Monday, December 11, 2017

Cross-Racial Representation in the House

Daily Kos Elections has an interesting post listing those House members who represent a district whose population is either majority- or plurality of a different race (e.g., a White member representing a plurality Latino district).

I was a bit surprised at the partisan diversity here. There are, for example, 30 majority- or plurality-white districts represented by a non-White member. Of those, eight are Republican (five Latinos, two Native Americans, and one African-American). There are 21 majority- or plurality-Latino districts represented by non-Latinos, of which five are Republican-represented (four Whites, one African-American).

Anyway, it's an interesting list to poke around in. Have a look.

Sunday, December 10, 2017

Jones/Moore in a Nutshell

Talking Points Memo chats with churchgoers in Alabama:
In a state considered part of the Bible Belt, the allegations transformed a race into an unexpected referendum on which is better: a man accused of child molestation claims he vehemently denies or a Democrat?
For many conservative Republicans, there’s really no choice.
Sigh.

Things People Blame the Jews For, Volume XXXIX: Not Believing Dylan Farrow (Special Forward Edition)

In the Jewish Daily Forward, I have a reply to Eli Bromberg's "partial" explanation for why "Me Too" hasn't taken down Woody Allen. In brief, Bromberg attributes Allen's continued high status to antisemitism -- or rather, the fear of people being accused of antisemitism if they go after a Jewish actor being accused by a non-Jew.

My explanation, by contrast, is much more straightforward: it's misogyny, the same factor that explains the vast majority of other cases where men sexually abuse women and then don't face consequences. Woody Allen isn't the exception, he's the rule. And so we don't need a more complicated explanation for why people don't believe Dylan Farrow other than the standard one: most men don't believe most women when they make claims of sexual assault against powerful men. Any worries about "antisemitism" are entirely epiphenomenal.

This essay was originally going to be published on this blog, and in the move over to the Forward a bunch of stuff got cut. I did mention in the essay that while, contrary to popular belief, non-Jews don't really work that hard to not be antisemitic, they do
care quite a bit about portraying themselves as laboring under an oppressive cloud of Jewish scrutiny, whereby a single false move leads to banishment or worse, and where consequently attacking Jews or Jewish institutions is a brave act of rebellion rather than what it actually is — the historical norm.
In the full version, I offered a few examples to provide color: The Vatican newspaper complaining of how Jews complain "at the first shout by anyone who dares raise his voice against this barbarian invasion by an enemy race," a mere ten years after Jews were even emancipated in Rome; or the Presbyterian official who at a 2014 extolled her fellows that "Jesus wasn’t afraid to tell the Jews when they were wrong" -- as if Christianity's main historical problem vis-a-vis the Jews was the former being too reticent and taciturn towards the latter.

I also had an extended discussion of what I take to be the best analogy to the argument Bromberg wants to make: Clarence Thomas's response, in his confirmation hearings, to Anita Hill's allegations of sexual harassment. It is true that Black men have long been targeted by claims of sexual misconduct as a means of enforcing racist oppression. It is also true that Hill's specific allegations against Thomas were perfectly credible and deserved to believed. Finally, Thomas's declaration that he was being targeted by a "high-tech lynching" was precisely the explicit sort of appeal to racism that Allen is alleged to have made.

What was the result? Thomas' argument did seem to have an impact on some Black organizations who had vivid memories of the link between Jim Crow and claims of Black male sexual predation. But most continued to oppose his nomination. And even to the extent there was some hesitation amongst some Black people to full-throatedly support Anita Hill, it would be absurd to argue that such reticence translated into any meaningful advantage for Thomas inside the White male dominated Senate. White men have not historically needed Black people to give permission before they pass judgment on Black bodies.

Thomas's confirmation vote was 52-48, the closest margin for a Supreme Court nominee of the era. It is almost certainly the case that this margin would have been wider, not narrower, had Thomas not been Black. Put another way, there's little evidence that the Senators who voted for Thomas did so because they were afraid of being called racist. There's a lot of evidence that the Senators who voted for Thomas did so because they, like most men, trust men over the women who accuse them of sexual abuse.

And so too with Allen. Neither being Black nor being Jewish makes it harder for society to condemn you for sexual abuse. If we see Black or Jewish men who appear to be getting away with it, the primary explanation is not that we're too sensitive to the "race card" or we're fearful of being tarred with "antisemitism". The best explanation remains the normal explanation: that men, most of the time, don't believe women who make accusations of sexual assault.

Saturday, December 09, 2017

Abuse in the Clerkship Chambers

I've never met Heidi Bond.

But I knew who she was.

Her blog ("Letters of Marque", now long defunct) was one of several law school blogs I read regularly when this site was first starting out. I found her a fun and engaging writer, and she seemed to be succeeding first as a law student and then a legal professional. I knew she had gotten prestigious clerkships, for example, first with Ninth Circuit Judge Alex Kozinski and then on the United States Supreme Court. For awhile it looked as if she was headed toward legal academia.

Then she seemed to drop off the map. Much later, I learned she was writing romance novels as "Courtney Milan." A bit weird, but hey, good on her. Sometimes the best law graduates are those who manage to escape law altogether. I still consider the most successful graduate of my law school class to be Natalie Shapero, who's now a professional poet.

Heidi has now written an account of her time clerking for Judge Kozinski. It is a harrowing read, but I encourage you to do it. It is an account of gender harassment that chills precisely because it didn't ever escalate to physical abuse or violent behavior, and because it involves a young woman who seemed to exemplify "elite" credentials, but nonetheless clearly and unambiguously bears the marks of exploitation.

I've never met Judge Kozinski. But like pretty much all law students, I knew who he was.

It's difficult to overstate Judge Kozinski's reputation amongst intermediate appellate judges -- in terms of renown within the legal community, he probably ranks second only to Richard Posner. He was famous for his independence, his sharp legal mind, and his witty, almost casual, style of writing (e.g., his notorious "The parties are advised to chill").

Among law students seeking high-level clerkships, Judge Kozinski had a more specific reputation -- two of them, actually. The first was that he was known as a direct pipeline to a Supreme Court clerkship (the holy grail for ambitious, elite law students). The second was that he was known to be a complete and utter nightmare to work for.

To be fair, the latter part of the reputation didn't (to my knowledge, at least) have a gendered component. It was more of a Devil Wears Prada sort of deal. Kozinski was a brilliant monster, he'd abuse the hell out of his clerks, but if you survived the year he would open every professional door you could possibly imagine.

And while I was interested in a Supreme Court clerkship, I wasn't interested in that sort of experience. I had a friend who clerked for Judge Kozinski while I was still in law school, and every update on his year made him sound like a shell of a human being. So Judge Kozinski wasn't high on my list of clerkship targets (I don't remember if I applied, I certainly didn't get an interview, and I ended up clerking instead for the fabulous Judge Diana E. Murphy of the United States Court of Appeals for the Eighth Circuit).

We can talk about whether "simple" abuse, sans the gender component, should be tolerated in the workforce. That's a separate debate. But as Heidi's testimony makes clear, in Judge Kozinski's case it was not in fact sans gender (the Washington Post collects the accounts of several other female clerks recounting harassment or inappropriate behavior by Judge Kozinski).

This is all a lot of run-up, and you might expect me to have some additional insight on offer at this point. But I really don't. It seems obvious that the clerkship environment is one ripe for abuse -- the exceptionally strong norms of confidentiality, the intense professional pressure, the fact that the person with such power over your life and future career is a judge for crying out loud (and you're probably going to be a lawyer, so you have especially strong reasons not to get on a judge's bad side). It is a sterling example of how vulnerability can still exist among people with degrees from the top schools and access to the most prestigious jobs.

So I'm not really surprised by Heidi's account. But I am sad. In her recommendations, Heidi writes
Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.
As someone who did have a glowing clerkship experience, this is what gets me. I know how wonderful it can be to be a clerk. I know how rewarding, and how exhilarating, and how enriching, and how inspiring it can be. So when other people have clerkships and don't have that experience, I feel cheated on their behalf. They were stripped of something that should have been wonderful.

Anyway, that's all I have to say. But again, I encourage you to read Heidi's post. It is a powerful and compelling, if sometimes quite difficult read. And while I doubt she knows me, I'll add my voice to the chorus thanking her for posting it.

Friday, December 08, 2017

A Modest Speech Before the Zionist Organization of America

Of course, I'd never be invited to give a speech to a ZOA. This, rather, is an advance copy of a speech to be delivered before that august organization of Israel-defenders by my possibly-imaginary-alter-ego, Judah ben Samaria.

Fellow Zionists.

I come before you more optimistic about the survival and success of our beloved Jewish state than I’ve felt at any time since … well, since at least 2008.

I need not remind you of the great victory President Donald Trump—a true friend of Israel—has given us at the end of his first year in office. But perhaps I can take a moment to emphasize its scope.

It is not just his recognition of Jerusalem as Israel’s undivided capital, though we have since time immemorial yearned for recognition of this historical truth.

And it is not just that he has abandoned the foolish insistence on blindly pursuing the “two-state delusion,” though it has long since been demonstrated that no peace will come from dividing the holy land.

No, there is a greater accomplishment here still. Through the President’s bold leadership, he has accomplished something that all the talking heads and State Department Arabists had assumed to be impossible: He has gotten the Palestinians to finally accept that they will never have their own state carved out from the territory of the historic Jewish homeland.

The Palestinian’s own chief negotiator, Saeb Erekat, has forthrightly acknowledged it:  “President Trump has delivered a message to the Palestinian people: the two-state solution is over.”

This is what we’ve fought for, is it not? From this point forward, the question is no longer how much land Israel will have to cede to create some mythic, concocted “Palestinian” state. If you are in Eretz Yisrael, you are in Israel. There are no more “settlers”, and there are no more “refugees”. The era of arbitrary divisions across the entirety of the Holy Land can now enter history’s dustbin, right alongside the arbitrary division of Israel’s capital.

This is an opportunity we cannot miss. By ignoring the naysayers and the doubters, President Trump has actually forged a consensus between the Palestinian leadership and the committed friends of Israel who populate this room. Having abandoned the delusion of an independent Palestinian state, and the obstinate refusal to accept Israel’s existence, “Palestinian” leaders are finally taking a different tack. Now, instead of fighting a genocidal war against Israel, they are willing to pursue a path of true peace: working with us to ensure that each and every person currently living under Israeli sovereignty is given all the rights and prerogatives of citizenship inside of a single, unified state. Erekat accepted that this was the only possible route forward following President Trump’s diplomatic powerplay: “Now is the time to transform the struggle for one-state with equal rights for everyone living in historic Palestine, from the river to the sea.”

There’s no need to wait. Now that it is clear that Jerusalem is and will remain an undivided city, the 350,000 Arabs living in “East” Jerusalem who have stubbornly refused the opportunity for Israeli citizenship should welcome the opportunity to integrate into Israel as equal voters, residents, and co-nationals.

But why stop there? There’s no need to wait for “negotiations”—negotiations with who? Getting bogged down in a chimerical “peace process” has only led Israel astray; and in any event, Israel is the sole legitimate governing body between the River and the Sea—it’s time it acted like it. Israel should immediately annex Judea and Samaria—and Gaza, while we're at it—in their entirety, and say once and for all: If you live in any part of our territory, you are an Israeli citizen—with all the rights and freedoms that entails. Whether you are among the 400,000 so-called “settlers” or the nearly three million so-called “Palestinians” will no longer matter. President Trump has paved the way for all to be equal citizens of one, undivided nation. By the next general election, I hope that all those living in Judea and Samaria—regardless of religion or ethnicity—come in hordes to the polls and cast a ballot in a single, unified election. Then we will finally know that our Zionist dream has come to full fruition.

Our enemies have long slandered committed Zionists by accusing us of desiring an “apartheid” state, where Jews and Arabs have unequal rights and the former oppress the latter. But it was the libel of “occupation” that allowed so-called liberals to justify keeping West Bank Arabs stateless—awaiting the conjuration of a non-existent “Palestinian” country. Once the Arabs and the world accepts that there is and will ever be only one state in the Holy Land, then all residents inside of it can enjoy complete and total equality as citizens within.

Now is the time for us here at ZOA to stand up for what a one-state solution truly means. After all, if there is no such thing as “Palestine”, then the only other possible label for so-called “Palestinians” living in Judea and Sameria is “Israeli.” Erekat’s pivot to “one-state with equal rights for everyone” shows that he gets it. Many of us have long observed that, in all practicality, there is only one state already. But it will not be a truly unified state until Israel gives full enfranchisement to the totality of the population of Judea and Sameria. That final coup de grace is all that stands between us and a true, globally acknowledged, “one-state solution.”

We often like to joke that the Palestinians “never miss an opportunity to miss an opportunity.” But—in the spirit of the new era of peace and unity that Donald Trump has ushered in—perhaps we can congratulate them for, finally, seeing the writing on the wall. The two-state delusion is dead; Donald Trump has killed it. And in doing so, he has given us an opportunity to seize as well. We must adopt a new slogan, one which can separate the allies of Israel from her enemies, and clearly articulates our vision for a unified state across the entire territory in Mandatory Palestine within which all who reside are equal.

“From the River to the Sea, Palestine Will Be Free.”


This is the future Donald Trump holds out for us. And whenever we hear anyone sing chant, we here at ZOA will know we've found a friend.

Thursday, December 07, 2017

What Do You Do With Terrible Precedents Shielding Lying Prosecutors?

Bacall v. Stoddard is about a prosecutor who lied.

Bacall was accused of first-degree murder. He claimed self-defense. The prosecutor told the jury that Bacall never once raised the issue of self-defense before trial -- that it was an opportunistic argument he only now was trying to swing. This was the lie. Bacall had been emphatic in claiming self-defense since being booked for the crime, and the prosecutor was well aware of this. But following that lie, the jury (which made it clear it was agonizing over the case in deliberations), voted to convict.

The Sixth Circuit rejected Bacall's Habeas petition. They were clearly disturbed by the conduct. There was no question in their mind that the prosecutor lied, and did so intentionally (quoth the court regarding the prosecutor's statements to the jury: "This was false, and the prosecutor knew it."). The case was not one where the evidence against the defendant was overwhelming; the prosecutor's lie very well could have tipped the margin. The issue was preserved at trial (via an objection made -- on instructions of the trial court -- out of earshot of the jury).

The problem was that Supreme Court precedents and the AEDPA have made prevailing on a Habeas petition almost ludicrously difficult to manage. Even in a case like this, where there was a manifest abuse by the prosecution, the question was whether the Michigan state court's decision not to overturn the jury verdict was "was so lacking in justification that [it committed] an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Yeah, that's a tough standard to meet.

The panel clearly believed this case well-illustrated how the current law and precedents have gone badly off the rails. It seemed to me that they weren't saying that the only reasonable way of reading the law was to require that outcome, however. Rather, their analysis suggests that they believed this outcome was the most reasonable interpretation of the governing law.

For me, this raises an interesting hypothetical. Suppose you're the appellate judge hearing this case, and you think the following things are true:
(a) the prosecutor here committed a gross miscarriage of justice, such that, in a just and functioning legal system, Bacall's conviction should clearly be reversed; 
(b) the most accurate read of the governing statute and precedents -- entirely bloodless and indifferent to the consequences or questions of justice -- would suggest that his Habeas petition must fail; 
(c) notwithstanding the above, there is a plausible and reasonable (though not the best) interpretation of the statute and precedents which would justify granting the Habeas petition; and
(d) you suspect that, if your panel does successfully grant the petition, that ruling will not be disturbed by any further appeals (the case won't go en banc or to the Supreme Court).
What do you do?

Tuesday, December 05, 2017

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).

Monday, December 04, 2017

But Can Hanlon's Razor Explain This?

You know, it wasn't long ago that if you told me the Texas prison system banned Shakespeare but permitted Mein Kampf, I'd have assumed it was due to some form of incompetence. And not, say, a genuine preference on the part of Texas prison administrators for White supremacist and Nazi literature over literary classics.

Now? Less sure.
“‘Mein Kampf’ is on the approved list because it does not violate our rules,” said a prison official.
 Lovely.