Monday, December 27, 2010

Too Little Too Late

The AP reports on the proposal of two RW members of Likud, Michael Eitan and Dan Meridor, which calls for a limited withdrawal from parts of the West Bank that the government knows will be part of a future Palestinian state. The AP thinks this is newsworthy in part because these are two right-wing members and allies of Netanyahu, and the largest RW party. Typically such proposals come from Labor or Kadima.

Which is what is so depressing about this. Pretty much any honest non-fantasy-land inhabitant of the world who looks at Israel and the Occupied Territories today can see the existential demographic problem that faces the Jewish state, and can recognize that this is not the sort of problem that will get better with time or neglect. Every government, right or left, has recognized the necessity for a Palestinian state of some kind. And still nothing happens, because it is harder and harder to get the Israeli people on board for any immediate action.

It is important to recognize the tremendous strides that have been made in winning over Israeli politicians to the idea that there must be a seprate Palestinian state. What was once just the platform of the Left now claims adherents of center and right-wing parties. Last year, Netanyahu, the last major holdout, also advanced his concept of Palestinian autonomy/statehood. A solid majority of Israelis believe it is the only way to solve it. Every year, new adherents discover the problem and push for action, such as MKs Meridor and Eitan. And yet, time is running out and we remain practically just as far from instituting the obvious solution.

The problem is that we have convinced the politicians, but not the citizens of Israel of the desperate need for action. Netanyahu still cannot make serious advances with the Palestinians because his coalition will be destroyed by the intransigent far-right parties that cannot ever agree to withdrawal. Netanyahu knows that if new elections are forced, it's very possible that a new right wing will take power. Netanyahu and Likud, once fortresses of the right, will join Sharon and Kadima, along with Barak and Labor, in the new center-left. It is this paradox that creates an increasingly "larger Left" every Knesset (in terms of parties that embrace the two-state solution), and yet still maintains an even larger Right (in terms of MKs seeking to derail said solution). The more things change, the more they stay the same.

The elites, the politicians, are two-staters, but not the people they represent. The people continue to elect politicians who seek to thwart the two-state solution as a vehicle for peace, yet once the politicians get into actual positions of authority and responsibility they realize that their hands are tied and that the only way forward is compromise. This compromise enrages the people, who elect new, hopefully intransigent leaders, only to be betrayed again. And the cycle continues, ad infinitum. But we don't have that kind of time. It is morbidly ironic that what might very well destroy the world's only Jewish democracy is democracy itself. It is almost enough to tempt one to long for a brief strongman period, just to get Israel past this hurdle. Almost.

Saturday, December 18, 2010

For Deep Thinkers and People Who Should Wear Hats

Long time readers will know of my contempt for the Jewish Press. For a paper that bills itself as America's largest independent Jewish weekly, it does a lot to represent the opinions of only the most right-wing, pro-settler, Republican Jews, and the Pesach hotels they frequent. The most left-wing article/opinion piece/political cartoon (in the JP, the distinction is fleeting) that I can recall reading is one that argued that we shouldn't hate Barack Obama because he is an anti-semite, but because he is a delusional peacenik who is just very stupid. Very brave.

All this is news to no one, least of all me, but sometimes the contempt some of the writers in the JP have for their fellow Jews is just overwhelming. I am a frequent reader of the weekly column "Chronicles in Crises" by the mononymous "Rachel", purely for the cultural voyeurism. My all-time favorite was the series on cheating in the frum community, which was allegedly started by an individual who wrote in to justify the practice. (I'm 90% sure that letter-writer was pulling our collective chain, but I digress.) Lately, however, the crises in our community have been getting more and more mundane, and less and less entertaining. This has culminated in this week's installment, which featured The Terrifying and Anguish-Inducing Crisis of The Boy Who Did Not Want to Wear a Black Hat to Shul on Shabbos, Even Though His Father Really Wanted Him To. Pretty lame, granted. However, Rachel's advice is everything I hate about the Jewish Press.

The mother who wrote in had asked Rachel if she could help convince her son to wear the hat, if possible with a cutting combination of logic and Halachic citation. After affectionately pooh-poohing the logical faculties of the modern teenager (and therefore arguing that really all such attempts at reasoning with a teen are somewhat quixotic), Rachel agreed to help and furnished some citations for The Case for Wearing a Black Hat.

First, two disclaimers. I am by no means a rabbinic source, a font of halachic knowledge, or particularly knowledgeable about this issue, and I do not wear a hat on Shabbos. Second, while I firmly believe women should be taught everything that men are taught, I don't think this was in fact the education that either the Tearful Mother, or the Mononymous Rachel actually received, and I'm curious as to what education Angry Dad was gifted, because the procedural posture of this cry for help is definitely weird. What kind of father can insist that his son wear a hat on Shabbos, without actually having a clue of any of the ma'are mekomos or relevant source-texts? Are they really relying on the mother asking a female Charedi psychologist in the Jewish Press? And from the article, the boy is in a hat-wearing yeshiva. Doesn't he have rebbeim? Can't they brainwash the boy? What kind of yeshiva is this? When I was in yeshiva, I didn't want to wear a hat, and my rebbeim were on me like white on rice. I was left with the strong impression that people who don't wear hats are oysvarfs, and that it is a clear matter of halacha that Thou Shalt Wear on Thine Head a Rabbit's Keester, Meester. So, I have to say, the job that Rachel did here did not leave me very impressed.

First, she cites the Mishnah Berurah that "a man davening Shemonei Esrei should be garbed in a manner that befits the occasion of meeting with an important official," and Berochos that "one should bow before Hashem dressed as befits one who stands before the King."

Okay, I think we can clearly learn from here that when you're davening you should be dressed respectfully, as if you were standing before a King, or at least some important official. But where does a black hat, in particular, come from? The kid doesn't want to go to shul dressed in skater chic, I'm assuming he wants to wear a suit and tie, respectable clothes, right? Why isn't that enough?

"While many orthodox segments of Jews will not allow themselves to succumb to outside trends and influences, members of the modern orthodox may argue that times are not what they used to be and thus justify their no-jacket no-hat attire (when davening) as acceptable."

This sentence right here is everything that is wrong with how the Chareidim view the Modern Orthodox. Notice the dualism here. One the one hand, you have "succumb[ing] to outside trends and influences" which is obviously wrong and bad, and on the other, you have mealymouthed MO's arguing that "times are not what they used to be", which is exactly the same way that Chareidim characterize the outlook of Reform and Conservative Jewry. Times have changed! G-d doesn't care whether we drive to shul on Shabbos, or whether we eat pork, or whether we have premarital sex. He just wants us to have a good time! La-la-la.

And this is the entirety of the no-hat argument. Times have changed. You can just hear the subtext. Silly modernishe Jews, such shotim! Don't they know that times don't change? The Torah is timeless!

And then -

"Then there is the rationalization that proper etiquette in the world at large calls for removal of one's hat in deference to an important figure, such as when standing before a dignitary or monarch. But if that indeed holds true in the gentile world (as we know it does), it should give us all the more reason not to follow such trend in our service to G-d."

I don't even get the logic in this argument. Even assuming every point is true;

1. In order to daven, a Jew must be dressed like he is standing before an important figure.
2. Proper etiquette on planet Earth apparently calls before the doffing of one's hat when standing in front of an important figure.
3. Therefore, we must not take off our hats in front of important figures!

What? How do you get from postulate 2 to conclusion 3? Is Rachel saying we should not take off our hats because goyim (and MO's) take off their hats? Why, just to shtuch them? Or is the argument, that, by definition, goyim don't know how to comport themselves in front of malchus? Are we drawing a distinction between government and Hashem? Are we saying that when one goes before an important official, then he shouldn't wear a hat, but when one goes before G-d, he must? But then what's the meaning of the moshul employed by both the MB and the Gemara? And if her point is that both when going before important officials and G-d, we must not wear hats, then, memah nafshach, what's the point of the moshul? "Dress respectfully before an important official, unless goyim do it too, in which case, dress like mobsters from the 30s." And this is the powerful logic for wearing a hat?

What does she think, that for the last 2000 years, Jews have been wearing fedoras everywhere? Or beaver pelts, I guess? Obviously, Jews in the first half of the 20th century wore fedoras because that was the style of the time in which they lived. When you went outside, you wore a fedora. When you went to work, you wore a fedora. When you went to shul, you wore a fedora. But they didn't wear fedoras in the 1830s. Nobody did. You would have looked like a cowboy.

The fact is, the marriage of Torah-true Orthodox Judaism and wearing a hat is of relatively recent vintage. As I understand the MO argument, the idea behind equating one's manner of dress between an important official and G-d is supposed to be timeless and instructive advice. If the MB or the Gemarah wanted us to always wear fedoras, they could have easily done that - instead, they recognized that fashions change with the times, and that which is respectful attire to one era (say the long-flowing robes favored by Rabbi Akiva and his circle in the JP's weekly comics), will look comical to another. Therefore, by it's very nature, what is considered respectful attire in any one generation will depend on the times, and indeed, whether they have changed. To arbitrarily and permanently peg one's conception of respectable dress to the 1940s is ridiculous. And I'm not even going to begin on the Chassidim who wear satin stockings, fabric belts, long-flowing caftans and giant beaver pelts on their heads. Really, RW-Jews, it's you guys who should have to explain yourselves to us!

And then, the kicker:

"A fascinating bit of kabbalah that deep-thinkers may appreciate explains why Chassidim and other orthodox sects wear hats over their yarmulkes (a double covering). Each Jewish soul is made up of five levels: the nefesh (soul), ruach (spirit), neshama (soul - Hashem's breath), chaya (living essence) and yechida (unique essence). The first three, the nefesh, ruach and neshama, are the ascending levels that reside within the physical body, while chaya and yechida - the highest levels (not internalized) - are acknowledged with the jacket and hat respectively. These items of clothing are linked to the makif (encircling light) and thus have the ability to attract the divine light that protects us from the surrounding negative forces. Quite compelling an argument (in favor of wearing a jacket and hat) in and by itself!"

What is she, insane? Yeah, kabbala mandates the wearing of a Borselino and a Perry Ellis jacket everywhere you go. That explains why noted kabbalists such as the Arizal and Rabbi Shimon bar Yochai wore hats and jackets.

And "deep-thinkers may appreciate"? The smugness, it burns! There is nothing more revolting than to ask why something should be done, and told "v'hamayvin yavin". How is this deep thought? Is this the result of her long meditations into the spiritual spheres of heavenly majesty and cosmic balance? Is there some secret meaning to her words that only she and people like her can understand? More likely, this is just a bit of "kabbalite" that has been told to her, and which she is dutifully repeating. But since it's "Kabbalah" it must be for "deep-thinkers." Right. Ve'hamayvin yavin.

Thursday, December 2, 2010

Should Judge Reinhardt Recuse Himself from Perry v. Schwarzenegger? (A longish post.)

As many of you know, this past summer Perry v. Schwarzenegger was litigated in the Northern District of California. At issue was whether the Proposition 8, now enshrined in the California Constitution, violated the Due Process clause and/or the Equal Protection clause of the 14th Amendment. Vaughn Walker, the District Court judge, ruled that it violated both, and was thus unconstitutional. However, the defendants (in this case, actually, not Schwarzenegger) immediately appealed to the Ninth Circuit and were successful in getting a stay, so Judge Walker's order will not be enforced until the appeal is decided on the merits. This week, the three-judge panel which will be hearing the case was chosen. One of the judges is a Bush II appointee, and is conservative, one is a Clinton appointee, and is middle of the road liberal, and one, Judge Reinhardt, is a Carter appointee, and is considered to be one of the most liberal judges on the Ninth Circuit, which means he is one of the most liberal judges in the country. He also happens to be one of the most reversed judges at the Supreme Court level, including such famous cases as Washington v. Glucksberg (the right to die case).

In any case, the defendants, and much of the conservative media, have been calling for Judge Reinhardt to recuse himself from the hearing because of the apparent bias. It turns out that Judge Reinhardt's wife, Ramona Ripston, is the Executive Director of the ACLU of Southern California.

What exactly that means is where I get bogged down. From the defendants' petition for recusal, it appears that the ACLU of Souther California has taken a somewhat active role in the case, but what that is, remains unclear. (All I have is the defendant's motion, so I don't know the other arguments.) But according to the motion, the ACLU/SC represented a different set of plaintiffs in front of the California Supreme Court, in an effort to disqualify Prop. 8 under California state law (which was unsuccessful). Additionally, the ACLU/SC has obviously spoken out against Prop. 8 numerous times and vowed to fight it, etc.

Regarding what the ACLU/SC has done in Perry, it looks even murkier. From what I can tell, the ACLU/SC tried to intervene (become a party) to the original suit in District Court, was unsuccessful, and then also tried to file an amicus brief on behalf of the plaintiffs (I'm not sure if they were allowed to, in the end.) It is unclear what role Ripston had in any of this, but two factors seem at once both relevant and unhelpful: (1) Ms. Ripston is not a lawyer, so her name probably isn't on anything, but (2) she is, according to the ACLU/SC website, deeply involved in everything they do. So this can go either way.

Ms. Ripston also publicly lauded the district court's decision in Perry, and apparently, before the litigants in Perry brought the case, they consulted with her and a few other lawyers as to whether they should bring it or not. (There was a large debate in the progressive community whether it was a good time to litigate in federal court a constitutional right to gay marriage.) We do not know what she advised them.

Additionally, it appears that Judge Reinhardt has a policy of recusing himself whenever the ACLU/SC is "involved" in a case. Obviously, as I don't know what is meant by "involved", I can't figure out what he would normally do in such a case. In any case, Judge Reinhardt denied the motion, and said he will hear the case.

The Code of Conduct for United States Judges (a set of ethical principles and guidelines adopted by the Judicial Conference of the United States), Canon 3.C (Subpart (1)(d)) states that circumstances in which a judge's impartiality may reasonably be questioned

“includ[e] but [are] not limited to instances in which … the judge’s spouse … is (i) a party to the proceeding, or an officer, director, or trustee of a party; or (ii) acting as a lawyer in the proceeding.” Federal law has a virtually similar provision.*

I don't think there is a very strong textual argument that Reinhardt must recuse himself because I think everyone would agree that neither Ripston nor the ACLU/SC is a party to the proceeding, and that she is not a lawyer, so legally she cannot act as a lawyer.

Ed Whelan has argued that since Ms. Ripston is "an officer of an entity that acted as a lawyer in the proceeding", the difference is trivial, and Reinhardt should recuse himself. I would dispute this, and argue that the difference is quite significant. First, we can't be saying that this is what the law mandates, because the statute specifically draws two separate scenarios; if the drafters wanted to combine them, (as Mr. Whelan does) they could have easily done so. The fact that they didn't is, I think, instructive. Second, Whelan's reading would greatly expand the scope of the provision. The ACLU, for example, is interested in pretty much any case that involves a constitutional right, and a good deal many besides. They will try to either represent or file an amicus for most such cases. Seeing as most cases that involve constitutional rights will involve federal court, and Reinhardt sits on a federal court, it would be a huge burden if Reinhardt had to recuse himself everytime the ACLU/SC just tried to get involved, especially if it was only at the District Court level.

So, the statute doesn't cover it. Which is fine, because in most of these situations, I think, it is rare for a judge to go just by the book; typically they recuse themselves by a much stricter standard, so as to leave no doubt.

So we have two issues, I think. Two kinds of bias. One, do we think that Judge Reinhardt is biased because of his wife's position with the organization (assuming the facts as I have related them are 100% true). And two, even if his wife does not make him biased, does the relationship give the perception of bias, which means Reinhardt should recuse himself regardless.

Relatedly, what standard should we adopt? On the one hand, Judge Reinhardt is a very liberal judge, and it is almost assured that he would have ruled in favor of the plaintiffs anyway. Reinhardt is probably the stereotypical liberal activist judge of every conservative's nightmares. He is famous for going out on a limb, and the Supreme Court apparently takes an active interest in reversing his opinions. It seems highly unlikely to me that such a person is in danger of changing his opinion to make his wife happy, especially if he doesn't care about the Supreme Court.

On the other hand, a standard by which we would allow a judge to only recuse himself where he felt, subjectively, that he would not be swayed by his relationship to the parties is obviously faulty; would we let him hear this case, then, if his wife was the litigant or the attorney, even though we are sure it wouldn't really effect the decision?

So, then, question 2. Would a reasonable person perceive this to be bias? Depends what you mean by reasonable. Anybody familiar with his work, knows how he will decide regardless. However, most people who care about the outcome of Perry are not familiar with his work, and might very well perceive there to be impermissible bias. On the other hand, this isn't a case where his wife is the litigant or the party's attorney, and the casual observer would have no clue as to the connection, either.

Which gets us to the trees falling in forest problem. If there is no actual objective bias at work, and no one is aware of the fact that would lead knowledgeable people to think there might ve a perception of bias, is there any perception of bias?

Put another way, if we adopted a standard by which Judge Reinhard had to recuse himself just because "it doesn't look good", then we open the door to cases where, if I, as a litigant, don't like the judge assigned to hear my case, will find some ostensible, perhaps even attenuated connection, but play it up so now that it appears there is a perception of bias. And, voila, I can disqualify my judge.

For example, Justice Thomas's wife is a Tea Party leader and is probably on record saying all sorts of things like "Obamacare is unconstitutional." Does that mean that we will think Justice Thomas is biased when he hears a case that challenges healthcare's constitutionality? People who follow the Court at all, of course, will realize that probably far more influential to Justice Thomas's thinking is Justice Thomas's uber-conservative jurisprudence than any opinion his wife may hold, but now that I've told everyone about his wife's beliefs, does that mean there is now a perception of bias?

The irony of all this is that my arguments for Reinhardt's lack of perceived bias is based on his obvious actual bias, which however is permissible bias - the bias of his jurisprudence.

*The difference is this. The Canon states

"A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:"

-and then lists the factors mentioned above. However, the statute, 28 USC § 455 states

"(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following

- and then lists the factors.

To me, it's possible to read the Canons as saying that the factors are part of a non-exhaustive list of scenarios in which a judge's impartiality is reasonably questioned, while reading the statute as saying that the factors do not describe scenarios in which a judge's impartiality is reasonably questioned, just other scenarios in which he must recuse himself.

I'm not sure what the difference would be. Either way, I think the textual argument is strong, that if it's a scenario that is not covered by the factors (but very easily could have been if that was the drafters' intention), it's probably unlikely that it's a scenario in which the judge's impartiality is questioned.