while the responses of Magill et al may have been formally, legally, correct, they were inappropriate in this context -- their role was not to be lawyers but public advocates for their university, and their sin was misapprehending what was called for from their position in this context. My former colleague at Berkeley Steven Davidoff Solomon, for example, described the university presidents as "prepared to give answers in the court — and not a public forum,” and that was their undoing: their job here is “not to give legal answers, it’s to give the vision of the university."

Once again, I'll cry foul. Yes, there are many situations where a technically correct answer nonetheless can be a bad answer because it skirts some larger truth or is inattentive to important surrounding context, which a good answer would pay heed to. But this argument only works if the problems with the "technically correct" answer are not the facts which make it correct. The people who are mad at Magill are not mad based on something like "yes, maybe it's technically true that there are some circumstances where 'calls to genocide' are protected from formal sanction, but it's more important right now to emphasize how heinous those calls are even if they always be literally punished." The thing they're mad about is the thing that Magill said which was true: there are some circumstances where even 'calls to genocide' -- and we're not even getting into Stefanik's attempt to frame the at the least more ambiguous case of 'intifada' chants as a "call to genocide" -- are protecting from formal punishment. As Howard Wasserman wrote:

Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

Put differently, it's fine to say that in some cases a "technically correct answer" isn't good enough, but only if your proposed alternative is not to demand the speaker be overtly and substantively incorrect.

The last thing I'll say is that I'm not generally interested in point-tallying of the "this is the real cancel culture" variety. Free speech, as I've often said, has mostly fair-weather friends, and no camp has covered itself in glory across the board. What I will say though is that no matter how one tallies the overall scoreboard, this absolutely is an incident where the forces of censorship won and those demanding respect for free speech principles lost. The next time we face an incident where some controversial right-winger comes to campus, it will be a lot harder to persuasively lecture our students that as hateful and heinous as this figure may be, this is the demand of free speech protections etc. etc. etc., because they will have seen in vivid detail just how easily those principles can be forced to bend. 

Maybe you think that's a good thing. I still think it isn't. And at the very least, the practical shakeout of who will in practice see their speech censored and who in practice will be able to access administrative protections remains to be seen. I have zero confidence that this will either find a stable and accepted equilibrium or ultimately redound to the benefit of young Jews enduring antisemitism on campus.

Bad Faith Grandstanding on Campus Free Speech Shouldn't Be Rewarded

Many of you have seen the fallout over recent congressional testimony about antisemitism on college campuses, featuring the presidents of MIT, Penn, and Harvard. A particularly high-profile exchange came from Rep. Elise Stefanik (R-NY), demanding to know if calling for "genocide" of Jews violated these university's conduct policies. 

The context of this questioning was the use of "intifada" in campus protests, which Stefanik suggested should be viewed as "genocidal". Right from the start, that should give us pause -- the ambiguity of "intifada" being conflated into "genocide" on its own gives ample reason for the university presidents to demur over committing to formal penalties. And certainly, in a world where its increasingly common to claim that Israel is pursuing a policy of genocide towards Palestinians, Jewish leaders should think long and hard about whether they really want to institute a rule that speech "advocating genocide" can be banned from campus. As Justice Black put it in his Beauharnais dissent, warning minority groups about the "victory" of securing a ban on hate speech: "Another such victory and I am undone."

Nonetheless, I've seen many people praising Stefanik for her "hard questioning", and dismissing the university presidents' responses as "dodges" or missteps. As grandstanding, I might concede that Stefanik was effective. But on substance, she was dead wrong, and the university presidents got it right. What we had here was a textbook example of an effective demagogue putting her targets in an impossible situation, and resolutely refusing to allow them to give a "good" answer, and I'm annoyed that this is being viewed as anything other than the bad faith rabble-rousing that it is.

Jon Chait has an excellent piece on this that strikes exactly the right notes. Here's his reprint of the relevant exchange between Stefanik and UPenn President Elizabeth Magill.

STEFANIK: Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no?

MAGILL: If the speech turns into conduct, it can be harassment. Yes.

STEFANIK: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?

MAGILL: If it is directed and severe, pervasive, it is harassment.

STEFANIK: So the answer is yes.

MAGILL: It is a context-dependent decision, congresswoman.

STEFANIK: So calling for the genocide of Jews is, depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?

MAGILL: If the speech becomes conduct. It can be harassment, yes.

STEFANIK: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I’m gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn’s code of conduct when it comes to bullying and harassment? Yes or no?

MAGILL: It can be harassment.

This has been treated as Magill being evasive and Stefanik trying to nail her down. But in reality, everything Magill is saying is exactly correct. What she said is pretty similar to how I would've responded to my own students if they asked what the rules were surrounding such speech in a campus environment, and I resent the notion that giving an accurate answer to that question should be characterized as a faux pas. 

The truth is that even hateful speech -- and a call to genocide certainly qualifies as one -- is not the subject of proscription on university campuses. This is not some rule that was just made up when Jews got antsy; it was the same principle that demanded UC-Berkeley permit an unabashed racist like Milo speak on campus and insisted that avowed White supremacist Richard Spencer be allowed to give talks at campuses nationwide. Antisemitic speech is antisemitic, but when it is just speech and not conduct, it is still protected by principles of free speech. In her testimony Magill held the line admirably, and now she's being pilloried for it.

This is why I'm actually a bit annoyed at this Chronicle article by Keith Whittington, speaking as founding chair of the Academic Committee of the Academic Freedom Alliance. Whittington presents a choice looming for college campuses on speech, between holding fast to free speech principles versus seeking to restrict speech on basis of content in the name of "safety". The former position (which is also Whittington's) he associates with Stanford Law Dean Jenny Martinez, and how she handled the aftermath of the anti-Kyle Duncan protests on her campus. The latter position he ties to Magill:

A quite different path is suggested by the University of Pennsylvania’s president, M. Elizabeth Magill. Magill has come under particularly intense pressure to address perceived antisemitism on her campus. In her testimony to the congressional committee, she emphasized that “Penn’s approach to protest is guided by the U.S. Constitution” and gives “broad protection to free expression — even expression that is offensive.” But when confronted with questions about whether calls for genocide violated university policy, Magill and her fellow presidents stumbled in their replies. As a result, Magill released a short video. There she repeated that “Penn’s policies have been guided by the Constitution,” but she added that “in today’s world … these policies need to be clarified and evaluated.” She promised a “serious and careful look at our policies” with an eye to ensuring a “safe, secure, and supportive environment.” She will, she promised, “get this right.”

Magill’s implication is clear: The university’s policies need to be revised so that they do not so closely follow the Constitution; they should instead prioritize students’ sense of safety. Protections for free expression and perhaps even academic freedom might well be pared back in the process.

Here's why I'm mad about this. It's true that Magill has backtracked on the commitment to absolutist free speech protections in the wake of the fallout over her testimony, and that's unfortunate. But Whittington's framing implies that Magill from the outset was hesitant to forthrightly defend the free speech rights of "offensive" speakers on campus, and now has gotten even worse. That's the opposite of what happened: Magill in her testimony said exactly what Whittington thinks she should have said -- and she's getting hammered for it. Contra Whittington, she did not "stumble" during the testimony itself -- or if she did, it's only from the vantage of those who take Stefanik's view that it is a misstep not to endorse paring back academic freedom and free expression in deference to students' sense of safety. 

For those who adopt Whittington's view on free speech, Magill's congressional testimony was not a "stumble" but a clear articulation of the proper position of the university. Whittington accordingly should have had her back; he should have said explicitly that the university presidents got it right in their congressional testimony and the backlash they're enduring for it is the real threat to free speech. Instead, he hung her out to dry as she takes the brunt of public heat for the position Whittington purportedly wants to see more university presidents defend. What do we expect will be the result of this? Unfairness to Magill aside, what does Whittington expect will happen -- what incentives are university administrators given -- when they see that putative "free speech" allies won't give them credit for saying the right thing on campus free speech rules. It's hardly a shocker that Magill is yielding in the face of overwhelming public backlash if even her "allies" refuse to back her up. As De Tallyrand put it, "it's worse than a crime, it's a blunder."

At the very least, Magill does not deserve to be the namesake of the censorial impulse. That dubious honor should have been attached to Stefanik (who isn't even named in Whittington's piece). As Chait writes:

What Stefanik was demanding was the wholesale ban on rhetoric and ideas that Jews find threatening, regardless of context. A university should protect students from being mobbed or having their classes occupied and disrupted. But should it protect them from an op-ed in the student newspaper calling to globalize the intifada? Or a demonstration in an open space demanding “From the river to the sea”? That would entail wholesale violations of free speech, which, in addition to the moral problem it would create, would likely backfire by making pro-Palestinian activism a kind of forbidden rebellion rather than (as many students currently find it) an irritant.

The presidents’ efforts to deflect every question about genocide of the Jews into a legalistic distinction between speech and conduct may have sounded grating, and Stefanik’s indignant replies may have sounded like moral clarity. But on the whole, they were right to focus on the distinction between speech and conduct, and Stefanik was wrong to sneer at it.

It may be unfortunate that, after the fact, Magill is bending on this important point. But as disappointing as that failing is, she isn't the originator of the threat. The actual villains of the story are the likes of Stefanik -- they're the ones proactively, not reactively, demanding that university's sacrifice free speech protections in service of student safety. If we can't name that wrongdoing; if we can't push past misbegotten awe at Stefanik's accomplishments in demagoguery, then the situation is going to get worse far before it gets better.