While I'm Here....

I happen to be in Virginia right now, on my way to give a talk at UVA. But I completely forgot that today was Virginia's state legislative primary election day.

I haven't really been following the races too closely (with the minor exception of this post), but so far the results seem positive. On the Democratic side, Sen.  Joseph D. Morrissey, one of those random conservative anti-abortion Democrats who'd managed to hold onto his blue district forever despite constantly seeming on the verge of defecting to the GOP was finally ousted in landslide by Lashrecse Aird. Also, Del. Suhas Subramanyam (D) handily won the nomination for an open state senate seat against former delegate Ibraheem S. Samirah, who had a truly ugly relationship with the Jewish community in his brief time in office.

Across the aisle, at least two open insurrectionists lost in GOP primaries. Far-right Senator Amanda F. Chase was ousted by more traditional establishment-y foe Glen Sturtevant. And fellow Jan. 6er Del. David LaRock lost his bid for a promotion, placing second in an eight-way primary for state senate.

Others who know more than me can cheer and/or lament other developments. But on the whole, this seems pretty good to me!

Who's Afraid of the NoVa Jews

The Jewish Community Relations Council of Greater Washington has put out a voter's guide for Virginia's upcoming 2023 state legislative primaries (concentrating on races in Northern Virginia). There's nothing too remarkable in it -- the candidates give pretty generic boilerplates about how they'll work hard for the people of Virginia etc. etc., and then link to their websites. Basic stuff. 

But I did notice something interesting.

The guide appears to have solicited statements from candidates in all contested primaries (they did not ask candidates who were running unopposed in the primary). In the Democratic races, all but two candidates dutifully replied with statements to the JCRC.* By contrast, in the Republican races, none of the candidates participated in the Jewish community voter guide.

Now, to be sure, Northern Virginia has shifted decisively blueward in recent years. So unsurprisingly there are a lot more active Democratic races than Republican contests. Republicans only had active primaries in three races -- SD-29, SD-30, and HD-21 -- compared to 14 contested primaries amongst the Democrats. But, at least judging by a quick perusal of their campaign websites, the Republican candidates in these races seem to be actively running and not complete-nobodies. They could have responded to the voter guide. They just chose not to -- apparently deciding that Virginia's Jewish community was not a constituency that was worth their time to appeal to.

* The Democratic no-shows were Saddam Salim (SD-37) and Sreedhar Nagireddi (HD-26). In both of these seats, there was another Democrat running who did participate (Chip Petersen and Kannan Srinivasan, respectively). Hell, even Ibraheem Samirah (running for Senate in the SD-32 after being ousted from his House of Delegates post last cycle) participated, and he has an ugly history with the DC-area Jewish community that includes calling for the expulsion of Jewish groups from progressive organizing coalitions (he didn't, unfortunately, address those comments in his statement). Samirah also has a primary opponent, current House Delegate Suhas Subramanyam.

The Feast of the Baby Heads

Upon Virginia Governor Glenn Youngkin's inauguration, I made an observation about how wonderful it is to be Republican in purple-state America. Namely, that so long as you hold off on biting off a baby head during the campaign, the media will declare you the very essence of sobriety and moderation, and dismiss anyone who tries to tell otherwise. Then, once you enter office, you can bite as many baby heads as you want -- shocking the professional punditocracy (and gullible "independent" voter) who was ever-so-sure you were actually quite reasonable!

I made that observation upon Youngkin's opening gubernatorial salvo designed to help COVID be even more lethal. But it also applies to his latest round of petty partisan vindictiveness, vetoing widely popular bipartisan initiatives that passed the legislature by overwhelming margins for no other reason than that they were sponsored by Democrats. After "earning" the title of a moderate for, as best I can tell, no other reason other than that he wears fuzzy fabrics, Governor Youngkin has in his first few months been gorging himself on the baby heads that he temporarily deprived himself of on the campaign trail -- governing as a virulent right-wing extremist in a state that remains purplish-blue. The best analogy I can think of is if a Democrat manages to sneak into the Missouri governor's mansion in an off-year election and immediately abolishes the police. It's simultaneously unfathomable and yet exactly what one gets from these so-called "moderates".

The reality is that there are, functionally speaking, no more moderate Republicans -- a fact which does not remotely seem to dampen the media's willingness to be duped into believing that this Republican will be a moderate. We went through this a few years back with Cory Gardner -- the Denver Post endorsed him in 2014 against then Senator Mark Udall, saying it was "unfair" to label Gardner an "extremist" and predicting he'd be a fresh and independent voice in the Senate, only to shame-facedly admit its mistake when it turned out he was an utterly bog-standard right-wing hack. Who could have predicted? Answer: everybody! And so it is too with Youngkin. But alas, we didn't learn the lesson then and we certainly won't learn it now. Instead, we're doomed to repeat this dance every single election cycle it seems.

Virginia's Newly Anointed Death Cult High Priest Prepares Initial Sacrifices

Death may be an inevitability, but the current Republican Party ethos appears to be to do everything in its power to speed the process along. Freshly minted Virginia Governor Glenn Youngkin has rolled out an initial series of executive orders, and I have to imagine that Thanatos is pleased. He repealed state masking and vaccine mandates, so COVID can get us in the short-term, and he withdrew from a major anti-greenhouse gas initiative, so climate change can kill us in the long-term. No matter which way you turn, the GOP is cuddling up with the Reaper.

Oh, and there's also the unavoidable "ban on critical race theory" (perhaps soon to be paired with mandatory lessons on Abraham Lincoln's famous debates with Frederick Douglass?). Admittedly not death-related, unless you count the death of civics education.

This is, to reiterate, the opening gambits from a Republican who squeaked into office in a purple-blue state by a 2% margin. It's as if Missouri elected a Democrat as Governor in an off-year and his first move in office was to abolish the police. The gumption is nearly unfathomable.

But this is the great thing about being a purple state Republican. The media -- and, admittedly, a certain cohort of voters -- is so thirsty for a "reasonable Republican" that if you just hold off on biting off a baby head during the campaign, they will decide that you represent the very essence of sobriety and moderation, and anyone who tries to tell otherwise is just fear-mongering (cf. Scott Lemieux: "The greatest act of incivility in American politics ... is to accurately describe a Republican’s publicly stated positions."). 

Then, once you enter office, you can bite as many baby heads as you want! And everyone will be so shocked, and sad, and surprised, that he is doing exactly what Democrats said Republicans will do because it's also what Republicans said Republicans will do.

What Can Be Done About a Problem Like Peter?

The other day, the Washington Post published a story about a kerfuffle at Richmond's Virginia Commonwealth University, where the Jewish Studies program invited Peter Beinart to give a talk, prompting backlash from Jewish community organizations who contend VCU's Israel-related programming is one-sided. Beinart, of course, has very publicly evolved from hawkish New Republic editor to dovish two-state solution supporter to his current position rejecting two-states and backing a single-state solution "from the river to the sea" with equal rights for all inhabitants.

My first thought on reading the article was to stake out my general position of absolutist academic freedom: if the relevant officials at VCU want to invite Beinart to speak, there should be no attempt at forcing cancellation of that speech, regardless of whatever opinion I might have about Peter Beinart or his politics.

My second thought, which I viewed as consistent with the first, is that so long as it doesn't take the form of seeking cancellation of the talk, the local Jewish community is entitled to express its discontent that Beinart was invited to speak -- again, regardless of whether I do or don't share their opinion that Beinart is objectionable.

Putting those two thoughts together, though, made me wonder: what is and isn't in-bounds for how the local Jewish community can object to Beinart being invited to speak? I've written before my view about how academic freedom is a constraint on remedies, which raises the question of what "remedies" remain in play and unconstrained? (I was particularly curious about this because I think the WaPo article was somewhat ambiguous on exactly what the local Jewish leaders were and weren't trying to do here).

This question is not, to reiterate, about whether it is proper "on the merits" for the Jewish community to object to Beinart being invited to give a talk. For the most part, the analysis I'll be running through would, I think, be applicable to any speaker who is controversial amongst a particular section of the broader community. So if Peter Beinart doesn't resonate as a valid example, feel free to substitute a different hypothetical speaker that might.

The one wrinkle here is that the VCU's Jewish Studies program appears to be integrated into and a part of the Richmond Jewish community in a way that most university programs are not vis-a-vis any particular segment of the local community -- it is not "just" an academic program, it is also part of the "fabric" of Jewish life in the area both for Jewish students at VCU and for Jews in the Richmond area (for example, front and center on the program website is a series of links to "other Jewish resources" available in the Richmond area; and it appears historically local Jewish community organizations have helped sponsor and support departmental programming). This I think is somewhat common for Jewish Studies programs in cities and towns with a real but not massive Jewish population -- often, the university is the place where speakers and programs on Jewish life occur not just for students and faculty but for the whole community, and there is greater interaction between non-academic communal organizations and departmental leadership than probably is present in, say, the Physics Department. Consequently, it's fair to say that the community has at least somewhat more specific of an interest in the content of the department's programming, albeit not an interest that would override general academic freedom protections.

Let's start with some obvious (to me, anyway) cases. It would clearly not be okay to try and get VCU administrators (or, even more clearly, state officials) to cancel the talk. That's a straight up-and-down academic freedom violation -- a definite no-no. On the other hand, local Jewish organizations clearly are entitled, if they wish, to pull their sponsorship of the event -- if they don't want their names attached to this speech, that's their prerogative. Likewise, if the local JCC or synagogues wanted to offer their own programming featuring speakers with different ideological commitments than Beinart's, that would be clearly be okay.

Okay, those are the easy cases. What else?

One thing the article mentioned is a request that Beinart not speak solo but be situated as part of a panel or with another speaker to "balance" his viewpoint. As several academics quoted in the article observe, the idea that every academic speaker needs to be "balanced" with someone representing the "other side" is not a standard that is observed anywhere else in academia -- the vast majority of talks are "solo" affairs; to the extent "balance" is desired it occurs via the aggregation of all the events and discourses available to students and not measured atomistically in each event. (It's also notable here that this standard -- if taken seriously, which I'm not convinced it's meant to be -- suggests that anytime a university department invites a Zionist speaker to campus, it should be forced to pair them up with an anti-Zionist activist for "balance"). The right to invite a speaker also includes the right to decide the context in which the speaker presents, whether as a standalone lecture, as part of a panel, in a debate, or something else. I would say, then, that any effort to get VCU administrators to alter the design of the event in a manner not desired by the inviting program (e.g., forcing them to add another speaker) also would be an academic freedom violation and is out-of-bounds.

My "impermissibles" thus far have involved seeking to have university administrators (or other high-ranking officials) alter or cancel Beinart's speech. But suppose the effort was not to force a cancellation from on high, but rather to convince the person responsible for the invitation in the first place (here David Weinfeld, the chair of the program on Jewish Studies) to change his mind and retract the invitation. Is that different? My instinct is that so long as the effort solely is comprised of moral suasion (and doesn't carry any tangible or intangible threats of professional retaliation, for instance), that's in-bounds. Who to invite for a speech is an exercise of discretion; it is entirely appropriate for community members to assert that the decision-maker made the wrong call, and there is no sin in the decision-maker ultimately being persuaded that he or she did make the wrong call. 

The issue in this case is that such an effort would almost certainly be unsuccessful -- Weinfeld knew what he was doing when he invited Beinart, he certainly was not unaware of the arguments for and against him as a speaker and so the fact of communal opposition probably won't represent new information likely to change his mind. But we can imagine a different case where a bright-eyed but somewhat clueless university actor wanted to invite a prominent Jewish speaker to campus, saw Peter Beinart was one, and invited him wholly unaware of the negative reaction it would prompt from the community they thought they were serving. In such a circumstance, it's possible that a communal backlash could prompt a reassessment by the appropriate decision-maker; in such a case I'm not sure that these efforts or the result would be inappropriate. One could say this still is a case where outside pressure results in an academic talk being cancelled, but academic freedom recognizes a very strong distinction between the university dean forcing John Doe to cancel his event because of external pressure, and John Doe coming to his own conclusion that he made a mistake when scheduling a given event and changing his mind.

Another possibility involves Jewish communal organizations going to the administrators, not to cancel or even modify the event, but to encourage the university to host additional Jewish programming that takes a different view from that adopted by Beinart -- circumventing, if necessary, the Jewish Studies program which (we'll stipulate for sake of argument) is only inviting speakers from one "side". My instinct is to say this is in-bounds as well, insofar as it represents a remedy of "more speech, not enforced silence", though it's possible once I become a full-time academic I'll develop stronger feelings about university administrators stepping onto the turf of particular programs or departments in order to implement their own judgment on what is a "good" or "balanced" program on matters they don't have any especial expertise in. And of course, this proposal is very much adjacent to the "force the program to offer a balance" remedy which I said is not okay. There is a difference between a dean creating his or her own program which brings in certain speakers who would not be invited by a given professor in the relevant department and the dean forcing a department to alter its own program to match the dean's desires, and while I think that difference is an important one, I also recognize it is a thin one.

This illustrates a more fundamental problem: the lines between the permissible and impermissible, while perhaps clear enough in theory, can become very blurry in practice. If the local JCC meets up with the university president on the subject of Beinart's talk, it's probably difficult to know whether they're trying to get the talk altered (not okay) or get the university to commit to additional programming to supplement the talk (probably okay). Statements of communal discontent that do not contain explicit threats of substantive retaliation nonetheless can be read that way and may be intended to be read that way; but also can be alleged to represent such a threat even if the objectors do everything in their power to scrupulously disavow such an intent.

The fact that there are remedies available to disaffected Jewish communal organizations that do not violate academic freedom, it turns out, may be more true in concept than in reality. On the theoretical level, I feel relatively comfortable in saying it is appropriate and permissible for Jewish communal organizations to try and convince the university to host additional programming or to persuade Weinfeld he "got this one wrong" and retract his invitation, while it would be impermissible for them to try and have the university administration to outright cancel or modify Beinart's event over the objection of the man authorized to invite him. But once one leaves the level of austere theory, the permissible and impermissible often are going to look very much alike. It is, of course, easy for such groups to make demands which are clearly in no way compatible with the university as a place of academic freedom. But it is also possible for them to seek other remedies which, while nominally permissible, may well look like (by sincere and opportunistic interpreters alike) efforts to suppress academic freedom. How to navigate these complex shoals is a question I'm not sure I have an answer to.

How To Lose a Primary, 2020-Style

So far in 2020, four House incumbents have lost renomination to their seats (five if you count New York Democrat Eliot Engel, though absentee ballots in New York haven't been tabulated). But there are ... differences between what causes a Republican and a Democrat to lose their own party's nomination.

For example, Rep. Dan Lipinski (D-IL) was one of the most conservative members of his caucus -- opposing abortion rights, gay rights, and Obmaa care -- despite representing a D+6 seat. If you're wondering how he got elected in the first place, the answer is that the seat was previously held by his own father who -- in classic machine fashion -- won renomination and then announced his retirement, inducing the local party to hand the nomination to his son. He was defeated by Marie Newman, who narrowly lost a challenge in 2018 and by all appearances is a perfectly normal Democrat. This is not at all abnormal.

Contrast that to what happened last night, where Rep. Scott Tipton (R-CO) was stunningly unseated by conservative activist Lauren Boebert. Nobody had the race on their radar because Tipton, who enjoyed Trump's endorsement, hardly seemed to have committed any sins against the conservative movement which would generate primary opposition (The Onion notwithstanding). So what was it about Boebert which caused her to surge to victory? Well, she's a qAnon-endorsing conspiracy theorist whose main claim to fame is running a bar called "Shooters" where the staff openly carries guns and which defied orders to shutdown in the midst of the coronavirus epidemic.

Of course, it's not always better when the incumbent loses because of their apostasies -- particularly when one considers what counts as "apostasy" in the modern GOP. Rep. Denver Riggleman (R-VA) also enjoyed Trump's backing, but lost renomination in a "drive-through convention" to far-right challenger Bob Good. Riggleman's wrongdoing? He officiated a same-sex wedding for two of his former staffers. That's enough to get you bounced in the 2020 Republican Party.

But I guess Republicans did manage to dislodge their most openly White supremacist member this  year -- so good on them for that.

Booing Trump in Washington: The Appearance isn't the Reality, But the Reality May Become the Appearance

Many of you saw that President Trump, who attended Game Five of the World Series in Washington yesterday, was roundly and loudly booed.

When the president was announced on the public address system after the third inning as part of a tribute to veterans, the crowd roared into sustained booing — hitting almost 100 decibels. Chants of “Lock him up” and “Impeach Trump” then broke out at Nationals Park, where a sellout crowd was watching the game between the Washington Nationals and Houston Astros. 

For many of the folks on my Twitter feed, this was not just a feel-good moment (though it was). It was also highly symbolic -- proof that the President is weak, that he has lost the support of the people, and that maybe his grip on the GOP in the Senate might weaken just enough to make impeachment actually viable.

I remain skeptical. Partially, that's because I don't think congressional Republicans are responsive to anything remotely resembling "the popular will" at this point. But partially, it's because I know the demographics of the areas surrounding Washington DC. Below are the 2016 electoral margins of DC and surrounding counties (all went for Hillary Clinton):

Washington (DC): 91/4
Montgomery County (MD): 75/19
Prince George's County (MD): 88/8
Fairfax County (VA): 64/29
Arlington County (VA): 76/17
Alexandria City (VA): 76/18

This is an area of the country where (to its credit!) Trump has always been despised. And if anything relatively wealthy suburban professional counties have gotten even more sour on Trump since 2016, and I'd suspect relatively wealthy suburban professional counties surrounding DC to be "even more so" on that front. So it maybe doesn't tell us that much about the views of America as a whole if a stadium full of fans from places like DC, Montgomery County, and Fairfax loudly booed Donald Trump.

But if one is looking for a silver lining, here it is: it might not have to.

The appearance of widespread revulsion at Donald Trump doesn't match a reality where Americans, as a whole, are very different from DC metro residents, specifically.

But it is also the case that, as a matter of psychology, the appearance of widespread revulsion at Donald Trump can help move the needle on the reality, even in circumstances where that appearance is in many ways an artifact of local demographics.

Most people don't know the particular political orientation of the metro DC area. Most people just see a crowd full of regular Joes and Josettes who roundly despite the President, and take that as a data point that the President is despised by many, many regular folks. And we know in politics that people often follow herds -- the political positions they take are constrained by the set of political positions they know to be acceptable. Trump appearing weak can easily cascade into Trump being weak. And given that Trump really is weak -- perhaps not as overwhelmingly disliked as he would be at National Park, but certainly sporting consistently mediocre poll ratings -- a high-profile, high-salience event where Americans seemed to unite around thinking Trump is awful may well actually do real political work. Even if the appearance mostly is artificial.

White Supremacist Found Guilty in Beating of Charlottesville Counterprotester

A jury has convicted Jacob Scott Goodwin of malicious wounding after he was caught on film beating DeAndre Harris while brandishing a large shield and wearing a tactical helmet.

The trial studiously avoided discussing race -- for example, the fact that Goodwin was wearing an "88" pin (alluding to Heil Hitler) and another with the insignia of a White nationalist party -- until the very end, where Goodwin's defense attorney told the jury "They want you to convict this man because he’s white, and DeAndre is a black man."

The argument -- as well as Goodwin's claim that he was acting in self-defense when he broke Harris' arm and injured his spine while kicking him repeatedly on the ground -- apparently didn't sway the jury, which recommended a 10 year prison sentence.

Every Vote Counts: Virginia Edition

A recount in Virginia's 94th state house district now has Democrat Shelly Simonds winning by ... 1 vote. And if that result holds, it will be enough to push the state house of delegates into a 50-50 tie.

Yes, yes, this is an incredibly vivid demonstration of the "every vote counts" principle. But have you taken a moment to spare a thought for the Green Party voter who is really, really angry that he didn't successfully spoil the race and teach a lesson to those neoliberal sellouts who are exactly the same as Trump?

I'm sure he's devastated. Pour one out for the guy tonight, will you?

No, The Police Can't Force Children To Masturbate For Them -- Even With a Warrant

One of the wilder cases I've ever seen appears to be coming to a close, as the Fourth Circuit -- in a 2-1 decision -- denied qualified immunity to a police officer who sought to compel a minor to masturbate in front of him until he achieved an erection. Yes, you read that right.

The background to the case is here. The plaintiff was a seventeen year old boy who had sent a sext of his erect penis to his fifteen year old girlfriend. Not wise, perhaps, but I continue to believe such consenting acts between two minors shouldn't be criminalized.

The Prince William's County (Virginia) DA disagreed, however, and went after the teenager for manufacturing and distributing "child pornography" (to be clear, he was the "child" in question). To my mind that's already an abuse of prosecutorial discretion, but where the case really went off the rails is what happened next:

The officer went to court and got a search warrant for "[p]hotographs of the genitals, and other parts of the body of [Sims] that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis." And how do you get a photograph of a teenager's erect penis?

In a “locker room” in the center, [Detective] Abbott and two uniformed, armed officers executed the search warrant. Abbott ordered Sims to “pull down his pants so that photos could be taken of his penis.” After Sims complied, Abbott instructed Sims “to use his hand to manipulate his penis in different ways” to obtain an erection. However, Sims was unable to achieve an erection. Nonetheless, Abbott took photographs of Sims’ flaccid penis using Abbott’s cellular telephone. 

At that point, Abbott told the kid's attorney that if he couldn't achieve an erection on demand while surrounded by three armed officers in a police station, he'd take him to the hospital "to give him an erection-producing injection." It was here that public outrage finally compelled the government to back off.

Unsurprisingly, the teenager sued the officer for violating his constitutional rights -- but perhaps more surprisingly, he actually won (if you're thinking: "of course he won -- surely, police officers can't constitutionally force kids to masturbate in front of them," then I have some very sobering stories to tell you about how qualified immunity typically operates).

Sweeping Constitutional Text Aside, Virginia Supreme Court Invalidates Voting Rights Restoration

Earlier this year, Virginia Governor Terry McAullife used his executive powers to restore the voting rights to thousands of ex-felons who had finished their prison term, parole, and/or probation. Today, in a 4-3 decision, the Virginia Supreme Court invalidated the measure -- re-disenfranchising thousands of Virginians. This, simply put, is legally outrageous.

The relevant constitutional clause seems straight-forward enough: Article II, Section 1 of the Virginia Constitution informs us that "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority." Governor McAullife issued an order which restored voting rights to all persons convicted of a felony who had completed all portions of their sentence (including any parole or probation periods). One would think that would be that -- the constitutional text is clear, and so there is no further work to be done.

But no, says the Court. The structure of this provision indicates that felon re-enfranchisement is meant to be an exception to the rule. The Governor's blanket restoration of voting rights turns the rule into the exception -- effectively becoming a suspension of the constitutional mandate that felons normally experience a lifetime bar on voting.

This, to put it mildly, is jaw-dropping in its reach. It's not just that it is obviously extra-textual -- although it is. It's that it is obviously extra-textual without being bounded by anything that purports to be a judicially enforceable rule or standard for when the governor can exercise his re-enfranchisement power. We're told he can't do it in a "blanket" proceeding -- everybody, all at once. It is presumably evident, though, that the Governor maintains his authority to exercise his enfranchisement authority individually -- or even in groups. So we're left with a "how many grains make a heap" problem that is not conducive to any non-arbitrary answer. Reportedly, 11,000 persons have already registered to vote under Gov. McAullife's order (out of over 200,000 became eligible) and now will have their registration's purged. It seems to me that Governor McAullife's next move should be just be to restore voting rights to those 11,000 (if the Court is as concerned as it claims to be regarding the fact that McAullife didn't include their individual names, I'm sure judicious use of the ol' autopen could resolve that). Would that act convert the rule into the exception? Who knows -- this opinion certainly provides no guidance on the matter. The very fact that we could get caught in this sort of infinite ping-pong match between executive and judiciary without any hints as to where the Governor's authority ends is proof positive of the radically unprincipled nature of the Court's decision.

This, alone, would make for a good reason to defer to a member of one of those democratic branches the Court recognizes ought to be the default site for these sorts of political disputes. Yet the Court shows an astonishing lack of deference to its democratically-accountable fellow. Why? Well, the Court says, apparently no other Governor has used its enfranchisement authority in this sort of sweeping, broad manner; it infers that if such a power did exist, some other Virginia Governor would have exercised it by now. It seems evident that an equally-plausible alternative explanation exists, which is that no governor until now felt particularly interested in blanket reenfranchisement. This, after all, is a decision fraught with political risk, and therefore is perfectly guarded by regular political checks. If Virginia voters find blanket voting restorations intolerable, they are welcome to make their voices known in the next gubernatorial election. This is not the sort of decision that is either benefited by nor amenable to being taken out of the political arena shunted into the judiciary.

Indeed, it strikes me that this case represents the essence of the so-called "political questions" that Courts would be better off leaving aside for the democratic branches (here, the governor's office) to handle. In Baker v. Carr, the Supreme Court outlined the factors which point towards a controversy being nonjusticiable as a poltical question. The first two (and in my view the most important two) are

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; and
2. A lack of judicially discoverable and manageable standards for resolving it.

The Virginia Constitution textually delegates the issue of felon reenfranchisement to the Governor's office, and there is no (and the Court does not even purport to provide) judicially manageable standard for administering the rule/exception doctrine the Court purports to lay out. The Court picking apart whether the Governor's "exceptions" are "exceptional" enough is precisely the sort of judicial micromanaging of an executive function that (to draw again from Baker) "express[es] lack of the respect due [to] coordinate branches of government." Basic recognition of the limits of the judicial role, if nothing else, should have convinced the Court to keep out of this thicket. Now, it is likely stuck in a morass of its own devise. I hope that Governor McAullife uses the power that he does have -- whatever that might be, since lord knows this decision blurs things up nicely -- to at least get those persons who already tried to register back on the rolls.

UPDATE: Looks like McAuliffe is going to try to restore voting rights one-by-one, if necessary. Bold move.

I Don't Always Endorse David Bernstein

But when I do, it's because he's right. And in his latest post on the Virginia Bar Israel trip cancellation fiasco, he's right in all relevant respects. The Bar leadership almost certainly stumbled into a hole and then panicked and dug deeper. The fact of the matter is, though, that the trip was almost certainly going to be canceled anyways due to lack of interest. Reinstate the trip, announce it will be canceled if there are insufficient sign-ups prior to a given date, and move forward. It's likely the trip won't go forward anyway (though the increased attention its getting might cause some people to attend who otherwise would have not paid it any heed).

The Making of a Martyr at the Virginia State Bar

Late Friday afternoon, the President of the Virginia State Bar, Kevin E. Martingayle, sent an email announcing the cancellation of a seminar trip to Israel. The email cited "unacceptable discriminatory policies and practices pertaining to border security that affect travelers to the nation.,,, [presenting] enough legitimate concern to warrant cancellation of the Israel trip and exploration of alternative locations."

I'm not a member of the Virginia Bar (though my dad is); I was admitted in Maryland and waived into DC. So I comment as an observer, not a stakeholder. And as an observer, I'm more than a little surprised. To put it mildly, one would not expect a Virginia state governmental agency to be sticking its neck out on an issue like this. And one would expect other organs of the Virginia state government to react with less than equanimity to the news.

Does the author of the email recognize the blowback that's going to hit? Some signs point to yes -- the email was sent late Friday afternoon, which is a classic burial strategy, and there appears to have been no public deliberation or announcement of any kind before the decision was announced as fait accompli. On the other hand, the message's tone is so casual -- bordering on cavalier -- that it is hard to imagine the author knows he's in for a fight. Without knowing what sort of leverage the state government or the lay membership has over the Bar, I would still put better than even odds that this email will result in the end of Mr. Martingayle's tenure as leader. Yet in the email text, he acts as if the main "disappointment" emerging from his decision would be that people would have to rebook their flights. That, I think is evident, is going to be the lest of the Bar's concerns flowing out of this. So what gives?

One possibility is that Mr. Martingayle did not see this as what it is being interpreted as -- an effective endorsement of the global boycott, divestment, and sanctions campaign against Israel. One hint that this might be the case comes from careful parsing of the rationale -- it refers not to Israel's policy on Palestine or the occupation generally, but rather to "discriminatory policies and practices pertaining to border security that affect travelers to the nation," which to my ears sounds like a commentary on Israeli profiling practices at its airports. The most generous way to interpret this move is an individualized assessment by Mr. Martingayle that certain VSB members would be targeted by unacceptable profiling by Israeli security services, and that the seminar should be held in a place where that would not occur. Mr. Martingayle might have been totally unaware of the cultural meaning of his actions. Now to be clear, if that was his (non-)thought, then he's mistaken and disastrously so. And he still should have anticipated that there would be a reaction, though perhaps not as strong. In the U.S., the BDS movement as thus far largely confined itself to a few activist student boards and some feisty academic malcontents. For it to move into a staid white-collar professional organization is a big leap, and one that people will notice.

The second possibility, though, is that Mr. Martingayle is going in with eyes wide open. He knows the backlash that will emerge, and he fully expects it, and he fully expects it to win. Again, given what I know about Virginia and Virginia state politics, I do not believe that Mr. Martingayle has the political backing to take a stance like this and survive the fallout. But provoking an overreaction is a form of strategy too. A too-vitriolic response by the rest of the Virginia government -- a direct encroachment on the Bar's autonomy, for instance -- could have disastrous long-term consequences even if it ousts Martingayle in the short-term. And more generally, Mr. Martingayle benefits from the truth of any political controversy that has Jews at the center: If he wins, he's the man who boldly stood up to Jewish power. If he loses, he's the martyr who sacrificed himself before the unstoppable juggernaut of Jewish power. We still live in a polity where the exercise of Jewish political agency is presumptively illegitimate insofar as it clashes with gentile preferences. One reason that Jews Lose is that any situation where we don't lose is coded as a system failure. Jews losing means the system is working properly, Jews winning means we've successfully subverted the system. It creates a severe double-bind, and means that someone who comes in and is willing to play the martyr to demonstrate the malevolence of the big bad Jewish lobby will have little difficulty succeeding.

There is one last thought I wanted to share. I mentioned above that the most generous interpretation of what was going on here is that there might be a member (or members) of the VSB who would have liked to attend this conference, but knew he or she would be profiled (and perhaps denied entrance) at Israel's border. And so the Bar decided to relocate to a new space where everybody who wanted to attend would be able. Would that be so bad? Would that be so scary?

Maybe not, in the abstract. But in my last post, I quoted a English Jew who refrained from certain critical behaviors towards Israel "because I don’t want to be associated with people who freely use words like holocaust and ethnic cleansing." One of the many, many sins the Boycott, Divestment, and Sanctions regime has upon its head is that it has associated behaviors like this -- no matter what subjective motivations might lie underneath it -- with a truly vicious and uncompromising form of Jew-hatred. The cultural meaning of the VSB's decision is to associate with the BDS movement writ large, and the cultural meaning of that is to associate with those who really find independent Jewish agency to be history's greatest monstrosity. This sort of political action has effectively been taken off the table, for any reason, because of the message it communicates. And, whether or not it has anything to do with this decision in particular, that is a true cost.

A Voter's Saga

Did you know the Virginia congressional primaries were today? I didn't -- at least, not until this morning. But I think it's important to vote. America is a democracy, and voting is how we preserve it. It's hardly some big imposition on my life to do my civic duty, is it?

This is my story:

6:20 PM: Step off the metro at courthouse and walk to the Arlington County building, where I cast my ballot for the gubernatorial race this past fall. Realizing that I have no idea what races are being contested, let alone who is running, I check my phone for information.

6:30 PM: I've discovered I'm in Virginia's 8th district, where Rep. Jim Moran (D) is retiring. Never liked him anyway. A whole slew of Democrats are running to replace him, but the Washington Post indicates that there is a pretty clear frontrunner in Don Beyer who seems decent enough. Also discover that the polls close at 7 PM. This does not seem to be a big deal -- I'm already here, after all.

6:35 PM Ask for directions to the polling place. Am told that the government building only handles in-person absentee balloting, but if I go to third floor they can direct me to my polling place.

6:40 PM: Am informed my polling place is at the local elementary school. It's a short walk from the government building, and I know exactly where it is. Plenty of time.

6:48 PM: Reach the polling place. Do I have a Virginia ID? No, I do not -- I actually tried to get a Virginia driver's license, but was stymied due to my mistaken belief that my social security card would establish my identity. Since I never drive, I never tried again. Utility bill? Voter registration card? Alas, I do not carry any with me while at work. Remember kids -- if voter ID requirements can stop an upper-class white man from voting, it can happen to anyone.

6:51 PM: Walking back to my apartment. Remind myself that I've always opposed voter ID requirements, so fulminating over my current predicament is not opportunistic. The circa 553% humidity is not helping my mood, and I'm soaking my dress shirt.

6:54 PM: Reach my apartment. Decide that if I can find my voter registration card on the first pass, I can make it back in time to vote.

6:56 PM: Miraculously, I find my voter registration card right away (miraculous both because I'm incredibly disorganized, and because my guess of "buried under a pile of papers in my second desk drawer" was right on target). Now the race is on. Literally -- I'll have to run back to the elementary school if I want to make it.

6:59 PM: After running the half-mile to the elementary school, I burst through the doors waving my registration card. Poll workers recognize me and give me a round of applause.

7:00 PM: Cast my vote for Beyer. Get sticker. Walk home drenched but satisfied.

10:49 PM: Write this post. Check results, Beyer won the race by 27 points. Totally worth it.

Currency Manipulation

The Washington Post issues its endorsements for local Virginia House of Delegate seats. All four are currently occupied by Republicans, and there discussion of each race begins by observing that, in essence, the incumbent is a lunatic. There's the one who was one "of a handful of lawmakers to speak out against an otherwise highly qualified judicial nominee who happened to be gay." There's the one who "voted to study whether Virginia should develop its own currency as a hedge against financial chaos." There's the one whose "contempt for homosexuals is surpassed only by his disregard for women who have abortions; he suggested that God exacts vengeance on women who abort their fetuses by assuring that their next pregnancy will produce a disabled child." And finally there's the one "who has tormented gays, immigrants and women with his right-wing views."

Well, that makes life easy doesn't it? Not so fast! Two of these four somehow managed to get the Post's endorsement anyway. That's because it appears that the Post's only criteria for its endorsement was a vote for a transportation bill the paper thought was important. Two of the incumbents voted for the bill and garnered an endorsement, two opposed it and saw the nod go to their challenger. Simple as that.

In case you're curious, the lucky duo who got the endorsement were Mr. Won't Vote for the Gay and Mr. Create our own Currency (incredibly, the Post managed to call both "pragmatists" for their transportation vote in the same paragraph that they opened by detailing their extremism).

When Friends Get Too Close

Poor Ken Cuccinelli -- his friends are his worst enemy. First one of his supporters makes an anti-Semitic joke while introducing him at a rally (to Cuccinelli's credit he immediately condemned the remark). Now he's taking great steps to avoid being associated with Sen. Ted Cruz (R-TX) -- a goal with which Cruz is not exactly cooperating:

In the clearest sign yet of the potent effect of the government shutdown on the Virginia governor’s race, Republican Ken Cuccinelli avoided being photographed with Ted Cruz at a gala they headlined here Saturday night—even leaving before the Texas senator rose to speak.
[...]
For his part, Cruz heaped praise on his “friend” Cuccinelli and argued passionately in a 54-minute speech that their party can still win the messaging fight over the shutdown if the people just speak out loudly enough.

“Ken is smart, he’s principled and he’s fearless,” said Cruz, in a line that may give the left fodder for attack ads, given how the campaign has gone. “And that last characteristic in particular is a rare, rare commodity in elected life. There are so many elected officials in both parties that desperately crave the adulation of the media and the intelligentsia.”

That sequence honestly made me laugh out loud -- I can just imagine Cooch backstage muttering "shutupshutupshutup!"

Cruz, of course, does not shut up.

Midweek Roundup

Going to Chicago next weekend, Minnesota next week. Lot's of good stuff on my browser, which I don't have as much to say on as I should.

* * *

Bill Donohue of the Catholic League issues a warning: "Jews had better not make enemies of their Catholic friends, since there are so few of them." He attributed the comment to former NYC mayor Ed Koch, but Koch denies saying it.

Arizona SoS, already under fire for being birther-curious, gives the conspiracy a new spin -- Obama was born in Hawaii but lied about being born in Kenya to get into college.

Kieran Healy gives a satirical statement from UVA's Board of Visitors.

The National Review bringing aboard unrepentant racist David Yerushalmi prompts Ta-Nehisi Coates to write two great posts on "politically correct conservatism", where the most offensive thing you can say is that anyone, anywhere is a bigot -- even someone who wants to criminalize being a Muslim with a 20 year prison sentence.

Interesting study on how the triumphs and failures of male and female Olympic athletes are described by commentators.

Artur Davis' Turn for the Worse

Former Alabama Democratic Rep. Artur Davis has announced he is switching parties, though he has not committed to a renewed political career (if he did run, however, it would be in Virginia, not Alabama).

There's a lot of "good riddance" being put out there. And I certainly see where that comes from. But I find my feelings are mixed -- while I am deeply disappointed in the man Rep. Davis has become, I also recall the fall from what he once was.

At one point, Davis was considered a rising star amongst young African-American politicians. And while he had already spent several term in Congress (knocking off incumbent Democrat Earl Hilliard to get there)*, it was the 2010 Alabama gubernatorial race that looked to be his coming out party. Young, smart, and Harvard-educated, Davis cut a character that folks thought might have cross-over appeal and could bite into the overwhelming margins White voters were providing to Republican candidates statewide -- a Barack Obama for the south.

But therein lay the problem: Davis looked ahead to the general election and took his base for granted. He tacked hard to the right, assuming that the Black voters who made the core of Alabama's Democratic activists would continue to support him -- particularly given that his main opponent was the White Agricultural Commissioner Ron Sparks. He voted against the Affordable Care Act and spurned the local Black leadership. And come election day, he was not just beaten but throttled by Sparks, who took home over 60% of the vote. Rep. Davis had made an elementary mistake -- he assumed that Black voters vote on basis of race, not policy. And his rising star came crashing to earth.

After that defeat, Davis turned hard against the Democratic Party, and his recent moves reek of sour grapes. The breaking point was his endorsement of the voter fraud panic, a "problem" that is by all empirical accounts mostly non-existent but has been an effective pretext for purging the rolls of valid voters, many people of color.

The thing is, I saw Rep. Davis in Congress, and I remember being extraordinarily impressed by his savvy and intelligence. Artur Davis is a smart man, and that's what makes his decision so infuriating. He's smart enough to know that "voter fraud" is a fraud, but he's also smart enough to know that jumping on that train is a fast way to leap to prominence amongst the GOP, who are always looking for Black faces to say what White audiences want to hear.

The tragedy is that someone as smart and talented as Davis is deciding to use his talents like this -- trying to exploit the game to put himself in power, rather than to do good for the nation. People say good riddance, and in a sense they're right to -- someone who sells out like this does not deserve our respect. But I can't help but feel a twinge of regret. Artur Davis' story could have had so many endings. It's a shame he chose this one.

* I distinctly remember the Davis/Hilliard race because Hilliard had issued several anti-Israel votes (as well as a solidarity trip to Libya), which put him on the radar screen of the pro-Israel and Jewish Democratic community. Davis received strong support in the Jewish community at the start of his career (people say he received money from AIPAC, but that's strictly speaking inaccurate -- AIPAC doesn't have a political action committee and does not give money to candidates. It is true that he received strong support from various Jewish and pro-Israel groups -- both Davis and Hilliard received most of their large donations from out-of-state as the race began to be seen as a referendum on mid-east policy), and I think many of us had warm feelings towards him as someone who was responsive to us when we were feeling hurt or aggrieved. Again, that makes it more difficult when you see what he's receded into.

But in a sense, Hilliard's defeat (like Cynthia McKinney's similar defeats in Georgia) wasn't about who ran against him, but about the voters who made a decision to listen. The Jewish community said to them "your representative is hurting us", and they responded. Every minority group should be so lucky as to have their claims of hurt be met with empathy like that. I try to be empathic in the same way to others, so that when I'm a position where my community is alleged to be causing a hurt, I do my best to be responsive as well. So, no matter how Congressman Davis' career ends, Jewish voters owe a debt of gratitude to the voters of the Alabama 7th District surrounding how it began.

State Rape

Trigger warning.

After a great deal of public outcry, Virginia legislators are delaying consideration of a bill that would mandate raping women who want an abortion. The bill specifically would require women seeking an abortion to obtain a medically unnecessary trans-vaginal ultrasound, thus revealing to them that what's growing in their uterus is a fetus and not, say, a basketball.

Since most definitions of rape run something along the lines of "oral, vaginal, or anal penetration of a foreign object without the party's consent", and since here "consent" is manufactured by force of statute (cf., the old spousal rape exemption, where by statute a married women automatically consented to sexual intercourse), Virginia's law is perfectly accurately characterized as a law requiring the rape of women.

But you know what? Everyone's so focused on the negative; but I think that this is really an effort by Virginia legislators to be more pro-choice than they were before. Recall that even most anti-choice lawmakers purport to except from this principle cases where the woman was raped. Virginia is just trying to make that exception cover every woman seeking an abortion, by requiring that they all be raped first! This way, abortions can still be done, and the "consciences" of the men who generally can't tolerate abortion are assuaged. Sure, some women probably object to being subjected to a state-sponsored rape campaign, but hey, omelets, eggs, and all that.

You see? It all works out in the end.

Rectal Dysfunction

Not actually symmetrical, but still, LOL:

Over in the [Virginia] state senate, Sen. Jill Vogel (R) has introduced a bill that would require all women seeking an abortion “to have an ultrasound image taken to determine the gestational age of the fetus.” Piqued by the unnecessary intrusion into a woman’s doctor-patient relationship, state Sen. Janet Howell (D) sought to level the playing field.

“If pregnant women should have to get an ultrasound before having an abortion, men should have to undergo additional medical procedures before getting a prescription for erectile dysfunction,” she noted, and introduced an amendment to Vogel’s bill requiring that men “undergo a digital rectal exam” for pills like Viagra:

On Monday Howell expressed her disdain for legislation requiring the ultrasound by proposing an amendment she described as a simple matter of fairness. Her amendment said that before being treated for erectile dysfunction, a man would have to undergo a digital rectal exam and a cardiac stress test.

As far as I know, rectal health has little to do with sexual dysfunction except for geographic proximity (well, and I suppose depending on what sort of sex you're into). But the stress test certainly does, and in any event, it's funny, and these ultrasound laws are obnoxious and patronizing, so, you know, goose and gander.