The Volokh Conspiracy

according to Bloomberg.  Not terribly surprising for the “ground zero of the housing bubble,” and launchplace of Condoflip.com.

No Social Security or Medicare tax for a year. Raise the retirement age by one year starting in 2014. Pure fiscal stimulus, no additional long-term debt.

Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez.  Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.

So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.

The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.

And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.

UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.

1. My op-ed about HRW’s problematic Middle East staff appeared in the Examiner newspaper websites.

2. HRW added new members to its Middle East and North Africa advisory board.  Surprise, surprise, they include several individuals with a history of anti-Israel or pro-Palestinian political activism, and none with the opposite history.

3. HRW’s Iain Levine, talking to the Guardian, blames its troubles on a conspiracy “organized campaign” and “coordinated attacks,” by “right-wing blogs,” NGO Monitor, and the Israeli government.  Self-reflection and self-criticism are not HRW’s strong suit, as is apparent by Levine’s continued defense of HRW’s Israel-bashing fundraising trip to Saudi Arabia, not to mention its apparent recent strategic choice of putting an employee with a Jewish last name out front on Israel-related matters, as if that makes any difference.

Given that Joe Klein has engaged in another tantrum, first repeating the ridiculous charge that Jewish neoconservatives somehow mesmerized John McCain into being unduly confrontational regarding Iran, then launching into expletive-laden tirades against Jamie Kirchik, and finally telling the Washington Post that Jewish neocons sometimes “put the interests of Israel above the interests of the U.S,” I thought I’d reprint what I wrote about Klein last year (see also this post on Klein):

Joe Klein’s outburst about the “Jewish neocons” allegedly pulling John McCain’s strings on behalf of Israel reminded me that I’ve been meaning to blog about the fact that liberals, including (and sometimes especially) Jewish liberals increasingly use the charge of “dual loyalty” to try to discredit, and thus silence, Jewish conservatives.

This is especially clear from Klein’s piece, because unlike many writers, he actually shows an understanding of neoconservatism, which he describes, in roughly accurate terms, “as unilateral bellicosity cloaked in the utopian rhetoric of freedom and democracy.” There is nothing uniquely “Jewish” about this ideology, and the neocons have applied to everything from the Salt II treaty to Grenada to Bosnia to Iraq, usually in circumstances that have nothing to do with Israel–as I have written, “if Israel suddenly was at complete peace with its neighbors and was no longer an issue of foreign policy concern, I would bet that all of the Jewish neoconservatives would remain neoconservatives, and continue to promote neoconservative views on foreign and domestic policy.” And, as I’ve noted previously, Jews are not overrepresented among neoconservatives relative to their prominence as public intellectuals generally.

The purpose, then, of associating “neocons” with Jews, and neoconservatism exclusively or primarily with concern for Israel, is to delegitimize conservative Jews, just as conservative blacks are called “Uncle Toms” and whatnot. As the National Review media blog notes, “conservatives who aren’t ‘neo’ in any appreciable way — say, Jonah Goldberg — are denounced as ‘neocons’ based mostly on their surnames.”

One interesting aspect of all this is that the standard left-wing “Uncle Tom” attack on black conservatives accuses them of being insufficiently supportive of “their people,” while the emerging attack on Jewish conservatives accuses them of being too supportive of “their people” and thus having dual loyalties. Hmm.

UPDATE: In reaction to a previous, more outlandish Klein screed, Shmuel Rosner of Ha’aretz pointed out quite aptly that liberal Jews also argue that the policies they support will help Israel. [And given that Israel is very popular with Americans in general, and American Jews in particular, it would be foolhardy to argue that a policy is good because it would hurt Israel; even the Chomskys and Finkelsteins of the world usually claim to have Israel’s ultimate best interests at heart.] But, Rosner points out, it’s only the conservative Jews, or at least the ones that are hawkish on foreign policy, including Israel-related foreign policy that get accused by the likes of Klein of dual loyalty:

Here’s a little mind game with which to demonstrate my point. Imagine Klein, back in the late Nineties, writing this:

“The fact that a great many Jewish officials in the Clinton administration plumped for this Oslo process between Israel and the Palestinians, and now for an even more foolish summit at Camp David between Ehud Barak and Yassir Arafat, raised the question of divided loyalties: using U.S. diplomatic leverage and money, to make the world safe for Israel.”

Can you imagine him writing such thing? Can you imagine him blaming the many-many Jewish members of the Clinton administration for tilting the American agenda toward the peace process only because they want to help Israel?

If you can — Klein is being honest. If you can’t — Klein is just using religion to denounce people with whom he has policy differences.

Here are the results of a very interesting study, which I participated in (along with 30,000 other people).

FWIW, I usually pronounce the o in “orange” like “a” in farce, though the longer I’ve lived outside New York, the less consistent I’ve become; call the place that I attend services “synagogue“‘; am proficient in Hebrew; never even heard of the word “tachlis” despite spending nine years in Orthodox yeshivot in New York; have people stay “with” me, not “by” me; say “Shabbat Shalom” and “Sukkot”; and would never, ever, consider naming my children “Mendy” or “Basia.”

As noted by Orin below, Marc DeGirolami tries to provide a global answer to that question that often bedevils academics, i.e., who cares?  For the reasons that Orin and the commenters suggest, I don’t think DeGirolami’s answer is successful.

On the other hand, law professors like myself who write about legal history have good reason to be frustrated by the “who cares” question.  Start with the basic premise that law professors are hired to teach and engage in legal scholarship, and that legal scholarship should be judged by the same sort of standards by which other types of humanities scholarship is judged.  Good legal history written by a law professor, in other words, should be basically the same as good legal history written by a history professor.

If a member of a history faculty writes a brilliant analysis of the history of the use of the Magna Charta in American constitutional debate, no one in his department is going to say “who cares?”  The analysis will be appreciated as a contribution to the world’s store of knowledge.

But imagine that a young legal historian writes the same brilliant analysis, which he uses as his job market paper.  At both his AALS interview and his job talks, he is going to be peppered with various versions of the “who cares” question.  His advisors will tell him he needs a “hook” to some modern debate to answer this question.  So he’ll add some sort of strained analogy to a modern constitutional controversy to show how the paper is relevant to current legal debate.  If the candidate appears to have an ideological edge to him based on his resume, many of the professors judging his candidacy will try to decode the paper for secret meanings (“this paper is obviously a subtle attempt to use the history of the debate over the Magna Charta to undermine the legitimacy of Roe v. Wade!”)

In other words, despite the general trajectories of law school faculties from the trade school model to a more standard academic model, many law professors have not fully assimiliated academic standards in judging scholarship, and instead assume (a) that legal scholarship lacks merit if it doesn’t relate to an ongoing controversy; and (b) that all legal scholars should be, and are, motivated by normative concerns, rather than the pursuit of knowledge.

Indeed, it’s still entirely possible at many law schools to get an academic job by writing what one might call “lawyer’s scholarship”: finding an ideologically congenial position about a current controversy in the law, and arguing backwards from one’s conclusion, as if one were writing a legal brief. In other words, to show you’re a good advocate, but not necessarily a good scholar.

I know that many readers of the VC think that law schools should be organized on the trade school model.  That’s a separate debate.  But it strikes me that if law schools purport to be organized on an academic model, a proper answer to the “Who Cares” question should be, “this doesn’t directly relate to any current legal controversy, but it’s an important contribution to our knowledge of ....”  I hope members of hiring committees attending the “meat market” this weekend keep this in mind. (There’s the “hook”!)
UPDATE: Paul Horwitz has related thoughts.

“A throng of naked people with jack-o-lanterns on their heads is, by definition, an alarming sight, Chief Beckner says. Therefore, it’s illegal.”

UPDATE: On a serious note, Chief Beckner threatened to arrest harmless naked Halloween revelers as sex offenders, which is no laughing matter, an abuse of authority, and should be grounds for his dismissal.

This kind: Helena Cobban is on the Board of Directors of Human Rights Watch’s Middle East and North Africa Division.  In a recent blog post, she took exception to the Weekly Standard’s Michael Goldfarb criticizing her because “she likes to compare Israel to Hamas.” (H/T: Richard Landes)

Cobban was offended not because Goldfarb was wrong, but because in her opinion any rational person knows that Israel is comparable to (or perhaps, judging by her tone, worse than) Hamas:

So here’s the thing that Michael Goldfarb and people of his ilk really don’t seem to understand: For the vast majority of the people on God’s earth today, Palestinians are just as fully human as Jewish people, and just as deserving as Jewish people of our compassion and our understanding.

(She later suggests that Gaza’s Hamasistan dictatorship is just as “democratic” as Israel.)

And who are Michael Goldfarb’s “ilk”?  Jews who support Israel and/or criticize Human Rights Watch (you tell me if the following individuals have anything else in common)!

But the Michael Goldfarbs, the Norman Podhoretz’s, the Alan Dershowitz’s, and Robert Bernsteins of this world truly don’t get this. They truly think there is something so “special” about Jewish people and their experience in the world that somehow the [sic] (and especially the allegedly “Jewish” state, Israel) deserve to be given a free pass on the application of any neutral standards of behavior, such as would be applied to anyone else.

So there you have it.  Among other Jews, Robert Bernstein, the founder, longtime president, and now critic of Human Rights Watch is not merely mistaken when he accuses HRW of anti-Israel bias, he is mistaken because he thinks Jews should be held to different, lower standards than everyone else because he thinks Jews are “so ‘special.’”  Damn Jews just think they are better than everyone else, and should be exempt from the moral standards that the civilized Christian (Cobban is a Quaker) world adheres to.  We’ve heard such sentiments before, but not generally from “human rights activists.”  [And as for her bizarre reference to the “allegedly ‘Jewish’ state, Israel,” Noah Pollak notes that “her writing is so sloppy that it’s impossible to discern what specific slander she has in mind.”]

And, in case there was any doubt, Cobban of course fails to link to any statement by any of the individuals she names suggesting that Israel should  “be given a free pass on the application of any neutral standards of behavior, such as would be applied to anyone else.”  (She does link to R. Bernstein’s op-ed on HRW, but that op-ed doesn’t say anything remotely resembling Cobban’s “interpretation.”) The reason, of course, is that none of these people have said such things, nor is there any reason, beyond the ugly sentiments implicit in Cobban’s post, that they believe that.

If Human Rights Watch was a decent organization, it would ask for Cobban’s immediate resignation from its board.  But it isn’t, and it won’t.

UPDATE: Not surprisingly, Cobban’s post attracted much more blatant and overt anti-Semitic comments, such as “There is some sort of weird Jewish psychological issue ... The Inner (Screeching) Jew Incarnated may help elucidate the behavior of Goldfarb and his ilk.” When some other commenters objected, Cobban responded, “Yes we do have some anti-Israeli statements here that are stronger than usual.”

The mystery of just what JStreet is, or intends to be, is growing deeper.  “The party and the viewpoint that we’re closest to in Israeli politics is actually Kadima,” JStreet’s founder Jeremy Ben-Ami told the Jerusalem Post. (Hat tip: Ilya)

You mean the Kadima founded by that old Likudnik*Ariel Sharon, and run by another old Likudnik,* Tzipi Livni?  The Kadima that presided over the 2006 war with Hezbollah in Lebanon?  The Kadima that presided over the war in Gaza in late 2008-early 2009, a war that JStreet vigorously opposed?

Weird.  Opposing the war in Gaza put JStreet far outside the mainstream of Jewish opinion in Israel (and the U.S., for that matter); even the left-wing Meretz party supported the war, as did over 90% of the Jewish Israeli public.  So JStreet is respositioning itself from left of Meretz to right of Labor?

Ben-Ami added:

“our worldview is going to be out of touch with some of the Left” and predicted left-wing outrage as a result, some of which has already surfaced on liberal blogs during the conference.

“It’s going to come because we are pro-Israel, while there are many on the Left in this country at this point who believe in a one-state [solution],” Ben-Ami said.

“We don’t want to be defined as a left-wing organization,” David Avital, a member of J Street’s advisory council, explained. 

So, the question is: If J Street is not a left-wing organization, is pro-Israel, is against a one-state solution, is for a two-state solution, and plans to promote views similar to a centrist Israeli Zionist party, how exactly does this distinguish J Street from existing Jewish and pro-Israel organizations? 

I’m happy to have J Street around as a non-mainstream but pro-Israel organization that allows folks who hold peacenik views akin to, or even slightly left of, Meretz, to lobby for peacenik policies within the pro-Israel camp, and for Israel within the left.  But I really don’t see the point of a Kadimaish, moderate pro-Israel organization whose policies are largely indistinguishable from existing pro-Israel organizations.  And I also don’t see how the perspective expressed by Ben-Ami squares with what J Street has been up to until now.

But for now, at least, I get to amuse myself thinking about the steam that must be coming out of the ears of certain anti-Israel bloggers who thought that JStreet represented their salvation.

*Rare examples of someone being called a Likudnik who really is a Likudnik!

July 2009 Bar Passage Rates

GMUSL 1st Time Pass:     90.6%
GMUSL Overall Pass:       89.1

VA 1st Time Pass:       80.2%
VA Overall Pass:         75.4%

UPDATE: I got an email inquiring as to whether GMU faculty gear their courses to Virginia law, or national law.  The answer is that outside of specific Virginia practice electives, GMU classes cover national law, e.g., the Federal Rules of Evidence, not Virginia evidence law.

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book.  But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment ... was intended to extend the protection of the Bill of Rights to the states.  Brandeis took this position in his dissent in Gilbert v. Minnesota.”  False.  You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]”.  False.  There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent.   Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words.  False.  Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.”  False.  The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as two additional votes, includng, if I recall correctly, Justice Stephen Field’s), that the rights enumerated in the Bill of Rights also applied to the states.

Earlier, on p. 619, Mel correctly notes that Brandeis only identified the rights to speech, education, choice of profession and travel [only the first of which is actually specifically mentioned in the Bill of Rights] as fundamental rights deserving protection under the Due Process Clause.

And it’s not like the idea of applying some of the rights in the Bill of Rights to the state was otherwise unheard of before Brandeis. In 1908, the Supreme Court stated that “some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”   A year earlier, the Court had reserved for the future the question of whether “there is to be found in the Fourteenth Amendment a prohibition [of restriction of freedom of speech] similar to that in the First.”

Moreover, Brandeis would have preferred that the Due Process Clause not apply to any substantive rights at all, but insisted that all fundamental rights be protected if liberty of contract was to be protected.

Also, in 1897, well before Brandeis joined the Court a unanimous Supreme Court noted that the Fourteenth Amendment’s Due Process Clause protected not just liberty of contract, but “freedom from all substantial arbitrary impositions and purposeless restraints.”

Finally, if we are going to anachronistically consider pre-New Deal Due Process opinions that protect rights that happen to be mentioned in the Bill of Rights to be “incorporation” cases, even when no provision of the Bill of Rights was relied upon, it turns out that the Supreme Court “incorporated” the Takings Clause of the Fifth Amendment in 1897, twenty-three years before Brandeis’ dissent in Gilbert.

(5) p.632: Brandeis “especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states.”  False.  Again, the pre-World War II Justice who consistently plugged something resembling the modern incorporation doctrine was Harlan, and it was he, not Brandeis, whom Justice Hugo Black later cited in advocating incorporation (though unlike Black, Harlan believed that the Fourteenth Amendment also protected unenumerated rights).

(6) p. 632 “Brandeis had first planted the seed [of the incorporation doctrine]” and McReynolds had advanced the cause in his two school opinions [Meyer and Pierce v. Society of Sisters].   False.  Neither case had anything to do with incorporation of the Bill of Rights.  Both cases were quite clearly what we now refer to as pure “substantive due process” opinions, applying unenumerated rights against the states via the Due Process Clause without any reference, even implicit, to the Bill of Rights.

I think I had noticed a few other examples, but I can’t find them right now, and I think I’ve made my point.

Don’t let this discourage you from buying this book, which is a wonderful resource on the life and accomplishments of Justice Brandeis. But on this particular issue of Brandeis’s influence on incorporation, it happens to be wrong.

Radley Balko, whose weekly crime column should be on your reading list, wants to know:

As DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases ... where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Matthew Yglesias:

I was debating with Jon Chait at a J Street panel this morning on the subject of “what does it mean to be pro-Israel?” As expected, we disagreed on a number of points, most of which I was right on and he was wrong on. But one thing he said in his opening remarks that I really disagreed with was that there was an ambiguity running through the J Street constituency as to whether the group was or should be pro-Israel at all.

That just struck me as kind of nuts. My J Street button said “Pro-Israel, Pro-Peace.” It’s not a subtle aspect of the messaging. But when we moved to the Q&A time it became clear that a number of people in the audience really were quite uncomfortable self-defining as “pro-Israel” in any sense and that others are uncomfortable with the basic Zionist concept of a Jewish national state. I was, of course, aware that those views existed but it had seemed to me that it was clear that that wasn’t what J Street is there to advocate for. Apparently, though, it wasn’t clear to everyone.

Two comments:

(1) As I noted Saturday, JStreet is going to have to make it really clear that it is fact a “pro-Israel” organization, albeit a “progressive” and pro-peace one, if it is to gain any ultimate traction in the Jewish community.  And that means making anti-Israel people like those Yglesias describes unwelcome.   Meanwhile, it doesn’t help matters that the secretary of JStreet’s student division, Lauren Barr, announced that the division is dropping “pro-Israel” from the “pro-Israel, pro-peace” slogan of the broader group, so as not to make people uncomfortable.  Memo to Ms. Barr: The job of a pro-Israel [political lobbying and organizing] group is [among other things] to make people who aren’t pro-Israel feel  uncomfortable. Hopefully, you can get them to rethink their position, but, to the extent that they are against Israel, they are a pro-Israel group’s adversaries.  By Ms. Barr’s logic, the NAACP should have dropped the second “A” and the “C” back in the 1930s.

(2) I get the sense that Yglesias is surprised that there are actually otherwise seemingly well-meaning progressive people out there who not only seriously object to the very idea of a Jewish national state (but not other national states, including the many others that have an ethnic basis), but that they would pay good money to come to what was billed as a  pro-peace and pro-Israel conference.

I surmise that we have a disconnect here.  The anti-Israel progressives believe that no right-minded progressive could possibly be truly pro-Israel, so that as a progressive group JStreet would inevitably welcome them (and JStreet has sent out enough ambiguous signals to make this plausible).

Youngish Jewish Progressives like Yglesias, on the other hand, haven’t taken the real anti-Israel sentiment out there on the left to heart; they assume that eliminationist and otherwise vituperative rhetoric against Israel that, for example, shows up in their blog comments sections, is somehow lingering hostility to the Bush Administration’s Mideast policies, or perhaps hostility to Israel’s “right-wing” government, or anger at Israel’s military actions in Lebanon and Gaza, or opposition to “the Occupation.”  Yglesias, et al., have a hard time grasping that fellow “progressives “could really be (a) so naive as to think that a “one-state solution” would work in Israel/Palestine, when, as Yglesias says, it’s not clear it will work in the long-term in Belgium or Canada; and/or (b) so unreasoningly hostile to Zionism as to somehow think that it’s okay for everyone else in the world to retain their states, regardless of whatever historical injustices that state was guilty of, but that the Jewish people’s state, despite being clearly more “liberal” than all of its neighbors, is somehow uniquely awful such that it must not exist even if it otherwise pursued suitably “progressive” policies.

I perfectly understand the difficulty that one could have with these ideas, because when in my twenties, I remember arguing with members of the older generation that they were too paranoid about anti-Semitism, that Israel needs to be much more flexible to achieve a peace accord, and that the murderous rhetoric about Israel emanating from the Arab world and elsewhere would go away once the parties all recognized their rational self-interest and came to a peace deal.  It took many years, and, among other things, an intifada that involved a remarkable number of “progressive” Western intellectuals apologizing for, or even justifying, blowing up kids in pizza parlors in response to a serious peace offer from Israel, and a series of modern-day blood libels in Europe during Operation Defensive Shield in 2002 to realize that I had been extremely naive.  It’s not that I’ve given up hope; but I learned to take what seemed to a younger me like pure craziness that couldn’t possibly be serious–such as the continuing popularity of the Protocols of the Elders of Zion in the Muslim world–very seriously.

UPDATE: A few days back, Yglesias wrote: “Israel has enough problems that discerning who’s for it and who’s against it shouldn’t be that difficult.”  Yet he was shocked to find that J Street’s conference attracted people who were against it, even though the pro-Israel “establishment” he excoriated a few days earlier had been warning for months that J Street’s “pro-Israel” identity was ambiguous at best.

JStreet, which bills itself as a “pro-peace, pro-Israel” lobby, and aims to be a progressive counterpart to AIPAC, is having its convention starting tomorrow. Unlike some in the pro-Israel community, I’m not hostile to JStreet.  First, I know one of the bigwigs in JStreet, and though he and I don’t have much in common politically, he’s a good guy and certainly is “pro-Israel”.  Second, from approximately 1988 to Fall 2000, I held views on the Arab-Israeli conflict that would put me comfortably in the mainstream of the JStreeters.  Events in the Summer and Fall of 2000 led me to change my views, but I understand where many JStreeters are coming from, and I don’t think their views should be dismissed as “anti-Israel.”  Third, as a perusal of the comments on any major liberal blog will show, and as public opinion polls also show, Israel is quickly losing support on the American liberal-left.  It’s vitally important that pro-Israel “progressives” have a home in which they can advocate both for Israel within the left, and for peacenik policies within the general American political and pro-Israel contexts.

That said, I think JStreet has a few issues it needs to deal with:

(1) It needs to avoid being seen as an extension of the Democratic Party.  Many of the JStreet’s top people, including the guy I know, are bigshots in Democratic politics.  JStreet’s website repeatedly talks about how it wants to support “President Obama’s policies.”   AIPAC has been as successful as it has been in part because it doesn’t play favorites among the parties, but sticks to its pro-Israel knitting.  JStreet needs to show that it’s also even-handed, that it’s a lobby for what it considers pro-Israel, pro-peace policies regardless of who is advocating those policies, and not an effort to more generally support Democrats and the political left.  Another National Jewish Democratic Council would be pointless, but a lot of JStreet supporters specifically hate AIPAC because it supports Republicans who support AIPAC’s positions.   It will be interesting to see how JStreet squares that particular circle.

(2) During the Cold War, there were anti-Communists, and what one wag deemed “anti-anti-Communists.”  The anti-anti-Communists were people who purported to be against Communism, but they spent almost all their efforts denouncing the “right-wing” anti-Communists, and precious little effort fighting Communism.  Similarly, JStreet risks claiming to be “pro-Israel,” but really in practice being  primarily a lobby against pro-Israel people who are further to the right, and spending precious little time  battling truly anti-Israel folks on the Left.  (Would that make JStreet anti-anti-anti-Israel? Or just “anti-pro-Israel”?)  Most of its energy so far, from what I can tell, has been spent attacking “right-wing” Jewish groups and individuals, and even Israeli government policies, and precious little battling the extreme hostility to Israel one often finds on the progressive left.

Over the Summer, JStreet honored the so-called “Juicebox Mafia”–young liberal Jewish bloggers Ackerman, Duss, Klein, and  Yglesias.  Now, these youngsters may be Jewsh, progressive, and pro-peace, and in their hearts they may even be pro-Israel. But I’ve read many posts from them related to Israel over the years, and I can’t remember a single one that actually defended Israel from an unfair charge emanating from the left.  They attack Marty Peretz, attack AIPAC, defend Walt and Mearsheimer, and so forth, none of which necessarily means that they can’t also be pro-Israel.  But how does their pro-Israelness manifest itself?  Certainly not in their blogging (Duss and Yglesias have vigorously, defended Human Rights Watch, for example, seemingly on the sole ground that it was under attack from pro-Israel people).  And judging by their comments section, it’s not like they don’t have plenty of readers who are clearly not pro-Israel.  So exactly why did  JStreet honor them? (Yglesias is appearing on a JStreet panel Tuesday, “What does it Mean to be pro-Israel?”  I’d like to see that one...)

Similarly, last Spring, JStreet put out a press release defending Theater J in Washington, D.C., for showing the depraved, borderline anti-Semitic, and certainly anti-Israel, play, “Seven Jewish Children”:

The decision to feature Seven Jewish Children at Theater J should be judged not on the basis of the play’s content but, rather, on its value in sparking a difficult but necessary conversation within our community. To preclude even the possibility of such a discussion does a disservice not only to public discourse, but also to the very values of rigorous intellectual engagement and civil debate on which our community prides itself.

J Street takes no position on the content of Seven Jewish Children – it is, after all, a play, and not policy. We do, however, stand unequivocally behind Theater J in its decision to feature programming that examines different facets of this critical debate over how our community can best support Israel. Such an opportunity for individual and collective reflection is integral in informing our shared interest in bringing true peace and security to Israel.

This is bizarre and illogical on so many levels, I don’t know where to start, and I won’t even try.  But here’s my basic point: There was nothing pro-Israel about Theater J showing an anti-Israel play written by an avowed enemy of Zionism and Israel, and there was no reason for JStreet to involve itself in the controversy over the play, unless, again, it is trying to be “anti-anti-anti-Israel.”

(3) Related to point 2, JStreet has to have some implicit standard of what constitutes “pro-Israel.”  There is nary an anti-Israel Leftist (or American politician)  who won’t claim, no matter how ideologically hostile to Israel he is, that he is ultimately trying to help both the Palestinians and the Israeli people.  I can’t say that I can come up with a litmus test offhand, or that a specific litmus test is even necessarily needed.  But, to take a few examples of people I’ve written about on this blog, the definition of “pro-Israel” would have to exclude the likes of Joel Beinin, Juan Cole,Norman Finkelstein, Joel Stork, Philip Weiss,  and Sarah Leah Whitson, no matter how “progressive” and purportedly “pro-peace” they are (pro-peace, to some people, means “Israel surrenders”).

I think some of JStreet’s stumbles––another one was a rather inartful press release condemning Israel’s incursion into Gaza when it started—have been a product of growing pains.  Others seem to be a result of a conscious choice to first establish JStreet’s “progressive” credentials before it establishes its pro-Israel bona fides.  But it’s going to have to do the latter at some point, and it’s going to have to anger some “progressives” while doing so.  For example, if even the head of the leftist Israeli human rights group B’tselem has concluded that the Goldstone report is biased and error-filled, that’s a pretty good signal that no “pro-Israel” group should express anything but contempt for it.

UPDATE: See this interview by Jeffrey Goldberg with JStreet founder Jeremy Ben-Ami.  Ben-Ami seems to identify some “pro-Israel” redlines: a two-state solution, the Law of Return, and embracing Israel’s right to defend itself, including via U.S. military aid.  He also notes that JStreet has refused to embrace the Goldstone Report, and hopes to be criticized by the far left for its “mainstream” positions.  All good.  But he doesn’t quite explain why he’s letting anti-Israel bloggers like Helena Cobban have a panel at the JStreet conference.

Originally posted Dec. 2003. Just came across it, and though it was worth reposting in light of recent controversies over hate speech prosecutions in Canada:

Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.

Sullivan quotes me: “I suggest that if Yglesias and similarly-situated bloggers want to address the root causes of R. Bernstein’s obviously painful decision to denounce the organization he founded and nurtured, they read this comprehensive report by NGO Monitor” (by the way, I’ve since heard from a very reliable source that R. Bernstein in fact came to his painful decision after both reading such critiques–I’m not sure if he read that specific report–,  doing his own due diligence to make sure they checked out, and trying to get HRW to mend it ways before going public):

So, does Sullivan actually bother to read the report?  You guessed it, nope.   Instead, he quotes my frequent (and persistent) critic, Kevin Heller:

Bernstein bases his recent posts on “reports” issued by NGO Monitor, an organization that — unlike HRW — makes absolutely no effort to be critical of both sides of the Arab-Israeli conflict:

NGO Monitor’s objective is to end the practice used by certain self-declared ‘humanitarian NGOs’ of exploiting the label ‘universal human rights values’ to promote politically and ideologically motivated anti-Israel agendas.

NGO Monitor at least gets credit for truth in advertising: every single report it has issued in 2009 has attacked an NGO or state or other organization that criticized Israel.

You know, I heard there’s a blogger named Andrew Sullivan who is concerned about marriage.  And here’s the crazy thing: every single  blog post he writes on the issue is supportive of gay marriage!  Every one!

This of course means that no matter what facts he marshals, no matter what evidence he provides, no matter how extensive his research, and no matter how darn persuasive he would be if we just read what he wrote, because he has a position on the issue, nothing he has written about it could possibly be worth reading.  Instead, everyone should just attack him with ad hominems.

Oh, and applying this same standard, did you know that every single report that Human Rights Watch has issued on Israel has been critical of Israel?  Worse yet, even when its own on-the-ground researcher “praised the IDF’s professional investigation”, into an explosion in Gaza, HRW a few days later issued a report critical of Israel, alleging that Israel “betray[ed] a lack of interest in arriving at the truth of what happened.”

And here’s the rub: as Heller points out, NGO Monitor doesn’t claim to be an objective, neutral party on the Arab-Israeli conflict.  Neither do I.  But (a) that doesn’t mean that one can reasonably and blithely ignore facts presented by NGO Monitor (e.g., the radical anti-Israel activist backgrounds of various top HRW Middle East staff; that one of the “eyewitnesses” relied upon on the Goldstone report defended vociferously by HRW has given fifteen different and conflicting accounts of a particular incident to different sources; and so on); and (b) Human Rights Watch does claim, as Heller suggests, to be an objective source, but that doesn’t make it so; its reporting is laughably one-sided.  If Human Rights Watch acknowledged that it has an ideological agenda (recall again that M.E. director Whitson thinks that of Middle East human rights problems, while Israel’s behavior in wartime is, relatively speaking, worthy of many minutes of attention, Hamas and Hezbollah deserve twelve incoherent seconds) that dictated hostility to Israel, no one would be complaining that it’s using a human rights halo to mask an anti-Israel agenda.

So here’s my proposal to Andrew: read the report with an open mind.  If its wrong, explain specifically why its wrong.  And if its right, acknowledge that its right.  Your support for Human  Rights Watch should at least be informed, no?  Better to live in blissful, but ideologically comfortable, ignorance?

UPDATE: Andrew promises to look over the report, and invites his readers to do so as well.  Good.  He adds that he “glanced over the report and it reads more like an op-ed than a fact finding exercise.”  I’m not going to vouch for the style of the report, which after all is meant to be readable, not to be a Ph.D. thesis, and I think NGO Monitor folks sometimes seem to make as much of a very minor infraction as about HRW’s most outrageous misconduct.   (For an advocacy group, it’s very tempting to try to make a slow news month into a press release of some sort.)  With those caveats, NGO Monitor has been following HRW for years, tries in my experience scrupulously to avoid misstatements of fact, and its report is the one place where you can find almost the entire Bill of Particulars pro-Israel folk have against HRW in one place, with footnotes–sources generally available on line–backing up the claims.  I should think it’s very possible to review the evidence and still think that HRW serves a good devil’s advocate’s role, but difficult to do so and remain convinced that HRW has no ideological bias.

Following up on Ilya’s post, I though I’d mention a couple of other contributions Rand made.

First, and as is most evident in Atlas Shrugged, Rand turns Marxism on its head.  While Marxists argue that “capitalists” make their profits on the backs of the working class, Rand illustrates that the working class, as such, makes almost no contribution to wealth, but relies on the efforts, risks, sacrifices, and most of all the genius of the entrepreneurial class.  Consider, as a thought experiment, what living standards would be like if every person in the world had an IQ around the median of 103, and otherwise had average talents and ambition.  Does anyone seriously doubt that “workers,” and everyone else, would be a lot poorer than they are today, and indeed would likely be living as poorly as our hunting and  gathering ancestors?

I should add that Rand’s view on this was not original; very similar views are expressed by William Graham Sumner in What Social Classes Owe to One Another.  But Rand has obviously had a much greater long-term impact than did Sumner (unless a researcher discovers that Rand actually came upon her idea via Sumner).

There is, of course, the danger of taking this insight too far.  The fact that “ideas people” are largely responsible for our wealth doesn’t mean that they necessarily have a moral claim on any given fraction of that wealth.  We all, after all, stand on the shoulders of others, and no matter how brilliant and entrepreneurial someone was living in 1st century North America, he was going to be a lot poorer than the average person in 21st century North America.  Not to mention that without a proper legal system, property rights, etc., supported by the public at large, no amount of genius and talent is going to result in societal wealth.

Also, believers in the welfare state could reasonably claim that at least some social programs, including government-financed schooling, are necessarily to help budding geniuses fulfill their potential.  Surely, many brilliant illiterate immigrants to the U.S. who could have been great entrepreneurs wound up as “workers” only because they lacked educational and other opportunities.

All that said, the radicalism of Rand’s view on this, and its stark contrast to the popularity of crude Marxist ideology based on the view that wealth is somehow just “there” to be exploiting by “capitalists” is quite noteworthy.  Rather than the capitalists living off the workers, the workers, in a sense, are living off the capitalists.

Second, Rand, with her celebration of man’s potential and achievement, has inspired many people to strive to fulfill their potential, including me.  Rand didn’t influence my political views very much; I was already a libertarian when I read her work, and had already read Friedman, Hayek, Nozick, Rothbard, Sowell, and many others.  But she did help change my outlook on life.

I was always a very successful student, but always a very lazy one.  When I arrived in college, my basic career goal was to find an easy but reasonably well-paying job, and do the minimum necessary to maintain it.  I indeed wound up finding a job, in academia, that allows many people to do this.  But in the meantime, reading Rand, along I’m sure with less obvious influences that I can’t identify easily, led me to want to be an achiever, not just a time-server. The glow of Rand’s writing eventually wore off, but I found that I really enjoyed being a scholar, working hard at it, and being good at it.  As a result, I’ve worked much harder in my career than I ever did in high school or college.  And the feeling of satisfaction I get when I work hard and publish something I think worthwhile is far greater than I ever got from my effortless A average in college.

I’ve read over the years about many Rand fans who are not libertarians, who are not interested in “Objectivism” as such, but who feel that her writings–especially The Fountainhead–helped inspire them to be their best.  In some cases, they decided to pursue their dreams, instead of what their parents wanted or expected them to do.  In others, they got out of toxic, abusive relationships with spouses or family and demanded respect as individuals.  In yet others, they simply resolved to do their best in whatever endeavor they chose to pursue, whether a career or parenting or even charitable work.  Despite Rand’s not-too-subtle dislike of homosexuality, I’ve even heard of gays and lesbians who were inspired to embrace their sexual identity by Rand’s celebration of the individual, and rejection of irrational traditional mores.

Of course, Rand has had a destructive influence on many individuals, too.  As her own chaotic personal life, depicted in Anne Heller’s new biography, illustrates, trying to manage one’s personal relationships through a slavish devotion to pure reason, combined with an excessive faith in one’s own ability to reason (and to be objective about oneself and one’s loved ones), is a recipe for disaster.   But I suspect that Rand’s overall influence on how people live their lives is strongly positive.
UPDATE: I should add that I’m likely very unusual in that I found Rand’s life story to be at least as inspirational as her writings–I’ve never been a big fan of The Fountainhead.  To come this country at age 26, knowing little English, and become one of the most influential writers of the twentieth century while holding strikingly unpopular political  and social views is just amazing, more so than anything Howard Roark ever did.

I wrote yesterday that “I wonder how long certain liberal bloggers who have been reflexive defenders of HRW without bothering to seriously investigate the bill of particulars against it (e.g.) can continue to repeat things like ‘the idea that HRW is some kind of Israel-bashing organization is nonsense’ now that the founder and former longtime director [Robert Bernstein] has said just that.”  My link singled out, as an example, Matthew Yglesias.

The answer is, apparently, “at least somewhat longer.”  Consider how Yglesias starts his piece yesterday on R. Bernstein: “It’s certainly news that Human Rights Watch’s critics were able to get a former HRW chairman to slam the organization for having the temerity to hold Israel to the same standards of international humanitarian law to which it holds every other country.”

Yglesias provides no evidence that HRW’s critics “got” R. Bernstein to do anything.  HRW’s harshest and most persistent critics are a motley collection of bloggers and tiny NGOs like CAMERA and NGO Monitor, who are in no position to influence a person of R. Bernstein’s stature in any way, except of course through the force of their critiques.  It seems beyond Yglesias to acknowledge that R. Bernstein is simply a long-time human rights activist who is sincerely troubled by the sharp left-wing, anti-Israel turn HRW has taken.

And while R. Bernstein’s argument is muddled in a few places (I’m told by an informed source that the Times’ editorial staff mushed it up a bit), the basic complaint of HRW’s critics, including R. Bernstein, is precisely that HRW fails to treat Israel in anything remotely approaching an objective manner.  Recall, for example, the speech by HRW Middle East Director Sarah Leah Whitson on human rights problem in the Middle East, covered previously on this blog, in which she spent a huge chunk of her time denouncing “Israel’s [recent] wars”, and a total of twelve seconds incoherently mentioning Hezbollah and Hamas.  The lack of attention to the latter groups is stunning, given that they have violated international humanitarian law in their conflict with Israel about as blatantly as possible.  Whitson hardly “holds Israel to the same standards of international humanitarian law” as everyone else,” but to a different, higher, and impossible [if national suicide isn’t an option] standard, and this is exactly the mentality she brings to HRW’s reports involving Israel.

I suggest that if Yglesias and similarly-situated bloggers want to address the root causes of R. Bernstein’s obviously painful decision to denounce the organization he founded and nurtured, they read this comprehensive report by NGO Monitor.  If Yglesias and other HRW defenders haven’t read it, they are in no position to claim that criticism of HRW as anti-Israel is “nonsense.”  But I won’t hold my breath because Yglesias, at least, still seems to have no interest in seriously examining why HRW has been on the receiving end of so  much obloquy.

UPDATE: Meryl Yourish has much more about Yglesias (and his commenters).

Just about every time I post something about Human Rights Watch, Kevin Jon Heller at Opinio Juris, who served as HRW’s external legal advisor on the trial of Saddam Hussein, posts a nasty response.  His response almost never addresses the substance of my post, but instead provides readers with an attack on the messenger, i.e., me.

Today he neglected to comment on HRW founder Robert Bernstein’s astonishing disavowal and critique of the organization he led for twenty years.  Instead attacked my post on R. Bernstein for, among other things, suggesting that HRW not just anti-Israel, but  “anti-Western,” which he said was a new claim on my part. [Readers are free to go to Opinio Juris themselves, but I’m not going to link and increase Heller’s post’s Google rank.]

I responded in the comments,“I have linked to this post by Prof. Maimon Schwarzschild.  You may disagree, but I’d say that organizations staffed by people who implicitly hate the U.S. and Israel is [sic]  ‘anti-Western’.”   Maimon states, inter alia: “I’ve met one senior Human Rights Watch officer at several symposia in New York over the past few months, and I was genuinely taken aback at her visceral hatred not only for George Bush (that’s to be taken for granted in these circles) but for the US more generally.”

Heller then selectively reprints part of my response, without the link, and writes: “It takes a special kind of myopia to believe that HRW hates any country that supports Israel. (Or perhaps Bernstein thinks HRW hates the US because it opposes things like torture, illegal detention, and the like.  I hope he’ll enlighten us.)”

Now, Heller could have disagreed with my conclusion on all sorts of grounds, but he could have at least restated my argument fairly, or at least in a way that remotely resembled what I  wrote.  I obviously didn’t argue in my comment HRW hates the U.S. because the U.S. supports Israel, much less because HRW opposes torture et al.  Rather, what I said was that HRW hires staffers who hate the U.S.,  and I provided a link to one piece of evidence [a  blog comment is generally not the place to get into a lengthy disquisition]– a law professor who recounts that he met a senior HRW staffer who in fact expressed visceral hatred for the U.S. over a several-month period.

It’s possible that Heller wasn’t being dishonest [I’ll give him the benefit of the doubt here, even if he doesn’t give it to me], but was just didn’t have the time to read the link carefully, in which case he should of course refrained from saying anything.  Not to mention he might have refrained from lecturing me about the “obligation of bloggers to get their facts right.”

UPDATE: Heller follows up with a post on R. Bernstein’s piece, to which he gratuiously adds a claim I “assume as a matter of faith that Israel can do no wrong.”  Of course this is absurd on its face, but let me state for the record that I think Israel, being like other democracies run by fallible and not always wise individuals, has done many wrong things.  Of course, Heller finds it much easier to resort to cheap rhetorical potshots rather than address the substance of my criticisms of Human Rights Watch.

Robert Bernstein (no relation), the founder of  Human Rights Watch, has issued a stinging condemnation of the organization he led from 1978 to 1998.  Here’s a taste:

I must do something that I never anticipated: I must publicly join the group’s critics....

When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies. Now the organization, with increasing frequency, casts aside its important distinction between open and closed societies.

Nowhere is this more evident than in its work in the Middle East. The region is populated by authoritarian regimes with appalling human rights records. Yet in recent years Human Rights Watch has written far more condemnations of Israel for violations of international law than of any other country in the region....

Meanwhile, the Arab and Iranian regimes rule over some 350 million people, and most remain brutal, closed and autocratic, permitting little or no internal dissent. The plight of their citizens who would most benefit from the kind of attention a large and well-financed international human rights organization can provide is being ignored as Human Rights Watch’s Middle East division prepares report after report on Israel.

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields....

Leaders of Human Rights Watch know that Hamas and Hezbollah chose to wage war from densely populated areas, deliberately transforming neighborhoods into battlefields. They know that more and better arms are flowing into both Gaza and Lebanon and are poised to strike again. And they know that this militancy continues to deprive Palestinians of any chance for the peaceful and productive life they deserve. Yet Israel, the repeated victim of aggression, faces the brunt of Human Rights Watch’s criticism.

At what point does the MSM stop treating HRW as a neutral source on human rights in the Middle East, and start treating it like the left-wing, anti-Israel, anti-Western organization it has openly become?  And at what point do HRW’s liberal, human-rights oriented American donors become tired to enabling this?  Maybe the growing dismay of long-time HRW supporters like Bernstein explains why Middle East Director Sarah Leah Whitson decided to expand HRW’s donor base to Saudi elites?  Better to take raise money from Saudi princes than to worry about how your growing loss of  credibility among even your natural supporters will affect your fundraising.

Comments are open, but HRW sock puppets are not welcome.

UPDATE: I wonder how long certain liberal bloggers who have been reflexive defenders of HRW without bothering to seriously investigate the bill of particulars against it (e.g.) can continue to repeat things like “the idea that HRW is some kind of Israel-bashing organization is nonsense” now that the founder and former longtime director has said just that.

And see my response to criticism by Kevin Jon Heller.  Heller also claims that be referencing “Saudi princes” I was subtly trying to imply that HRW takes money from the Saudi government.  I’m glad Heller has such faith in his mind-reading skills, but allow me to state categorically that I don’t believe that HRW would knowingly ask for, or accept, money from Saudi Arabia or any other government.  As I’ve explained in detail before, the danger is that if an organization like HRW gets dependent on funds from prviate individuals in an authoritarian regime, the organization will have strong incentives not to upset that regime, lest the regime cut off its private sources, as authoritarian regimes (unlike liberal regimes) have the power to do.

Heller is correct, though, that my original post misleadingly suggested that I knew for a fact that HRW has taken money from Saudi princes, rather than has expressed its desire to raise money from Saudi elites, presumably including Saudi princes who don’t hold government positions.  I’ve amended the post accordingly.

I found this to be an extremely enlightening post, by Megan McArdle.  It’s too good to summarize, read the whole thing.  But I do want to highlight one point: government control, whether in a single-payer context like the Medicare system, or via various government mandates as in Massachusetts, has not led to lower costs.

Someone give this woman a New York Times column!

With David Letterman somewhat distracted, I thought I’d solicit nominations for a top 10 list.  Here’s a few to start off:

Consolation prize for losing the Olympics

Who gives a rat’s you-know-what about Afghanistan, anyway

The Nobel Prizes in Physics, Chemistry, and Biology were already taken

“We couldn’t give an ‘un-prize’ to George W. Bush, and this was the next best thing”

For extraordinary diplomacy at the Gates-Crowley “Beer Summit”

UPDATE: “Obama?  I thought we were giving it to Osama”

The Norwegians wanted to honor one of their own, and the committee discovered that Obama was born in Oslo, Norway, the son of a Volvo factory worker.

ONE MORE: Norway needed to stimulate its prize industry, and Obama was willing to trade in an older, less efficient prize.

AND FROM THE COMMENTS: He was the 10th caller.

My previous post on delis reminded me of how disappointed I was in the quality of the Jewish delis in the Boston suburbs when I arrived in college from Queens.  Here are two actual conversations, the first at a “kosher-style” deli in Newton on Commonwealth Avenue, the second at the kosher Rubin’s in Brookline.  In both cases, you have to imagine that the person I’m conversing with has a Yiddish/Boston accent.

I. Me: Oh, and I’d like a sour pickle.

Old woman behind deli counter, acting surprised: Full sour?

Me, perplexed: Yes, full sour, I guess (I had never heard anyone refer to a sour pickle as “full sour”)

OWBDC: [Yelling across deli to an old man in an apron] Irv, this young man wants a sour pickle.

Irv: [Yelling to me, and sounding very surprised] Full sour?

Me: [Frustrated] Yes, full sour. [The pickle was terrible]

II. Me: I’d like a knish, and my friend would like chicken soup.

Waitress: I’m sorry, we’re out of knishes.  And we’re out of chicken soup.

Me: This is the third time I’ve been here over three months, and each time, I’ve ordered a knish, and my friend has ordered chicken soup.  I know they’re on the menu, but do you ever have them?

Waitress: No, not really.

[What kind of deli doesn’t have knishes or chicken soup?]

The number of Jewish delis has declined substantially, and the remaining few are in jeopardy.  Can a federal bailout be far behind?  Personally, I’d much rather my federal taxes go to preserve good corned beef than bad Buicks.

Not a Jew.

I pointed out previously that persons of Jewish descent in anti-Semitic societies sometimes become openly anti-Semitic themselves to prove their lack of loyalty to the Jewish community.  The flip side is that people with no Jewish descent (e.g., with very high probability, Hitler) are often alleged by their political enemies to really be Jews, an allegation that fits in with anti-Semitic conspiracy theories that Jews run the world via stealth.  To take an absurd example, neo-Nazi websites were circulating a phony genealogy last Fall claiming that Sarah Palin’s ancestors were Jews.

Bernstein: “The Obama administration has treated Obama’s promise of changing the way business is done in DC as a distraction from his legislative agenda. I suspect they’ll come to regret that perspective.”

Rich: “Obama’s promise to make Americans trust the government again was not just another campaign bullet point; it’s the foundation of his brand of governance and essential to his success in office.”

This could just be disinformation, but if true it explains a lot.  Note that some of the worst anti-Semites in history, including Torquemada and Karl Marx, were of recent Jewish descent, and used anti-Semitism to ingratiate themselves with their non-Jewish constituencies.

Ha’aretz: Iranian President Mahmoud Ahmadinejad’s scathing attacks against Israel and his repeated denials of the Nazi Holocaust could be motivated by a desire to conceal his own Jewish roots, an Iran expert told The Daily Telegraph on Saturday.

The British newspaper examined the Iranian leader’s identity card which he displayed in public during his country’s elections in March 2008.

The ID card bears his family’s original surname, Sabourjian, which is a Jewish name that means cloth weaver, according to The Daily Telegraph.

The Sabourjians have historically been concentrated in the same region of Iran where Ahmadinejad was born, according to the report.

Ahmadinejad’s identity papers indicate that his family changed its name and converted to Islam after he was born, the British newspaper said.

Iranian observers suggested that the president’s constant verbal assault against Israel and Jews may be an attempt to prove his loyalty to Shia Islam while making every effort to hide his Jewish past.

UPDATE: Here’s the original Telegraph story.
FURTHER UPDATE: Admittedly it’s possible that Torquemada, et al., were just sincere anti-Semites, despite their Jewish descent.  But from medieval Spain until twenty-first century America (see War, Iraq), it’s been common for powerful persons of Jewish descent to be accused of using their power to further a secret Jewish agenda, whatever their expressed motives.  One way of trying to preempt such criticism is to get a reputation as a vociferous critic of Jews.

To get into more controversial territory, it’s certainly interesting that many leftists of Jewish descent who have no other connection with Judaism or the Jewish community feel the need to be outspoken “Jewish” critics of Israel; the better to prove their leftist, universalist bona fides?

over at Joshblogs.

Every four years, I have to hear far, far more about the Olympics than I care to. It’s even worse when the Olympics are held in the U.S., so I’m glad they will be held in Rio and not Chicago in 2016.

According to Brooks, [the influence of] talk radio hosts [is] to blame for the Republican Party’s decline; and not, say, the Iraq War and the GOP’s Bush era Big Government agenda. I wonder if this assignment of blame has anything to do with the fact that Brooks was one of the leading cheerleaders for just the sort of “National Greatness” conservatism that’s done the GOP in?

UPDATE: Here’s Brooks in 1997:  “But energetic government is good for its own sake. It raises the sights of the individual. It strengthens common bonds. It boosts national pride. It continues the great national project. It allows each generation to join the work of their parents. The quest for national greatness defines the word ‘American’ and makes it new for every generation.”  Yeah, that’s a winning GOP ideology.

Oh, and David B., just how exactly did the Iraq War and John McCain, two of your favorite causes, work out for the Republicans?

In the comments, Orin insists that it’s the talk radio’s hosts’ influence, which is well beyond what it should be based on their ability to move voters, that Brooks is focusing on.  But that’s my point.  The Bush/McCain era GOP was listening much more to people like Brooks in promoting Big Government conservatism than to someone like Limbaugh (who seems to have sensible views on economic issues), and neocons like Brooks were among the fiercest and most influential advocates for the war in Iraq.  I take it that Brooks’ views move even fewer GOP voters than Limbaugh’s, and it’s absurd for Brooks to be blaming the influence of others for the GOP’s straits, rather than looking in the mirror.

The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis.  I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.

Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well.  In his review of the book,  Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”

With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.

But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5–4 decision in Olmstead v.  United States,  holding that the fourth amendment prohibits warrantless wiretapping.  But Brandeis was not a consistent advocate of a broad Fourth Amendment.  For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes.  Justice McReynolds, joined by Justice Sutherland, dissented.  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.

When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally looked to helpful precedents, and also naturally sought to cite a “Progressive” forebear, and not one of the discredited “conservative” “Four Horsemen.”  And therefore Olmstead became a canonical Fourth Amendment case.

With regard to the due process clause and personal liberty,  Brandeis had little to do with the application of the due process clause to non-economic rights.  The pioneer in this regard was Justice James McReynolds, who wrote the Court’s seminal opinions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige.  Brandeis joined all of these opinions, but he also made it clear in private conversations with Justice Felix Frankfurter that he supported limiting the Due Process Clause to procedural matters, or even repealing it entirely.  If the Court was going to insist on applying the clause to substantive matters, however, Brandeis thought that educational freedom and other personal liberties should be given as much weight as economic concerns.

In short, it’s hard to see how Brandeis gets credit for “the due process clause’s focus on personal liberty,” except, again, that his presence in the majority in these cases allowed the Warren Court to rely on them, rather than ignore or dismiss them as products of the reactionary liberty of contract era.

It’s almost reassuring to see that the various controversies surrounding Human Rights Watch’s reporting on Israel–Middle East director Sarah Leah Whitson’s fundraising trip to Saudi Arabia, deputy director Joe Stork’s long history of anti-Israel activism, military analyst Marc Garlasco’s fetish for Nazi memorabilia–hasn’t led Whitson to even pretend she and HRW will treat Israel fairly in the future.  Indeed, the controversy seems to have made her madder, and even more impolitic.

Check out Whitson’s latest quote: ’”The Obama administration cannot demand accountability for serious violations in places like Sudan and Congo but let allies like Israel go free.”  Apparently, she can’t, or won’t, distinguish between what’s been going on in Sudan and Congo from what happened in Gaza last Winter.

A reasonable person could have phrased things this way: a U.N.-appointed panel has found that Israel engaged in war crimes in Gaza.  The report is controversial, and the U.N. Human Rights Council’s record is far from ideal.  Nevertheless, we find at least some elements of the report credible, and would urge the U.S. to insist on follow-through.  Thoroughly investigating even relatively minor, and contested, violations of the rules of war by an ally would give the U.S. that much more credibility when pursuing horrific, blatant human rights abuses that take hundreds of thousands of lives in places like Congo and Sudan. But a reasonable person would not have thought to analogize Israel’s action in Gaza to the wars in Congo and Sudan to begin with.

During the Bush years, we constantly heard the refrain, pushed especially by Paul Krugman, that the government was doing incompetent and corrupt things because conservative Republicans “don’t believe in” government. Put the government in the hands of true-believing liberal Democrats, and incompetence and corruption will virtually disappear.

This always struck me as foolish, in part because the problems with government competence and integrity are structural, not individual, and in part because it required one to believe Krugman’s fantasy that the Republican elite during the Bush years was dominated by wild-eyed libertarians intent on drowning the government in a bathtub, or something like that.

Anyway, here’s the latest example of competence an incorruptibility from our liberal Democrat elites: 

The Food and Drug Administration said Thursday that four New Jersey congressmen and its own former commissioner unduly influenced the process that led to its decision last year to approve a patch for injured knees, an approval it is now revisiting.

The agency’s scientific reviewers repeatedly and unanimously over many years decided that the device, known as Menaflex and manufactured by ReGen Biologics Inc., was unsafe because the device often failed, forcing patients to get another operation.

But after receiving what an F.D.A. report described as “extreme,” “unusual” and persistent pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman — agency managers overruled the scientists and approved the device for sale in December.

All four legislators made their inquiries within a few months of receiving significant campaign contributions from ReGen, which is based in New Jersey, but all said they had acted appropriately and were not influenced by the money.

UPDATE: It’s amusing to get accused of anti-Democrat “partisanship” in the comments for a post whose theme is that when given power the Democrats are just as corrupt and incompetent as the Republicans.

Boston Globe:

A large military spending bill moving through Congress contains a little-noticed outlay for Boston that has nothing to do with national defense: $20 million for an educational institute honoring late Senator Edward M. Kennedy of Massachusetts.

It’s not like the U.S. isn’t broke or anything, and it’s not like the Kennedys aren’t filthy rich. And, if we truly wanted to honor “Sen. Kennedy’s legacy,” shouldn’t the money be going to the poor or something? A very nice example of reverse Robin Hood–let’s take from the taxpayers, and give to the Kennedys.

UPDATE: FWIW, I’ve been even more appalled over the years at the huge amount of taxpayer money spent “honoring” Ronald Reagan, starting with the huge Reagan trade center in downtown D.C. At least in Kennedy’s case, it’s not as if his legacy is supposed to be small government and low taxes.

Here’s the announcement, from the NYU Federalist Society.

TOMORROW (Wednesday) @ 4:30 in Vanderbilt 204

David Bernstein
Law Professor at GMU and Blogger at the Volokh Conspiracy

Speaking about his forthcoming book Rehabilitating Lochner –
Lochner v. New York is a famous Supreme Court case from 1905 that invalidated a maximum hours law under an implicit Constitutional principle of liberty of contract. Lochner since has become one of the most reviled and infamous cases in history, symbolizing judicial overreaching and activism in the name of ideology. Professor Bernstein’s forthcoming book, Rehabilitating Lochner, proposes to do exactly what the title attests. 

There will be cupcakes!

The book will also be the subject of NYU’s legal history colloquium earlier in the afternoon, so it’s going to be day full of Lochner for me.

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don’t. In my view, it’s no coincidence that Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches. The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: if the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere.

UPDATE: Oh, and by the way, I wrote something for Cato in 1992 suggesting that there might be five votes on the Court to revive the Commmerce Clause to some degree (“given the changes in the ideological composition of the Court since 1981, Rehnquist might one day find himself leading a Court whose opinions take the requirements of the commerce clause seriously, with potentially salutary results”). At the time, in mainstream con law circles the notion that the Commerce Clause had, or would soon have, any bite at all was considered absurd, about as likely as the Supreme Court declaring Texas to be an independent republic. Ya never know.

‘Gay’ vulture couple split up at Jerusalem zoo, then become fathers

A couple of years ago, I blogged about a group of Palestinian Arabs I encountered in the Galilee who were obviously of African descent. I’ve stumbled across an academic article (original source unclear) published since then that discusses the history of some of the Palestinians whose recent ancestors were from Africa:

Most contemporary members of the African community came to Jerusalem as pilgrims and workers under the British Mandate of Palestine (1917–1948). They came mostly from Senegal, Chad, Nigeria and Sudan. They regard themselves as Palestinian and played an active role in the Intifada. Some of the Africans arrived as part of the Egyptian led ‘Salvation Army’ which aimed to liberate the Palestinian areas held by Jews in 1948. After the defeat of that army and its retreat to Egypt many Africans returned to their original countries, while others preferred to stay in Palestine.

President Obama gave advice via conference call to one thousand liberal rabbis regarding how to push for his health care reform efforts at high holiday services (which have by far the largest synagogue attendance of the Jewish year) without seeming partisan: 

“I am going to need your help,” the president told a telephone audience of about 1,000 rabbis on Wednesday morning, according to the Twitter feed of Rabbi Jack Moline of Alexandria, Va., who added that Mr. Obama advised the group to share stories of health care dilemmas with congregants to illustrate what is at stake in the current debate.

Many religious leaders prefer not to make overtly political pitches to their congregations, and one rabbi asked Mr. Obama how to reconcile the sanctity of the high holidays with the partisan politics of the health care reform fight. The president responded, another participant said, by framing it as a moral rather than a political question, stressing the 47 million Americans who lack insurance.

I don’t see anything terribly scandalous about this; the scandal would be if rabbis abuse their pulpit by pushing a political agenda, not the president (who, after all, is a politician, so what can you expect?) asking them to do so.

But I will note that if President Bush had urged a huge group of conservative ministers or priests (there is no such group of rabbis) to subtly use their Christmas or Easter sermons to push for tax cuts, or the Iraq War, there would have been howls of outrage from certain circles that I predict will be utterly silent over Obama’s actions.

UPDATE: Courtesy of a commenter, here’s an interesting take on the call by an Orthodox rabbi who participated. More rabbis should heed this wisdom: “Rabbis have enough difficulty understanding the nuances and intricacies of their own religion to be promoting specific policies in areas for which they have no expertise.”