Homeland Jews, Diaspora Jew, Cringing Jew

I remember hearing a quote from some historian who, upon remarking that the population of the Roman Empire was 10% Jewish, predicted that had the various persecutions against the Jews not happened, and the Temple not destroyed, and the Jews not sent into exile, there would be around 200 million Jews alive today. That’s somewhere between the population of Brazil and Indonesia.

To be sure, an Israel with a Jewish population in the hundreds of millions is enough to make any Zionist drool. Imagine the economic clout! The military power! Also, one assumes, that a 200 million person country would have to be at least slightly larger than New Jersey, so Zionists can dream about a physically larger Israel as well.

Still, even assuming the 200 million number, arguendo, I’m not sure what kind of Jews they would be. Would they be like the estimated 14 million Jews alive today, only 14x more of them? Or would they be like any random sample of 200 million middle-easterners?

My meaning is that Israel is a remarkable country populated by a remarkable people. It is the only democratic country in the Middle East with a truly robust civil society. It has a booming economy, is a technical innovator, and is populated with Nobel Prize winners. It has faced huge obstacles, numerous existential wars, and the absorption of millions of non-Hebrew speaking immigrants. It is a much greater success story than its fellow post-colonial countries that achieved independence post-WWII.

So, what separates Israel from the rest of the class of 1948? One obvious difference is that Israel is a majority Jewish country, while the India is not. But what kind of Jews began the Israeli enterprise? Immigrant Jews. In other words, Diaspora Jews.

The founding class of Jews that started the New Yishuv and built it up into Jewish Agency/Mandate Palestine/Israel were mostly Diaspora Jews. They came from Europe and abroad, from free countries and dictatorships, all of them coming from countries where Jews were not the governing people, all from societies where Jews were pronounced minorities. (Even the founding fathers born in Palestine were the children of immigrants, and grew up in a society where Jews were the minority.) They were malcontents and artists; socialists and utopians. They carried with them the liberal dream nurtured in alien lands and in foreign schools. They dreamed of a time and place where they and their extended families could exist free of oppression and discrimination, where Jews would have the same rights, in theory and in practice, as everyone else, and where Jews would control everything from the army to the post office to the sanitation department; a land where the instruments of state would not be wielded against the Jews.

At the same time, these Jews had personal experiences of what it was like to be oppressed by tyrannical majorities, and to bear the uncertain fate of strangers in a strange land. To that end, they resolved that all people living in their new land would be entitled to all the equal rights and freedoms the Jews sought for themselves, in the best liberal tradition.

Although sometimes that promise did not completely live up to its potential, that liberal tradition was the driving force behind the golden age of the new state, and it is remarkable how successful that dream became.

Now, however, we seem to live in a new world. One of the latest surveys that is making its way around the j-blogosphere was conducted by the Macro Center for Political Economics. According to Haaretz:

The study found that 60 percent of Jewish teenagers in Israel, between 15 and 18 years old, prefer "strong" leaders to the rule of law, while 70 percent say that in cases where state security and democratic values conflict, security should come first. A similar picture emerges in the 21 to 24 age group. ...

Among Jewish youths, support for the definition of Israel as a Jewish state as the most important goal for the country grew from 18.1 percent in 1998 to 33.2 percent last year, the survey reports. At the same time, there has been a consistent drop in those who back the importance of Israel's identity as a democratic country - from 26.1 percent in 1998 to 14.3 percent in 2010. Support for Israel to eventually live in peace with its neighboring countries also fell significantly, from 28.4 percent 12 years ago to 18.2 percent last year. ...

As to the possibility of peace with the Palestinians, 755 of the Jewish respondents said they do not believe negotiations will lead to peace, and most prefer that the present situation continue.

Bernard Avishai cites this interesting statistic, though I don’t know where he gets it from:

Up to 80% of Israeli Arabs express positive attitudes toward integration (a willingness to have Jewish friend, and so forth), but just under 50% of Jews.

What are we to make of this? It is an Israeli society that grows ever more right-wing, ever more nationalistic and ever more reactionary. It is also a society in which immigrants and Diaspora Jews make up less and less of the population. Fewer Israelis than ever before know what it’s like to live in a Diaspora, or the importance of multicultural values. Fewer Israelis than ever know what it’s like to feel oppressed. (Yes, Israeli Jews are violently attacked by their enemies, but it is violence committed by the weak and the few, and not the persecution launched by majorities, societies, and the state.)

In modern Israel, Diaspora Jews are mocked as “cringing Jews,” Jews who accept their beatings from their gentile overlords with “please, sir, may I have another?” Diaspora Jews are weak and obsequious, ever desperate to please their cocktail sipping liberal friends with self-hatred and anti-Zionism. The best of us are vocal supporters of Israel, but too weak-willed and spineless to actually move there and take up arms in its defense. They are Ari Ben-Canaan and we are Alexander Portnoy.

We cannot possibly understand the needs of Israeli security, or comprehend the unique bloodthirsty nature of the Palestinian Hun. We are Yasser Arafat’s “useful idiots,” who are willing to run the risk of shedding Jewish blood if it means appeasing our intellectual friends. We are kapos, for wanting to make the West Bank Judenrein in the service of our anti-Semitic masters. We are pie-in-the-sky bleeding hearts, who don’t know what it’s like to live in a war zone.

Moreover, who are we, living in our decadent gilded cages, to criticize the liberal values of the Israeli state, the only liberal democracy in the Middle East? It is they, not we, who are the true heirs to the liberal tradition!

Fair enough. But these poll numbers tell a disturbing story. They tell a story of an Israel that is becoming more and more like its enemies. Where the security and dominance of the status quo are more important than peace and civil rights. Where revenge and bitterness mix with revanchism and irredentism, just like they do in its neighbors.

If, in the future, there is an Israel with 200 million Jews, what kind of Jews will they be?

I Think We're Being Too Hard on Judge Goldstone

So, the J-Blogosphere is all atwitter* with Richard Goldstone's opinion piece in the Washington Post. Needless to say, if you were not a fan of the honorable judge or his report before, you will not be now. Many are interpreting his latest editorial as a mea culpa, a big "oops**." But I would caution that we actually think about what he's saying, and what it says about us, that we think he is the biggest Jewish traitor since Judas.***

The majority of the fault with the fallout of the Report lies not with him, but with people who don't understand what his job is. As he made clear in the report, in the Post piece, and in numerous public appearances, the investigation was not a judicial or even quasi-judicial undertaking. He was sent to see if there was credible reason to assume that human rights violations and war crimes had been perpetrated, by both Israel and Hamas (and Fatah). If he thought there was, he would recommend that all sides conduct investigations. Which is what he did. He was not saying Israel had committed unique human rights atrocities or that Israel should be sanctioned. He reported that there had been a war which - newsflash - often results in innocent people being killed, and yes, human rights violations and probably war crimes. In specific, he listed several instances in which it appeared, from all available evidence, that it was very likely that Israel and Hamas had committed such war crimes, and that they should conduct their own, hopefully transparent, investigations.

Recommending that it appeared likely that war crimes had been committed is not a conviction; it is not even an indictment. Because no one can think about Israel-Palestine without going crazy one way or the other does not make his recommendations libelous.

What is so libelous? It is not beyond the realm of possibility that Israelis commit war crimes. They are people like any other. Lord knows the United States does. I very much doubt any army, even one that tries as hard as Israel, can fight a war of even very limited duration without committing at least a few of them. Insert lame "war is hell" platitude here. A risk that should not have been taken, a traumatized teenager with a rifle that has seen too much. It happens. That does not mean they are not war crimes, and should not be punished. Just because they always happen does not mean that all efforts needn't be taken to ensure that they don't happen again. The Israelis do see themselves as bound by international law, unlike Hamas, and so prodding them to conduct investigations can be helpful for their future conduct. Goldstone here implies that Israeli investigations into conduct examined by the Report have in fact spurred them to revise their policies. It's certainly possible that Israel would have conducted equally serious and thorough investigations without such prodding, but one could be forgiven for thinking otherwise.

In the op-ed piece, he never apologizes. What he says is, had he known what he knows now, i.e. been given some of the evidence deliberately withheld by the IDF when he asked for their input, the report would have come out much more favorably to Israel. He is not retracting anything, or saying his conduct was at fault. He conducted a very public and transparent investigation. He asked for Israeli cooperation. It was refused; the Israelis assumed any such investigation conducted under UN auspices would be a hatchet job, even one run by Goldstone (a man who formerly had possessed excellent Zionist bona fides and had already intervened to make the investigation fairer to Israel) and thought shunning the investigation was a good idea. That was their decision, and I'm sure that wisdom has been put to question over these last months. But that's not Goldstone's fault.

You can certainly say that Goldstone made a tactical error. He should have realized that the world audience that cares about human rights reports on Israel is manically judgmental and won't understand or see the numerous qualifications or small print. But from his perspective, he just did the job he would do anywhere else. The thing is, though, nobody cares about Yugoslavia, Kosovo or Rwanda. By all means, blame the writer for not foreseeing his audience's stupidity, but I think the amount of criticism he gets is entirely unwarranted. Especially the hypocritical efforts to tie him to apartheid South Africa.

*Pun!

**"Oops," which must always be written in quotation marks, is Latin for mea culpa, which must always be written it italics.

***We said take care of him, not, you know, take care of him!

In Which I Change My Mind About that Megillah Reading

Oh no, it was still awesome. I was just thinking about the people who insist on banging by Haman's name in a minyan where there is a strict no-banging policy. Earlier, I had dismissed the concerns of the gabbai who had tried to make a moral argument against banging (it's pretty selfish to bang and prevent others from hearing the words of the megillah) because we're obviously not at the fast megillah reading because of a desire to be super-yotzei the mitzvah; we're there to do it quickly.

But now I'm thinking, that if someone goes to a minyan that he knows is moving fast, and forbids banging, he is there to also appreciate the benefits of this fast minyan. He thus knows that the baal koreh will not pause when he says Haman's name. Thus, if he does bang, he will almost certainly cause people to not hear words. This sort of person is the worst! Here he is, davening at the fast minyan, so he gets to fulfill the mitzvah quickly, and then what does he do? He bangs by Haman's name out of some OCD reflex so he can feel frummer than everyone else, makes it slower for everyone else, and he then causes some other people not to be yotzei the mitzvah! Talk about hypocrisy!

Most Amazing Megillah Reading Ever!

By my reckoning, all over in 19 minutes! It was a potent combination of a recklessly fast leiner, and a strict no boo-ing policy. Usually, I have one without the other, but here there was both! Awesome.

Incidentally, before the leining began, the gabbai gave a short speech, admonishing everyone not to bang when Haman's name* is read. He told everyone that it was pretty selfish of people to make noise during the reading, as the whole point of the non-booing policy is to ensure that we can all hear every word. This was pretty funny, as that was most assuredly not the real reason we were all there.

The way I found the minyan was by following all the bums and unmarried people, and all the old people who don't give a ****, to the minyan where I knew there would be no children. We weren't there to hear every word (and I'm pretty sure the guy was so fast, I didn't hear everything anyway - yay!), we were there to go fast.

To me, it's not so much the amount of time it wastes, as it is just incredibly annoying. It just totally breaks up the narrative every six seconds. It's like reading a book, where every time the main antagonist's name comes up, someone shoots a cap gun two feet from your head. But I like the idea it makes me more religious because I irritate easily.

*His name is "Haman"!

Why I Have Little Sympathy for the Hilltop Youth

West Bank Mama, whom I assume is a mother residing in the West Bank, has a heartfelt post in which she laments, in part, the conflict faced by those young renegade settlers who are always setting up new illegal outposts in the territories, only to see them torn down by the police or the IDF. Such was the fate that befell Chavat Gilad earlier this month. Basically, the conflict is that these very patriotic and ideological kids really love Israel, and really want to serve in the elite divisions of the IDF, but often find themselves at loggerheads with the enforcement arm of the Jewish State, most poignantly perhaps, when they, as teenagers, must make the decision whether to attend a protest that is bound to turn violent and thus lead to probable arrests (which is a black eye to any application to an elite unit), or whether to sit it out, thus betraying one ideal for another.

I call the post heartfelt because it does a good job of explaining a real dilemma for hilltop youth, but I still find it hard to sympathize with these kids.

Look. The Israeli government has a law: It is illegal to set up illegal outposts.* To the extent that you set up illegal outposts, you will come into conflict with the Israeli government. It's as simple as that. You don't want to come into conflict with the Israeli government? Then don't build illegal outposts! It's not like illegal construction is some sort of automatic involuntary behavior, like breathing or something. It's also not as if there is literally no place for these kids to live, or there is a dearth of space in Israel proper in which to build houses. There are plenty of religious Zionists who get on perfectly fine living in Israel, livin' the Zionist dream, and not breaking the law.

If you'd rather break the law to satisfy some ideological itch, then you've decided you care more about one facet of your ideology (the building of illegal outposts) than another (serving in a Jewish army). Which is fine. In life, you face choices. You can't expect to deliberately break the law of a state in a consistent and brazen-faced manner, and then plan to be welcomed by the elite units of that state's army.

It's the same conflict faced by patriotic muggers.

*I believe that the absolute best way to state a law is to present it in its most tautological form. Can't argue with that.

How Very Surprising

Jeffrey Goldberg:

"There are signs that reality is forcing Prime Minister Netanyahu to the center, just as reality pushed Ariel Sharon and Ehud Olmert, his two predecessors, to the center. Goldblog Central has been hearing rumors and intimations for some time that Bibi is going to announce something dramatic -- perhaps before a joint session of Congress (a friendlier audience than the Knesset, by a long shot). How dramatic? This is what is unclear. It's got to be pretty dramatic to keep Bibi's ostensible allies, President Obama and Angela Merkel among them, from giving up on him. According to Ha'aretz, Bibi has been telling associates that he fears the creation of a binational state in Israel's place if the country fails to allow the birth of a Palestinian state next door. He is even said to be thinking about endorsing a Palestinian capital in East Jerusalem. For a man like Bibi, a hard-edged nationalist, this would be quite something, and would invest a speech with suitable drama." [Emphasis mine.]

Mind you, I've been hearing this BS about a new Israeli peace plan for weeks and weeks, so I'll believe it when I see it, but I've said it before, and I'll say it again. The saddest thing about Israel's situation is that they keep on electing right-wing Prime Ministers who vow not to vigorously pursue a two-state solution, only to wake up a year or two into their terms and all of a sudden realize that, hey, a bi-national state would be really bad, and only then they start to tackle the problem with any urgency. Then, invariably, they get killed/fall into a coma/get taken down for massive ethics violations/whatever will happen to Netanyahu. Then, rinse and repeat.

This Can't Be Too Good

Things like this, from the Washington Monthly are kind of disturbing.

A helpful summation from Andrew Exum, if you don't have time to read the Monthly piece:

"We basically have a cadre of yahoos running around the country teaching our police forces to fear any and all Muslims, which, if you're trying to radicalize your Muslim population, seems like a damn good way to go about doing it. Very few of these yahoos have any formal training or education in radicalization or currents of thought in political Islam. One consultant they profile is from the minority Christian community in Jordan and has a decidedly hostile view of Islam which he proceeds to share with his audience."

The J Street Enigma Explained!

Ah yes, the "infamous Gaza 54." Their infamy only surpassed by their obscurity.

But seriously, this video exploits a basic confusion about J Street, and lobbies in general. If you're like me, you grew up thinking of AIPAC as the pro-Israel lobby. So, AIPAC = pro-Israel. If there were another lobby that purported to be pro-Israel, and yet took different stances on a wide variety of Israel issues in the name of being pro-Israel, we would be faced with a problem. Either AIPAC is not really pro-Israel, or this new lobby is not pro-Israel. But they can't both be pro-Israel. So, J Street or AIPAC?

The thinking then goes like this: AIPAC is an old and venerable institution, and nearly always (at least publicly) supports the official government stance of the State of Israel. Since one can assume that the Government of Israel (GOI) is pro-Israel (if they weren't, who would be?), then those who support the government of Israel must be the pro-Israel lobby. J Street, a lobby that frequently criticizes the conduct of the Israeli government, cannot be pro-Israel, at least, not when it criticizes the conduct of the Israeli government.

One problem with this analysis is that it conflates support of a government with support of vague ideas like country, Zionism and ethnic pride. While I would agree that the Israeli government cannot really ever be intentionally anti-Israel*, that by no means precludes the possibility of those who hold differing opinions being pro-Israel as well. For instance, J Street is the bane of the settler population in Israel. Certainly, the settler population has their fair share of vociferous and often violent disagreements with various Israel governments (including this one), but they would just as vociferously and violently dispute the notion that they are not also pro-Israel. And, while a Likud coalition currently governs the country, it was not too long ago that it was a Kadima coalition, and the Likud opposed the previous government. So, conflating support for a government or a specific policy with being pro-Israel is a poor rhetorical choice.**

But more generally, I wanted to parse out what lobbies are. I see two different kinds of lobbies, broadly. One kind are the ones that are engaged by specific entities, either corporations or countries or people, that seek to advance the political interests of their clients who pay them. Thus, Big Tobacco engages the services of tobacco lobbies. These lobbies are pro-tobacco in the sense that they advocate in favor of policies that will enhance the position of Big Tobacco. They know which policies will help tobacco because very often it is Big Tobacco telling them which policies will help them. When they publish studies that purport to show that smoking in children under the age of 5 builds strong bones and teeth, it is widely assumed that it is being published either in concert with, or under the direction of, Big Tobacco. It is impossible for such a tobacco lobby to act in opposition to Big Tobacco. Their raison d'etre, the reason they were created by Big Tobacco in the first place, was to help Big Tobacco. Big Tobacco creates them, and Big Tobacco destroys them. I call this agency lobbying.

Then there is something that's more along the lines of an ideological lobby, one that advocates on behalf of certain actions, irrespective of what the relevant actors who would be carrying out the actions think. The people who fund these lobbies fund them because they happen to agree with their goals. In an ideal situation, if their donors disagreed with their policies, the donors would withdraw funding, but the policies advocated should remain the same. So, let's say I love smoking, and wish it to remain as legal and lightly taxed as ever. To that end, I believe that smoking should be absolutely prohibited to children. I believe, that if children are allowed to smoke, although this may in the short run help Big Tobacco's bottom line, it will eventually create a backlash that will lead to perhaps all smoking being prohibited. This sets me up in a conflict with Big Tobacco, who is perhaps not as farsighted as I. We are both "pro-tobacco,"*** but we're very different sort of enterprises. I don't care if Big Tobacco jumps up and down and tells me a gazillion times that children are the future of tobacco, I won't care. An agency of Big Tobacco, however, will certainly care, and "be persuaded" by its client corporation.

It seems to me that AIPAC is like the agency lobby for the Israeli government. It supports whatever the government supports. It is as if it is engaged by the Israeli government to help convince the American government of the rightness of the Israeli government's point of view. If the government changes its view, and argues that removing settlements is good, then so will AIPAC.

J Street, on the other hand, is unaffiliated with the Israeli government. It has an ideological vision for a future Israel that it likes and wants to see brought to fruition, and seriously believes that its perspective is good for Israel. To the extent that it and the Israeli government advocate the same policies, that's great, but besides the point. Governments come, and governments go, but ideology remains.

*I suppose one could imagine a situation where a government was somehow covertly taken over by people who hate both themselves and the country, but that would be weird.

**Obviously, this isn't simply a mistake on the part of people who call J Street anti-Israel. The point is always to demonize those who disagree with you, and to ascribe to them malicious motives. If you believe in higher taxes, you hate America.

***We could even imagine a situation where I am actually looking out for the best interests of Big Tobacco - perhaps I am an investor. The banning of all tobacco products will not help Big Tobacco's bottom line in the long run, after all.

Was Rashbag Reform? (Or, at least, not Orthodox?)

Here's a mishna from Masechta Kerisus (1:7 - Soncino translation).

If a woman had five doubtful births or five doubtful issues she need bring but one offering, and may then partake of sacrificial flesh, and she is not bound to bring the other [offerings]. If she had five certain issues, or five certain births, she brings one offering and may then partake of sacrificial flesh; but it is still her duty to bring the other offerings.

It once happened in Jerusalem that the price of a pair of doves rose to a golden denar. Said R. Simeon b. Gamaliel, "By this sanctuary, I shall not go to sleep tonight before they cost but a [silver] denar!" Then he entered the Beth Din and and taught; If a woman had five certain births or five certain issues she need bring but one offering, and may then partake of sacrificial flesh, and she is not bound bound to bring the other [offerings]. Thereupon the price of a pair of birds stood at a quarter of a [silver] denar each.

To me, this seems pretty radical. Here we have Rabbi Shimon ben Gamliel, a nasi, changing a halacha purely out of social justice concerns. Now, I don't know a lot about this area of halacha, but I see few possibilities here.

Option A is that the original teaching of the Mishnah, that a woman was obligated to bring additional offerings, was mandated by the Torah. Then, Rashbag, in order to lower the prices of sacrificial doves, changed the meaning of the Torah to remove that obligation, because doves were too expensive. This is the most radical interpretation. This would be like changing the meaning of the constitution, something no Supreme Court justice would ever admit to doing. And certainly not for social justice purposes! Plus, you know, the constitution is man-made, and is thus an incomplete and flawed document. But the Torah is divine and perfect? How can Rashbag just change it to lower the prices of doves in the marketplace?

Option B is that the original teaching of the Mishnah, that a woman was obligated to bring additional offerings, was the consensus Rabbinical interpretation of the verses of the Torah. Meaning, that the Rabbis sincerely thought that a woman was Biblically required to bring additional offerings. Then, Rashbag, in order to lower the prices of sacrificial doves, overruled that interpretation of the Torah to remove that obligation, because doves were too expensive. This is still very radical. This would be more like uprooting a decades-old constitutional doctrine, in favor of social justice. Again, this is super-rare in constitutional jurisprudence. It's stranger, though, because while one Supreme Court may very rarely be comfortable saying that a previous SC's understanding of the Equal Protection Clause was wrong, or outdated, I would think it impossible to read of a Tanna taking this view of a previous Tanna. Were the older generations wrong? Did they misunderstand? But that doesn't even seem to be his argument. He doesn't seem to be saying that the previous generations of scholars misunderstood; he's just changing the rules because the rules are making doves too expensive! Weird!

Option C is that the original teaching of the Mishnah, that a woman was obligated to bring additional offerings, was a Rabbinical statute. Meaning, as far as the Torah is concerned, all a woman need bring is one, but the Rabbis said, for some reason, "Nah, bring five." Comes along Rashbag, and says, we're changing that Rabbinical law, because doves are too expensive. This is the tamest explanation, but still seems pretty interesting, because Rashbag is changing a d'rabbanan just because he feels doves are too expensive. I can see telling someone that they're still yotzei their obligations with one, but actually rewriting the law to make the price of a commodity drop? Still weird. Additionally, he doesn't explain his reasoning. Presumably, the Rabbis had a reason to mandate five. It may be an important reason, it may be not so important. It could be that ensuring a cheap supply of doves is more important. But what was the reason for the original ruling? Also, I'm a complete am ha'aretz in this field, but, facially, it seems strange to me that the Rabbis would mandate additional offerings for no reason. I mean, are they trying to put up a syug l'Torah, "just to be safe"? Safe from what? And do the Rabbis have the authority to mandate sacrifices that are not required by the Torah? Is there such a thing as korbanot mid'rabbanan (Rabbinically created sacrifices)?

In any case, I think it's pretty radical that we have a Tanna over here willing to change a straight up halacha, just to lower the price of doves; for social justice, really. Sounds almost Reform! Now why can't we solve the agunah crisis?

Is the Individual Mandate Constitutional?

Short answer: probably.

Long answer: It depends what you mean by calling something "constitutional". If we define (Def. A.) constitutional as meaning in line with the Supreme Court's commerce clause jurisprudence over the last 200 years, then I would say, probably. If we define it as conforming to some originalist conception of the limits of the federal government held by the founding generation (Def. B.), I would say, we can have no idea. If we define it as what a majority of justices on the Supreme Court will do when it gets there (Def. C.), I think we can still say they'll probably count it as constitutional.

A and C involve almost the same thinking process, because typically if something conforms with 200 years of jurisprudence, the Supreme Court will rubber stamp it. But that's not always true, and the justices are not isolated apolitical creatures who remain uninfluenced by the national debate. Just like all 9 Justice could vote in favor of the measure, I can definitely see all 5 conservatives voting against it. I don't think that will happen, however, as I will discuss.

So, the problem with the individual mandate (IM) is that it apparently forces individuals to purchase health insurance from entities that meet certain criteria. Opponents of the IM who argue that it is unconstitutional (Opponents) argue that the constitution does not authorize the federal government to force individuals to purchase anything.

So, one response is just to say that the federal government is not forcing you to do anything. The government wants you to buy health insurance. If you do, good on you. If not, the government wants you to pay a fine or tax, the moneys of which will go into the pool of money which funds the government's expenditures on health, presumably towards treating people without health insurance. The fine or tax is not that much, and can't exceed, I believe, 2.5% of your income. Also, there's a provision that forbids the IRS from starting criminal proceedings against anyone who doesn't pay the fine/tax, so you can't go to jail if you don't pay it.

I don't particularly like this argument, because I'm not sure how a court will look at this. It could be that in this instance, there's no coercion, but then the Court would have to examine future instances, looking at the substance of the law and its enforcement mechanisms, to see if counts as coercive or not. Is 3% coercive? 10%? I'm not sure where one draws the line, or on what grounds one would draw it.

A much better argument is that the constitution allows the federal government to tax really whatever it wants, provided it's for the general welfare, which Obamacare certainly is. Opponents have argued that this is not the way that either Congress or the Administration have been framing it; they've been calling it a mandate (connoting the fact that people must do something) and not a tax (a collection of revenue from people who choose to engage in certain activities, in this case, not buying health insurance). FWIW, this makes little sense to me. What does a Court care about how the Democrats framed something for political debate or Sunday morning talk-shows? The court will look at it, see it's a tax, and call it as such. Try a thought experiment. If the government decided to kill people randomly, but labeled it a carbon tax in all its attempts at spinning the law to the press, would we think it makes sense for the government to consider it a carbon tax, and not the random murder of citizens?

But I think a more fundamental reason why the constitution authorizes it, is because the government's power to regulate interstate commerce is pretty strong. One argument opponents make is that as strong as the commerce clause is, it's never been used to force people to perform actions when they're not doing anything. In other words, government can't regulate interstate inactions, just interstate actions. People always ask, "Can the government force me to buy a GM car, or force me to eat my vegetables?"

Okay, let's break this down. Let's assume that the government has never attempted to regulate inaction. So what? Why should that make a difference? It's never been questioned before that the government can't regulate inaction - what's the constitutional reason why government can't regulate inaction now?

So then we get to the idea that if the government could regulate inaction (i.e. forcing you to do things), then we would be empowering if not a tyrannical government, then at least a government with a loaded gun, which could be used to launch a tyranny at some point. Imaigne a dystopia where the government forced you to eat vegetables or buy crappy GM cars! Surely, the constitution does not authorize dystopias? However, honestly, I'm not sure why not. If the government can make a compelling case that you buying a GM car is necessary or helpful, even, to its national commercial regulatory scheme, it seems clear to me it can force you to buy a GM car. This may be exceedingly dumb policy and prove to be very unpopular, but the constitution authorizes scores of dumb and unpopular policies.

The reason why the government (probably) won't force you to eat your vegetables is not because the constitution does not authorize it, but because Congressmen don't want to get fired. If 60% of the House of Representatives and the Senate think an IM is a good idea, then as far as the constitution is concerned, it's probably a good idea. That is, the constitution does not care if something is a good idea or not. If those democratically elected representatives want to roll the die on their careers, I'm largely comfortable letting them make that choice.

We have to get over the idea that the constitution protects us from tyranny and bad policy. In reality, it's us. When push comes to shove, what stops a military junta from taking power is not Congress's theoretical control over its funding, but the fact that the common man, and the common soldier and officer, would see such a coup as illegitimate.

What Makes a Jew a Jew?

One of the big issues threatening to blow up the world* is that of conversions. In Israel right now, there appears to be a big hullaballoo over whether the conversions performed by the IDF rabbis were valid. Traditionally, conversions into Judaism involve the convert at some point accepting to keep all of the mitzvot in the Torah. At some point in the last few hundred years this became mandatory practice (it appears this definitely was not always the case), and it looks like the IDF rabbis were/are not sticklers on that last part. This is a big deal, because the conversions in question are largely conversions of the Russian immigrants that were oleh in the last 20 years, after the collapse of the Soviet Union. There are estimated to be about a million of them, practically all of whom consider themselves Jewish, but a theoretically substantial minority of which don't have a technically Jewish mother, meaning they technically require conversions.

From what I can tell, there appear to be two camps. On one extreme, you have the chareidim, led by Rav Elyashiv, who believe that since "everyone knows" these converts had no intention to actually keep all the mitzvot, their conversions are invalid, and indeed, never were valid. Sephardim, led by Rav Yosef, argue that the conversions are fine. I don't really care about the finer technical points of the dispute, and while I apologize if I've mischarachterized anything, it's not really germane to my point.

My question is, what really makes a Jew a Jew? I don't think Rav Elyashiv thinks that our conversion standards have always been the same, and that we have always required the honest acceptance of the mitzvot, because the rishonim certainly don't reflect such uniformity. Rather, it seems to me, the title or status of Jew is something the community bestows upon a person. In the old days, if someone acted like a Jew, and thought of himself as a Jew, others would too, and that was enough. By the same token, that seems to be the way it works today. Nobody checks my lineage. Rather, I go to shul, I keep shabbos, and I eat kosher, so I'm Jewish.

I don't think there's some objective record of who's really really Jewish up in Heaven that G-d has, and to get on that list, you have meet a very concrete and specific line of regulations. If we think you're Jewish, you're Jewish. Definitely, no one has completely pure yichus without one single gentile in their family, or can vouch 100% that they know that any potential converts on their mother's side in the last 3000 years were mekabel chiyuv mitzvis. Certainly these "lost Tribes" we keep finding in Africa or India or China can't do that, and it's funny that we all just "pretend" they're "really" Jewish.

I think the only reason we have any objective standards at all is just so that the status of Jew doesn't become meaningless. If it was just a listserve or something that you sign onto, what good is it? That's fine, and I think that makes sense. That explains why Judaism requires that you marry Jewish - it's more likely that your children will be raised Jewish if both spouses are committed to their Jewish heritage. But in this situation, I think we've got that. These are immigrants who have come to the Jewish state to embrace their Jewish and Israeli heritage. They serve in the Israeli army, build illegal settlement outposts, and run on racist Jewish-supremacist party platforms to become the foreign ministers of the Jewish state. To me, there is no greater acceptance of Jewish heritage than those things. We don't have to worry that they secretly are celebrating Christmas or going to church or planning pogroms in their basements. It's not as if marrying them will really dilute Judaism in any effective way. Also, there are like a million of them living in a country with a tenuous Jewish majority, and writing them out of Judaism right now would be a really stupid idea.

Jews are who we say they are. If all the Rabbis got together and said, these people are Jews, everyone would be fine with that. Everyone would accept that. So I would really wish Rav Elyashiv would take a pragmatic approach here and recognize that he has agency. These guys are just as Jewish as any non-frum Jews. As long as Rav Elyashiv says so.


*The world of Torah, that is!**
** I.e., the only world that counts, mister.

Must Orthodox Jews be Racist?

I think we're all comfortable saying that there are many Orthodox Jews who are racist, and that there might even be a correlation between how frum you are recognized as being, and how racist you are. This makes a certain degree of sense, as frummer Jews tend to be live in more insular communities, and more insular communities tend to be racist.

So, we more modern Orthodox Jews pat ourselves on the back, and tut-tut those backwards Chareidim for their primitive perspectives. But how much better are we? Don't the doctrines of Orthodox Jewry, e.g. the belief that the Jews are the Am ha-Nivchar (chosen people), necessitate a degree of racism?

A few weeks back, Rabbi Harry Maryles had a thoughtful post on his blog about a story in Lakewood where a few yeshiva kids had apparently called a bus driver a nigger. He wondered what could cause such kids to do something so inhumane, and concluded they had been imbibing the soft racism of their parents or teachers, or who had misunderstood "our status as G-d's chosen people."

While believing your people to be the chosen people does not necessitate using racist slurs (just because you're better than everyone doesn't mean you have to be a jerk about it, I guess), I think it really does mean that you think you are better than other people. That your people is worth more than other people. That your people are more loved by the G-d of everyone than His other people. That by your very nature, even absent any actions you might commit, you can be holier than someone else. And no matter how you pretty this up, there doesn't seem to me to be a way to separate this sentiment from racism. I think in any other segment of the populace, we would find these beliefs repugnant. If WASPs thought this, we would find them racist. Why is it different when it's us?

Last week, Rabbi Pruzansky wrote about the two letters that had gone out in Israel decrying the mixture of Jews and Arabs. One letter, signed by Rabbis, purported to prohibit the sale of property by Jews to Arabs, and was widely condemned by Jews everywhere, and the other, signed by Rebbetzins, urged women not to have relations with Arabs, and was not so widely panned. Rabbi Pruzansky seemed to object to the letters only because they appeared impolitic, and represented halachos sh'ein morim kein (laws that we do not publicly teach because they make us look bad). He had no problem with the actual substance of the ban or discouragement, and he attempted to explain why the segregation mandated by the Torah cannot be compared to the Nuremberg Laws:

His argument seemed to be that the Nuremberg Laws were written out of hatred for Jews, and are thus repugnant, but the Torah's laws celebrate the love of Jews and therefore are not repugnant. In his words:

The [Nuremberg Laws] did it out of racial hatred and pure evil; the Torah does so out of a need to preserve the unique character of the Jewish nation that would convey the divine idea to the world. The former was vile and odious, and the latter a reflection of God's love for the Jewish people and for mankind. But a simpleton will only look at the results and, seeing the same prohibition, conclude, "it's all the same." It is not all the same, and that shallowness is more polemical than it is sincere.

At the risk of sounding like a shallow polemicist, I don't think I see a difference. The fact that the results are the same is a very profound argument. I mean, had the Germans forbade Jews to purchase property out of love for German property, would we have found that okay? I don't think so. If they did it to preserve the unique character of the German race, would that have been okay? If they claimed that was why they did it, would we believe them? More importantly, would that make it better?

A friend of mine who is a very big fan of Kahane (who I think was a racist) once tried to justify to me Kahane's racism by quoting Kahane as saying that "it's not that I hate Arabs; I just really love Jews." That didn't help, in my eyes. And it's the same thing here. Saying "I just love white people more" is obviously a racist sentiment.

But oddly, this attempted justification seems to be the best answer Judaism has been able to give to explain the presence of racist halachot. I'm referring to the "family" explanation. This is even favored by more modern rabbis in OJ, such as Gil Student (I think) and Rabbi Pruzansky.

Pruzansky: So why does the Torah - which, after all, posits that all human beings are created in the image of God - discriminate between Jews and non-Jews in certain laws? Because Jews constitute one family (that's why we always argue with each other), and family is allowed to treat non-family differently; otherwise, there is no purpose to family. Thus, we are enjoined to "love your neighbor as yourself," but I am allowed to love my wife and children more than I love your wife and your children. As a Jew, I am commanded to love Jews more than I love non-Jews, not because there is anything wrong with non-Jews but because Jews are family. It is not immoral to distinguish family from non-family; it is right, natural and proper.

At the risk of being crude, this strikes me as BS. This sounds facially logical, but if you actually think about it, it's pretty fallacious. The first question it begs is that what makes Jews considered a single family, but not all of humanity? Maybe all white people are a family? Maybe all gentiles are a family? If you want to say that all of humanity is too big to be a family, I would ask, why? There are millions of Jews today whom Rabbi Prizansky evidently considers family; that seems like a ludicrous amount of people to consider family. There was a time two thousand years ago when I doubt there were that many people in the entire world. And now, we can easily imagine considering them family, but not the other six billion people? What's the practical difference?

And if you want to say that all of humanity can't be considered to be a single family, because then no one will not be family, I would say that's also ridiculous. What you're doing, then, is defining family as an inherently exclusionary club. The whole point of being in a family, then, is to deny my resources to other people. And why is that "right, natural and proper"?

And obviously, Rabbi Pruzansky does not consider me to really be just as much his family as his own actual family - but he considers me closer than his gentile coworker. We've created a new connection, a new family structure, whose whole purpose is to entitle me to better treatment from Rabbi Pruzansky (whom I have never met) than to which his coworkers are entitled. And it is based entirely on race.

Again, if white people thought this way, would we hesitate for a second in calling this racist?

The second question he begs is that who said you should treat your family better than my family? The pasuk he cites - And thou shalt love thy neighbor as thyself - directs the opposite inference! Now, I can see why genetics would drive such a conclusion, or why we would want to think this way, but why should an Omniscient, Ultimate Benevolent G-d endorse such a perspective?

Third, I think this is BS because it's not as if the benefits we are denying to gentiles are based on familial affection. I could see it maybe if we were commanded to give Jews more charity than we give non-Jews; fine. But how is not selling them property, or refusing to marry them based on family? Selling one's house and marrying someone are two activities one does not associate with doing particularly with one's family.

In conclusion, this is very troubling. I don't think there's a way to square this circle.

The Asshole Theory of Diplomacy

To me this sort of thing seems to be the wrong way of looking at things:

Israeli Foreign Minister Avigdor Lieberman's criticism of Prime Minister Netanyahu for his goal of peace this year with the Palestinians, as well as Lieberman's request for an apology from Prime Minister Recip Erdogan for Turkish participation in the Gaza-bound flotilla, has cheered friends of Israel everywhere because they are rare examples of self-respect and national honor coming from an Israeli public official (news story, Dec. 31).

However, Lieberman apparently shocked shtetl-minded members of the Netanyahu government. A spokesman for Netanyahu immediately assured the hostile foreign news media that Lieberman's views are his own and do not represent those of the government. One minister in this supposedly right-wing Likud government even accused Lieberman of appealing to right-wing voters! He also agonized over what "the world" would think.

Unlike Netanyahu and his other ministers, Lieberman has learned something important from history. He knows the world respects a people who respect themselves and despises weakness and self-abasement. He also knows that appeasement alienates friends and incites and energizes Israel's enemies while greatly increasing the chances for war.

I call this the "Asshole Theory of Diplomacy" because it seems to follow the perverse logic that the only way to get people to like you, or respect you, is to act like an asshole to them. The assumption is that countries that apologize, or use diplomatic language, or are more interested in keeping friendly relations with others than using blunt, macho language that exemplifies "the truth," only serve to make other countries hate them even more, and view them as weak and pathetic; in other words, not worthy of respect.

A similar argument is that the only way the Israelis can dwell securely in Israel is to build even more settlements, even further from the Green Line, to show the Palestinians that Israel will never leave, and that therefore they should give up their silly dreams of nationalism and maybe move to Hawaii, or be content to chop our wood or hew our water or something. Again, the logic is that only by adopting politics of spite can we convince them of our righteousness.

There are a few flaws in this reasoning. First, just intuitively, why would we think this is true? Just from our day to day interactions with other people, can we conclude that acting like an asshole gets people to like, or even respect us? I don't think so. Sure, if you're being bullied, perhaps the best response is not, "Please sir, may I have another," but in the vast majority of interpersonal relationships, acting like a douchebag does not make people respect you. No one likes the office douchebag, or the douchebag cousin.

Second, the people who subscribe to the Asshole Theory tend to be the sort of people who believe the Israelis do have a right to establish civilian settlements anywhere, and that Arab-Israelis should face discrimination, and that it is the rest of the world that is immoral and that therefore they should be treated with contempt. The Asshole Theory lets them do everything they wanted to do anyway, but now assures them that this will make people like them. So, not only is this the right thing to do, despite the objections of everyone else, but indeed by following our preferred course of action, we will eventually make everyone stop objecting and see the rightness of our position. Conversely, stopping the activity that everyone objects to, or apologizing for it, only encourages them to find more things to object to, and more reasons to hate us.

Now, I think we should be instinctively suspicious of this sort of logic, the same way we would be if our doctor told us the only way to lose weight was to eat more and exercise less. It's like saying, not only is my smoking not injurious to my health, it has a salubrious effect as well! It's just a little too perfect.

Now, you might say, hold on, naive little liberal. The world of diplomacy is not like your fluffy dreamland of interpersonal relationships with friends, family and coworkers. It's full of cutthroat realists; politicians and dictators that would sell their mothers down the river to a place where they can throw their grandmothers under buses for a quarter they got from selling candy they stole from babies.

I doubt it. In fact, I would assume that the world of diplomacy is probably overpopulated by diplomats. In other words, people who tend to think diplomacy and diplomatic language and behaviour is important. Career foreign service types. It is precisely these sort of people that would see the benefit in apologies and not acting like a dick. And the politicians they serve didn't get to their high positions by acting like assholes, though I'm sure most of them in fact are. And I don't just mean that for Barack Obama to get to where he is, he has to be nice and friendly and yes, diplomatic, to hundreds, and probably thousands of people. Even a dictator like Hosni Mubarak, or whatever Abbas or Fayyad are, can only achieve and maintain power by being able to cultivate allies, and to persuade others to join his coalition, or at least put aside their differences for a long time. Becoming dictator is not all just purging your enemies in bloody coups, you know. Before Stalin was in a position to purge the Soviet Union, he had to become head of the Soviet Union, or at least his faction. This required him to make lots of friends, and to be able to call on lots of favors, and to know how to back winning horses, and to know when to pick his fights. In fact, one of the observations that people made about early Stalin was that he was a very very very good listener.

And even if the world of diplomacy was populated by thugs and psychopaths, I still don't think being an asshole would be a good strategy. Doubtless the world of mafia men is governed by scum and murderers, but it's also a world that is famously governed by elaborate diplomatic norms. In Mario Puzo's novels, the point that is made again and again is how Vito Corleone's greatest strength was his diplomatic style. He never threatened when threats were unnecessary, and never insulted another man to his face.

And, again, I don't think the world of diplomacy is ruled by the very worst people in the world. The United States is Israel's greatest ally, and Israel's relations with the PA over the next 20 years will say a lot about whether there will be an Israel in 20 years. Both of those countries are overwhelmingly populated and governed by people who do not enjoy being insulted, in other words, normal human beings. If it would be a mistake to be an asshole to those normal people in normal situations, it's probably a mistake to be an asshole to them when nationalism and religion are thrown into the mix.

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.

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.

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
circumstances:"

- 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.

In Which I Am Vindicated

Turns out, bombs in rectums are old hat.

http://www.slate.com/id/2276166/

What's Really Up With the TSA?

Obviously, it seems patently silly that travellers should have to undergo a rigorous inspection of their undercarriage before they get on a plane. All of our attempts to secure air travel seem to involve efforts to counteract the very latest attack, no matter how epic its failure. A dumbass puts a bomb in his shoe, and now everyone has to take their shoes off. A dumbass tries to conduct military-grade chemistry in an airport bathroom, and now no one can bring lens solution on board. A dumbass actually puts a bomb in his underwear, and now no one can wear undergarments on a plane. Oh wait, only figuratively! We just need to see everyone naked before they get on a plane. Or have them felt up. And not everyone. It'll be random. For now.

It doesn't matter how far any of these dumbass "plots" were from succeeding, what matters is that they can ruin, or at least make even worse, the magic of air travel. Seriously, at this point, if I was Osama bin Laden, I would just send some dumbass to get on a plane with a bomb in his nostril, just to see what we do next. The amount of damage he can do by hatching a really crappy dumbass scheme is well worth it. All he needs is for some dumbass to get a match, shove it up his nose, and then try and get on a plane. He doesn't even need to get on the plane! Even if we catch him, we'll still destroy every match in the country, bomb the match fields of Denmark, force every country to sign on to the Match Ban.

But seriously, where does it end? To me, the next step is to try putting a bomb in a terrorist's anus. Then what? From what we know, Rapiscans can't see in someone's butt. What do we do, then? Require that everyone undergo a full-cavity search? A colonoscopy? Why is genital fondling a measured response, but not a full-cavity search? The inside/outside line?

I don't blame the TSA, it's not really their fault. Especially the TSA workers we see, the ones given the unpleasant task of inspecting our junk for explosive irregularities. They're the real victims in all of this. A lot of people are directing anger at them, as if the secret dream of every low-salaried government worker is seeing John Q. Public naked, in all his glory. Personally, if worked in the TSA, I would turn into a recluse from having to deal with the thousands of entitled passengers who would see me as an object of scorn, upon whom society has made acceptable the giving of rebuke. The last thing I would want to do is touch their nuts. There are already stories of TSA workers who now go home every day and cry because they are called perverts or pedophiles, as if the vast national security-state was the product of a decades-long scheme to perform random fumblies on our jumblies.

But, again, it's not even their bosses that are to blame, either. For some reason, the American people have condensed the risk of terrorism into two scenarios: nuclear bomb in New York City; and crashing/blowing up an airplane. While we've farmed out nuclear bomb detail to other government agencies, we've told the TSA to worry about the airplanes-out-of-the-sky problem, to the exclusion of all else. Even other airport related danger. The TSA doesn't stop anyone from, say, detonating themselves while waiting in the security line, which thanks to the extended wait times, will now be longer.

It's natural that we, as human beings focus on what hurt us last. That's how animals think. After 9/11, we demanded from the government that an airplane never fall out of the sky again, or heads will roll. Even though the odds of that happening essentially dropped to zero by the late-morning of 9/11, the government quickly went about expending billions of dollars to make those specific protections redundant, because throwing money at a problem is how government goes about ensuring things most important to government; getting votes.

Now, of course, the chattering masses have turned on the TSA for crossing some invisible line of decency which really pisses them off. It's ironic, because it's largely the media's fault. They're the ones who put a gun to the head of government and jump on any failed plot and look for ways to make it appear that the government is clueless and needs to step up its efforts. Now, of course, unbeknownst to it, the government stumbled upon a security measure the media hates. I don't fly that much, figure ten times a year. I can tolerate the chance of randomly being selected for a groping, and polls show 66% of Americans are in favor of random groping (though they prefer it be done to people browner than them). But someone in the media typically flies a gazillion times a year, which means they will get groped a lot. (Ditto politicians, which is why this is now a bipartisan issue in Congress.)

Essentially, the media is putting a gun to the head of the TSA, and then asking, "Hey, why so nervous? It's just a gun. And, yeah, if you let anything through, we'll shoot you. But you guys are awfully paranoid. It's unhealthy."

Pet Peeve of the Day (Minor Rant)

To get out of my subway station, after coming home from school, I (and my fellow passengers, naturally) need to go up a flight of stairs then choose either the escalator or seven flights of stairs. If you choose the escalator, and actually walk up the escalator, you can make pretty good time. If, on the other hand, you elect to stand on the escalator, it will take longer than if you just walked straight up the stairs.

Now, I don't have a problem with people who don't want to walk up the entire escalator, or who want to rest on the escalator. That's what it's there for. If you're not in a rush, you're not in a rush.

What I don't get is why some of these people feel the need to situate themselves at the very last door of the train (the door closest to the stairs and escalator), block anyone else from getting out, rush to the escalator, and then just stand there. If you're in a rush, rush. If you're not, let the rest of us out! I can't tell you how many times I race a train full of people to the escalator, only to come second to some person who started at the front, and has been maintaining a brisk pace up until that point, and then suddenly forgets her legs can move. It's a one person escalator, width-wise, so passing is difficult. All this results in about fifty people lined up behind one person for two minutes.

Not a big deal, but it makes me roll my eyes every day.

Funny story, one time a guy refused to let a woman pass him. Nothing happened, except the look on the woman's face was priceless. She could not believe that someone could be such a jerk. She had this expression like she had found herself in some Kafkaesque dystopia. I sympathized.

Kahane Was A Schmucktard

Who is the most important Jewish leader of the last little while to die this past week? I’ll give you some hints. He was very active in Israeli politics, had leadership positions in a Jewish military, earned fame for his dealings with Arabs, and was assassinated. If you guessed Yitzchak Rabin, you’d be wrong. Or, at least according to the Jewish Press, who apparently believes that Meir Kahane is more worthy of a memorial tribute than the former war hero, Ramatkal, Israeli Prime Minister (twice) and Nobel Peace Prize winner. Shelley Benveniste, the JP’s South Florida editor, wrote a touching memorial to the good “Rabbi”, while no one could scrape together two words for Yitzchak Rabin.

Long time readers of my blog (of which there are none) may be aware of my frustration with the Jewish Press, a once-mediocre community rag that has since fallen to the level of hackish drivel whose sole utility is serving as filler for the weekly “shidduch crisis” columns and Pesach (and now Succos!) hotel advertisements which are its true purpose.

But this seems to be a much more dangerous development. Meir Kahane is not a good guy. He is not “misunderstood”, he is a schmucktard. He was a bad man. In an ideal world, no one would be writing tributes to this colossal waste of space, but even in a world where good and evil were locked in eternal struggle, one would hope that “America’s Largest Independent Jewish Weekly” wouldn’t. The paramilitary society he founded, the JDL, is recognized by the FBI and our State Department as being a terrorist organization. His political party was outlawed by the Israeli Knesset (!) as being too racist. The fact that the Jewish Press chose to write an article of slavish adoration about this crazy bigot, while completely ignoring Yitzchak Rabin is very disturbing. It sends the message that Kahane is a more widely respected figure in the Zionist and Orthodox Jewish communities than the former Prime Minister. If that’s the case, we’ve really lost our way.

Among the ridiculous statements in his tribute:

“Kahane, a graduate of Mir Yeshiva (Brooklyn), was a real Talmud chacham. For the ten years that he stayed in my family’s home on his visits to Florida, the light in his room would go on no later than five o’clock in the morning. He was learning Torah.”

Perhaps if Kahane would have gotten up a bit earlier in the morning, perhaps a quarter to five, he might have come across Exodus 20:12 – thou shalt not commit adultery. Which he did. With (gasp) a shikse! Whom he then dumped. And then she jumped off the 59th Street Bridge. A moral giant, for sure.

“Rabbi Kahane had a tremendous ahavat Yisroel, a love of his fellow Jew.”

Some of the Jews Kahane loved included Sol Hurok, the Jew whom the JDL tried to kill. And his secretary, whom they did kill. (Hurok’s capital offense was organizing for performing artists to come from the Soviet Union to the United States on cultural exchanges. His secretary’s sin was being in the office at the wrong/right time.)

“Kahane understood the urgency of the plight of Soviet Jewry.”

Better, apparently, than Soviet Jewry themselves. Natan Sharansky and other prominent refuseniks condemned Kahane and the JDL for their terrorist tactics (which included, inter alia, bombing Soviet embassies, missions and consulates), which they felt, quite rationally, put the actual Jews of the Soviet Union in a rather precarious position as scapegoat.

“Through the years, I have heard many people, who had never listened to the rabbi speak, or read any of his books or articles exclaim, ‘Kahane said we should have killed the Arabs!’ Of course, that is patently untrue. ... According to the Torah, the [ger toshav] may have personal rights but may hold no political position.”

Patently untrue, yes. You see, all he wanted us to do was to ethnically cleanse the Jewish state of nearly all of its Arab, by force, if that was necessary. As to the non-Jews who remained, they would get to live in an Apartheid state. Sheesh, Liberals, they distort everything.

In sum, Kahane was a schmucktard.