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Democracy

Obama, Trudeau, and the Morality of Electoral Interference

Barack Obama's recent endorsement of Canadian Prime Minister Justin Trudeau is an example of why not all foreign efforts to influence elections are wrong.

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Barack Obama and Justin Trudeau (2016).

Over the last three years, many Americans have been angered and distressed at Russia's efforts to influence the outcome of the 2016 US presidential election, and concerned about future foreign interference. The assumption underlying much of the discussion of this issue is that foreign influence on electoral outcomes is inherently wrong, and should be avoided as much as possible. For understandable reasons, liberal Democrats have been especially incensed at foreign interference, given that it was used to help bolster their political adversary Donald Trump.

A few days ago, however, former President Barack Obama endorsed Canadian Prime Minister Justin Trudeau, who is in the midst of a very tight campaign (election day is tomorrow). The election looks to be very close. Obama is very popular in Canada, and his endorsement could potentially help swing the outcome.

Some of Trudeau's Canadian political opponents denounced Obama's endorsement as reprehensible foreign interference. But negative reaction in the US is noticeable by its near-total absence, particularly among liberal Democrats. Is it hypocritical to denounce Putin's actions in 2016, while giving Obama a pass? Is it all just a matter of whose ox is being gored?

One possible distinction is that Obama was no longer president when he endorsed Trudeau, whereas Putin was and is the ruler of Russia. But, if foreign electoral interference is inherently wrong, why should it matter whether the perpetrators were government officials or not? Few of those who denounce Russian interference in the 2016 election would be mollified if it turned out that it was all the work of Russian private citizens, without direction from the Kremlin.

Moreover, Obama sought to influence foreign political processes when he was president, as well. For example, he publicly urged British voters to reject Brexit in the 2016 referendum on that issue, just as Donald Trump supported the other side in that referendum, and in later political fights over Brexit. Was that morally reprehensible interference in the British political process?

In my view, the answer to these questions lies in recognizing that foreign influence on electoral processes is not inherently wrong. Its justification depends on goals pursued, and the methods used. These factors are what differentiate Obama's actions from Putin's. Moreover, in most cases the justice of attempts to exercise electoral influence does not depend on whether the person attempting to influence the outcome is a foreigner or not.

I expounded on these points in greater detail here:

I agree with the conventional wisdom that Russia's intervention in the 2016 election was morally reprehensible. But the morality of electoral interference is not as straightforward as most people think….

Many discussions of electoral interference implicitly assume that elections should be decided by a nation's voters without any influence from foreigners and their ideas. But such a position makes little sense. The origin of an idea says nothing about its validity. As the great  libertarian economist F.A. Hayek put it, "The growth of ideas is an international process… It is no real argument to say that an idea is un-American, un-British, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots." If ideas developed or conveyed by foreigners influence American voters for the better, we should be happy to see that happen….

In some cases, attempts to influence foreign elections are not only morally permissible, but even praiseworthy [depending on the issues at stake]…

Sometimes, the problem with electoral interference is not the intervention as such, but the tactics used. For example, the Russian government was likely behind the hacking of the Democratic National Committee in 2016. Hacking private computer servers is a violation of property rights and privacy, and is certainly morally reprehensible. But the nature of the wrong does not depend on the identity of the perpetrator….

The Russians also relied heavily on deception and misinformation intended to exploit voter ignorance and bias. This too was wrong. At least as a general rule, there should be a moral presumption against deceiving voters. But, once again, it's not clear that it's worse when done by foreigners than by citizens of the country being influenced….

Sadly, lying and manipulation of public ignorance are not the sole province of Russian agents. They are standard political tactics of native politicians in both the US and many other countries….

The point… not to excuse Russian deception by  "whataboutist"  invocation of lying by US politicians. Far from it. Rather, it is to highlight the fact that the nature of the wrong here does not depend on the nationality of the perpetrator….

This gets us to what may be the most reprehensible aspect of the Russian intervention. The hacking, trolling, and lying was in the service of a deeply unjust cause: promoting the interests of a brutal authoritarian regime and furthering Russian President Vladimir Putin's global campaign against liberty and democracy…. That motive makes the Russian effort particularly reprehensible. But, again, the reason why it deserves condemnation has little to do with the nationality of the people involved….

When judged from the standpoint of goals and methods, Obama's attempts to influence the Canadian election and the Brexit referendum look very different from Putin's efforts in 2016. I am no great fan of Justin Trudeau and his ideology, and would not endorse him myself. But promoting him for the sake of strengthening progressivism in North America is a far cry from Putin's awful agenda. Similar points apply to the debate over Brexit (an issue on which I actually largely agree with Obama, though there are serious contrary arguments). Obama also did not use such reprehensible tactics as hacking or spreading disinformation in promoting Trudeau and Brexit (though he has not been above using deception in some of his domestic political battles).

It may well be that Obama's attempts to influence British and Canadian politics were unwise. They may fail to achieve their objectives (as clearly happened in the case of Brexit), and may needlessly antagonize key constituencies in two of America's closest allies. There are good pragmatic reasons why political leaders in liberal democracies generally remain neutral in each other's elections. But what Obama did was not intrinsically wrong.

In sum, there are good reasons to differentiate between Obama and Putin. But the price of doing so is recognizing that not all foreign attempts to influence electoral outcomes are wrong. In some situations, information from foreign sources might actually have a beneficial effect on voters. And, when "electoral interference" is morally wrong, it is usually for reasons having little to do with the nationality of the perpetrators.

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  1. I have no problem if Putin had (or will) PUBLICLY announced that he supports Candidate Trump . . . or even that Russia supports the election/re-election of Trump. The public will assess the endorsement, the source of the endorsement, and will–quite rightly–conclude that this endorsement is a net plus or net negative. And that is what Obama did, of course.

    It is the deception that makes it so insidious. (I, personally, see a big difference between deceptive advertising from American citizens and similar deceptive ads from hostile foreigners–Americans, presumably, act out of the interest of working for what they see as the country’s best interest, while foreigners will very very often be motivated by very different factors.)

    If you can show me that Obama helped spearhead a *stealth* campaign, then I’d start to make more of a moral equivalence between Obama and Putin on this one issue.

    1. What is the evidence that Trump spearheaded a ‘stealth campaign’ with Putin to steal the election? I thought so. Also every major nation always interferes with every other major nations election. Its not a concept that was invented in 2016 like the MSM would have you believe.

  2. This could become a complicated discussion.

    The shorter version is that there is zero analogy between what Obama did out in the open with regard to Trudeau, and the Trump/Russia conspiracy to subvert American popular sovereignty in the dark. The comparison should not even be attempted. No similarity would be evident unless the Trump/Russia conspiracy were first purged of its distinguishing odious features.

    1. One of the reasons there is zero analogy, is that Obama actually DID endorse Trudeau, while the “Trump/Russia conspiracy” is a figment of your imagination.

    2. Its not all that complicated

      Orange Man: Bad
      Obama doing the same thing for all intents and purposes: Good

      By: Ilya Somin (Shocker I know)

  3. “Few of those who denounce Russian interference in the 2016 election would be mollified if it turned out that it was all the work of Russian private citizens, without direction from the Kremlin.”

    So far the evidence alleging Putin directed election interference has been statements along the lines of, “Nothing happens in Russia without Putin knowing about it.” Those making noise will not be mollified by anything sort of Trump’s removal from office (and some will require jail time).

    1. So, when my email after my wife’s death in 2014 started receiving lonely hearts messages from Russian mail-order brides, that was Vladimir Putin?

      “Nothing happens in Russia without Putin knowing about it.”
      I’ll bet Putin and the Kremlin wish it were true. I’ll bet a lot of stuff happens in Russia without Putin knowing diddley squat. These people who paint Putin as superhuman ….

  4. Federal law does not distinguish among countries or motives in terms of foreign participation in US elections — direct contributions, etc.
    The lack of concern among US citizens to our interference in foreign elections which, historically, has gone far beyond open endorsements to money and coups, can be summed up as Quod licet Jovi non licet bovi.

    1. “direct contributions, etc.”

      Speech is not a “contribution”. If it was, use of foreign newspaper articles by a campaign would be illegal.

  5. I stopped reading when I hit the sentence
    “The assumption underlying much of the discussion of this issue is that foreign influence on electoral outcomes is inherently wrong”, because I don’t know anybody who holds this position. It’s not the influence people object to… it’s the covert influence people object to. If Putin came out and said “I think it would be better for Russia if Trump won the election”, that would have influenced the election… but few people would complain. When Americans object to, say, the Assad government in Syria, or Saddam Hussein’s Iraq or Gadhafi’s Libya, that’s no big deal, either. Now, when the bombs start dropping, there’s going to be some objections.

    In shorter form, it’s not the influence, it’s the form that influence takes, that got people a little bit cheesed.

    1. “it’s not the influence, it’s the form that influence takes”

      Let’s flesh this out a bit.

      – Justin Trudeau films a two minute anti-Trump video and pays to have it shown during the nightly news
      – Justin Trudeau gives money to an anti-Trump PAC

      #1 OK and #2 not? (Legality aside, am thinking of public opinion.)

  6. This seems to overly complicate things. I’d say the key distinction is between overt and covert action. I see no harm in anyone endorsing anyone, and I don’t think anyone else does either.

    1. Anonymous (aka “covert”) speech is protected by the First amendment. Exaggeration, hyperbole, parody, and sarcasm (among other things) are also protected by the First amendment.

      Amazing to find so few people supportive of the first amendment on a so-called libertarian blog.

      1. “Amazing to find so few people supportive of the first amendment on a so-called libertarian blog.”

        You’ve made a logic error, and a fairly big one.
        Just because something is protected by the first amendment doesn’t mean I have to approve of it.

        And whether or not I approve of it says absolutely nothing about my support (or lack of support, as you seem to interpret it) for the first amendment.

  7. So naive.

    There is nothing inherently immoral about any foreign interference because morality has nothing to do with relations between nations, especially between powers. Its the law of the jungle, not morality.

    We have interfered with foreign elections/politics, both covertly and overtly, in the past and will do again.

    1. Bob, no moral content in a judgment of treason?

      The morality in question is not what our nation owes to others, it is what our citizens owe to our nation.

      1. We are not at war with Russia. Hence, no treason.

        Even the Mueller probe found no admissible evidence of Trump campaign conspiring or even coordinating with Russia. Its all just innuendo and assumptions. Retweeting or linking Russian generated content is not criminal even assuming that mere information can be an illegal foreign contribution. If Trump links a Guardian column, is that a political contribution from the Guardian?

    2. “We have interfered with foreign elections/politics, both covertly and overtly, in the past and will do again.”

      Ah, the old “we do it, so it CAN’T be immoral” theory.

  8. ” … the Trump/Russia conspiracy … ”

    A comment that displays total ignorance of the Meuller report’s conlcusion that no evidence could be found that Trump or his campaign had “colluded” with any Russions.

  9. I just don’t buy all this “foreign interference” baloney.

    There is this thing called Freedom of speech. People, including those outside the country, are free to attempt to persuade people of whatever they want.

    1. ” People, including those outside the country, are free to attempt to persuade people of whatever they want.”

      But… are they allowed to use whatever method of persuasion they want to? Such as, say, pretending to be Americans?

  10. SKofNJ, I figured that would set someone off.

    Couple of points. First, there is no ignorance of the report’s conclusions. There is a mountain of circumstantial evidence in the report pointing to existence of a conspiracy. Mueller himself was not tasked with assessing whether a conspiracy existed, except insofar as he was tasked with deciding whether any individual was sufficiently implicated in conspiracy to warrant prosecution to the usual standard. That is what Mueller said he could not do. He did not say there was no conspiracy.

    That is as far as your denial can reasonably be taken. It still leaves the conspiracy as a whole an open question, and one bolstered by evidence which many people would say make the existence of a conspiracy more likely than not.

    That, of course, on the basis of only evidence which was not obstructed. But there were also 10 supportable counts of obstruction which have not been fully probed, or charged as criminal. Trying those cases, or getting pleas, would add to the evidence. Plus which, subpoena’s for testimony and documents remain outstanding because the Trump administration is defying Congress.

    Second, that was then. Things have changed. At the least, there is a need to subpoena and examine documents newly-known to exist, which might prove conspiracy beyond a reasonable doubt. Those include conversation records of Trump’s talks with Putin, now hidden away in ultra-high-security storage, but apparently disclosed as existing by people in a position to know.

    Also, there are further leads to be followed, from Giuliani associates who were arrested at Dulles Airport. You have in one of them a guy who is now under indictment for secretly funneling Russian money into the campaigns of both the Governor of Florida, and of Trump himself. There are multiple known photographs of that guy with Trump, going back at least to 2014.

    Plenty more to do. Possibly, you don’t know about that other stuff. Try reading the mainstream media.

    1. “There is a mountain of circumstantial evidence in the report pointing to existence of a conspiracy.”

      There’s a mountain of inkblots, and every one of them looks like Trump being guilty to those who hate Trump, and just can’t accept that their fantasies of a Trump/Russia conspiracy are just that: Fantasies, and nothing more.

    2. “He did not say there was no conspiracy. ”

      He said there was no admissible evidence to prove a conspiracy beyond a reasonable doubt. Why do you hate the presumption of innocence?

      1. “He said there was no admissible evidence to prove a conspiracy beyond a reasonable doubt”

        He didn’t say there was no evidence, because he is not stupid. He said he didn’t have access to enough evidence. On the other hand, you DO have evidence, in the form of Mr. Trump speaking in a videotaped interview, saying that, in future, of course he’d collude if a foreign power offered him help to win an election. And there’s also evidence that the Russian decided to covertly influence the election of 2016, and decided to do so without involving Mr. Trump in their efforts. This does not add up to a conspiracy… but it does not suggest that conspiracy in future is in any way unlikely.

        Mr. Trump can be relied upon 100% to act in the interests of Mr. Trump, to the exclusion of all others. This is just fine when he’s a private businessman, but not when he’s acting with the power of the US government. You don’t have to “hate” Mr. Trump to reach this conclusion.

  11. ” Its justification depends on goals pursued, and the methods used.”

    You’re going down a terrifyingly dangerous road here. It’s ALL in the methods used.

    You can pursue the most horrifying goal imaginable, and as long as your means are impeccable, no harm, no foul. You can pursue the good, using bad means, and you’re on the side of evil.

    You’re sliding into the same “end justifies the means” type reasoning that leads so many on the left astray: The belief that the rules don’t count if you’re doing good, and that the rules are no refuge for people doing bad.

    But, good and bad are not categories governments are good at distinguishing. That people are good at distinguishing. We’re prone to confuse our own personal preferences with cosmic values.

    Stick to rules, Ilya. Stick to the means.

    1. “You’re sliding into the same ‘end justifies the means’ type reasoning that leads so many on the left astray:”

      Newsflash… rightwingers are not immune from this, either. That’s how we ended up torturing people to bring a shining democracy to the Middle East.

  12. This is all true, but there is another dimension you haven’t mentioned: Trudeau’s (or Trump’s) behavior.

    The analogy would be:
    1. If Obama was still in office
    2. If he supported Trudeau’s re-election not publicly but by hacking, deceptions.

    You should add:
    3. If Trudeau suspiciously refused to disclose documents that every other politicians disclose that might show conflicts of interest (tax returns).
    4. Trudeau lied about why he’s not disclosing them (“they’re under audit” is not a valid reason).
    5. Trudeau acts in ways that at best show obeisance to Obama (for example, Trump denying the conclusions of his own intelligence services) and at worst show that he is under threat of blackmail.

  13. So, there’s a lot to break down here, in terms of foreign interference in domestic elections.

    1. “But promoting him for the sake of strengthening progressivism in North America is a far cry from Putin’s awful agenda.”

    So, with this statement, it implies that the reason and political goals for foreign interference are what make the intervention acceptable, or not. This of course, is a dangerous road to walk down. Because everyone feels their own reasons are the “right” reasons and their political opponent’s reasons are the “wrong” reasons.

    1. “This of course, is a dangerous road to walk down. Because everyone feels their own reasons are the “right” reasons and their political opponent’s reasons are the “wrong” reasons.”

      Here’s a helpful guide to try to sort this out.
      If you have to lie about what you’re doing in order for it to work the way you want, you’re doing the wrong thing.

      1. IE, “Obamacare”

      2. IE, the Trump “impeachment”

  14. I’m surprised that Prof. Somin cares about elections. What happened to his desire for a meritocracy, with him picking those with merit (Obama and Trudeau would apparently qualify)?

    1. To be fair, who doesn’t want to be king of all they survey and decide what happens?

  15. Remember when all the foreign leaders told us in 2008 we needed to elect Obama. Then all the same foreign leaders “warned” us not to elect Trump in 2016. No problems there when these foreign leaders “tinker” in our election as long as it is shilling for the Dem. Remember during 2008 when some liberals even suggested that foreigners SHOULD have some type of influence in our election because the President was the de facto leader of the free world? They really want you to forget that one.

  16. As far as I know, and I’m sure someone will “correct” me, there isn’t any evidence connecting any hacking or other election interference to Putin. There’s a lot of supposition, stated as fact. Was it Russians who broke into the DNC server? Maybe, but I take it a high school kid could have done it. Did anyone “hack” the election, affect the outcome? No.

  17. AFAIK, only Andrew Yang among all the 2020 candidates has publicly pledged that if elected he would refrain from interference (overt or covert) in foreign elections.

    It’s utmost hypocrisy to rail against Russian interference while reserving the right to do the same yourself.

    Even Voice of America can be accused of spreading misinformation. They’ll deny it, but foreign sources will believe it.

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Supreme Court

Maui Mayor Won't Settle Clean Water Act Case

Efforts to take Maui v. Hawaii Wildlife Fund off the Supreme Court's docket hit a snag.

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On November 6, the Supreme Court is scheduled to hear oral argument in Maui v. Hawaii Wildlife Fundeasily the most significant environmental case on the Supreme Court's docket this term (at least so far). At issue is whether the Clean Water Act's permitting requirements apply to activities that discharge pollutants into groundwater that eventually reaches navigable waters.

If the Supreme Court were to conclude that water pollution conveyed through groundwater is subject to the CWA, this would greatly expand the range of activities subject to CWA regulation. In Hawaii alone this would likely impose the CWA's permitting requirements on over 6,000 underground injection wells and over 20,000 septic systems.

Fearful that the Supreme Court will reject a broad interpretation of the CWA's scope, environmentalist groups have been seeking to settle the Maui case before the Court rules. Last month, the Maui County Council voted to settle the case, but Maui's mayor refuses to go along, arguing that it is not in the best interests of the people of Maui to settle and that the county council cannot settle the case unilaterally.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A finding that ground water “contamination” comes under the purview of the EPA would amount to a grain of sand dropping in the ocean. What it would do is grant license to EPA to “inspect, register and license” EVERY septic system in this country. Millions of them. And potentially every time a person turned a shovelful of earth to plant a rosebush, an “environmental impact” study would have to be committed. Ground water could be contaminated by your pet. By mowing your yard. Probably by washing the mud off your boots. IOW we would be like the old USSR, only we wouldn’t be standing in line for bread, but for a permit to mow the yard, wash the car or driveway or anything else.

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The Irony of Antisemites for Bernie

We shouldn't use Nazis as the standard for antisemitism

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As the candidate who is both furthest left in the Democratic presidential field and least favorably-inclined toward Israel in his public statements, it would not inherently be surprising that Bernie Sanders has attracted the support of far-left political figures with a history of antisemitic comments and actions, including Linda Sarsour, Ilhan Omar, and Amer Zahr. It might seem surprising, however, because Sanders is Jewish, and one might think that (a) people with a history of antisemitic comments and actions are likely antisemitic; and (b) antisemites wouldn't endorse a Jewish candidate. Indeed, supporters of these Bernie endorsers have been quick to use their endorsements as evidence that they aren't antisemitic; after all, no antisemite would endorse a Jew for president. Right?

Wrong. The problem with this reasoning, and much of the discourse around antisemitism in general and on the far left in particular, is what one might call "the Nazi standard." In other words, to only recognize antisemitism when it resembles the most virulent, murderous version of antisemitism, that of the Nazis, a version that is outspoken and proud of its antisemitism, and considers Jews subhuman, beyond redemption, and marked for extinction.

But none of those things are necessary for antisemitism to exist. I try when discussing antisemitism (or other forms of racism) to distinguish it from "mere" prejudice. Someone might think that Jews are disproportionately cheap, or especially prone to being good at making money, or "clannish," without having any significant internal hostility to Jews, the way someone might believe that the Irish are prone to be drunkards, the Scots cheap, the Poles dull, and so forth, without evincing any significant hostility to them. It seems to me, though, that one or both of the following two things make someone antisemitic, and not just prejudiced: (1) one believes in anti-Jewish conspiracy theory, e.g., that Jews run the banks, control the government, etc.; or (2) one affirmatively wishes harm to Jewish people in general, though one almost always makes exceptions for "good" Jewish people (even leading German Nazis often had a favored Jewish acquaintance for whom they arranged an exit visa before the Holocaust began). You don't need to publicly acknowledge your antisemitism, nor, like the Nazis, consider Jews subhuman, beyond redemption, and marked for extinction.

Given those definitions of antisemitism, there is no particular reason that an antisemite couldn't support a Jewish candidate for president. If one believes in anti-Jewish conspiracy theory, for example that many or most of the world's Jews plot to control world governments to benefit Israel at the expense of their home countries, one can still believe that Sanders has shown himself to be an exception, that despite being Jewish he is not controlled (unlike many Gentile politicians!) by the "Jewish lobby." And if one wishes harm to the Jewish people, one can make an exception for a "good Jew" like Sanders–especially if one believes he is more likely to create or allow harm to other Jewish people than his presidential rivals.

Sure, a literal Nazi almost certainly wouldn't support someone of ethnic Jewish heritage, much less a self-identified Jew, for president under any circumstances. But literal Nazis are only a small fraction of the world's antisemites. One can, I assume, imagine circumstances under which some racists would support a black candidate over a white candidate, a misogynist a woman over a man, or a homophobe a homosexual over a heterosexual–especially if they endorsed policies that seemed more harmful to blacks, women, or homosexuals, respectively compared to their rivals. Similarly, once we recognize that one doesn't have to be a Nazi to be an antisemite, it's perhaps ironic, but not otherwise remarkable, that antisemites would support a Jew.

I should also note that a friend of mine has proposed a more cynical explanation for why Sarsour et al. have endorsed Bernie despite being antisemites. His theory is that they know he won't win, but since Bernie is both a mainstream candidate and a Jew, the fact that he is accepting their endorsement and indeed using some of them as campaign surrogates gives them both mainstream credibility and a megaphone for the course of the campaign, while hopefully blunting charges of antisemitism, at zero cost. I can't say this is definitely wrong, but it's not necessary to explain the endorsers' actions; even if they really, really want Bernie to be president and think he has a real chance, that doesn't conflict with the notion that they are antisemites.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I would say that particularly with anti-semetic conceptions of Israel, there is a sense that Jews are OK as a subdued and harmless minority but are fundamentally dangerous and illegitimate exercising sovereignty and self-determination in their own country. I’d say a larger portion of the anti-Israel community doesn’t reach full Sarsour-level conspiracy mongering, but still sees Jews as only being legitimate in certain constrained circumstances.

    I’d say that this kind of thinking is probably not-unrelated to why we see more tolerance of open forms of antisemitism against chasidic/orthodox communities (I’m thinking of a lot of the greater-NYC area politics but also the hububs about putting up eruvs in all sorts of places). Jews living distinctly, using their voting strength to obtain their preferred political outcomes, making the community look different, etc is seen as illegitimate and dangerous.

    If you want to do full whataboutism, there’s a kind of an inverted form of this in white-nationalist circles, where Jews are OK in their own Jewish country but a dangerous and malign influence in the United States.

    1. I agree. I think that what you are saying is also consistent with the notion that many will rush to mourn the killing of Jews, but only once they are dead.

  2. But what about the Yale “hate crime” hoax!?

  3. It seems to me, though, that one or both of the following two things make someone antisemitic, and not just prejudiced: (1) one believes in anti-Jewish conspiracy theory, e.g., that Jews run the banks, control the government, etc.; or (2) one affirmatively wishes harm to Jewish people in general,..

    I agree with your point about the Nazi standard, but I think this standard is too demanding. Consider, for example, an employer who declines to hire Jews out of a personal dislike, a prejudice if you will. Should that employer not be considered an anti-Semite?

    Another way to say this is that I don’t quite see the value of the distinction you are making between anti-Jewish prejudice and anti-semitism.

  4. Oh – look another article on anti-semitism by Bagdad Bernstein.

    Criticism of the government and military policies of the government of the State of Israel is not anti-semitism. But I suspect Bagdad Bernstein gets off when ever Netanyahu embezzles additional US Taxpayer dollars or when a member of the Israel military murders another child. Again.

    1. An obvious sure sign of someone *NOT BEING THE LEAST BIT ANTISEMITIC* is that any time someone raises the issue of domestic antisemitism in the United States, he only wants to talk about alleged Israeli misbehavior, because *THERE IS NOTHING THE LEAST BIT ANTISEMITIC* about trying to deflect discussions about antisemitism into discussions of what bad things the Israeli government allegedly does.

      1. Don’t yell at someone cause you want to deflect the blood on your hands. But nice try, I see why Reason hired you, pout more. You’ll get along here. Writing weak sauce articles is par for the course around here.

      2. Your argument that an antisemite could endorse Bernie Sanders for President is obviously valid.

        But it leads me to wonder whether you consider Bernie Sanders himself an antisemite and if so, why?

        1. I think Bernie very much wants to be president, and he thinks shoring up his base on the left is the way to do it.

    2. The short version of Professor Bernstein’s thesis is that appending “and some of them, I suppose, are good people” does not negate the bigotry of the first clause. Trotting out Israel to justify antisemitic tropes is no different than Trump trotting out victims of immigrant crime to justify bigotry. If you don’t realize that, then you, along with all the other folks, right and left, who claim it is the other side that is more bigoted, are part of the problem. I have no interest in the metrics. The cynical political decision to tolerate, fan and harness bias for political goals by the otherwise pure of heart is always deadly. Physicians, heal thyself.

      1. Do you think it is possible for a Gentile to be strongly critical of the current Israeli government without being an antisemite? Or is any criticism of Israeli governance necessarily a justification of antisemitic tropes?

  5. The Left has a big problem with bigotry. Unlike the right though the press generally gives them a pass. If it were a bunch of republicans that composed “the squad” there would be a hit piece on them being hate mongers every single day. But, if you are far left, you can trash jews, asians, and white people all day long in the name of “progress”.

  6. In previous discussions of racism—not involving Jews—I have tried to emphasize the role of the, “ism,” on the end of the word. That suffix implies organization, systematization, program, and action. I have suggested that in cases where that part of the meaning does not apply, the use of the term, “racism,” ought to be restrained or eliminated.

    Without a showing of organized conduct to the detriment of targeted minorities, someone who accuses racism is left with the impossible task of reading the innermost stirrings of the heart, in another person who may or may not be a bigot, but who is not acting as a racist. It is thus reckless to take the next step, and label such a person a racist, when no such conduct is in evidence. The accusation could be made against a person who is troubled by bigotry, regards it as sin, and is conscientiously striving to keep his inner trouble from affecting others.

    Conversely, if the, “ism,” test is accepted, everyone should insist that whoever acts to systematize the detriment of a targeted minority be regarded as a racist—and that without regard to whatever the state of their hearts may be with regard to bigotry. It should never be permitted—while someone is practicing to organize society to the disadvantage of a particular group—to let that escape criticism on the basis of alternative motives for that conduct. Not, anyway, if the conduct is objectively racist in its intended outcome.

    To insist on the rules above is nothing more than to say that even legitimate motives for achieving otherwise legitimate goals must be foregone, if the outcome of the chosen means will systematically harm otherwise identifiable social sub-groups. If you have a legitimate goal in mind, you have to exclude from your choice of means those which systematically work to the detriment of minority groups. If the goal you seek is one which by itself works that kind of disadvantage, then you are stuck—it is a racist goal, regardless of the means and motives of whoever advances it, and an anti-racist or non-racist cannot pursue it. Anyone who does pursue it is advancing racism, and deserves to be regarded and called out as a racist.

    I suggest that applying tests of those sorts, and avoiding speculation about what lies in people’s hearts, would bring needed clarity to Bernstein’s frequent posts involving Israel and antisemitism. Some of the the changes would advantage Bernstein’s arguments. Some would go against them. Everything would be less muddled.

  7. I think there are two basic reasons why one might oppose what might currently be considered “Jewish” interests. One is opposition to current Israeli policies and/or favoring the land claims of Palestinian Arabs over the land claims of Israeli Jews for whatever reason. It is, after all, a land dispute.

    A second, although somewhat limited and local, is opposition to organized efforts to funnel money towards Jewish projects and Interests. In various parts of the New York Metropolitan area, such as East Ramapo and the area around Kiryas Joel, there are various reports of organized diversion of school funds to yeshivas, people who engage in religious studies full time with welfare as a way of life, ignoring or taking over zoning codes to build maximal houses for large families, etc. There are reasons why people might object to such things.

    1. If “favoring the land claims of Palestinian Arabs” in practice means that one is utterly indifferent to the fate of the almost-7 million Jews who live in Israel, in a way that one would not be indifferent to the fate of other people, because the Jews, and not other people who live under governments that have done real and imagined bad things, are not deemed worthy of such concern, then it’s hard to defend such a person from charges of antisemitism.

      As for the NY area communities, the one “tell” in any such discussions is whether the opponents will acknowledge in the course of their opposition that ultra-Orthodox Jewish communities, by sending their kids to private schools, relieve a huge potential burden on property taxes. People will note that the Haredim will vote against school bonds, making them “enemies of the public school” but won’t note that by keeping their kids in private school while still paying property taxes, overall they are doing a great favor to the school budget–and won’t acknowledge it as a mitigating factor even if you point it out directly. At that point, it goes from debatable opposition to unreasoning hostility.

  8. Let’s call it “jew-washing”, the use of Jews to conceal anti-Semitism.

    1. A “beard” is a fake romantic partner used to disguise one’s sexual preference. Works even better for hiding anti-semitism.

  9. “ It might seem surprising, however, because Sanders is Jewish, and one might think that (a) people with a history of antisemitic comments and actions are likely antisemitic; and (b) antisemites wouldn’t endorse a Jewish candidate…”

    Not surprising. The enemy of my enemy is my friend after all.

    1. > The enemy of my enemy is my friend after all.

      Ah, like the reason why Bernstein ignores, minimizes, or otherwise rationalizes away anti-Semitism on the right—because they also share his hostility to liberals and the left.

  10. These Jews are descendants of the Kapos… Hoping that no matter what horrible acts they commit, they will be sent to the ovens last…

    NEVER FORGET. NEVER AGAIN.

  11. Not sure this is relevant, but a lot of Zionists were antisemites. Chesterton was an example. He wanted Jews to have their own state because he wanted them out of England.

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Today in Supreme Court History

Today in Supreme Court History: October 20, 1973

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10/20/1973: The Saturday Night Massacre occurs.

President Richard Nixon

Guns

Guns and Due Process

"Petitioner had absolutely no prior notice that either his mental health or the safe handling subsection would be at issue during the hearing before the trial court."

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From In re Duvall, decided Tuesday by the North Carolina Court of Appeals (Judge John Tyson, joined by Judge Reuben Young, and with a separate opinion by Judge Richard Dietz):

Petitioner is a decorated Vietnam combat veteran, who served in the U.S. Army for five years and received an honorable discharge from his service. He earned a Bachelor's Degree in Industrial Management and a Masters of Business Administration degree. Petitioner developed and owned a real estate development company, which he sold in 2011 and retired in 2013.

Petitioner applied for and received a permit to purchase a handgun from the Mecklenburg County Sheriff's Office ("MCSO") on 15 September 2017. He … applied for a concealed handgun permit on 16 March 2018…. [On his application, he] checked the "No" box to indicate he did not "suffer from a physical or mental infirmity that prevents the safe handling of a handgun." This language refers to N.C. Gen. Stat. § 14-415.12(a)(3) (2017) [hereinafter the "safe handling subsection"]. He also checked "No" to indicate he was not "an unlawful user of (or addicted to) marijuana, alcohol, or any depressant, stimulant, or narcotic drug, or any other controlled substance as defined in 21 U.S.C. § 802." This language refers to N.C. Gen. Stat. § 14-415.12(b)(5) (2017) [hereinafter the "substance abuse subsection"].

The record shows a clerk at MCSO cleared Petitioner of any prior criminal or other disabling record on 5 April 2018 and Petitioner was provisionally approved for issuance of a concealed handgun permit, pending final review. On 18 May 2018, MCSO denied his application, citing the substance abuse subsection. The notice of denial also stated, "YOU ARE DENIED BASED ON INFORMATION RECEIVED FROM VETERANS AFFAIRS."

Petitioner's medical records show a diagnosis of acute PTSD following military combat, entered on 12 September 2016. Petitioner also has a prior record of "alcohol abuse, unspecified drinking behavior." At a therapy session on 12 March 2018, Petitioner had expressed "concerns about his drinking behaviors." At a session on 26 March 2018, Petitioner reported that he "continues to monitor his drinking habits" and would request a referral to Substance Abuse Services, "if he needs or has been unable to make changes on his own."

Petitioner had lost a young child to sudden infant death syndrome and the records show he acknowledged, "having several [suicidal] thoughts in the past, with a plan, but has never acted on any of them." Petitioner denied any history of suicide attempts. This history was not a stated basis for MCSO's denial of Petitioner's application.

[The MCSO denied the concealed carry permit application on the grounds that he was an "…unlawful user of or addicted to …[ ] (a) controlled substance…" based upon "information received from Veterans Affairs." -EV] …

[T]he district court denied Petitioner's appeal. The district court made two findings of fact. In addition to agreeing with the MCSO's finding that Petitioner was disqualified as being addicted under the substance abuse subsection, it also found he was unqualified under the safe handling subsection. Next to the safe handling finding, the court made a handwritten notation on its order denying Petitioner's appeal: "PTSD + suicidal ideation." …

Factually, Petitioner argues no evidence supports the district court's conclusion that Petitioner is an unlawful user of or addicted to marijuana, alcohol, or any depressant, stimulant, narcotic drug, or any other controlled substance as is defined in 21 U.S.C. § 802. Statutorily, Petitioner argues that the safe handling subsection was not the proper subsection under which MCSO or the district court could deny an applicant for mental illness or fitness reasons.

Constitutionally, Petitioner argues … due process protections require prior notice and an opportunity to be heard at a meaningful time and manner before denying him a permit ….

[We agree that] the lack of prior notice and the "bare bones" denial of his application by the district court denied him due process….

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." … In addition to prior notice, a "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'"

Under the concealed handgun statute, "[i]f the sheriff denies the application for a permit, the sheriff shall, within 45 days, notify the applicant in writing, stating the grounds for denial." … Petitioner received a reference to a specific subsection for the sheriff's denial, but the mere citation to and recitation of the substance abuse subsection in the statute did little to afford Petitioner a meaningful manner, notice, or opportunity of knowing the basis of the denial and which issues were to be resolved by the adversary process on appeal.

Petitioner had absolutely no prior notice that either his mental health or the safe handling subsection would be at issue during the hearing before the trial court. MCSO did not find Petitioner to be unqualified on that basis or under that subsection. MCSO's denial did not inform Petitioner that any mental or physical infirmity calling into question his ability to safely handle a firearm would be an issue on appeal….

Petitioner also argues MCSO's and the district court's conclusions that Petitioner was disqualified under the substance abuse subsection as addicted to a controlled substance under 21 U.S.C. § 802 (2018) is unsupported…. [O]n remand MCSO and the district court must use and apply the specifically incorporated definition of "addict" from 21 U.S.C. § 802 …[,] " … any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction." …

Judge Dietz's separate concurrence agreed with the due process analysis, reasoning that the Sheriff's Office "sandbagged Duvall by asserting a new ground for denial at the court hearing," but would not have opined further on what the government must prove on remand.

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  1. How much bearing does this have on future attempts to rein in red flag laws?

    1. None. It was a blatant disregard for due process.

  2. “Petitioner’s medical records show a diagnosis of acute PTSD following military combat, entered on 12 September 2016.”

    So they diagnosed a Vietnam veteran with PTSD 40 years after the fact?

    1. “So they diagnosed a Vietnam veteran with PTSD 40 years after the fact?”

      The text “Petitioner had lost a young child ” suggests that they attributed the PTSD to losing the child rather than to the war. It doesn’t say which year the child died.

  3. Let that be a lesson to folks. If you might want to possess firearms in the future, don’t seek mental health treatment.

    1. Ah yes … the “be a man” approach to mental health. Which has resulted in so many “well-adjusted” white male adults with no issues.

      1. /Whoosh

        1. Hahaha! @regexp truly doesn’t get it.

      2. It’s not “be a man”. It’s the fact that seeking mental health help can end up following a person for years with negative consequences.

        The best way to end up with a bunch of people with untreated mental health issues is to foster a system where they are punished and marginalized for seeking help.

        1. ThomasW, could there be an argument that withdrawing pistol and ball from would-be suicides is a humane principle, and thus the opposite of a punishment?

          More generally, the mental health profession includes practitioners who are sensitive to the needs for complete patient privacy, and who either do not keep, or will not disclose that they have, notes which damage the interests of the patient. Finding one of those might complicate an already difficult search for help, but it is worth noting that they do exist. You might find that some of those privacy-respecting practitioners would take that only so far, and not extend the privilege to a patient who was a threat to others.

          1. If they’re actually would-be suicides, sure.

            If they one time, had an issue, 30 years ago? No.

            1. “If they’re actually would-be suicides, sure.”

              It’s still not fine. You don’t want people saying, “Well, maybe I should talk to the doctor about these suicidal thoughts, but if I do, I won’t be able to own guns again, so maybe I just handle this myself.

              1. Not “won’t be able to own guns again” but instead “temporarily will have firearms restrained until current suicidal thoughts have subsided”

                This actually isn’t that controversial. What’s controversial is when the thoughts have subsided, that the guns are “still” taken away

      3. “Which has resulted in so many ‘well-adjusted white male adults … .”

        Shame on you for your racism.

        1. “Shame on you for your racism.”

          +1

          No black man is the US ever avoided going to a therapist, just whites.

          Latinos even have a word for what he is describing, “machismo”, but its just whites.

    2. I wonder if most veterans realize that Veterans Affairs seemingly hands out their medical records to anyone asking for them? What happened to doctor/patient confidentiality? I think that this would cause many vets to refrain from seeking help for psychological issues.

      1. That’s what I don’t get. A doctor is almost always prevented from giving testimony against their patient. How are these records admissible at all?

        1. I don’t know about NC, but in WA you have to give blanket permission to disclose any and all health records from any provider in order to purchase a handgun.

      2. “I wonder if most veterans realize that Veterans Affairs seemingly hands out their medical records to anyone asking for them?”

        I do now.

        “I think that this would cause many vets to refrain from seeking help for psychological issues.”

        Yep. From now on it’s all smiles and; “I’m doing just great, couldn’t be happier.”

  4. Seems like a very reasonable result. Regardless of our personal opinions re guns; I think we can all agree that at *any* type of hearing, we should be given reasonable advance notice of what will be going on at that hearing. That sort of basic procedural due process seems pretty uncontroversial.

    1. santamonica811 wrote: “That sort of basic procedural due process seems pretty uncontroversial.”

      Except in college sex assault cases of course.

      1. Those cases don’t need it, because getting kicked out of college and branded a sex abuser for the rest of your life, getting into a crappy follow-up school, and all of that dogging your income for the rest of your life is just a small civil thing, like a parking ticket, and so doesn’t qualify for due process.

  5. “Abandon All Rights, all Ye Who Pass This Threshold”

    Should we post that at the door to every therapists office?

    If we want to do this red flag thing (and I think we should), there needs to be well defined and nationally uniform standards and definitions and due process and procedures for people to regain their rights when they get better. There must also be disclaimers and warnings for potential patients before agreeing to therapy.

    In other words, an all the kings men and all the kings horses national effort to draft a model law.

    1. How about we start with providing Due Process BEFORE the rights are mysteriously taken away.

      You know – like the Constitution requires?

    2. “Abandon All Rights, all Ye Who Pass This Threshold”
      Should we post that at the door to every therapists office?

      Maybe we should realize this is actually invisibly painted on the INSIDE of the door to every residence?

      Welcome to the revolution.

  6. Wow… Reading the full court case really puts this in better perspective. It’s just all out due process violations, all the way

    Veteran: “I want a concealed carry permit”

    Sheriff’s office: Initially…OK. Then… “No. Because… reasons.”

    Veteran: “What? What reasons? This makes no sense! To court!”

    Sheriff’s Office (District court): “Oh, these new reasons we say we found. What? Discovery? No, we’re just telling you about them now”

    Vet: “That’s absurd! You’re telling me about these reasons now? Appeal!”

    Appeal Court: “Where’s the transcript, so we can review?”

    District court: “Uh…recording machines were broken. No transcript..”

    Right…..

  7. It seems like there is a first amendment problem here as well. Can they deny you a permit based only on your thoughts? Talk about thoughtcrime!

    1. Yes. They can deny you a permit to exercise you constitutional right just for the hell of it. So you do not actually have any constitutional rights.
      As predicted by the crazy right wing bigots decades ago, they blew away the second, now they are openly working on the first, fourth, and fifth.
      Want to guess on that is going on behind closed doors in secret committee hearings of democrats only? I mean besides “impeachment hearings”.

  8. If you want to encourage people to be dishonest with their doctors and hide any potential problems, congratulations, you succeeded.

    You now have a situation where a man was denied access to firearms, which he is trained and skilled in their use, simply for acknowledging depression after a serious, negative life event. Anyone reading this will now be very unlikely to speak to their doctor about anything that they.

    This is the VERY REASON THAT WE HAVE DOCTOR-PATIENT PRIVILEGE. In fact, I find the fact that Veteran’s Affairs disclosed these facts to be a gross violation of this fundamental privilege, not to mention all medical secrecy regulations this side of HIPAA

  9. I have not read the full article/ruling. However, for a considerable amount of time I have been bothered by the possible repercussions to exercising 2A amendment rights by persons who have sought or have required some sort of mental health care. I am not a veteran, however due to a catastrophic automobile accident, I have a pretty severe case of PTSD. Car horns freak me out, if another car juts out in front of me, I literally get cold sweat. I get nervous in traffic. On the other hand, I am a lifelong firearms owner, competitive shooter and hunter. I am even one of the few of the “last line of defense” to be sold a rifle by the U.S. Army as “civilian militia” through the Director of Civilian Marksmanship program. It took me 2 years to qualify to purchase the rifle. Why should I have to fear talking to a counselor about how I get scared and almost re-live my wreck when I drive because it might eventually cause me a problem with the future purchase of a new firearm? Or keeping the ones I have owned for the last 45+ years?

  10. I bring up Douthat in part because I worry folks like him might be susceptible to the allure of what Ahmari is offering: a righteous-sounding excuse to give in to the same kind of base temptation that makes you wish, upon encountering a world-class jerk, that you could pop him in the face. You restrain yourself because you know that physical violence is not an appropriate response to rude words…even if you’re a little bit rueful about it.
    http://situsqqpokerv.com

  11. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” … In addition to prior notice, a “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'”

    Every “Red Flag” law in the country that I’m aware of violates this “elementary and fundamental” requirement of Due Process. When can we expect Volokh writers to comment on this and stand up for those rights too?

  12. It’s interesting reading the outrage over restrictions that apply to certain rights, while many of the same people likely support restrictions on other rights. Maybe there is something to Justice Thomas’ complaining about privileged rights and preferential treatment of some over others.

    1. “It’s interesting reading the outrage over restrictions that apply to certain rights, while many of the same people likely support restrictions on other rights.”

      Why don’t you give us some examples?

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Jesus Told Me the Answer

The question was, "Why is Jesus a common name in some Spanish-language cultures, but not other Christian cultures"?

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Last month, I asked why Jesus is common in some Spanish-speaking countries (as well as among Hispanics in the U.S.), but apparently very rare in other Christian countries, whether Catholic or otherwise.

Fortunately, Prof. Jesus Fernandez-Villaverde (Penn, Economics) offered an explanation:

"Jesús" became a relatively common name in Spain in the late [19th century], at the time when there was a strong revival of militant Catholicism as a reaction to secularization forces from the left-wing. It was linked with a steep increase in the devotion to the Sacred Heart of Christ and the Christ the King movement: https://en.wikipedia.org/wiki/Sacred_Heart

From Spain, as far as my understanding goes, the strong devotion to the Sacred Heart and Christ the King movement jumped to Mexico ….

The naming use never moved out of Spain (and to a small degree Portugal) to other Catholic European countries. My hypothesis (100% personal) is that in Spain and Mexico we usually say "Jesucristo" to refer to Christ, not "Jesús" (K12 + Catholic College gives me 20 years of education in Catholic institutions, and I would say 95% of times it was "Jesucristo"). Thus, "Jesús" sounds less odd as a first name.

Also, let me point out that a very common name for girls in Spain is "María Jesús" which is even odder for an English-speaker.

When I was a kid in Spain, in a class of 40 students or so, there would be 2 or 3 "Jesuses." Today, I would say 1 at most, as the country has become more secular.

"Jesus" was not used in Spain during the Middle Ages at all for boys (thus, the argument that this has something to do with the Muslim presence in Spain and a reaction against the "Mohameds" is 100% false). [EV adds: This source supports the view that Jesus was not common in 16th-century Spain.]

To the best of my understanding, Jesuits started in the 16th century to promote adding "de Jesus" to names to make a point against Protestants in Northern Europe (i.e., you were "Luis de Jesus" or "Isabel de Jesus") and to honor the Holy Family….

[The article at] https://ojsng.colmex.mx/index.php/nrfh/article/download/437/437 about first names in Mexico … states (page 22, footnote) that, in Mexico, the first documented use of "Jesus" as the main name is from 1852…. [I]n novels and other sources of literature in Spanish before around 1850, one never ever encounters a character named "Jesus."

Armed with this, I searched through the Spanish baptismal records database on FamilySearch.org, and found Jesus as the first name appearing 5 times in 1800-1820 and 576 times in 1880-1900. Nor did it stem from an increase in database coverage over time; the database appears to 1.1 million total entries in 1800-1820 and 650,000 in 1880-1900. Searches through the Mexico records reveal the same pattern.

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  1. So now explain to me why the nickname for Jesus is Chuy.

  2. Thanks for bringing up this interesting question and delivering a very reason_able 🙂 answer.

  3. Does anybody know how common Isa (Jesus) is among Christian Arabs? It’s normal for Muslims but I have no idea about Christians.

  4. Y’all might want to check out “Joshua” and “Josh.” Both mean the same. One is Greek, the other directly from Aramaic.

    1. Volokh mentioned that last time. And no, it’s not a good comparison. Yes, they are related, but they aren’t the same. English speakers are weirded out by Jesús and not by Joshua.

      Joshua wasn’t popular among non-Jews until relatively recently. It popped up in Ireland and spread through the rest of the Anglosphere with the weird trend of uncommon Old Testament names. It wasn’t intended as “Jesus.”

  5. By “both,” I mean “Jesus” & “Joshua.”

  6. Again, we do. Christopher

    1. “Christopher,” according to dictionary.com, comes from a Greek word meaning “Christ-bearer,” and was the name of a third-century Christian martyr. Not quite the same oomph as calling your son “Jesus” or “Christ” as such, it seems to me.

  7. With all due respect there is, at least amongst us Cubans (pre Castro) a running joke about Iberian onomastic poverty, to whit; the only two names in Spain were Maria Jose and Jose Maria. I don’t believe that it was Maria Jesus. I don’t dispute it though and I am in total agreement with the Jesus v. Jesus Cristo distinction. Cristo, like Christ is a denomination of office, hence Jesus the Christ. Other than that Jesus is a common name, at least in Spanish speaking countries.

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Today in Supreme Court History

Today in Supreme Court History: October 19, 1789

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10/19/1789: Chief Justice John Jay takes oath.

Chief Justice John Jay

Separation of Powers

Is the CFPB Unconstitutional? We'll Soon Find Out. (Corrected)

The Supreme Court will consider a constitutional challenge to the composition of the Consumer Financial Protection Bureau.

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Today, the Supreme Court granted certiorari in four cases. One of the four, Seila Law LLC v. Consumer Financial Protection Bureau asks the Court to consider whether the CFPB is unconstitutionally constituted. Specifically, the Court will consider whether it is unconstitutional for Congress to limit the President's ability to remove the head of a single-headed agency, such as the CFPB. In this Seila Law presents a similar question to Collins v. Mnuchin, in which the U.S. Court of Appeals for the Fifth Circuit concluded that a similarly structured agency was unconstitutional.

In addition the constitutional separation of powers question, the Court has also asked the parties to brief the question of remedy. Specifically, the Court wants to know the extent to which the provision limiting removal of the head of the CFPB is severable from the rest of the law or, in the alternative, whether concluding that the CFPB is impermissibly constituted requires invalidating other aspects of the CFPB, if not the CFPB altogether.  The addition of this question was likely prompted, at least in part, by the Collins v. Mnuchin petition for certiorari, which sought the Court's attention to the remedial issue.

It is also worth noting that the Court has appointed Alan Morrison to argue in defense of the CFPB's constitutionality as an amicus curiae. This is necessary because the CFPB and the Department of Justice agree with the petitioners that the CFPB's current structure is unconstitutional. Presumably the Court will appoint an amicus to defend the CFPB's constitutionality.

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  1. Minor correction:
    Professor Morrison wasn’t appointed to argue as amicus curiae (at least not yet). At this point, the court just ruled on a motion for his cert-stage amicus brief to be filed out of time.

  2. The only way you can get away with the sophistry the regulatory state regulations are not unconstitutional laws is by claiming their creation is part of the executive branch enforcing Congress’ law, i.e. carrying out the law.

    As such, the heads of any such agencies only wield that power at the whim of the president.

    1. You’re confusing your chosen interpretation as the only possible interpretation, which is incorrect.

      The administrative state is possible because the Congress can delegate some of its legislative power to an agency, and so can the President do so (by signing the enabling legislation)

      Your mistake is assuming that any reduction of Congressional power MUST be an increase of Executive, and vice versa. But this is not so. The administrative state contains a fourth, BUT NOT CO-EQUAL branch of government, in the professional bureaucrats, which has some of the power ceded from Congress, and some of the power ceded from the Executive. They can choose to work together to revoke the ceded powers. Congress could write legislation eliminating any portion of the bureaucracy, and if it passes both houses and gets signed into law, they get the power back. If the Congress is divided about recapture, and doesn’t have the votes in one chamber or the other, they can’t. They also can’t do it without the President, unless a LOT of Congresspeople want it done.

      This creates a situation where the sovereign power of the United States is divided, which is a core principle of the Constitution. Keeping the sovereign power divided increases the likelihood that a tendency towards tyranny is countered by a portion of the sovereign power… which sounded pretty good to the Founders, who had experience with an entirely undivided sovereign..

      1. What makes you think that Congress or the President can, in fact, delegate not only their own power, but the power of future Congresses and Presidents? Do these powers really belong to the Congress or the President (to be given away at their whim), or are they merely exercising those powers on behalf of the People they represent?

        Shouldn’t changing the allocation power in such a fundamental way require a constitutional amendment? Can the President give some of his executive power directly to Congress? To the Supreme Court? All of it?

        If there a law allocating some of the President’s power to Congress and the President vetoes it, what then?

      2. Oddly enough, I don’t remember the “4th branch of government, the professional bureaucrats” anywhere in the US Constitution.

        There’s an Article 1:”All legislative Powers herein granted shall be vested in a Congress of the United States”

        There’s an Article 2: “The executive Power shall be vested in a President of the United States of America.”

        And there’s an Article 3: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

        Nope….nothing about a “professional bureaucrats” Branch that takes some of the power from the article 1-3 sections.

        1. “Oddly enough, I don’t remember the “4th branch of government, the professional bureaucrats” anywhere in the US Constitution. ”

          Since it isn’t prohibited in the Constitution, as you concede, it’s entirely valid if Congress votes for it and presents it to the President.

          1. That’s not actually how the Constitution works, this bizarre “anything not explicitly prohibited is allowed” theory. And that’s before we delve into the text that literally says what branches get what powers (here’s a hint…none of them are the so-called 4th branch)

            But thanks for playing.

          2. You should read your Constitution more carefully:

            “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

            If it isn’t an enumerated power then Congress can’t create out of thin air.

            To be sure there is some work done by the necessary and proper clause: “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution.” But it is hardly proper to create a fourth branch of government that supersedes Congress and the executive.

            1. Pollack is the type of American who believes the General Welfare clause grants the people in government unlimited power so long as they could argue they are doing it for the benefit of the people.

          3. I think the argument proves too much. That is, it seems to make the whole civil service system unconstitutional. Is that what you are advocating? If Congress has no power to regulate executive employment decisions then that is the ultimate result. Just from a policy viewpoint this would be devastating. The effect would be to create a patronage army available to each administration. I am from Chicago, and it took years of federal court decisions to mitigate the problem. Based on experience, such control results in a bigger bureaucracy not a smaller one and filled with ostensible government servants whose real job to is to do political work.
            At minimum, I’d say that Congress’s spending power gives it say in the terms of federal employment–so civil service exams, employee due process and whistle-blower protections,etc.–seems clearly tied to Congress’s power to appropriate money for a particular purpose–in this case, the employment of an honest, qualified professional federal workforce.
            The separation of powers question is harder at the leadership levels, but the sweeping “no professional bureaucrats” argument is patently overbroad.
            What you are really arguing in railing against bureaucracy, I think, is the so-called non-delegation doctrine (it is really a doctrine limiting, not prohibiting delegation)–a thorny question that does not fit easily into broad statements either.

            1. “It would make the whole civil service system unconstitutional. Is that what you are advocating?”

              No.

              The Civil Service, as an institution that executes the laws of the United States, answers to the President. They are not a “4th Branch,” self-funding, making independent decisions as they see fit, without needing to really answer to anyone.

              Now, I’m not advocating wholesale replacement of every civil service member, every time there’s a new President. I am advocating the heads of the various departments can be replaced at will by the President, as part of the executive service. And those heads can further direct policy.

              This, by the way, is how it currently is. The President appoints a Secretary of Defense, a new FBI director, a new Attorney General, etc. Under the “4th Branch” doctrine currently in place with the CFPB, they…don’t.

              Imagine a world where Bush appoints an Attorney General…and the AG just stays there through the Obama administration, because Obama can’t fire him. (It would’ve been a very different administration.) Or all sorts of other issues…

              1. Well said. Every last one of these law-making independent agencies are an offense to the Constitution, in my opinion.

        2. These days, the Fourth Branch is the most important branch since they control most of the actions with the public.

  3. How will the government maintain control without the bureaucracy? Maybe we should ask, how will the bureaucracy maintain control?

    1. Fear will keep the local systems in line, fear of this battle station.

      1. You, my friend, are all that remains of that religion.

        1. “This regulatory state, adding a hundred billion dollars of cost to the economy every year, is now the ultimate power in the universe.”

          “Congress and the president have just dissolved themselves so they can hide behind the ultimate power and not take blame.”

          “I noticed your stench when I was brought on board.”

          “You would prefer another target? Perhaps one better at donating to candidates, officially or otherwise? Then name the industry.”

          1. “Red Leader, standing by.”
            “Acknowledged, Porkinsbarrel.”

            “Sir, we’ve analyzed their attack pattern. There’s a chance, no matter how small, that they could destroy this battle station?”
            “Really?”
            “Well, no. But they could destroy it as a independent entity, answering directly to no elected official in either branch, not even subject to the power of the purse.”
            “Very well. Commander, you may fire an additional 8 Supreme Court justices at will.”

  4. Yes, it’s unconstitutional. Here’s why…

    1. It takes an executive branch function, but essentially removes it from the control of the democratically elected head of the executive branch, and puts it in the hands of a single, unelected bureaucrat, who can’t be removed except “for cause” (whatever that is defined to mean), while simultaneously removing it’s funding source from annual appropriations.

    2. You may think this is good. But let’s look at this from another viewpoint.

    3. After economic recession xyz, the “nationalist” party in the United States briefly gains control of the presidency and Congress. They pass a bill that empowers “General America” to form the “Protect America now” organization. An armed organization that is self funded through 5% VAT tax. General America can only be removed for very specific and narrow causes. In the meantime, the nationalist party loses many seats in the next election, then the presidency, but still maintain a fillibuster proof majority in the Senate. Meanwhile General America is gaining more and more power, through selective enforcement of new regulations….

    1. ” General America is gaining more and more power, through selective enforcement of new regulations….”

      … and then is removed “for cause” if they direct the agency in a way that is counter to the interests of the people of the United States.

      Note that removing a bureaucrat “for cause” is considerably easier than removing the President “for cause”, and the President has power over more than one agency AND the military forces.

      1. The President is lawfully elected by the people of the United States, and has a term that ends every 4 years. Unlike unelected bureaucrats, who can serve….forever, while making, enforcing, and judging the laws and regulations they design.

        1. “The President is lawfully elected by the people of the United States”

          No, he isn’t. Presidents are elected by the Electoral College.

          “Unlike unelected bureaucrats, who can serve….forever”

          Egads. There are people in the government who can serve for life, as long as they don’t give cause for dismissal? What does the Supreme Court think of this?

    2. I think we ought to separate our judgment of the constitutional question from whether we think the structure of the CFPB in particular is good or not.

      I think that the CFPB is “good” but I also tentatively don’t think it should be led by anyone who can’t be fired by the President. That said, I think that this is severable. The whole statute should not be declared to be void on this basis.

      But guess what. Ff the CFPB is unconstitutional, it might not be the only thing that is unconstitutional. What about the Federal Reserve Board of Governors? Each member of the board is appointed to a 14-year term (thus, spanning multiple presidencies) and are removable by the President “for cause.”

      1. That’s the main crux of the argument, that the head of the CFPB should be able to be fired by the President for any reason. Whether or not it’s “good” is a different issue, and best addressed by the legislature.

        To be honest, it probably is severable, although I might consider also making at least some of its funds dependent on the Treasury. I don’t see the absolute independence as that important here.

        The only reason (and it’s weak) for an all or nothing argument, is to “persuade” the legislature to make constitutional laws in the future, rather than stretching the limits. If it’s severable, there’s no penalty for stretching the limits.

        1. Whether it is a “good” reason to fire or not is best addressed by the voters at the next election.

          This entire charade is about locking in power to insulate it from the voters.

  5. “This is necessary because the CFPB and the Department of Justice agree with the petitioners that the CFPB’s current structure is unconstitutional.”

    So, why is this even a thing, if the bureau accused of being unconstitutional agrees that it’s unconstitutional?

    1. Because no number of executive branch organs have the ability to change the law (in theory). Since Congress seems disinclined to repeal the legislation that created this abortion of liberty and the democratic process, the other alternative is to have it struck down by SCOTUS.

    2. “So, why is this even a thing, if the bureau accused of being unconstitutional agrees that it’s unconstitutional?”

      The American legal system is based on the premise that when adversaries compete to prove their case, you’re most likely to get to the truth, because both sides have reason to dig into the evidence and precedent and present those that support their cause. You’re less likely to get truth when both sides are really only one of the sides, with the other side left out entirely. This will lead to both parties producing facts and precedent that support their side, and nobody presenting facts and precedent that don’t support them.

      Consider: If your premise is that Donald Trump is a corrupt scumbag, will get a fair determination if the two “sides” arguing this point are Hillary Clinton arguing the “yes” side, and Joe Biden also arguing the “yes” side, and nobody arguing the “no” side?
      In cases like this where the lawyers for both sides agree about which side should win, but don’t resolve it among themselves because they want a court ruling enabling them to order other people to do something, the court picks someone to argue the other side of the argument.

      1. Are you then in favor of revoking a large percentage of the suits the EPA has settled? There’ve been numerous examples of the EPA being sued to regulate in a particular manner that wasn’t supported by the enacting statutes or science, who then settle in order to effectively enact a regulation that would have been ruled arbitrary and capricious had it gone through the usual rule making process. In those cases, it was “environmental” group + EPA vs EPA.

        Since they were settled by collusion (hey, that’s actually a valid place to use it!), they should all be overturned, right?

        P.S. I agree with your position, I want to see if you’ll follow it where it leads too.

        1. “P.S. I agree with your position”

          Odd, seeing as how you don’t know what it is.

        2. There’ve been numerous examples of the EPA being sued to regulate in a particular manner that wasn’t supported by the enacting statutes or science, who then settle in order to effectively enact a regulation that would have been ruled arbitrary and capricious had it gone through the usual rule making process.

          That’s not true. There was a statutory private right of action for each of those actions, else they would have been dismissed under the APA.

        3. He will disagree with you because the outcome doesn’t align with his desired preferences.

  6. It would be good for the respondents if the “for-cause” removal provision is severed (which is the likely remedy if the court finds a separation-of-powers violation).

    The cfpb is currently captured by a bunch of ringers from the payday loan industry. The function of the bureau has been inverted to protect non-consumers.

    The current figurehead director is unqualified to lead the cfpb. Before her confirmation, she had no experience in consumer protection or financial regulation.

    Yet she would have to stay on even if the current president is not re-elected. But if scotus dumps “for-cause”, the industry capture of the cfpb can be reversed sooner.

    1. There are a bunch of academics who argue that the pay day loan business serves the needs of some people and that the limits are too restrictive effectively cutting many “unbanked” from a legitimate source of funds.

      1. And the appropriate point of comparison isn’t between a credit card with an effective APR of 30% vs a payday loan with an effective APR of 300%, since the people who get payday loans by and large can’t get (or have already maxed out) their credit cards. Instead, the comparison is between a payday loan at 300%, and a loan from Jimmy The Shark at an effective APR of 30,000%.

        One might think that even then no one would take the 300% loan if they really understood how it worked, but multiple academic have interviewed people taking out these loans, and by and large they know exactly what they’re doing.

        It seems that people who object to payday loans just don’t like scarcity, so they should also pass laws making it illegal to sleep under bridges – after all, both the rich and poor are equally prohibited in this case…..

        1. Another comparison (vice Jimmy The Shark) is bank overdraft fees, bounced check fees, and the consequences of writing bad checks, which can include eviction, loss of job, and many other unwelcome outcomes which the do-gooder crowd and the ivory tower nannies simply cannot comprehend.

          Once again, government does not know best, and allowing people the agency to take care of themselves is the best thing to do.

        2. @Robert, cite some of the “multiple academic”.

          Legislation prohibiting payday loans has been passed even in fairly conservative states like Arizona because the justice courts there were clogged with payday suits for $3,000-$4,000 that were based on an initial loan of $300-$400 (that had been renewed every two weeks for a year or more), so that 90%+ of the suit amount was fees. Once judgment was entered, these people had their paychecks garnished by 25% for years, all over a $300 loan. The payday loan outfits were often out-of-state franchisees, so all of that low-income judgment money would be promptly shipped out of Arizona, forcing the judgment debtors to either apply for state aid (food stamps, etc.) or file for bankruptcy.

          Arizona had enough of this and put an end to it. In all of the local media that led up to passage of the legislation, scores of people who took out the loans said they regretted doing so.

          It is unfortunate that some fully-informed person that would be helped by a payday loan has to go to more trouble to get one now, but set against the harm that has been demonstrated, this trade off seems justified.

          The Arizona justice court dockets have been much less stressed since the passage of the payday legislation. It is now just mostly evictions, medical debt lawsuits, and debt buyer lawsuits.

          There has been no evidence of an increase in loan sharking. There have been more “tribal loans”, online payday loans, and title loans, so the well-informed still have plenty of options.

          1. It is unfortunate that some fully-informed person that would be helped by a payday loan has to go to more trouble to get one now, but set against the harm that has been demonstrated, this trade off seems justified.

            What harm has been demonstrated, that people don’t pay their obligations and then are eventually forced to pay them? What about not paying their car loan or their utility bills or their mortgage? Are they being harmed by being required to pay for goods and services that they receive?

            The biggest users of payday loans are people with bad credit. They can get a payday loan with a bank account and a pay stub or some proof of regular funds but they don’t have to have good credit. Almost any other place where they could get a loan will require a credit check. That means no loan.

      2. No payday lender will lend to the “unbanked”.

        Payday lenders require a back account to automatically debit payments and fees.

  7. IANAL. While I see the arguments for not wanting something as unaccountable as the CFPB, the arguments against it seem more based in what people want rather than strict legality and constitutionality. I do see the point of questioning its funding, but doesn’t the same problem exist with other agencies that are self-funded by the fees and fines they collect?

    1. It’s built into the Constitution’s design the observation that people will twist laws to serve their own purpose.

      That’s why trying to sever lawmaking (which regulation is) from direct control of elected officials, who in turn are controlled by voters, is insidious all by itself.

  8. “While I see the arguments for not wanting something as unaccountable as the CFP”

    By which, most people mean “not accountable to the people I want them to be accountable to”.

    Congress can dissolve the CFPB at any time, but the R’s couldn’t get enough votes to do it, and neither can the D’s (if they wanted to do so). If the CFPB does something actively harmful, however, that could change quickly.

    1. Well, that ain’t what I asked. I am curious as to what the actual legal arguments are, not the obvious remedies already existing to get rid of it or reform it.

      1. I wasn’t trying to answer what you asked. I was quibbling with your assertion that the CFPB is “unaccountable”.

        1. “It’s accountable as a last resort if it goes completely off the rails.”

          You and I have a vastly different idea of accountability and voters.

    2. Who is the CFPB —or civil servants in general—actually accountable to now?

      If the prez is to have the discretion needed to see “take care” that all laws are faithfully executed, agencies or programs shoved shoehorned into the executive branch should actually be answerable to him.

      This sort of CFPB dynamic is how particular ideologies entrench their agendas into government indefinitely.

      Also, I need to look at the statute again, but if Gorsuch ever gets Kavanaugh and Alito on board and revives the nondelegation doctrine he outlined in Gundy, I doubt this particular delegation would pass muster.

      1. “If the prez is to have the discretion needed to see ‘take care’ that all laws are faithfully executed”

        If the laws are NOT faithfully executed, then the head of the agency can be terminated, for cause, by the President.

        1. Well, then there’s the lawsuit, where the fired official holds onto her job, saying “I was faithfully executing the laws”. And then she holds onto the job, for a year or three, while the lawsuit makes it’s way through the courts.

    3. Simply because Congress (with the President) could change the law, it doesn’t mean the original law is unconstitutional.

  9. Correction

    We know it’s unconstitutional, we’ll soon find out if the court cares to uphold the Constitution.

    1. Yeah, Dave Ss is the only true arbiter of constitutionality.

  10. I think you’re missing the forest for the trees.
    If the CFPB is unconstitutional, Elizabeth Warren was acting extra-constitutionally, and should therefore be immediately impeached if she is elected President.

    1. Excellent idea. Our country has a long history of impeaching each and every president who signs an unconstitutional law or enacts an unconstitutional regulation. And it’s why we impeach each member of Congress who votes for legislation that is later ruled unconstitutional.

      I assume that this is true in some parallel universe where your version of Elizabeth Warren lives, yes?

      1. I’m assuming not-great sarcasm, because Smooth is smarter than that.

  11. The focus on the President’s inability to remove the head of the CFPB from office seems to be misguided.
    The real question should be whether the President’s inability to nullify any particular order of the CFPB makes the CFPB unconstitutional. I think that the answer to that question is yes, but that it is easily fixable.
    Since the President is vested with all of the executive power under the Constitution, it follows that no executive action can be taken by anyone in the government without the President’s effective consent.
    Thus, the CFPB (and every similar body created by Congress) would be constitutional if it were subject to having its executive actions nullified by the President. (Indeed, the Court may be able to save the CFPB by holding that the President has the inherent power to nullify executive actions of which he disapproves.)

Please to post comments

Short Circuit: A Roundup of Recent Federal Court Decisions

Golf swingers, a gangrenous finger, and the ancient concept of "frolic."

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: A special live Third Circuit edition featuring Matthew Stiegler, appellate litigator and proprietor of the magnificent CA3blog.com, as well as Penn Law Professors Claire Finkelstein and Mitch Berman. Click here for iTunes.

  • Pennsylvania state senator uses gov't-funded legislative staff to do campaign work, which is not legal. (Her sister, a state Supreme Court justice, also uses the senator's staff to do campaign work.) At trial, the now-former senator introduces forged evidence. The judge declares a mistrial. After a second trial, she is convicted on an array of charges, including forgery. Double jeopardy? Third Circuit: No.
  • Allegation: For many years, Houston officials failed to test rape kits, which allowed serial rapists to commit additional crimes. Fifth Circuit: But the city has been trying to get its act together since 2013, so this suit, filed in 2017, is barred by one-year and two-year statutes of limitations.
  • Dallas police officials determine that detective "entered inaccurate and incomplete information" in probable cause affidavit to obtain arrest warrant for murder suspect. (The arrest warrant relied on an eyewitness who wasn't sober, told inconsistent stories (including saying his mother was at the crime scene), and was so distressed he tried to strangle himself with his own shirt, all of which the detective neglected to share with the judge.) Can the suspect, against whom all charges were dropped, sue the detective for false arrest? Fifth Circuit: Qualified immunity.
  • Ohio law prohibits doctors from providing abortions when they know the woman's reason is because the baby has Down syndrome. Sixth Circuit: Women have an absolute right to choose whether to terminate or continue a pre-viability pregnancy. Dissent: We're supposed to analyze the law using evidence and considering gov't interests at stake, not just nod to the legal standard with conclusory rhetoric.
  • Allegation: Inmate at the Genesee County, Mich. jail is blinded by pepper spray before two deputies march him down a hall and slam him into doors and walls. Excessive force? Deputy: Sure, I was one of the two officers who marched him down the hall, but the inmate can't say whether I was the one who did the door- and wall-slamming. Because, you see, he was temporarily blinded by the pepper spray. Sixth Circuit: Not so fast. The question of the deputy's involvement must go to a jury.
  • "This court once observed, '[w]hen a party comes to us with nine grounds for reversing the district court, that usually means there are none.' [Plaintiff] comes to us with twenty-seven." So writes Judge McKeague of the Sixth Circuit, affirming the district court.
  • On duty, out-of-uniform Detroit police officer barges into acquaintance's home to collect a $300 personal debt. Fingers are pointed, mace is sprayed, and the officer fires her service revolver, grazing a second occupant of the home. No dice on the occupants' federal constitutional claims, declares the Sixth Circuit. The officer's behavior "was the definition of the ancient concept of 'frolic.'"
  • Chicago film studio claims a state agency violated its rights by steering grants and business to its rival. An equal protection problem? The Seventh Circuit says no—because the rival studio was way, way better.
  • Reality show contestant sues rapper for sexual battery after he gropes, exposes her privates to a crowd at a bar. The rapper doesn't show up for trial, disparages the contestant on social media "in exceedingly vulgar terms." The jury returns a $7.1 mil verdict against him. Rapper: The trial judge wrongly allowed the jury to watch a video of me threatening (in front of the show's cast and film crew) to strangle the contestant. I should get a new trial. Seventh Circuit: Not so.
  • Two teenagers camping in Yosemite National Park campground are killed when a tree limb falls on their tent. Can their parents sue the feds for negligence? Two-thirds of a Ninth Circuit panel says yes; could be park officials knew or should have known the tree was a hazard.
  • Inmate cuts his ring finger, develops gangrene, and has the finger amputated. He sues in Kansas court without the benefit of counsel; his case is dismissed because he did not first notify the municipality, Wyandotte County, of his impending suit as required by state law. Tenth Circuit: And while he pursued his claim in state court, the deadline to sue in federal court came and went. So he can't sue here either.
  • In 2001, Justice Antonin Scalia famously asked, "What is golf?" This week, the Tenth Circuit took up the case of the late pro Moe Norman and his famous "single plane" swing. [Practice tip: If external circumstances force you to give up on a case, DO NOT concede that your opponent is the prevailing party.]
  • Retailer seeks permission to sell sex toys at Gwinnett County, Ga. store, but officials demur. The retailer sues, shenanigans ensue. The county repeals the adult entertainment ordinance and replaces it with a new one. District Court: The case is moot. Eleventh Circuit (2016): Not entirely; the retailer may pursue damages under the old ordinance and should probably be able to challenge the new ordinance. Meanwhile, the county seeks to enjoin the sale of the toys in state court. District Court: Aha! You can't sue in federal court while a state enforcement proceeding proceeds. Eleventh Circuit (2019, over a dissent): The retailer's suit, which has been going on for over four years, was far enough long that Younger abstention doesn't apply.
  • Man declines to speak with police, retreats from his porch back into the living room, where a Santa Rosa County, Fla. officer follows, tackles, and arrests him. False arrest? District court: Could be failing to talk to the officer was a misdemeanor offense (resisting an officer without violence). Qualified immunity. Eleventh Circuit: Reversed. Even if the officer had probable cause to make an arrest, he needed a warrant to enter the home without consent.
  • Man sells cocaine to undercover cops. A search of his Myrtle Beach, S.C. home yields more drugs and just over $20k in cash. And state law permits law enforcement agencies involved in a forfeiture to reap 75% of the proceeds, so can the cops keep the cash? South Carolina trial court: No dice. The forfeiture statutes violate the Eighth Amendment's prohibition on excessive fines and the due process protections safeguarded by both the Fifth Amendment and the South Carolina Constitution.
  • Per Hailey's Law, Washington state police are required to impound a vehicle any time they arrest the driver for a DUI, regardless of whether the car is off the road or someone else can safely drive it away. But that violates the state's constitution, explains the Washington Supreme Court, because warrantless seizures require individualized consideration of the circumstances. This law eliminates that individualized consideration, and the legislature cannot legislate constitutional rights away. (IJ signed on to an amicus brief urging the court to reach this holding.)
  • And in en banc news, the Fourth Circuit will reconsider its ruling that Maryland and D.C. lack standing to sue President Trump for violating the Constitution's Emoluments Clauses by maintaining an ownership interest in various hotels and other businesses that provide him with millions of dollars from foreign and local gov'ts.

Late last year, Oregon engineer Mats Järlström scored an important First Amendment victory against the state's engineering board. Mats, who has a degree in electrical engineering, had done some research and concluded the math behind how the state's yellow traffic lights were timed was incomplete. When he presented his findings, the engineering board investigated him for two years and then fined him $500 for daring to talk about math without a license from the board. In 2018, a federal judge put a stop to that. And last month, Mats got a second round of vindication when, based on his findings, a team of engineers and activists persuaded the Institute of Transportation Engineers to reevaluate its guidelines. Click here for more.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Did you even read the Fifth Circuit QI case. It’s only ten pages long for cripes sake. Though detective Perez used QI as an alternate theory for why Jones should not prevail in his civil rights lawsuit, she ultimately prevailed because the court found that probable cause for arrest existed. QI did not enter into the decision. It’s just as easy to get these things right as it is to get them wrong.

  2. 6th Circuit: They are “useless eaters” anyway per Judge Karl Brandt

  3. Sixth Circuit. The officer’s behavior “was the definition of the ancient concept of ‘frolic.'”

    The way a frog hops about?

  4. The Ninth Circuit is just wrong. For the same reason you can’t win a suit for getting hit by a foul ball at a baseball game, you should not be able to sue for not seeing the dead branch above your tent. In fact, you should be even less able to sue because you have no control over whether a ball will come your way during a game but any Scout will tell you that tent campers are specifically taught to check for and to not camp under widowmakers.

    1. Well, yes, but arguably that’s why they should lose the suit, not a reason why they shouldn’t be able to file it. How obvious the widowmaker was, might be a job for a jury to decide.

      1. If it was obvious, then the landlords lose, for not addressing a known hazard. “They should have known it was a hazard, too” doesn’t negate the liability.

        1. If it was obvious, then the campers lose because they were the most recent people with the opportunity to see and avoid the danger. Moving your tent so it’s not under a widowmaker is a really easy task.

          The Park Service, on the other hand, at best had the opportunity to have seen the widowmaker at some point in the past, has no way to know about new dangers (new widowmakers develop every day) and has no practical way to remediate the dangers in realtime. The only way to prevent widowmakers is to cut down all the trees – which defeats the purpose and ruins the area for the very purpose of camping.

    2. I’m not sure I agree with you. Property owners are required to make reasonable efforts to protect against known hazards. In baseball they do that by warning because they can’t know when or where a ball will go into the stands. But the government as landowner has a duty to inspect and protect (the level of protection contigent on the status of the person harmed (e.g. business, guest, trespasser)). If it didn’t do that then it is liable just as any ordinary landowner would be.

    3. The issue in this case wasn’t whether the Park Service was in fact negligent. It was whether that putative negligence would fall within the scope of the federal government’s waiver of sovereign immunity.

  5. “Can the suspect, against whom all charges were dropped, sue the detective for false arrest? Fifth Circuit: Qualified immunity.”

    I continue to think that, if you were drafting a modern declaration of independence, “Qualified immunity” would feature prominently in it.

    1. As noted above, qualified immunity didn’t play a role in this case: both the trial court and the Fifth Circuit found that the defendant’s constitutional rights had not been violated at all.

      1. Yeah, “But the Supreme Court has warned that there is no right under the Fourteenth Amendment “to be free from criminal prosecution except upon probable cause.” would itself get an entry in a modern Declaration of Independence.

        The fact remains that it is the judge who is to exercise judgement as to whether a warrant should be issued, not the cop. The process deliberately separates judgement and execution, to prevent judgement from becoming a mere formality.

        Depriving the judge of relevant facts is still an effort to circumvent that judgement, even if the cop himself has enough information to make the judgement. It isn’t his judgement to make!

        So I don’t buy their excuse for denying that there was a rights violation.

        And, yeah, the court did say “qualified immunity”.

        1. “The fact remains that it is the judge who is to exercise judgement [sic] as to whether a warrant should be issued, not a cop.”

          I disagree. The judge’s job is to determine the purely legal question of whether the proposed warrant is supported by probable cause. Deciding the wisdom of instituting criminal litigation is an executive-branch function. If a judge wants to exercise discretion as to whether issuing a particular warrant is a wise way to enforce the criminal law at issue, he or she must step first down from the bench and join the prosecutor’s office or the police department.

          1. ” The judge’s job is to determine the purely legal question of whether the proposed warrant is supported by probable cause.”

            Precisely: It is the JUDGE’s job to decide if there is probable cause, not the cop’s job. The constitutional rights violation of a warrant issued on the basis of the judge deliberately having been kept in the dark about evidence impugning the reliability of the witness isn’t cured by the cop having access to still more evidence the judge was kept in the dark about.

            1. I guess I took your use of the word “judgement ” to mean discretion. The judge’s job is to determine the existence of probable cause. If it exists, his job is to issue the warrant whether or not in his “judgement” it would be a wise use of law enforcement resources to do so.
              I agree, and the caselaw agrees (most famously, the case of Franks v. Delaware) , that when facts material to a finding of probable cause are deliberately or recklessly left out of the warrant application, the ensuing warrant will be invalid.

  6. People can still sue for getting hit by foul balls, they just don’t win. This is very similar, considering that the government didn’t offer a very good argument as to why dismissal was the correct choice. The government just argued that posting a warning was “subject to policy considerations.”

    They won’t win, as long as the government actually bothers to make a real argument.

  7. Ohio abortion case dissent:
    On the one hand, what need is there for substantive analysis? If an act is legal bar the speech (which the law grants), and the speech is constitutionally protected (which it certainly is), then the act + the speech can’t be illegal. That’s just crazy. Court should have been able to quickly dispose of this case.

    On the other hand, what possible legitimate interest could the state have here? An interest in increasing the number of Down’s Syndrome victims? An interest in prohibiting abortion seekers from making rational choices? This doesn’t pass the laugh test.

    1. So if Roe v Wade is overturned, and the government then passes a ban on white parents having abortions, but makes it still legal for non-whites to have abortions, that’s perfectly ok?

      The governmental interest in protecting vulnerable classes would certainly apply in this case – children with Down syndrome are more likely to be aborted than just about any other group, and they’re inherently not in a position to defend themselves (either before birth, or after – Down syndrome, after all).

      Or how about the government pass a law that says abortions for undesirables is not only ok, but will be paid by the state? And then someone creates a non profit organization to execute that plan…. maybe they could call it planned parenthood?

      Where does this line end?

      *i think the state could also pass a law that requires an abortion decision to occur before knowing the sex or presence of any disabilities of the neonate, and for the same reason. China’s run into this problem, where girls are aborted so the parent can try again for boys, and that’s disgusting.

      1. “The governmental interest in protecting vulnerable classes would certainly apply in this case”

        But under Roe v. Wade, the mother’s privacy interest in choosing her own medical care outweighs the states’ interest in the pregnancy, pre-viability. This is true whether the state is acting to protect the right to life of the unborn child, or whether the state is protecting the right to life of the unborn child who is also a member of a particularly vulnerable class of unborn children.
        The state’s interest doesn’t preempt the mother’s interest unless the fetus (with whatever medical issues it might have) is viable outside the uterus it’s housed in.

      2. What is the state’s legitimate interest that discriminates between white and non-white parent abortions? No it’s not okay, because there’s no legitimate interest by the state involved. (Even more importantly, it’s government discrimination on the basis of race, which even if Roe v. Wade was overturned, is still illegal). A state can’t claim anything and everything as a legitimate interest.

        The key issue you’re skirting around – where’s the legitimate state interest?

        Secondly, how can an otherwise legal act combined with constitutionally protected speech become an illegal act? There’s no way that make sense.

        =========
        Specific points:
        Re: vulnerable classes – it’s a fetus, it’s not a child yet. It doesn’t belong to any class deserving protection. And while the future child having Down’s Syndrome may be a legitimate interest of the mother in making the decision, its hardly a legitimate interest of the state’s.

        Down’s Syndrome is a genetic disease. Ideally there would be ZERO babies born with Down’s Syndrome. And we know it’s a genetic disease because we know something goes wrong in gamete cell division, and know precisely what that something is (trisomy 21). Acknowledging that doesn’t mean treating current victims as pariahs – we can have empathy for people who suffer from Down’s Syndrome while at the same time not wanting to create any more, just like we have empathy for amputees without wanting there to be more. Any argument that says we should encourage more victims of genetic disease is like saying we should encourage more amputees by deliberately cutting arms off.

        Re: undesirables: I fundamentally disagree that the state should have any say in who ‘undesirables’ are, outside punishment for the conviction of crimes. So i also reject your ‘government funded’ line of thought.

        Re:China: China didn’t have a gendered abortion problem until the government said ‘only one kid’. Then cultural factors kicked in to prefer boys over girls. The proper solution to that is two-fold: (1) Don’t have a one child policy, and (2) fix the culture. Keeping the government out of family planning and abortion decisions is a good step in the right direction.

        While the government should not be involved (at all) in abortion decisions regarding fetuses carrying genetic diseases, I highly approve of parents who choose not to inflict such disorders on future children, and think it’s a perfectly valid use of abortions. That some people will use abortion to select for unimportant traits like blue eyes or gender is unfortunate but tolerable in a regime which properly leaves abortion decisions solely up to the parents while providing the maximum amount of information. (The proper solution is to foster a culture with low tribalism, so selecting for such unimportant traits is restricted to a tiny minority). You’re literally arguing parents might make poor choices, so we should deprive them of the information they need to make intelligent choices. (And in fact, there’s no way having information about the fetuses genetic diseases could result in MORE poor choices by the parents).

        1. “Secondly, how can an otherwise legal act combined with constitutionally protected speech become an illegal act? There’s no way that make sense.”

          Blackmail law. It’s legal to reveal ugly facts about someone, but not to offer to refrain for money.

          Prostitution laws present the same question: Sex is legal, charity is legal, but you can’t give people money AND have sex with them?

          The law makes a show of being rational, but it’s only a show.

          1. Still no response on what the state’s legitimate interest is, I see.

            Neither of your examples combine an otherwise legal act with constitutionally protected speech.

            Blackmail/
            While revealing ugly facts about someone is constitutionally protected speech, where’s the otherwise legal act? Extortion isn’t a legal act in any context.

            Prostitution/
            You very much can give people money and have sex with them. (See: single-earner households and marriages). What you can’t do is PAY people specifically to have sex with them. And it’s not charity if you’re paying them for a good or service, which sex definitely qualifies as.

            Further, where’s the constitutionally protected speech act? Paying someone to have sex with you doesn’t involve an otherwise legal act that is MADE ILLEGAL by constitutionally protected speech. You’ve presented this as two otherwise legal actions (charity + sex), which is not an action + constitutionally protected speech.

            Aside: prostitution shouldn’t be a crime in the first place.

            Shall I assume from your inability to formulate anything as constitutionally protected speech + an otherwise legal act that it’s really hard to think of any qualifying example?

            1. “While revealing ugly facts about someone is constitutionally protected speech, where’s the otherwise legal act? Extortion isn’t a legal act in any context.”

              Your being deliberately obtuse isn’t the same as my not having made a point. Blackmail is charging money to refrain from engaging in constitutionally protected speech: I expose to the world that you’re a pedophile, I’m protected. I don’t, I’m protected. I offer to refrain in return for money, I’m a criminal.

              1. Still no otherwise legal act. Just constitutionally protected speech and an otherwise illegal act.

        2. “it’s a fetus, it’s not a child yet. It doesn’t belong to any class deserving protection.”

          Not accurate. The problem (from the would-be future person’s point of view) is that the state’s interest in protecting its rights, is that the state loses the “whose interests come first?” argument until the fetus is capable of surviving outside the uterus that contains it.

          1. It can have no rights if it cannot live outside the uterus. Otherwise the mother is a slave. As such, future people have no legitimate claims to rights.

            (Any injury done to a fetus desired by a soon-to-be mother should be prosecuted as a violation of the MOTHER’s rights, not the fetus’s, since it has no rights).

  8. Man declines to speak with police, retreats from his porch back into the living room, where a Santa Rosa County, Fla. officer follows, tackles, and arrests him. False arrest? District court: Could be failing to talk to the officer was a misdemeanor offense (resisting an officer without violence),

    Eh ? Failing to talk to an officer = resisting an officer without violence = misdemeanour ? You have to talk to the cops ? Isn’t there some bit in the Constitution about this ?

    Asking for a friend.

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Trademarks

Go Walgreens!

Why are so many people in Washington DC walking around with Walgreens gear all of a sudden?

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Speaking of logos …  As you are undoubtedly aware, the Washington Nationals have scaled previously unreachable heights and will be playing in their first World Series, beginning this coming Tuesday, against either the Houston Astros (likely) or the NY Yankees (unlikely).

It's a true feel-good story, a nice antidote to the many other feel-not-so-good stories that suck up a great deal of oxygen in our Nation's capital. There's the improbability of it; the Nats lost 31 of their first 50 games, and, should they win the World Series, would be the first team since the 1914 "Miracle Braves" to have dug themselves out out of a hole that deep that late in the season. They had to overcome a history of postseason failure—four times in then last seven years they had reached an elimination game and lost, often in particularly soul-crushing ways—and they had to claw back from being three runs down in two of the elimination games this year (against the Brewers and Dodgers), becoming the first team in major league history to do in two consecutive postseason series.

With all the Nationals gear floating around town, many people have noticed that the Nationals' "curly W" logo bears a rather striking resemblance to the logo of the Walgreen's drug store chain; they are, as you can see above, almost (though not entirely) indistinguishable from one another.

Fortunately, it does not appear that Walgreen's, which has registered the logo with the PTO (Reg. No. 87678728), has any interest in contesting the Nationals' use of the logo—possibly from an excess of public-spiritedness, possibly from a recognition that the company actually benefits by having thousands of people walking around with "their" logo on their shirts and hats, or possibly from a recognition that while the logos are indeed quite similar, it would be difficult to show (as required under the federal Lanham Act) that consumers are "confused" or "misled" by the similarity, given the very different lines of commerce in which the two firms are engaged.  The Walgreen's logo is associated, according to the trademark registration, with a variety of goods and services—"non-medicated hand soaps, nail polish remover, eye makeup remover, moisturizing creams, skin care preparations, pre-moistened cosmetic wipes, deodorant for personal use, cosmetic products, shampoos …"—none of which is remotely related to the goods and services provided by the baseball team, and trademark law makes it extremely difficult to enforce exclusive rights across markets that are completely unrelated.

Go Nats!

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  1. All that aside, walking around D.C. with a red hat these days, especially in certain neighborhoods, might not be the best idea if you want to be left alone.

    1. Are you talking about red as the color of the Republican Party or as the Bloods’ gang color? Kind of ironic that most of the biggest Nats fans I know are prog Democrats

      1. Red, as in it looks like a MAGA hat.

        1. Nats colors are red.

          You’ll be fine these days.

      2. Red as in the color of communism.
        I still am trying to find out who assigned that color to true blue Republicans, and blue to the red-to-the-non-existent-soul Democrats.

        1. Maps used to be blue for Republicans, in general. Here’s an article I read on this issue a while ago, and just dug up again. Political Colors

          1. I noticed this a long time ago. I recall Reagan sweeping to re-election, and ABC news slowly zooming in on a blue map, “That little red area is Washington DC.”

            It’s on YouTube somewhere.

            I wondered if some pop psychologist thought blue was more appealing so media folks re-assigned it to the Democrats in later years.

            1. As in red is more angry and that is unappealing to women-not-that-we-distinguish-or-admit-to-it-in-public.

            2. Yeesh. People whine about the weirdest things. Red = communism and also = Republican party. Dems changed to blue, so this must be the result of some diabolical conspiracy that involves the media.
              Cuz, you know, media bias.
              I’m sure the actual story is interesting enough, without adding on the usual delusional paranoid anti-media and anti-First-Amendment theories.

              #sad

              1. “actual story is interesting enough”
                Not really.
                The networks alternated each election, it was GOP’s turn to be red in 2000, the election got prolonged as we know and it stuck.

                1. Bob,
                  Actually, that’s pretty interesting (in its simplicity) . . . I did not know that story at all. Thanks for adding the actual info. [And since it came from a poster with unimpeachable conservative bona fides, maybe it will shake Krayt loose from his (her?) delusional conspiracy wet dream.]

  2. Nice post, David. But it’s a little misleading to say that the Nats had reached an elimination game four times in the last seven years and lost. If an “elimination game” is one where the Nats’ season would end with a loss, then Game 4 of the 2012 NLDS (Jayson Werth!!), Game 3 of the 2014 NLDS, and Game 4 of the 2017 NLDS were all “elimination games” that the Nats won. Of course, the Nats went on to lose the next game in each instance, and lost the series, but still . . .
    Go Nats, indeed.

  3. What do Nationals fans do after they win the World Series?

    They turn off the XBox and go to bed.

    1. I will be stealing this in the future for any number of sports teams. Thank you.

  4. It’s not a feel good story for Montreal, a great baseball city which embraced Jackie Robinson (unlike Washington, which supports a football team with a racist nickname and had all white sports teams long after other cities integrated theirs), whose team was stolen from them and moved to Washington for cynical political reasons.

    I hope the Nationals get swept.

    1. “great baseball city”?

      Attendance in the Expos last 7 years got over 1 million exactly one time. The last 2 million plus attendance was 1983, Nationals have had that 11 of 15 years.

      Poor attendance doomed them.

      1. That probably would not have been the case if not for the 1994 strike. The Expos that year were probably the best team in the majors and had a good chance of winning the World Series. They had a solid starting rotation anchored by Pedro Martinez, a good bullpen, a good fielding and hitting infield, and perhaps one of the best all-time outfields with Vlad Guerrero, Marquis Grissom, and Moises Alou. The strike really boned that team.

        1. They got hurt twice by player’s strikes. They also had a terrible ballpark. The fanbase was fine.

      2. If what you mean by ‘attendance’ is a sold seat, regardless of the discount to make it sold. Attendance has not meant turnstile counts since 1992.

        1. Yes, you are right.

          Every team counts it this way so you can still make a comparison.

    2. That they used to be the Expos (Ex-Expos, as it were) is why I’m cheering for the Nats. The Expos were my first baseball love and taught me the game is mostly about having your heart broken—I’ll loathe Rick Monday to my final breath—but still hoping, and I wish they were still in Canada, but even so I’ll be happy if it finally has a title to its name.

    3. Someone in Washington like Jackie Robinson though. before he became the first black player in the MLB he was among the first black men admitted to the OCS, and graduated to become one of the first black commissioned officers in the US Army

    4. I assume, then, that you also root against the Minnesota Twins and Texas Rangers, teams that exist after various versions of the Washington Senators were moved — or “stolen” from DC — and became those teams? And every other team that moved (Brooklyn Dodgers, New York Giants, Philadelphia and KC A’s, Boston and Milwaukee Braves, etc. etc.)?

      1. Those teams weren’t stolen. Washington was, and is, a terrible baseball city, and those teams were not moved to Minneapolis and Dallas in order to curry political favor.’

        There should simply not be a major league baseball team in Washington. The city got several chances.

  5. There’s some wiseass driving around northern Virginia with a Nats license plate that has the curly W on the left side, followed by the vanity tag ALGRNS.

  6. They’re tired of being ashamed of being oxycodone addicts?

  7. Fortunately, it does not appear that Walgreen’s, which has registered the logo with the PTO (Reg. No. 87678728), has any interest in contesting the Nationals’ use of the logo—possibly from an excess of public-spiritedness, possibly from a recognition that the company actually benefits by having thousands of people walking around with “their” logo on their shirts and hats, or possibly from a recognition that while the logos are indeed quite similar, it would be difficult to show….

    Or possibly because even if they succeeded it would accomplish nothing except getting a whole of people seriously pissed off at them. Not a good plan.

    1. I much prefer Walgreens to CVS, although the latter is much more common in the DC metro area. I don’t think Walgreens would want to lose what small presence it has.

  8. The team should be renamed to the Washington FUBARs

    Truth in advertising!

  9. Reminds me of the “Kids First” vanity plate I saw several years ago with the added text, “Eat The”.

    Someone was apparently prescient about the looming extinction of all life on earth in 2030.

  10. Walgreens obviously needs to hire more lawyers. 🙂

    Nice to see legal sanity on occasion, as opposed to when Sun Microsystems sent a business named “Javan” a demand they change their name as confusing with “Java”.

  11. DC is the epicenter of evil in the United States.

    Beat the Bureaucrats!!

    Even if that means *** shudder*** the Yankees.

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Today in Supreme Court History

Today in Supreme Court History: October 18, 1960

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10/18/1960: Gomillion v. Lightfoot argued.

The Warren Court (1958-1962)

Today in Supreme Court History

Today in Supreme Court History: October 17, 1862

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10/17/1862: Justice David Davis takes oath.

Justice David Davis

The NBA/Hong Kong Tweet Controversy, and the Symbolism of the Logo

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Sinologist (and Penn professor) Victor Mair (Language Log) has more on one of the less discussed features of the now-famous Tweet from Houston Rockets general manager Daryl Morey:

The question Prof. Mair discusses is: What's with the logo? Here's what the Stand With Hong Kong Facebook page says:

After Daryl Morey reposted our logo in an effort to #StandWithHK and Hongkongers' ongoing fight for freedom and democracy, the Chinese state intimidated both him and the NBA into silence. But what does our logo actually mean?

Our logo consists of the Chinese character for "person/people (人)", repeated five times and converging from around the globe on one place—Hong Kong. The number five represents the five key demands made by protesters in June 2019. The form of the logo resembles the shape of an opened umbrella, a well-known symbol of the democracy movement. It also brings to mind the bauhinia, a flower native to Hong Kong and its official symbol.

We created this logo to raise international awareness of the situation in Hong Kong. Hongkongers across the world stand united in our fight for freedom, building on a long history of protest and resistance.

We are not afraid of intimidation & censorship. Fight for Freedom. Stand with Hong Kong.

Will you join us and #StandWithHK?

standwithhk.org

P.S. NBA, don't you think our logo looks like a team huddle? This is part of the meaning of the design as well.

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  1. These corporations and orgs were so brave standing up on twitter against the vast hordes of antitransgender bathroom and men’s rights activists but now they shrivel up the second Uncle Mao casts a frown their way? What happened?

    1. What happened? Money happened. Liberals (and apolitical folks) can whore their integrity just as quickly and dispassionately as conservatives. Which is shocking news to no one. Pretty much all large-scale/international businesses don’t want to screw up their chance to suckle at the teat of China’s consumers.

    2. China actually represents a real threat to their future business and profits, by threatening to kick out the NBA, if the NBA doesn’t toe the line. If the NBA says something China doesn’t like, the NBA gets kicked out, and doesn’t get to come back for a long time.

      The state of North Carolina (as a counter example)…does not represent a “real threat”. And it’s not because of how big NC is, but because of American culture. No one believes that the state of North Carolina will kick out the NBA, if the NBA doesn’t “agree with” North Carolina laws. That’s not how things work in America.

      If the NBA protests in NC, they can do so…then they can (and will) quietly go back in when things have quieted down to get more profits. And NC will let them. Because we, in America, believe in a diversity of opinions, and that’s OK.

      1. In both cases they kneel to the money. Both are loud virtue signalling.

        In the case of China, the signaled virtue is “We can expect to help export censorship to other nations”. “How wise you are.”

    3. They must think transes can use the wrong bathrooms over in China

      1. If they’re peeing in the bathrooms, they’re in the right rooms for that.

      2. They don’t need bathrooms. They pee on the spot when apprehended by the authorities…

    4. “now they shrivel up the second Uncle Mao casts a frown their way? What happened?”

      Turns out that Uncle Mao has his own country. Whereas the anti-trans folks are here in MY country. Fix THIS country’s screwed up bits before starting in on all the other countries’ screwed up bits.

  2. Great logo, even without the explanation.

    1. To me it looks like a soccer ball (or a FIFA World Cup logo).

  3. What are the five key demands? I recall one of them concerned extradition and that law was repealed.

    What’s the status of the other four?

    1. https://standwithhk.org/

      Universal suffrage, i.e. ability for individuals to vote with equal weighting as any other, and to run for office without arbitrary pre-screening

      Establishment of an Independent Commission of Inquiry to investigate police brutality and root causes of the protests since June 2019

      Retraction of the ‘riot’ designation of the initial protests in June 2019

      Amnesty for protesters arrested in relation to the movement, given the prevalence of excessive and arbitrary arrests

      Withdrawal of the Extradition Law Amendment Bill (pending Legislative Council resumption in October 2019)

  4. Adam Silver should hang his head in shame. This of course, assumes he can actually perceive a sense of shame. Adam Silver has cast aside any moral scruples and made himself a whore for Red Chinese money. It is that simple.

    And the players who willingly go along with this charade are all alike; morally bankrupt money whores.

    1. Why stop at the NBA?

      Do you shop at Walmart or Target?

      Something like 60 – 90 % of their products are made in China.

      I recall reading something like 90% of the toys in the US are made in China and around 60 – 70% of the shoes.

      The Chinese own a lot of U.S. debt — $1.123 trillion as of December 2018: https://www.investopedia.com/articles/investing/080615/china-owns-us-debt-how-much.asp

      But yeah, let’s only bash the NBA.

      1. You are right. We should freeze that debt and impose a complete trade embargo with China.

        1. Sure. What use have we for a functioning economy?

          1. “What use have we for a functioning economy?”

            Trade with China is about 8% of our GDP. Not fatal. We have plenty of toys, heck my daughter can supply a couple dozen families herself.

            1. “Trade with China is about 8% of our GDP. Not fatal.”

              When the Chinese aren’t taking their trade surplus and investing it in our government, who will be?

              Let me guess… your daughter will be happy to pick up the slack?

              1. “When the Chinese aren’t taking their trade surplus and investing it in our government, who will be?”

                They won’t have a “trade surplus” anymore,

                The Fed can just quanitative ease some more.

        2. Now I see why you’re a Trump support.

          Let’s just renege/ignore our debts and debtors, which and who we willingly accepted.

          That’s not how things are done in the grown-up world.

          1. We freeze foreign assets all the time. Yet people still buy our debt and invest.

            The Federal Reserve holds twice the debt as China. It can just buy more. Didn’t you support “quanitative easing” before Trump?

            1. “Yet people still buy our debt and invest.”

              Specifically, the Chinese people do.

              1. Its 5%. Japan is nearly as much, about 4%.

                If you lost 5% of your income, would it mean death or just belt tightening?

                1. Among foreign governments, China is the largest holder of US federal government dept.

                  However, the single biggest holder of US federal debt is the US government itself. around half (give or take a few %) of the US national debt is held by the Federal Reserve and other intragovernmental accounts such as the SS trust fund.

        3. “You are right. We should freeze that debt and impose a complete trade embargo with China.”

          Just stop borrowing money. The trade surplus will take care of itself.

      2. “Why stop at the NBA?
        Do you shop at Walmart or Target?
        Something like 60 – 90 % of their products are made in China.”

        Because there’s a difference between buying from a low cost supplier, and bending your ethics to gain acceptance into a country’s market.

        Because if China told Walmart “If you want to buy from us, you’d better not criticize us…or else…” Walmart would look at that, look at the potential threat to its supply chain, and change suppliers to a more reliable supply chain. Not unlike what’s happening now, with the China tariffs, and companies moving their supply chains out of China.

        Walmart only buys from China, because it’s a low cost, relatively dependable supplier. The second China stops being such, they’ll switch to the next supplier in an instant.

      3. For better or for worse, the elected leaders in the west have chosen a policy of economic engagement with China, so companies opening up shop there are ok and doing the desired policy of said elected officials.

        That’s a far cry from exporting censorship, and tring to wear a halo for it, like its virtual signalling from Evil Lebron in the Mirror Universe.

    2. “Adam Silver should hang his head in shame. This of course, assumes he can actually perceive a sense of shame. Adam Silver has cast aside any moral scruples and made himself a whore for Red Chinese money. It is that simple.”

      That bastard capitalist. Trying to make money by running a business.

      1. Hey Pollock, I have no issue with the NBA wanting to make money. I want them to make lots of money. Capitalism works.

        That said, the virtue-signaling and hypocrisy of Adam Silver and NBA players is truly something to behold. The term – a whore for Red Chinese money – fits them perfectly. If the NBA wants to pimp themselves out to the highest bidder, they are free to do so. Just as I am free to call them out for it.

        1. Artie Ray Lee Wayne Jim-Bob Kirkland asked me to thank you for mentioning hypocrisy in the context of a blog that engages in hushed, partisan, viewpoint-discriminatory censorship, then loudly faults censors in other contexts.

        2. Hey, A_S.

          I guess from your name that you are a fan of Milton Friedman. Remember that he said business has no social responsibility other than making money.

          And I wonder what Ms. Rand herself would have thought about this.

          I mean, I agree that the NBA shouldn’t be sucking up to China here, but I’m surprised so many libertarian, Randist, etc. think so.

          1. You must have missed the NBA’s proud woke stands on various far-left causes here in the US.

            1. Why do you say that?

          2. Rand would have said not to sell put your morals to the highest bidder. But you obviously have no idea what her beliefs actually were, so go with your ignorance.

            1. “Rand would have said not to sell put your morals to the highest bidder”

              Selling out to the lower bidders is bad business.

          3. Bernard….I am a fan of Friedman. I thought his writings that discussed a negative income tax pointed to a way to address our bloated bureaucratic state.

            Here is where the difference lies: Are the actions of the NBA consistent with honesty, transparency, a free exchange of value for value based upon agreed upon rules? The answer in this case is No.

            The hypocrisy is what I find particularly grating.

        3. ” The term – a whore for Red Chinese money – fits them perfectly.”

          Yeah, those bastards will do whatever it takes to make a buck. Darn capitalists. And they won’t even STAY bought.

      2. Trading blow jobs for 40’s is capitalism too. Doesn’t make it acceptable

  5. When Britain decided to give Hong Kong back to China, they announced their intention to do so several years before doing so. People in Hong Kong remained in Hong Kong despite knowing it was going to come under the authority of the PRC. They made their choice. As it is, they get more freedom than the rest of the PRC does.

    1. That argument may work for everyone who was old enough to leave by 1997, but what about, you know, everyone under the age of 40?

      1. What about ’em? Until the protests shut down the airport, it had international flights.

        1. Ohhhhh. Love it or leave it.
          What a concept I never thought of it that way. Sheds all new light on on the civil rights riots. They should have just left.
          Why make things better?

          1. They chose what they chose. I didn’t choose it for them. Fixing their problem(s) is not my responsibility today.

            If, tomorrow morning, President Trump announced that he was giving Iowa back to the Indians, and you decided to stay in Iowa even though you are not an Indian, would it be my job to rescue you, should the new tribal government turn out to be holding a grudge or two about how the tribes were treated while their lands were occupied by foreign invaders?

    2. They made the choice with the understanding that China wouldn’t do anything to them for 50 years, as was written into the constitution. That agreement has obviously been broken repeatedly by China.

      1. Gosh, China represses people under its power? Why didn’t anyone say so until now?

        1. I love President Trump.
          There is not another person ever that can get people to defend the worst of the world. China has murdered millions of its own citizens, and all the leftist can do is shrug.

          1. “all the leftist can do is shrug.”

            Let me guess… anyone who disagrees with you about anything is “leftist”, regardless of the positions they actually advance, right?

            Fixing China is not my problem, nor even vaguely within my power to accomplish. If that says “shrug” to you, so be it.

        2. The protests are their way of saying something about it, you fucking idiot.

          1. Learn to fucking read before you fucking comment. Doing so will help you avoid saying stupid things.

    3. That ignores the terms of the deal which guaranteed Hong Kongers with their civil rights until 2050.

      Unless of course you are saying no rational person would trust the guarantee of a communist regime to respect civil rights, then I’ll have to concede your point.

      1. What communist regime ever broke its promise to respect civil rights?

    4. ” People in Hong Kong remained in Hong Kong despite knowing it was going to come under the authority of the PRC.”

      Yup. And black people in the Jim Crow south stayed there after emancipation, despite knowing that white people there were racist. If black people didn’t want to get lynched, why’d they stay in the south, amirite?

      1. “black people in the Jim Crow south stayed there after emancipation, despite knowing that white people there were racist. ”

        Sure, except for the ones who left the sourth, and discovered that there were plenty of racist white folks up in the north, too.

  6. Once upon a time, the United States took the best and brightest engineering students and science students from around the world, brought them here, educated them in American universities, and then put them to work building American industry.
    Then, some nativists starting complaining about all the foreigners taking slots in American universities and American businesses and demanded that we restrict how many of them could come here, and we actually started to do that.
    So the best engineering students and science students stayed in their own countries, and built industry there, where it now competes with ours.
    That’ll teach those dirty foreigners they can’t compete with American ingenuity and work ethic. Er, unless they can, I guess.

    1. You’re not describing China. What the Democrats didn’t sell to them, they stole.

      1. Yes, China. That big country on the east end of Asia. That one. (India, too.)

    2. So the best engineering students and science students stayed in their own countries, and built industry there, where it now competes with ours.

      Your understanding of world economics is amusing.

      1. Your lack thereof isn’t.

      2. I don’t always agree with James Pollock, but on this he’s full-on correct. Our hostility to China has been so broad-spectrum that we’ve ceded being the best place to do research worldwide, and America’s research leadership is now under threat in multiple areas, largely by China.

        1. “we’ve ceded being the best place to do research ”

          Why is a dictatorship without political or civil rights a “best place”?

          1. You aren’t supposed to ask how a dictatorial regime where free speech is verboten is the best place to do any research. It, apparently, just is. Cause…FYTW

              1. The authors of this op-ed:


                Dr. Emanuel is vice provost for global initiatives at the University of Pennsylvania. Dr. Gadsden is executive director of Penn China Initiatives. Dr. Moore is director of the Penn Global China Program.

                Come on, be a little more skeptical.

                1. Ad hominem is all you got?
                  Do you think the facts he brings are lies?

                  1. Do you think the facts he brings are lies?

                    Considering the source, I’d say the ‘facts’ they cite probably lack a lot of context. This observation is based on past behavior.

                    1. Then engage the facts and bring in the context.

                  2. It’s an opinion piece. There is no world court of scientific research that countries cede control to each other on. It’s fluff. The facts are what they are, but they certainly don’t prove that the US “surrendered to China” on anything. The “[a]d hominem” here is not to discount the facts, but to discount the hyperbole.

          2. They’re not the best; we’re just no longer the magnet we once were due to are paranoid stance about immigration generally and former Chinese nationals in particular.

            1. No longer the best place for Chinese is what you mean.

              Fair enough.

              “paranoid stance about …former Chinese nationals in particular”

              Even paranoids have enemies.

              https://newrepublic.com/article/150476/american-elite-universities-selfcensorship-china

              Are the things described in that article not troubling to you?

              1. What does that have to do with scientists doing research?

                Do you think we should settle for not the best people out of fears of China’s global reach making people scared to talk about China?

            2. Chinese students are still the largest foreign cohort, over 1/3 of the total. We are still the only real magnet in the world but it’s inevitable that countries like China will develop domestic intellectual resources as their economy grows. It has nothing to do with your imagined widespread nativism.

              1. Advocating that we rest on our laurels is a horrible idea.

                It’s not just that China is increasing it’s research share, it’s that ours is decreasing.

                This is not inevitable. Talk to a foreign-born scientist about the BS they need to put up with here.

                1. I don’t know any so why don’t you tell us about the BS?

                  1. Having to deal with two separate return dats / one from the visa and one from cbp
                    Having to lie to avoid having dual intent
                    Having your spouse and children being forbidden from working
                    Having to return to your country for two years before you can continue your studies once your graduate studies are done
                    Not being able to leave the country once you apply for a green card because that’s proof of intent to stay in the country and thus forbidden
                    Being unable to start a business because that doesn’t count as employed for visa purposes

                    Off the top of my head.

                    1. And that is different from what country anywhere? How is it for foreigners working in China?

                    2. From foreign students/profs I talk to, these irrationalities do not apply to the EU or India.

                      And these are the ones that still chose to come to the US.

                      Besides, your blithe dismissal as probably fine makes no sense. These are bad policies. This is not some cost-benefit. This Kafka-esque legal maze is just the price you pay for not being flooded with…smart students who want to do science here?

                    3. My son-in-law worked in France for five years and I can assure you that whatever hassles people working here experience they pale in comparison.

                    4. France’s immigration laws are governed under the EU, so I don’t think you’re right. The EU doesn’t have the dual intent and 2-year return policies, at the very least.

        2. So if we didn’t have this “broad spectrum” hostility to China, which I take it to mean that we object to them stealing our intellectual property among other things, then we could go back to being the “best place to do research?” It’s hard to rank the nonsense that you spout but that has to be right up there.

          1. If our reaction is to institute policies that make it unappealing for smart foreign researchers to come here and (more importantly) stay here, then regardless of China’s sins, we’re screwing the pooch.

            1. You realize Americans can be smart too.

              1. If we limited our academic researchers to only Americans, or only allies, we would be making a seismic contraction in our research enterprise.

                It’s been like that for a while

                1. We took in Europe’s best scientists after Germany shooed them out in the 30’s. How’d that work out for us?

                  We invested in education after the war. That worked out pretty well for us, too.

                  How well is telling them “nah, stay home, and develop new technologies and industry there. We’ll come get it” going to work out for us?

                  1. Nobody is telling them to stay home. That is just in your head. There is no proof of that whatsoever. But you have Sarcastro believing it that’s something I suppose.

                    1. You know nothing about immigration law.

                      We tell people to stay home regularly.

                    2. That is one of the dumber things you have said in a long time, and that’s saying something. Over a million foreign students a year, we basically just shut the door on people coming in.

                    3. Not on everyone, but we do shut the door on people by making it much harder than it needs to be. That sends a message.

                      And that doesn’t count all the chuckleheads who think every foreign student is a potential agent of their government. Way to make a welcoming atmosphere.

                      We’re leaving good talent and high-skilled future Americans on the floor for others to pick up.

                      I’ve talked to people who work in the area and some who have had to deal with the system. You, on the other hand, don’t seem to be bringing much except not much liking immigration.

                    4. “Nobody is telling them to stay home. That is just in your head. There is no proof of that whatsoever.”

                      Boy, you sure showed me by citing all those facts. What was I thinking, believing all those people who say they want to sharply reduce immigration, particularly among tech professions like scientists and engineers, because the durn furriners are competing with Americans, and beating them at getting American jobs.

                2. That study was published in 1984 so either you didn’t know that or you think we have been nativists since then, even through the Clinton and Obama years.

                  1. read my comment. I chose that study to show how long our research enterprise has been reliant on foreign talent.

            2. Well we haven’t done that so I guess we’re okay. And I’m not sure what you mean by “foreign researchers.” Are you talking about employees or students? In any case it doesn’t matter because we continue to increase the number of H-1B visas and the number of foreign students continues to grow.

              1. “Are you talking about employees or students?”

                I was talking about both. Ever notice how there’s a lot of industry around good engineering schools?

    3. Foreign student enrollment in US colleges and universities has increased every year since 1949. In the last three years enrollment exceeded one million foreign students. The rate of growth has slowed but that is mainly due to soaring costs in the US.

      So I guess the nativists in your head has been doing a better job of keeping the foreigners out than the ones in the real world.

      1. “Foreign student enrollment in US colleges and universities has increased every year since 1949.”

        By an amazing coincidence, so has every other population metric. Almost like people keep having babies.

      2. As noted, that’s an awful metric unless normalized. And when you do normalize it, our share of foreign student enrollment has dropped recently. Started, oh, about 2017.

        Also, an important point: foreign students/post-docs/professors are only foreign temporarily. These are usually not economic refugees; they are high skilled and in demand. They have freedom of movement and came here as a choice; they are generally looking to become American citizens.

        1. The only reason for any rate drop is the ridiculous rise in education costs here, mainly due to administrator bloat. That and China in particular has developed some good schools. Still Chinese student enrollment has only dropped 1.5% in the last few years, so basically a trivial drop. Has zip to do with imagined nativism.

          1. Grad students in many sciences are financed by grants and don’t pay tuition cost.

          2. And normalize your percentage somehow. With population growth, and our flagging publication/cited publication rate, your dismissal looks pretty silly.

            1. 390,000 to 384,000. Oh the humanity!

              1. Oh, ffs.
                Are you bad at statistics, or trying to deceive people?

                1. That represents the rate drop of 1.5% of Chinese students here between 2016 and 2018. I gave you the raw numbers. That doesn’t indicate that we are excluding “furriners” as Pollock likes to say. Neither of you has been able to show that the very slight reduction in enrollment is based on anti-immigrant sentiment. Pollock basically does a poor version of Arthur, and while you do a better job of supporting your view I still think it quite insufficient.

        2. I don’t think James’s point was that China began competing with the US in “about 2017”.

          1. Well I’m not sure Pollock has a point other than his imagination but I certainly never said that so I’m not sure what your point is.

          2. Sure – and I would agree with him we’ve been dumb in this area for a while, but then the conversation went to donojack who thinks everything is going great, so I picked the starkest example.

            Though his best info is his son-in-law having a hard time in France.

            1. They had a great time in France and made a ton of money, but there was a lot of bureaucratic red tape. My whole point was, so what? It’s not that big a deal, and it certainly doesn’t seem to be discouraging people from coming to the US.

    4. Electronics. Majority built off shore. We might be getting some of that production back. But why do we desire the electronics? Content. Who is creating content?
      You can educate engineers and Doctors. But where does innovation come from? Free societies

      1. Dunno what that says about America if we’re getting overtaking by China in the innovation space.

        1. Numbers of published papers don’t tell us anything about real innovation. The Chicoms decreed that R&D would be 2.5% of GDP so there have to be some papers to show for all that extra spending.
          Do you seriously think that the quality of scientific research in China is equivalent to the US? Let’s see what great things they come up with. Maybe it will be as impressive as the accomplishments of the Soviet Union.

          1. Agree about that, but more robust metrics like Fractional Count or H-Value are also not looking good.

            Do a bit of Googling around. China overtaking us in the basic research space is not some out-there notion. By denying it, you’re the outlier.

            https://www.economist.com/science-and-technology/2019/01/12/can-china-become-a-scientific-superpower.

          2. Quality varies from area to area. We beat China in some areas, and not in others. Certainly China is getting a better bang for it’s buck at the moment (though they thusfar spend less bucks in absolute terms).

            I’d also like to think that a free society and market are a fuel that makes for a level of innovation that a closed society cannot match. I don’t think it’s borne out by the numbers.

            1. I’d also like to think that a free society and market are a fuel that makes for a level of innovation that a closed society cannot match. I don’t think it’s borne out by the numbers.

              We’ll see I guess. Replacing market forces with fiat as in the five year plans has not worked very well so far, but China is not as closed a society as it once was nor as the Soviet Union was so they will do better the more capitalist they are and the less communist.

              1. We’ll see I guess

                No, that’s not how you make good policy.

                1. Why do you thing R&D decisions, mostly by private companies should be “policy?” That’s what the commies do.

  7. I keep wondering, what percentage of the NBA’s total revenue comes from China. I can’t believe it’s really that huge, even if there’s some TV, an occasional exhibition game, and a little bit of royalties off shoe sales. Yes, the NBA might be dreaming that in decades to come if will be heewdge… but today

    1. According to Forbes, NBA revenue is $8 billion and according to USA Today last week it is $500 million from China.

  8. If the NBA’s choice to cater to their Chinese customers offends you, don’t buy their products.

    1. Already done. I just LOVE watching hypocrites getting speared so thoroughly as they are.

      Cord-cutting is going to DEVASTATE the NBA. And that makes me feel all warm inside.

      1. Bragging about enjoying the misery of others? No, no, nothing psychotic happening here…

        1. The misery of Lebron James, hmm. Enjoying that? Nothing short of psychotic.

Please to post comments

"It's Called 'Show Business,' Not 'Show Show' or 'Business Business'"

|

A nice line from legendary producer (Batman, Rain Man, Flashdance, and many more) Peter Guber, as reported by my colleague David Ginsburg. (For a published briefer version of the line, see here.)

Mysterious Swastika Incident at Yale Law School

A hate crime that wasn't?

|

On October 8th, the Yale Daily News reported:

Late Saturday night - between the Jewish High Holy Days of Rosh Hashanah and Yom Kippur - anti-Semitic graffiti appeared on the steps of the side entrance to Yale Law School.

The graffiti depicted a white, spray-painted swastika above the word "Trump." By noon on Sunday, the graffiti was covered with black paint and a doormat. It has since been removed entirely. On Monday, Yale Law School Dean Heather Gerken issued a statement to the YLS community reaffirming the school's values, offering support and notifying the community of an upcoming investigation.

"We are saddened by this act of hate against our community at any time but understand that this is particularly difficult occurring between the High Holy Days," said Ellen Cosgrove, associate dean of students at Yale Law School. "Diversity and inclusion are core values of our institution [and] attacks against individual students or communities of students will not be tolerated."

Gerken emphasized that there is no evidence that a member of the Yale community painted the swastika, and stressed that the act of anti-Semitism is "utterly antithetical" to the values of the Law School.

"Yale Law School has zero tolerance for discrimination or harassment of any kind, and symbols of hate have no place on our campus or in our society," Gerken said. "We take an incident like this extremely seriously and are currently investigating."

Gerken encouraged anyone with information to reach out to her office.

Organizations in the Yale community, such as the Law School's Office of Student Affairs and the Joseph Slifka Center for Jewish Life, responded to the incident on Monday, condemning the action and offering support to students.

Rabbi Jason Rubenstein, Jewish chaplain at Yale, wrote in an email to the Slifka community Monday evening that the investigation into the perpetrator's identity is ongoing and is "relying on video footage from late Saturday night and early Sunday morning.

Anyone who has been following such "Trump plus swastika in very liberal environments" incidents would immediately suspect one of two things: (1) a hoax; or, perhaps more likely (2) the vandal(s) in question weren't trying to say "I support Trump and he's a Nazi," but rather "I hate Trump because he's a Nazi." Nevertheless, everyone at Yale treated this immediately as a presumptive hate crime.

Having seen the initial reports, I checked google for any followup. There was none that I could find. I wrote to Dean Gerken:

Dear Heather,

I just checked Google, and there appears to be no news about the swastika incident in the last several days. Early reports said that video surveillance existed to help identify the perpetrators. Has this video been released to the public yet to help the identification? If not, why not? Writing in my capacity as a blogger for Instapundit and the Volokh Conspiracy.
Best,
David
I received the following reply:

Hi, Professor Bernstein. Dean Gerken said that you had inquired about the graffiti incident last week. Any updates on the status of the investigation would have to come from the Yale Police Department.

Jan

Jan Conroy Chief Communications Officer Yale Law School

I responded:

Ms. Conroy, with all due respect, the law school sent out a release about this and would be the owner of the relevant surveillance video. Is there some reason the law school hasn't released the surveillance footage? Surely that would help identify the guilty parties.

That was Monday. I have not received a reply. I tried reaching out to the Yale police department, but was unable to reach a spokesperson.

Having informed law school and broader communities that a hate crime took place at the law school, I find it mysterious that the school has neither released the surveillance footage nor provided any updates as to the progress of the investigation.

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  1. Whether by the right or a hoax by the left, the statement just describes what happened and that it, and hate, are bad and will be investigated.

    I don’t see how that means Yale is on the hook to do its own investigation and can’t refer things to the police.

    1. They said the college was reviewing video, you’d think that in the interests of justice that they’d release the footage of such a horrible hate crime being committed.
      Golly, what reasons could the college have for suppressing the video?

      1. The cops asked them not to?

        1. 1: Why would the cops ask them NOT to release the video? Don’t they want help identifying the responsible people?

          2: If the cops DID ask them not to release the video, why don’t they simply say so?

          Honest people don’t need to hide what they’re doing, in this kind of case.

            1. Reminds me of the incident at Harvard a few years back. Someone used black tape to cover up the names of minority and/or black professors. Seems likely there was video of peeps as it was in a building, yet it somehow disappeared from coverage after the initial outcry

            2. “Greg J
              October.16.2019 at 2:20 pm
              1: Why would the cops ask them NOT to release the video? Don’t they want help identifying the responsible people?
              2: If the cops DID ask them not to release the video, why don’t they simply say so?
              Honest people don’t need to hide what they’re doing, in this kind of case.

              David Bernstein
              October.16.2019 at 2:59 pm
              Exactly.”

              Not exactly exactly. Police periodically ask television news departments not to broadcast video recordings related to investigations. Less frequently, in my experience, they request a recording and/or ask the journalists not to disclose that a recording exists. Broadcasters often request and receive a ‘most favored reporter’ arrangement in return for cooperation in this context.

          1. “1: Why would the cops ask them NOT to release the video? Don’t they want help identifying the responsible people?”

            You’re making an assumption about what’s on the tape. You should avoid doing that.

            But, some actual answers:
            1) the cops think the person in the video is someone who lives outside their jurisdiction, and they’re hoping to avoid letting the suspect know they’re on to them, and waiting for them to get caught inside the jurisdiction.

            2) The cops might be worried about people taking action extrajudicially.

            3) The cops aren’t actually taking the incident seriously, and don’t want to be pushed.

            4) the video doesn’t actually show anyone doing anything wrong, just people who might have been in the area. (IOW, the video isn’t pointed at where the vandalism happened, but it’s nearby… so anyone in the video MIGHT be a suspect, but not without corroboration.)

            “2: If the cops DID ask them not to release the video, why don’t they simply say so?”

            They said to contact the police. That’s the place questions about the surveillance should be directed. Spending extra time explaining this is a waste of their time. “Go talk to the cops” is a one-sentence answer that covers everything.

        2. You mean the campus cops who actually work for the College? Because they’re the only cops involved.
          You don’t even seem to understand what’s going on, but you’re going to shill for your teammates regardless.

          1. “You don’t even seem to understand what’s going on, but you’re going to shill for your teammates regardless.”

            You seem to have a problem with psychological projection.

            1. How the hell is that projection?

              You seem to have a problem with using buzzwords you don’t understand, in an effort to try and come off as intelligent.

    2. I’m no Trump supporter.

      But if I had to guess whether anti- Trump people wanted to associate Trump with a swastika or pro-Trump people wanted to associate Trump with a swastika, especially on the Yale campus… am I really nuts to think anti-Trumpers have more (any?) incentive to do such a thing?

      I’m really not wishing for a particular outcome or narrative. I’m just trying to work out the scenario where actual Trump supporters would come to Yale to commit a crime that puts Trump in, not only a negative light, but a negative light that fits the narrative of anti-Trumpers.

      Even if we make no assumptions about what might incentivize Yale (or Yale police) to not want the contents of the tape shown, I think it’s reasonable to try and figure out the possible incentives of the perpetrators.

      Do Nazis sit around thinking, “you know what we really need to do to further the cause of white pride and bigotry? We need to convince the students and faculty of Yale that Trump is a Nazi! It’s the perfect crime because it furthers our enemy’s narrative and not ours. It will confuse them into submission!”

      Sorry, but I’m having a hard time picturing this being on even the most irony-loving Nazi’s to do list.

  2. I no longer by default believe a given statement comes from whichever political faction it seems to. But Slyly intimating that the default assumption is a hoax is also not a healthy position to take.

    Antisemitism is a problem on both sides of the aisle. Giving this kind presumption to one side and not the other is not going to solve the growing problem.

    1. How many “Nazis for Trump” do you think live near Yale Law School, compared to how many of the “I think Trump is Nazi-like” persuasion? There’s a Bayesian aspect to this.

      1. That reasoning seems questionable. Often it’s the zealots of one side that are immersed in a sea of ‘non-believers’ that are the most agitated to ‘act out.’

        1. I don’t think that’s an empirically sound assertion.

          1. I don’t think there’s much empirical evidence to support either way, but would be happy to be corrected. My point is that while ‘there’s more X radicals than Y radicals in place Z, so therefore any radical act is likely done by X radicals’ is reasonable it’s also reasonable that ‘Y radicals living in a climate of so many X radicals produces greater agitation for Y radicals to act radically’, or that ‘place Z, known by Y radicals to be a climate of so many X radicals, is prime grounds for a radical act’ (this is how ‘trolling’ works, no?).

            1. Even if a “Nazi for Trump” were 100 times more likely to vandalize than a “I think Trump is a Nazi”, there are way more than 100 times the latter than the former in the Yale environs.

              1. But we’re talking about the probability of someone doing a radical, illegal act, which implies things like motivation and strategic choice of target. For example, a person surrounded by those they disagree with on fundamental issues could reasonably be posited to be much more likely to be agitated to ‘act out’ in a radical (illegal) way than those who are in a largely supportive environment. Again, this isn’t strange, it’s exactly how ‘trolling’ often works (trolls are attracted to act out more in venues where most people don’t support their positions).

                1. Except that if you do the illegal act and you are a racist, you are going to jail. If you do the illegal act and you were “well-meaning” or “disturbed because of Trump,” the matter will be quietly dropped.

                  1. It will? Is there general evidence of that?

                    1. Justin Smollett. QED

                      Can you provide any evidence of an individual who pulled a hoax and was prosecuted to the “full extent of the law”? That is, was prosecuted on every possible charge, and received the maximum sentence for every count on which there was a conviction?

                  2. Also, are you know changing your argument from ‘well, since there’s many more X radicals than Y radicals it’s safe to assume the radical act was done by X radicals’ to ‘well, since the political/legal environment is more likely to look askance at radical acts done by X radicals it’s safe to assume the radical act was done by X radicals?’

                    That’s not unreasonable. But do you find radicals are often dissuaded by that (think of the Quakers who kept coming back to Massachusetts until they got hanged)? Human nature is funny.

                    1. I guess it is up to Queen to please give us some real examples of these “hate crimes,” etc. that turn out to be real, rather than fake. There have been many fake ones, and off the top of my head, I can’t think of any real ones.

                    2. These sorts of incidents are almost (>90%) always hoaxes. It is almost impossible to find an incident where it was a real threat by a “racist”, on the other hand “hoaxes” are too numerous to count.

                      There is a more fundamental reason to disbelieve this incident: True Nazis don’t commit vandalism, they kill people.

                    3. “There is a more fundamental reason to disbelieve this incident: True Nazis don’t commit vandalism, they kill people.”

                      would-be Nazis don’t kill people, they commit vandalism. Nice try, though.

                    4. would-be Nazis don’t kill people, they commit vandalism

                      See, e.g., Antifa

                2. What’s the probability of a random unconnected troll doing a s*** disturbing prank for lulz of watching everyone point fingers and try to stake the high ground for their side?

              2. BTW-Trump got 42% of the vote in New Haven.

                1. Which isn’t really relevant because a very high proportion of the New Haven community are students registered to vote somewhere else. The vote by long-term residents (that is, those eligible to actually vote in New Haven) is a poor predictor of the opinions of the student+townie population and not at all useful in measuring the opinions of just the students (that is, those most likely to be on the Yale Law School property).

                2. Actually, Clinton got about 36K votes in New Haven to Trump’s 4,500. https://www.nytimes.com/elections/2016/results/connecticut

                  1. yeah — per wiki the 42% is for New Haven COUNTY. The city is majority minority by quite a bit, and, excluding the Universities, extremely poor. Not a bastion of Trumpism.

                3. Hey Queen Amalthea.
                  Remind me again how supporters of a President with Jewish offspring, who is accused of being a Zionist in Netanyahu’s pocket by the left and who made history as first sitting President ever to say Jewish prayers at the ‘Wailing Wall’, are Nazis.

                  1. well, a lot of them aren’t too bright.
                    They claim “family values” are critical, but support the porn-star-hush-moneying Trump to the still-married-to-his-first-wife Obama.

                    1. That’s pure (BS, in my opinion) opinion, but it doesn’t address the question Fancy asked. Whether he screwed some porno star or not, how does that make his Jewish offspring Nazis?

                    2. Who claimed his Jewish offspring are Nazis?

                      And, while you’re working that out, how does having Jewish offspring prevent someone from being like a Nazi?

                    3. “Antisemites will support a vociferous philosemite because they’re dumb”
                      Do you come from Bizarro World? Only there would an absolutely fucking retarded argument like that make sense.

                      “support the porn-star-hush-moneying Trump”
                      They support Trump because they don’t think he hates them and actively wishes them harm. Not because he’s a moral icon.
                      If you lefties toned down your sociopathic, anti-xtian eliminationist rhetoric for a bit, you might have a better chance at the polls.

                    4. You’re confusing the president, an administrator, with a role model.

                      Trump is no role model, but he is generally giving more freedom to families and individuals.

                      Obama may be a great role model, but he was a lousy administrator, and his policies hurt many families.

                    5. ” Only there would an absolutely fucking retarded argument like that make sense.”

                      Well, you wrote that argument, so we agree that your arguments are dumb.

                    6. “If you lefties toned down your sociopathic, anti-xtian eliminationist rhetoric for a bit, you might have a better chance at the polls.”

                      If you idiots did a better job identifying non-partisans, you’d have a better chance at the polls. Buh-bye!

                    7. Who the hell would vote for a non-partisan, Pollock? I want leaders to stand for something and believe in something aside from their own greed.
                      Your attitude is what let the queen of warmongers, embodiment of corruption, and personification of the rot, run for President.
                      Gibbering halfwit.

                  2. If you want examples of Nazis or white nationalists/supremacists supporting the President, David Duke, Andrew Anglin, and Richard Spencer to name a few from a quick google search.

                    1. The same David Duke that endorsed Obama and Gabbard?

                      Oh, and you can fuck off with Richard Spencer. You know as well as anyone he’s entirely a media creation. May as well say Lex Luther.

    2. “default assumption is a hoax is also not a healthy position”

      Why not? There are many examples of hoaxes, ranging from Smollet to the “nappy hair” incident where Mrs. Pence works.

      When it happens in left wing environments, its a safe bet.

      1. Any evidence there are more hate crime hoaxes than actual hate crimes?

        1. The overall rate is not the question, though. Trump supporters are very thin on the ground at Yale while Trump antagonists are numerous. And then the fact that the surveillance video isn’t being released suggests that it is embarrassing to Yale. If it actually showed some MAGA-hat rednecks sneaking up to the Yale library, you can be pretty sure the video would be everywhere. So I’m betting hoax just like I did with this case not far from where I live in Ann Arbor (which has also seen at least a couple of other hate crime hoaxes since Trump was elected).

          1. “The overall rate is not the question, though. Trump supporters are very thin on the ground at Yale”

            There’s this thing called an “automobile” that allows people to move from place to place, using public roadways. As you note, Trump antagonists are not shy about their antagonism. So that’s a vandalism target worth travelling to visit.

            Maybe it’s real, maybe it’s fake. Either way, the perp is to be pitied.

            1. There’s this thing called an “automobile”…

              Yes, it’s possible some Trump supporters drove into New Haven to do the deed. But this strikes me as just about as likely as Trump supporters driving to Chicago to lie in wait for Jussie Smollet in Streeterville. Do we have any examples ANYWHERE of actual Trump supporters wearing MAGA hats and waving swastikas? You don’t have to merely believe it’s likely that some Trump supporters drove to New Haven, but that Trump supporters did this AND wrote ‘Trump’ with a swastika and somehow thought that was a good message for their side.

              1. ” this strikes me as just about as likely”

                Must be true then!

        2. Queen Amalthea asked “Any evidence there are more hate crime hoaxes than actual hate crimes?”

          Sure!

          Please give us links to the ten worst actual right wing hate crimes you know of, in the US, since Trump’s election.

          For every one you come up with, we’ll come up with two fakes that pretended the same, or worse, crimes.

          1. Ignoring the left/right divide, the ability to find evidence of real crimes vs hoaxes in incidences boosted by the media actually isn’t evidence of more hate crime hoaxes than hate crimes. It’s evidence that of hate crimes pushed for attention by the victims and/or media that the majority of that subset are hoaxes. As a general rule, people’s first instinct upon being the victim of an actual crime is not to blare that fact to all and sundry, and if media is repeating a fact over and over it’s because they find doing so advantageous to their agenda. This means they will be less inclined to scrutinize the claim in question.

          2. “Please give us links to the ten worst actual right wing hate crimes you know of, in the US, since Trump’s election.”

            The FBI reported 7,175 hate crime incidents in 2017. Are you going to link to 14,000+ fakes?

      2. Many examples’ ruling the day is the essence of confirmation bias.

        I can think of many actual examples of racist expression. But I recognize the urge to generalize based on those examples as not one grounded in truth.

        1. Sure, but as of yet, I haven’t seen anybody providing evidence of actual hate crimes. Certainly not of the type alleged.

          For example, here in Minnesota, I can think of three different colleges that have had similar incidents reported. All were hoaxes. I can also think of one hate crime (some guys through an explosive device through the window of a mosque). The real attack involved violence, and there were no symbols attached. The hoaxes occurred on liberal campuses and, in at least two instances, were done by people with an agenda to push. Each of those also involved graffiti or postings similar to what’s reported here.

          Given that, you can understand the skepticism.

          1. as of yet, I haven’t seen anybody providing evidence of actual hate crimes

            You think there are no hate crimes, only hoaxes?

            Your second paragraph is again confirmation bias exemplified. You wouldn’t remember or credit actual hate crimes. Or maybe given your circles you wouldn’t hear of them. Regardless, you pay more attention to the examples that prove your narrative. That’s how the human mind works.

            1. “You think there are no hate crimes, only hoaxes?”

              He didn’t say that — he said that this particular type of incident (racist messages/symbols posted anonymously on liberal university campuses) have routinely turned out to be hoaxes. In fact, I’m having a hard time thinking of a single incident of this type that turned out to be genuine. Do you have any examples?

              1. I quoted what he said. It’s not what you say he said.

                1. But you didn’t read it, because the second part of the paragraph identifies a hate crime, yet you respond to the part you quoted by asking “You think there are no hate crimes, only hoaxes?”

                  Obviously, I don’t, since I talked about one in the very paragraph you quoted. But the actual hate crimes have generally involved actual violence and have not used hate symbols. The ones that occur at college campuses and consist of graffiti have all been hoaxes.

                  1. Yes, I agree. Once you exclude all the non-hoax hate crimes, all the ones that are left are hoaxes.

                  2. The ones that occur at college campuses and consist of graffiti have all been hoaxes.

                    Forgive me if I don’t believe your bare assertion unless you bring statistics.

            2. You think there are hate crimes, but can’t even come up with an example of a real one?

              Which argument is more based on evidence – David’s who came up with actual hoax examples, or yours, where you assume real racial incidents happen but don’t bother to point to any?

              Nowhere in this thread, as of yet, has anyone come up with a real life example of an honest to goodness racial incident that WASN’T a hoax.

              1. I don’t feel like Googling, but I’ve done so before on threads like this. No lack of examples. Go check for yourself!

                1. No, Google is a big tech company, and we don’t trust them. OBVIOUSLY they’re in on the hoaxes, and they just don’t report them as hoaxes when you search for actual vandalism.

                  But, here’s a non-hoax hate crime. On the Portland, OR transit system, a man started ranting against Muslims, focusing on two women wearing hijabs. Several bystanders tried to intervene; so the man killed two and seriously injured another, right there on the train.

                  https://en.wikipedia.org/wiki/2017_Portland_train_attack

                2. And here’s another. But you’ll notice that (a) it didn’t occur at a college campus; (b) there were no symbols involved; and (c) there was actual violence.

                  https://www.npr.org/2019/01/24/688402478/militia-members-plead-guilty-to-2017-minnesota-mosque-bombing

    3. Maybe you’re right.

      We should say the default assumption, given that it’s YLS and “swastika + Trump” is a hoax, openly and outright, not slyly.

    4. Given how most trump supporters are more likely to shoot someone for bearing a swastika than to bear one themselves, nzai trump supporters are very rare. On the other hand, a huge number of anti-Trumpers belive that all Trump supporters are nazis. This is the most likely solution by far.

  3. I know Prof Volokh is a descriptivist on grammar, but I was hoping you were not. Unless you informed the community about a hate crime, that last sentence should be revised — maybe the nominative absolute route: “The dean having informed …” On the merits, I agree the dean should provide an update.

    1. Why would you hope anyone would hold anything but the correct (descriptivist) position on grammar?

      It would be especially ironic to give grammar prescriptivists, otherwise known as “ignorant authoritarians who try to force their incorrect views of English on the more intelligent remainder of the population”, the floor in a post about Naziism.

      1. I believe that Nazism is spelled with one “i”.

        1. You win a bright shiny Internet today. Where would you like it delivered?

      2. Regardless, the construction quoted by NYLawyer is incorrect, not because it violates some ancient rule, but because it is somewhere between unclear and plainly inaccurate.

        Having informed law school and broader communities that a hate crime took place at the law school, I find it….

        That sounds like it was Bernstein who informed the communities.

        1. For someone who took that last sentence out of context, ignored the rest of the article and was down to her last two brain cells, maybe. I’m betting that pretty much everyone else could easily see the implied noun, “the dean”.

  4. For many people, telling a story is what matters. Finding out what actually happened isn’t a priority unless it advances the story. If the actual facts are less emotionally satisfying than the story, the facts will be denied, minimized, disregarded, and/or hidden from view.

    1. This.
      It’s the narrative, not the truth that matters to these people. Once they no longer have a use for a tool, they drop it.

      1. This is why there are so many people insisting “this must be a hoax” without knowing anything about the incident. This fits their narrative. If this turns out to be real, they’ll suddenly get really quiet about it.

  5. One thing that crime victims have in common is that they think their case should have the highest priority for law enforcement.

    While that’s a normal response from a victim, it does not mean it actually is the highest priority for the investigation agency.

    One can assume the Yale police are prioritizing their cases to ensure the efficient use of limited assets (lab technicians, evidence custodians, etc.), and also keep track of and (hopefully) solve cases.

    Maybe non-violent (albeit disgusting), graffiti isn’t their highest priority.

    1. Obviously they’re tied up with all the murders and stick-ups at Yale this semester?? FYI, Yale is a midsize college in a town near NYC called New Haven. The town crime rate is quite high, but New Haven has its own police. The college part of town has far less crime.

    2. And that’s why … Yale hasn’t released the video surveillance?

      1. It’s quite possible the Yale police are following up on leads they developed from a review of the tape and don’t want to release it yet to prevent compromise.

        Or maybe (since they’re a small department), they’ve sent the tape to a county/state crime lab to enhance the quality.

        Or maybe they really are working on other things.

        The tape is really a minor issue – unless you believe (without any facts), there’s some cover-up.

        1. “Or maybe they really are working on other things.”

          Its a glorified security company [“campus police”] on a safe campus.

          They aren’t investigating murders.

          1. Well what’s your theory why they haven’t released the tape?

            Since I’m a retired federal agent (who conducted all kinds of investigations), I based my possibilities on the training and experiences I’ve had.

            Go ahead and enlighten us.

            1. Appeal to authority is a logical fallacy.

              The Yale police department is what we used to call campus security, now with police powers as is the trend. They are not some elite crime fighting agency or even the FBI.

              Why can’t Yale law school get an answer from another college department? Hiding behind “its up to the police” is a red flag they are covering something embarrasing.

            2. Since I’m a retired federal agent (who conducted all kinds of investigations)”
              Yeah, and I’m a Navy Seal. Semper Fo-something!

              Just kidding, the way you’re insinuating that there’s nothing here because it no longer advances the narrative, means you’re either James Comey or John Brennan, amirite?

              1. You have the crime of vandalism. A crime, yes. But… not a very serious one, absent details that would indicate something more serious, which approximately no one has suggested.

          2. Bob, I’ll bet they are all trained and officially recognized as New Haven police officers.

            How do you know the campus is safe? If it weren’t, who would say so?

            Can you imagine any edgy town/gown interactions?

        2. “The tape is really a minor issue”
          What a bullshit, handwaving statement.

          1. “What a bullshit, handwaving statement.”

            But also true.

            If it’s real, then Yale has (gasp) a vandal with a paint can! And if it’s not real, then Yale has (gasp again!) a vandal with a paint can.

            There just isn’t an interpretation of the known facts that makes this important.

            1. That’s your counterargument? Another bullshit, handwaving statement, and (oh dear) minor vandalism allegation?

              You really are a shill. Is Media Matters paying you to play fifty-center here?

        3. Look how far you have to twist yourself to believe a real racial incident occurred.

      2. And that’s why … Yale hasn’t released the video surveillance?

        They haven’t released the tape because it undermines the ‘hate crime’ narrative.

        They’re not talking because they want this all to go away before it blows up in the faces of the people pushing the ‘hate crime’ narrative.

      3. Now Prof. Bernstein is implying a hoax that Yale covered up, based entirely on assumption and police being tight-fisted with info?

        That may be correct, but this seems less like Sherlock Holmes here and more like someone with a narrative.

    3. The Yale police is part of the college.

      They prioritize what the college tells them to prioritize.

      The law school could find out the status with one phone call.

      1. “The law school could find out the status with one phone call.”

        Perhaps. And the reason they’d make that call is… because some busybody outsider called and asked them to?

    4. Which is the bigger crime — a trivial physical crime of spray painting a sidewalk, but with “Trump is a Nazi, yay!” Or “Trump is a Nazi, boo!”?

      1. We should probably amend the constitution to take government out of the business of criminalizing opinions amd speech.

  6. In contrast to Bernstein’s suggestions, I suspect it was one or two brainless teenagers with little in the way of an agenda.

    1. Could be. But no need to start spinning yarns right yet.

      1. But it’s to late for that now, given the press release form the Law School in the first place. That Prof B’s point.

        1. I read the release and saw nothing about who did it.

          And I get the temptation but no need to fill that in. No matter your narrative or statistical algorithm or or gut feeling.

          1. Regardless of your blindness to the implicit assumptions in the press release (please never think you’ll make it in a second career in literary criticism) a big deal was still made by having a press release in the first place. Why do you think they put out this press release for a bit of graffiti, even if they didn’t know who did it or why?

            Still, at bottom, the law school got into the car, started the engine, rev’d it, and now doesn’t want to put into park or drive….Bernstein is asking pointedly why.

            1. “Why do you think they put out this press release for a bit of graffiti”

              because A) it happened, and B) people started asking questions about it, and C) they got tired of answering people’s questions.

          2. That you feel no need to fill in the blanks is of no concern.
            The narrative is set. Knuckle dragging Nazis, anti semite, bigots, are intimidating Jews. Thats the way the college wants it.

            The historical findings of most all of these incidents are phony will not be allowed.

            1. I saw no narrative in the press release. Only in your own persecution complex.

          3. Well, the part of the press release describing the graffiti as “anti-Semitic” might cause people to form an opinion.

            1. Yeah, they really went out on a limb, suggesting that a swastika is considered an “anti-semitic” symbol.

      2. I’m not spinning yarns, just guessing.

        1. I would point you to the exemplar of the righties narritivism below our comments as to the dangers of allowing yourself to guess.

          Not that you or I will become the paranoid losers they are, of course. That takes a lifetime of talk radio.

  7. I don’t really understand why it matters whether it was a “hoax” or not. Even if it was sincere, it’s graffiti. Someone scribbled something on the ground. Why would anybody get worked up about this? Nobody rationally thinks there are hordes of Nazis rampaging through New Haven.

    Anyone who would be a target of theoretical Nazis in New Haven is a trillion times¹ more likely to be mugged for his/her wallet than attacked by Nazis.

    ¹ Approximately.

    1. We have two nutty narratives going on in the US right now. One is on the right, that liberals (and or)/Jews/members of minority groups/Democrats are plotting to “import” millions of non-whites to “replace” the white population and guarantee a progressive majority. The other is on the left, that there is a large white nationalist/racist/antisemitic minority that largely kept its for the last several decades, but now has been unleashed by Trumpism (never mind the academic study showing that intolerance has actually decreased since 2016). Going hysterical every time one sees a swastika, without considering context or undertaking investigation, is part of the latter.

      1. there is a large white nationalist/racist/antisemitic minority that largely kept its for the last several decades, but now has been unleashed by Trumpism (never mind the academic study showing that intolerance has actually decreased since 2016).

        I don’t know how large it is, but it exists and is both active and violent. Whether Trump “unleashed” them or not he seems to like them well enough.

        I remember your post on the study which, IIRC, was kind of a shaky basis for your claim.

        1. Whether Trump “unleashed” [a large white nationalist/racist/antisemitic minority] or not he seems to like them well enough.

          Why do you keep perpetrating hoaxes?

          The “Fine People” Hoax Funnel

          Quote:
          The press created the hoax by consistently and intentionally omitting the second half of President Trump’s comments about Charlottesville. If you only see or hear the first half of what the president said, it looks exactly like the president is calling neo-Nazis “fine people.” But in the second part of Trump’s comments, he clarified, “You had people in that group who were there to protest the taking down, of to them, a very, very important statue and the renaming of the park from Robert E. Lee to another name.”

          In other words, the president believed there were non-racists in attendance who support keeping historical monuments. To remove all doubt, the President continued with “I’m not talking about the neo-Nazis and the white nationalists, because they should be condemned totally – but you had many people in that group other than neo-Nazis and white nationalists, okay?”

          1. Fine people don’t show up for rallies organized by the likes of Jason Kessler, and neo-Confederates aren’t fine people in any case.

            1. Fine people DO show up for rallies when the town fathers decide to erase history because of political correctness. So your view here is flat-out incorrect.

              1. Erase history? Are you insane?

                I’ll tell you who wants to erase history. It’s the neo-Confederates who want to see Lee and the other traitors as some sort of great heroes fighting in defense of ??? By their own words it’s clear that they were fighting to maintain slavery, though many, like you, want to erase that.

                We’ve had 150 years of erasing the history of what the Confederacy, Lee, and others actually stood for. It’s time to fix that, and quit honoring them.

                1. They want to pretend the Confederates won the war. But don’t you try “erasing history”!!!

              2. Why continue to fight for the bigots. Bigots have rights, too, but decent people — let alone fine people — are not devoted to advancing the bigots’ interests.

                Carry on, clingers. Until replacement.

            2. More important, an organized rally that got a great deal of prior publicity managed to attract a few hundred people. This is not a mass movement. Compare, e.g., the Nation of Islam, where Farrakhan can get 20K people to listen to him denounce whites, gays, and Jews, with minor celebrities in the audience and powerful politicians willing to chat him up. I agree that the far right has become more active and organized, but I think that’s primarily because social media makes it much easier to do so than in the days when you had to surreptitiously meet in a seedy motel conference room. It’s also increasingly engaged in violence, but it’s not clear what that means. There was a spasm of far left violence in the early 70s, but that marked the end of things, not the beginning.

              1. “This is not a mass movement.”

                They’re quite willing to use violence, so it doesn’t take very many of them to cause disturbance. Then there’s a larger circle which consists of people who won’t use violence themselves, but are only too happy to serve as apologists for the ones who do. So the Portland Max killer had no choice but to kill the people who were trying to protect a couple of teenage girls from his ranting at them. Because you have to stand up to people who try to infringe your free speech, or whatever reason was offered on AM radio this morning.

                Yes, there are some leftists willing to use violence, too. I’m not claiming otherwise. But the last mass killing by would-be leftists happened A) outside the US, and B) was largely confined to the cult members who went to Jonestown. Whereas, in Oklahoma City, they tried to start the race war going by blowing up a daycare full of kids. These are both evil acts by evil people, but they aren’t equal and opposite.

              2. an organized rally that got a great deal of prior publicity managed to attract a few hundred people. This is not a mass movement.

                Whether it’s a mass movement or not, it managed to include at least one murderer. And the fact that it was “well-publicized” suggests that those who chose who attend were far from being fine people.

                As I said above, whatever the size of the movement, it is clearly both active and violent.

      2. One is on the right, that liberals (and or)/Jews/members of minority groups/Democrats are plotting to “import” millions of non-whites to “replace” the white population and guarantee a progressive majority.

        Is this supposed to to a controversial claim? Why?

        We know it happened in the UK:
        https://www.dailymail.co.uk/debate/article-1222977/MELANIE-PHILLIPS-The-outrageous-truth-slips-Labour-cynically-plotted-transform-entire-make-Britain-telling-us.html

        We hear leftists all the time gloating about how demographic change will give the Left a “Permanent Majority”. We see the Left actively encouraging more people to come here illegally, while fighting to keep the US from blocking them from coming in, or deporting them once they do get in.

        Is there also a “right wing plot” to claim that 1 + 1 = 2?

        1. Replacement of whites and the Bell Curve. That’s the intellectual right these days.

    2. “Nobody rationally thinks there are hordes of Nazis rampaging through New Haven”

      Oh wow, you mustn’t have been in the US for the last four years. Never watch CNN or read the NYT? Do you live in the Antarctic or something?

      1. That’s why he said “rationally”, not “nobody thinks …”

        People do seem to think that, but they’re doing so irrationally.

      2. Your lack of cites is telling.

        1. Cite: Turn on CNN, pick any page in the New York Times or read Elizabeth Warren’s Twitter.

  8. Who actually has the videotape now? The cops or Yale? Does anyone here know?

    1. Yale is the cops.

      Its a university police department.

  9. I can think of at least one legitimate reason not to release the surveillance footage – perhaps it doesn’t clearly identity the perpetrators (maybe there was a malfunction in the recording or their faces were somehow obscured) but they don’t want the perpetrators to realize that. Right now, the people who did this are probably worried about getting caught and if they see that the footage doesn’t show who they are, they’re more likely to think they got away with it. That doesn’t meant that there isn’t other evidence or an investigation but it’s a lot harder to catch them with the surveillance footage. If the perpetrators think there is a surveillance video that identifies them, one of them might feel pressure to come forward in the hopes of making a deal for a lighter punishment.

    1. Don’t go spoiling everyone’s fun like that.

    2. People who are worried they’re going to get caught tend to be a lot more cautious than people who think they got away cleanly

      People who are less cautious, are more likely to get caught

      So you have that exactly backwards

      1. You could be right – I only offered this as a possible reason why they may not be releasing the surveillance tape and it was of course purely speculation on my part. OTOH without knowing anything about the actual perpetrators, it’s difficult to say how concerned they were about getting caught and whether they even knew that they were being filmed at the time. I’m seen teenager look around to see if anyone is watching them and take off running as soon as they spot someone in view and I assume it was because they were probably doing or about to do something that they knew they shouldn’t and didn’t want to risk getting caught. It could be the vandals didn’t even know or forgot about the security cameras (never been to that campus so I have no idea how noticeable they are) and just looked around, didn’t see anyone and spray-painted and took off thinking that they were in the clear. Now that they know they might have been recorded in the act, it could make them nervous and thinking about whether it’s better to take their lumps now in the hopes of getting off lighter than if they make the police work harder for it. But again, this is just pure speculation at this point.

        1. It’s one thing to spin out theories based on the known facts. You can get some interesting stories that way.

          It’s another thing to pretend the stories are real. This is true for people concerned about the Nazi-vandals, and people concerned about the Nazi-hoax-vandals. You (unless you are the vandal) don’t know which one it is, and there’s a real possibility that it’s neither one.

  10. I suspect this is little more than “Trump is a Nazi,” probably not such a rare opinion at a place like Yale.

    I don’t think we are all absolutely obligated to all collectively shit in our collective pants every time a symbol like this appears.

    1. I understand it’s graffiti, it was spray-painted, not chalked, it’s damage to property. It’s an offense. Yale has every right to protect its property. And the message is in extremely poor taste. But I nonetheless don’t think we are obligated to treat the person the same as if he or she had planned a mass shooting.

      1. Hell, we’re not obligated to treat them like that even if they were actually a neo-Nazi.

        Because being a shitbag graffiti-er is still a minor property crime, not, uh, mass murder.

        (And contra assertions widely made, “being a POS neo-Nazi asswipe” does not magically, automatically, or even probabilistically connect one to being a mass murderer.

        This can be proven by … well, counting the number of them that are mass murderers, compared to the claims about how many there are [and, hell, the undeniable existence of “white power” prison gangs, members of which regularly … leave prison].

        They’re wastes of carbon, but they’re just … not ravening murderers, demonstrably.)

        1. “They’re wastes of carbon, but they’re just … not ravening murderers, demonstrably”

          Get enough of them together in one place, though, and things can change. Yes, sometimes “one” is enough of them in once place, sometimes it takes way, way more. Trying to make sure their gathering place is, uh, somewhere else is still a good idea.

  11. Hmmm. Can’t you think of any reason the video would not have been splashed all over the place?

    1. Because anyone who watches the video gets stalked by a creepy ghost with hair over her face?

      1. I mean, her hair pulled over her face, not facial hair, that would be silly, she’s a ghost, not a werewolf.

  12. “Organizations in the Yale community, such as the Law School’s Office of Student Affairs and the Joseph Slifka Center for Jewish Life, responded to the incident on Monday, condemning the action and offering support to students.”

    Offering support? To students who I suppose have learned for the first time that there are people capable of scribbling swastikas in public places?

    Yale Law is what the Rev calls one of our great liberal-libertarian institutions of higher learning. When these students graduate, the public will expect them to be able to handle cases, if necessary, involving very triggering facts – maybe disfigurement and death. I don’t know how many of them will deign to do criminal cases, but they should at least be prepared to look at and analyze graphic crime-scene pictures and so forth.

    You’re saying that the brightest students, at one of our finest institutions, will freak out so much over graffiti that they need counseling?

    1. Or am I misunderstanding the word “support”?

      1. It’s not about coddled students so much as university PR. The corporate nature of modern universities means that students are now treated as clients (internal documents will even call them that). So whenever something unpleasant occurs, serious or not, universities go out of their way to demonstrate that they’re supporting client needs. The vast majority of students won’t seek out any kind support, but the school is covering its PR butt.

        1. There’s another PR consideration, and that’s whether they want to portray their students as easily “triggered,” which would feed into what the administrators probably see as a malicious right-wing narrative about coddled snowflakes.

          1. On the plus side, it shows actual nazis that if they want attention, all they need to do is commit petty vandalism, they don’t have to go off and commit some awful hate crime.

          2. When choosing whether to be anti-hate or pro-hate, most people don’t have to think about how they’re going to answer

            The tradeoff is simple to calculate:

            1) we can say we take it seriously, and offer “support” to people who don’t need it. This costs us nothing, and makes us look like decent people who just want to help.

            2) we can lead off by saying it’s probably a hoax, thereby incurring at least irritation, if not more, from the target demographic. This earns us the respect and support of Eddy, which YLS desires because… uh… we’ll fill this part out later.

            1. Would you mind quoting the part where I said it was “probably a hoax”, as opposed to not knowing? Thanks in advance.

              1. You know what “decent people” do? When they make a misstatement, the issue a retraction and an apology.

                Therefore, I do not expect a retraction and apology from you for your misstatement.

                1. ” I do not expect a retraction and apology from you for your misstatement.”

                  I’ll keep that in mind if I ever make a misstatement.

                  1. Yale Law school would earn your respect and support by endorsing communism.

                    But I’m not saying you support communism!

                    1. I notice below that, for someone who resents people drawing logical inferences from their actual words, you sure are willing to draw broad and irrational inferences from other people’s words.

                    2. Broad, irrational, and accurate.

                    3. Yes, I agree you’re irrational.

              2. “Would you mind quoting the part where I said it was “probably a hoax””

                Before I get to that, would you mind pointing out where I said you said it was “probably a hoax”?

                1. Other than claiming Yale Law School would earn my respect by calling it a hoax?

                  “we can lead off by saying it’s probably a hoax, thereby incurring at least irritation, if not more, from the target demographic. This earns us the respect and support of Eddy”

                  You’re an unreliable source about what you yourself said, how can you be trusted on any other subject?

                  1. So, you can’t quote me saying what you claim I said, and that’s somehow my fault? That’s the sum total of your capacity for argument?

                    1. You are a drooling idiot.

                    2. You talk about what I “implied” without quoting a single word I said, yet you pretend that someone can “respect and support” an accusation without believing it.

                      You have to work really hard to be this stupid.

                    3. Anyway, it’s good to know that, under your worldview, it’s possible to earn your respect and support by making what you believe to be a false or unproven allegation.

                    4. “You are a drooling idiot.”

                      Then you lost an argument to a drooling idiot. Bummer for you.

                  2. “Other than claiming Yale Law School would earn my respect by calling it a hoax?”

                    You kind of suggested that you lacked respect for them (more correctly for their student body) because they didn’t call it a hoax, but rather rushed to offer support to the “victims”. If that’s not the message you intended to convey, you need to work on your delivery.

                    1. I’m not calling you a mendacious little twit, but anyone who called you a mendacious little twit would have my respect and support.

                    2. Because you ARE a mendacious twit.

                    3. “You kind of suggested that you lacked respect for them (more correctly for their student body) because they didn’t call it a hoax, but rather rushed to offer support to the “victims”. ”

                      You misrepresented what I said, and I correctly represented what you said.

                    4. I repeat, I didn’t call you a mendacious twit, I merely said that anyone who called you a mendacious twit would have my respect and support.

                      Can’t you see the difference?

                      I can’t either.

                    5. “I repeat, I didn’t call you a mendacious twit”

                      I repeat: You ARE a mendacious twit, so I don’t have any reason to care what you do (or do not) call me.

                    6. The point soared over your head, of course.

                      In any event, yo momma is ugly.

                    7. “yo momma is ugly.”

                      And yours raised a mendacious twit.

                    8. I still made yo momma come after I dug her up – I gave her the loving your daddy never gave her.

  13. “Anyone who has been following such ‘Trump plus swastika in very liberal environments’ incidents would immediately suspect one of two things: (1) a hoax; or, perhaps more likely (2) the vandal(s) in question weren’t trying to say ‘I support Trump and he’s a Nazi,’ but rather ‘I hate Trump because he’s a Nazi.'”

    Of course, there’s also the possibility that you have not one, but two (competing) vandals at work. So, you might have someone who put “Trump” on, and then somebody added a swastika, or vice versa.
    Mr. Trump is NOT a Nazi. Nazis were effective and efficient. Mr. Trump lacks these qualities. He wishes he could be a dictator, but has no idea how to make this into reality.

    1. Or you could have just voted hoax without all of the other spurious BS

    2. Trump is not a Nazi for the simple reason that Nazis were anti-capitalist collectivists, pretty much the complete opposite of Trump.

  14. We all know these so-called “hate crimes” are all fake. I don’t think a single one reported has ever been confirmed since 2016. Not one.

    1. From the folks who knew Obama was (is) a Muslim Kenyan communist.

      Replacement of the birthers can’t occur too soon.

      1. When the mob comes for Cuckland and no one says anything is anyone, but Cuck going to be surprised?

        1. The mob that came for Artie Ray? A bunch of hypocritical losers?

      2. Obama was simply incompetent; his actual beliefs hardly mattered.

        1. The lies, gullibility, and bigotry of his right-wing critics mattered enough to cost them the culture war

          1. Well, not being a “right wing critic”, I wouldn’t know.

            I just know that, after I voted for Obama, he turned out to be an incompetent blowhard, racist, and borderline fascist.

  15. Where in that story was there any claim that a “hate crime” occurred? I see a claim about an act of hate and a symbol of hate, but no statement by the law school that a hate crime had been committed. Connecticut Public Act 17-111, which modified the state’s hate crime laws, may cover the act in question, but that would entail further analysis. I see no reference by the law school that the incident constitutes a violation of that law.

    If only there was a blog where persons learned in the law and interested in educating the public, could take the known facts and analyze them in reference to potentially applicable laws. A headline: “did a hate crime occur?” Would then be followed by legal analysis of the CT hate crime laws.

  16. Hoax
    Or you can go with the dozen actual Nazis in the country sure do get around a lot.
    But maybe just maybe it’s not the end of the world
    Sensationalizing every one of these things of which most maybe all are hoaxes is getting comical

  17. Prof. Bernstein’s thinking that this is a hoax and that Yale is hiding that fact seems to have a lot of company in the comentariat.

    The Venn Diagram of that set and the set of those who have decided that hate crimes are all hoaxes seems to have a lot of overlap.

    A preview of a bit further down the road which you tread.

    1. But the truth is almost every single supposed so-called “hate crime” has been a hoax. It would seem to me that people who think these things actually happen are the ones who are crazy.

      1. “But the truth is almost every single supposed so-called “hate crime” has been a hoax.”

        Yes, the “so-called” hate crimes are often hoaxes. Once you exclude all the non-hoaxes, hoaxes are pretty much all that’s left.

    2. Nazis were staunchly anti-capitalist collectivists with a political program that had a large overlap with Sanders and Warren. The idea that any Nazi would support a nasty capitalist like Trump is absurd.

      Anti-capitalist collectivism is the predominant ideology at Yale, but people holding those beliefs have long ago gotten rid of the swastika symbol.

      So, if we put that all together, it’s not a hoax: this was likely carried out by an actual fascist, and like actual fascists, the person hates Trump; the only thing that is mildly incongruent about it is that they likely didn’t understand that the swastika represents their own ideology, but that is a common confusion among the kind of people attending Yale as well.

      1. That’s pretty clever ideology you’ve got there NOYB2. Saves you the work of learning anything. You have that in common with 20th century Fascism—at least insofar as ordinary Fascist supporters believed anything. Mostly, they just believed in their tribe and their leader.

        Have you noticed Bernstein’s assertions about how small and impotent are right wing hate groups in America today? Either Bernstein doesn’t get that tribe-and-leader bit, or he hasn’t heard about Trump’s rallies. That old-time style? Trump has it, right down to the snarling vituperation of the guy at the microphone.

        Contrary to your fantasies, there really wasn’t any ideology in Nazism. Scholars have been trying to figure it out ever since, and they all come up dry. Except that everyone understands what made it go: “Follow me, and we’ll get the people you hate.”

        1. Contrary to your fantasies, there really wasn’t any ideology in Nazism.

          In fact, fascism is a fairly well-defined ideology, closely related to socialism. Mussolini and Gentile wrote extensively about it, as did many American academics. The “it’s not really well-defined” or “it’s any movement that follows a strong leader” is a post-WWII propaganda attempt by socialists to hide the obvious, close ideological connections between socialism and fascism.

          That’s pretty clever ideology you’ve got there NOYB2.

          My parents were almost killed first by fascists, then by socialists. I experienced socialism first hand, as well as persecution and government discrimination as a homosexual.

          Saves you the work of learning anything.

          I have done plenty of work learning about the history of fascism. The real question is whether you know the history and meaning of fascism and are just trying to deny it, or whether you are really just the usual entitled, mono-lingual, ignorant, privileged American prick who can’t tell propaganda from fact. My guess is that it’s the latter.

          1. NOYB2, given Hitler’s affinity for socialists, what accounts for his maniacal anti-Bolshevism?

            Just as a general thing, history and ideology don’t work alike. If you are reading ideology, and using it to predict history, then you are doing it backward. Conversely, if you read history, and find little in it to prove any operations of ideology, no amount of avowed ideology should be taken too seriously. It’s the same principle that historians use when they read antique laws. No matter what the laws say, historians withhold judgment about what the laws mean until they read the court cases.

      2. Nazis were targeting a subgroup first and foremost. Turns out, that’s all ya need – your economics and rigid categorization bows before tribalism.

        1. The ideologies of fascism and socialism aren’t defined by what they did once in power, it’s defined by what they promised and how they see the world.

          Both are staunchly anti-capitalist and both are collectivist. The major area where they differed is in the groups they demonize. Socialists demonize the upper and middle classes and call for collective action by the working class. Fascists demonize racial minorities and foreigners and call for collective action by the “average man”. For Nazis, the two came together because Nazis demonized Jews both based on race and based on supposed class.

          Once in power, their ideology falls by the wayside and both socialism and fascism become simply brutal totalitarian regimes; that’s because neither ideology can work, so violence is the only way for socialists and fascists to stay in power.

          1. Plenty of interviews with Nazis who love Trump. If you want to play ‘no true Nazi’ that’s on you.

            The ideologies of fascism and socialism aren’t defined by what they did once in power, it’s defined by what they promised and how they see the world.
            What?! How they see the world is pretty well illustrated by what they did in power. Otherwise the USSR and all Communist states would be noble endeavors.

          2. NOYB2: Anti-capitalist collectivism is the predominant ideology at Yale,

            Is that what you learned when you were at Yale?

    3. These are Bernstein’s people. He writes commentary hinting that a hate crime was a hoax (even though no claim of a hate crime was made) and his readers, who already think hate crimes are hoaxes, rush to agreement that this instance is another hoax.

      In another post Bernstein will complain about how he and others like him are being excluded from academia because of their conservative views. He’s clearly a scholar devoted to rational debate and critical analysis!

      1. I find this kind of proud knee-jerking to be below Prof. Bernstein’s usual postings.

        I usually very much disagree with his political takes, especially on Israel, but they usually have some substance to their opinion, not just dog that doesn’t bark supposition.

      2. Any scholar devoted to rational debate wouldn’t believe in man-made global warming. Meaning most of academia isn’t rational.

  18. Given the similarities between modern progressivism, the prevailing ideology at Yale, and 1930’s fascism, I think it’s a good bet that the vandalism was, in fact, perpetrated by a fascist, albeit a Trump-hating fascist.

    1. So you don’t know what fascism is either. Whatever it takes to own the libs.

      Do Dems are the real racists next!

      1. So you don’t know what fascism is either.

        As a European immigrant whose parents were nearly killed by fascists and socialists and who can actually read the source documents in the original languages, I have an excellent idea of what fascism is. Obviously, most pampered, publicly-educated, privileged Americans are ignorant about it, falling for socialist propaganda on the subject.

        Do Dems are the real racists next!

        “Real” as opposed to what? Democrats categorize people by race, attribute characteristics based on race, and demand that government treat people differently based on race. I call that “racism”. What do you call it?

        1. Yeah, my grandparents had to deal with both the Commies and the fascist anti-Commies.

          Doesn’t mean I’m going to adopt a simplistic philosophy where they are the same, and use populism to dismiss anyone who says differently.

          Nice to see you hitting all the reductive right-wing talking points. Saves brain power, I suppose.

        2. NOYB2, take a check on that sense of grievance. It could be your parents were like you. If so, threats from fascists and socialists might have been the least of their problems. They could have got all that and more from mere centrists. People have limits.

  19. To all those insisting all hate crimes are hoaxes. The DoJ disagrees.

    https://www.justice.gov/hatecrimes/hate-crimes-case-examples

    1. The same DOJ that aggressively pursues “violations of federal law” like telling a mentally ill boy he can’t use the girls’ bathroom?

      Or the same DOJ that “aggressively enforces the Fair Housing Act” by telling a landlord he has to rent to Shaniqua and her seven illegitimate, 85 IQ children?

      1. “Or the same DOJ that “aggressively enforces the Fair Housing Act” by telling a landlord he has to rent to Shaniqua and her seven illegitimate, 85 IQ children?”

        The proprietor warns against use of the term “sl*ck-j*w” (in the context of conservatives), but I have a hunch this comment will be deemed unworthy of note by the Volokh Conspiracy Board of Censorship.

        This is part of an attempt to develop a reliable sense of the censorship standards applied by that Board of Censorship.

      2. “The same DOJ that…”

        is led by the President. That one.

  20. Every single one of these ends up being hoaxes. Every. One.

  21. A few weeks ago, I made the mistake on another blog of getting involved in a deranged comment thread over how Jeffrey Epstein’s death was a murder rather than a suicide. The reasoning was eerily similar to the reasoning supporting the “hoax” theory here, and one of the linchpins was: “Why don’t they release the videotape?” Several people wasted time pointing out that tapes are not routinely released in a pending investigation unless there is reason to believe that someone among the general public will be able to make more of it than the investigators can — for example, a clear face shot of a perpetrator previously unknown to the criminal justice system but possibly recognizable to some currently unidentifiable person.

    1. If the videotape did catch the act, the police would routinely not want the tape released to the public. There would be specific aspects of the crime that they would want withheld, so that they could judge the reliability of the testimony of witnesses and/or suspects. That is far more likely than “Yale is covering up evidence that this was a liberal hoax.”

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Today in Supreme Court History

Today in Supreme Court History: October 16, 1898

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10/16/1898: Justice William O. Douglas's birthday.

Justice William O. Douglas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Douglas was probably not the worst jurist to serve on the court, not the worst human being, but impressively high on both scales.

    1. I mean, results do matter, so there’s no way you can put him over some of the post-Civil War types who neutered the Reconstruction Amendments and such.

      But in terms of legal reasoning, he was as bad as it gets. He just didn’t care. You can read Griswold 100 times and you can’t divine a sensible legal doctrine from it. He made ridiculous pronouncements like that our institutions presuppose the existence of a Supreme Being. His First Amendment jurisprudence consisted of pretending the balancing of competing interests that make free speech cases so difficult didn’t exist. He tried to rule the Vietnam War unconstitutional, but joined the Korematsu majority.

      He was just pretty damned bad at his job, which is why he really has had almost no influence on the law.

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Has China opened a quantum hype lead over the US?

Episode 282 of the Cyberlaw Podcast

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 Our interview is with Sultan Meghji, CEO of Neocova. We cover the large Chinese investment in quantum technology and what it means for the United States. It's possible that Chinese physicists are just better than American physicists at extracting funding from their government by hyping their science. Indeed, it looks as though some quantum tech, such as the use of entangled particles to identify eavesdropping, may turn out to have dubious military value. But not all. Sultan thinks the threat of special purpose quantum computing to break encryption poses a real, near-term threat to US financial institutions' security.

In the News Roundup, we cover the new California Consumer Privacy Act regulations, which devote a surprising amount of their 24 pages to fixing problems caused by the Act's feel-good promise that consumers can access and delete the information companies have on them.

Speaking of feel-good laws that are full of liability land mines, the Supreme Court has let stand a Ninth Circuit ruling that allows blind people to sue under the Americans with Disabilities Act if websites don't accommodate their needs. Nick Weaver and I explore a few of the harder questions raised by this seemingly simple mandate (you can accommodate the blind by providing a "read aloud" option, but what about people who are blind and deaf?) and the risks of making law by retroactively imposing liability.

Weirdly for a populist administration that says it mistrusts the big social platforms for their restricting of conservative speech, the Trump trade negotiators are actually expanding Section 230 immunities for Silicon Valley that both left and right have begun to question. The expansion is buried in hard-to-amend and even-harder-to-repeal trade agreements. By way of explanation, I lay out the Realpolitik of trade deals. As if to prove my point, the US and Japan have signed a Digital Trade Agreement that has much the same provision.

Nick and I muse on the rise of Commerce Department sanctions on individual companies. In a way, such sanctions are a less harsh alternative to OFAC sanctions, which include property seizures, but they are also like antibiotics—they either destroy the target or help it develop better resistance for the future.

Does TLS stand for "Tough Luck, Sucker?" That's the message of a new and clever form of malware that has been, softly attributed to the Russian FSB.

Apple, having banned, and then unbanned, an app that locates police activity in Hong Kong, has now re-banned it. Tim Cook offers an explanation for the latest move that triggers Nick's bovine excrement detection system. In a Final Four of Hypocritical Surrender to the PRC, LeBron James and the NBA give ESPN a run for its money. South Park fails to qualify.

Matthew Heiman and I discuss India's effort to create a national facial recognition system. Naturally BuzzFeed thinks it's Evil. Not enough people of color in the training set, apparently, or perhaps it's too many. Or Modi is too much like Trump. Or some damn thing. Look, it's Evil, okay? So shut up and leave BuzzFeed alone.

Nick and I consider DHS's request for the power to subpoena ISPs to identify owners of compromised systems. I critique Herb Lin's suggestion that the ISPs can solve the problem without giving data to DHS.

As Matthew notes, it was just last month that the French government gave the world a stiff-necked little lecture on respecting sovereignty in cyberspace. So why are French police helping reprogram computers in Latin America? Because it's different when the French are doing it than when it's done to them, I surmise.

A recent "good guy with a keyboard" story offers me one more chance to tout my views on hacking back.  I ask why someone who's rescued hundreds of victims from ransomware should have to worry for one minute about being prosecuted for compromising (again) the already compromised C2 machines that apparently held the keys.

Matthew and I try to simplify a complex ruling from two FISA courts. Among the takeaways: The FBI has been running a lot of searches against 702 databases (3.1 million a year!), which greatly complicates its compliance program, and the FISA courts are overusing the 4th amendment, which in FISA minimization cases is like trying to do brain surgery with a chainsaw.

Argh! That embarrassing Bloomberg Supermicro story is back. Sort of. Wired has shown that something like it could really be done. Which, Nick points out, we already knew.

I give a shoutout to Jennifer Daskal and Peter Swire for their useful overview of the UK-US CLOUD Act, but I wonder if the agreement's mutual "no targeting of the other country's nationals" assurances are a scalable solution.

Finally, Matthew reviews the second volume of the SSCI report on its investigation into Russian election interference. The TL;DR? The Russians did what you think they did. The closest thing to a surprise? After starting out just trying to hurt Hillary, by the end the Russians seem to have been trying to help Trump too.

Download the 282nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “It’s possible that Chinese physicists are just better than American physicists at extracting funding from their government by hyping their science.”

    I wouldn’t doubt this since we have mouth-breathers on the right downgrading education by pushing home schooling, religious schooling, and reducing funds for public schools and universities.

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Who Is, and Is Not, On the Demand Justice #SCOTUS (Not-So) Shortlist?

Omitting all "partners at corporate law firms" excludes most judges from Hillary Clinton's hypothetical shortlist

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Demand Justice has released a "shortlist of possible [Supreme Court[] nominees in the next Democratic administration." The group selected 32 "brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation."

Who was selected? The nominees generally fall into 5 broad categories:

  • Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),
  • Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),
  • Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)
  • Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)
  • State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court),

Who didn't make the cut? We can speculate. In July 2016, the Hill published a potential shortlist from a Clinton administration. Of these 11 names, only three made it onto the Demand Justice List: Judge Jane Kelly (8th Cir.), Justice Goodwin Liu (California Supreme Court), and Justice Mariano-Florentino Cuéllar (California Supreme Court). Eight names were left off the Demand Justice list:

  1. Chief Judge Merrick Garland (D.C. Cir.)
  2. Judge Sri Srinivasan (D.C. Cir.)
  3. Judge Paul Watford (9th Cir.)
  4. Judge Jacqueline Nguyen (9th Cir.)
  5. Judge Lucy H. Koh (N.D. Cal.)
  6. Judge Patricia Millett (D.C. Cir.)
  7. Senator Amy Klobuchar (D-Minn.)
  8. Senator Cory Booker (D.-N.J.)

Garland's re-nomination was never a serious option. And it isn't clear that Demand Justice considered elected officials, such as Klobuchar and Booker. But what about the other Obama appointees? The not-so-shortlist excluded many possible nominees-by design. Demand Justice explains:

None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations. Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff's lawyers.

Judges Paul Watford, Sri Srinivasan, Jacqueline Nguyen, Lucy H. Koh, and Patricia Millett all worked in private practice. Those careers, apparently, rendered them ineligible for the Supreme Court. Also excluded is Judge Ketanji Brown Jackson (D.D.C), whom Tom Goldstein tapped to replace Justice Scalia. She worked in Big Law.

Who else would not make the list? Justice Sotomayor was a partner at Pavia & Harcourt. She would have been out. Justice Kagan briefly served as an associate at Williams & Connolly. Would she have made the cut?

Ultimately, I welcome these lists. They provide the public with insights into the type of jurists an administration would consider. Though, it's difficult to know how much weight to put on Demand Justice's roster. Unlike President Trump's original list, the current list was not released–or even endorsed–by any campaigns.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Why are they publishing this hit list? Trump and the Republithugs will have all these folks killed or doxed into uselessness, just like they’ll do to the Ukraine whistleblower, if they ever find out who that is.

    1. What Ukrainian “whistleblower”!

    2. Is this the “whistleblower” who is a Joe Biden supporter and wants to testify anonymously about matters that he has no first hand knowledge of, and just heard about through gossip?

      That whistleblower?

    3. I don’t love the melodrama of your comment, but I do love the subsequent posts proving you correct.

        1. Supposed to ROFL emojis

  2. I think that they have a problem here. Top law school grads seem mostly either to go into academia or join big corporate firms. Academics often write controversial articles, that may adversely affect their confirmability. Then, there is the problem, that has surfaced with the candidacy of Camela Harris that a large percentage of government lawyers were prosecutors at some point, or, like her, top prosecutors, who inevitably have jailed POC, likely out of proportion to their percentage of the population (because POC are typically more likely to break laws). Besides, former prosecutors almost invariably take their preference towards and trust of LEOs onto the bench. Public defenders often come from the bottoms of their law school classes. In the end, I suspect that these constraints would greatly reduce the quality of acceptable judicial candidates.

    Of course, then the question arises whether this is a bug or a feature. Is the real goal to reduce the competence of the Judiciary, in order to increase the acceptance of progressive policies that would be more likely rejected by a brighter and better qualified Judiciary.

    1. “Public defenders often come from the bottoms of their law school classes” (citation needed)

  3. Snort. “DemandJustice is Brian Fallon’s outfit.

    “In 2016, Fallon served as the National Press Secretary for Hillary Clinton’s presidential campaign. ”

    Anyone from Wisconsin on it?

  4. I may as well be the first to say it – I thought there were no Democrat or Republican judges, just “judges”?

    Still, I am also glad they put out these lists, and it helps us to not pretend.

    1. I thought there were no Democrat or Republican judges, just “judges”

      Did you? I didn’t.

      1. Why the snark? I was playing off the comments of Chief Justice Roberts, who said that there were no Obama judges (after President’s Trump’s complaint of bias) and that there were just judges.

        1. Not intended as snark, sorry.

          I’m familiar with Roberts’ comment. I sort of assumed you didn’t agree with it any more than I do.

          Of course there are many cases – probably the vast majority – that have no political salience, so the judge’s political views are irrelevant.

          1. Thanks!

            I agree, the vast majority of cases the judge’s political viewpoints are mostly irrelevant. However, I would add that when it is not irrelevant, it makes a big difference one way or another.

  5. 32 “brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation.”

    This is the description of a politician’s job, not the job of a Supreme Court justice, who is to prevent governmemt from taking on new powers at its whim, sans constitutional amendment.

  6. Very few straight white males listed. Which, on the one hand, I support- we need a more diverse bench. On the other hand, that may connect to OP’s point about big firm law practice. A lot of liberal white male lawyers go cash in rather than going to work in public interest law.

    1. We need more wise latinas, amiright?

      1. Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.

        1. Agreed, and to your comment before, lets have some non-ivy leaguers too with more diverse work experience. I vote for Eugene Volokh regardless.

          1. We only have 2.5 ivies represented. (Ginsburg was only at Columbia for a year IIRC) The bench would suddenly be more diverse if there were a Penn grad. Or a Stanford grad. (I know its not an ivy, but it’s as prestigious if not more than all but Harvard and Yale for law.) While there are only nine slots there could still be more than 2-3 ivies represented. There are 11 more schools in the T-14. It could be more diverse even in terms of its elite schools.

        2. “white male ”

          Why does their race and sex matter to you?

          Your complaint I think is they are “beltway insiders who literally went to the same private high school”, hence share to close of an outlook.

          If they were black female children of “beltway insiders who literally went to the same private high school” that would not bother you?

          Focusing on race and sex is racist and sexist.

          1. Suppose you were part an alien anthropological team studying America, and you were looking at their dispute resolution procedures. You find out the demographics of every person who has served on the Court. Then you looked at the demographics of the society that Court serves. What would you conclude about that society?

            1. It’s a historically male dominant society that has become more co-equal between the sexes since chemical birth control has become widely available.

            2. It’s this mentality that confirms my long-held feeling that non-whites are largely cultural outsiders in America, and always will be. They are almost always disaffected and angry. Not a good recipe.

              1. I don’t think non-whites are always disaffected and angry; I know enough of them, and that hasn’t been my experience.

                Now, the non-whites who climb to positions of power within the left? Yeah, absolutely. But the whites next to them are disaffected and angry, too; It isn’t their skin color, it’s that they’re left-wingers.

                If you’re pushing socialism in a prosperous capitalistic nation, OF COURSE you’re going to be disaffected and angry. How could you not be?

          2. To answer your question more directly, it would still be weird, but much less bothersome. Pretending that race and sex don’t have an affect on outlook is absurd.

            1. Sorry. “Effect.”

            2. So, if kavanaugh and Gorsuch were daughters of black DC insiders who went to the same private school, its ok with you?

              1. It’s not great, assuming they also have practically the same legal/professional background (Harvard/Yale law, DC big law, stints in the executive branch). It’s still better given both the current and historical demographics of the Court and the current demographics of the country generally, and the legal profession in particular.

                1. So, your real complaint is that they are “white males”

                  Racist and sexist thinking no matter what imaginary aliens might think.

                  1. Perhaps. But it also doesn’t have the convenient side effect of keeping people who look and think like me and you in power in perpetuity at the expense of everyone else. You and the Trump administration can claim you’re non-racist Non-sexist as much as you want, but when your party generally and judicial nominees in particular consistently skew heavily towards a few demographics, you’re probably not as non-racist or non-sexist as you believe you are.

                    But, you probably assume that you’re non-biased and objective on the issues of race and sex. And why wouldn’t you be? If POC and women would just ignore their entire life experiences and look at things LOGICALLY they’d see that conservative white men like you understand race and sex best.

                    You’re not of course. But you tell yourself that so you don’t feel morally compromised by bigotry or sexism and conveniently don’t have to question your own place and power in society. It’s a win win. So congrats?

                    1. White guilt, male feminism and “white knighting”

                      Impressive trifecta.

                    2. Bob,

                      I don’t feel guilty. I just want power to be shared more equitably with the people it’s used against.

                      “Male feminism” tells me you’re not a serious person, so I’m not even going to engage with that.

                      You can label me a white knight if you want, but I can think of worse things to be in the world than a self-indulgent internet commentator.

                    3. LawTalkingGuy: You haven’t heard of male feminism and male feminists?

                    4. It’s a nice story…. of course, the counter-point is Miguel Estrada.

                      Miguel Estrada was fillibustered by the Democrats for a circuit court judge for two reasons.

                      1. He was conservative. But more importantly…
                      2. He was Hispanic.

                      And if there’s one thing liberals hate more than white conservatives, it’s non-white conservatives.

        3. “Maybe we could just try to not have two white male children of beltway insiders who literally went to the same private high school on the Court.”

          Sotomayor and Kagan both grew up in NYC and went to Princeton. I assume you complained about their nominations for the same reason?

          1. I wasn’t necessarily thinking about it at the time, although the school thing for Kagan does jump out.

            While they did share an undergraduate education and a similar legal one they had quite different family and professional backgrounds. Kagan was a SCOTUS clerk, academic, and White House insider and solicitor general. Sotomayor by contrast was a prosecutor who actually tried cases in a state court, a civil litigation attorney at boutique firm, and a trial judge prior to being on the circuit court.

            With Kavanaugh and Gorsuch, it’s not just the school, it’s how much of their professional and family background was the same.

    2. The question is, do we really need to over-represent non-straight judges? And doesn’t concentrating on ethnic and gender identity mean de-emphasizing competence?

      But, of course, competence isn’t the point of this list.

      1. No. Because there are far more qualified people than positions available. Especially for SCOTUS, which is a group of nine, nominated one at a time every few years. So it is very easy to find qualified people of diverse backgrounds if you care to look.

        1. Some people look at a wealth of qualified people, and say, “Cool, we can go for hyper-qualified, and still have enough to pick from!”

          Others look at a wealth of qualified people and say, “Cool, we can pick people on the basis of something other than their qualifications, like the melanin content of their skin, or their sexual quirks!”

  7. It would be nice if there was more legal diversity on the federal appellate bench generally. People tend to forget that a lot of what SCOTUS and the appeals courts do is to provide guidance to lower courts (including state courts), practitioners, and federal agencies.

    SCOTUS could use a justice with significant criminal defense experience (actually representing clients in person, not just appointed appeals). It could use some justices with significant trial court experience generally (there is only one former trial court judge on SCOTUS right now). Maybe some justices who, God forbid, might have had any significant state court experience at any level (state courts end up construing federal statutes all the time). Maybe a patent attorney or anyone with IP experience. I know there are “biglaw” attorneys on SCOTUS, but are there any with significant bankruptcy experience?

    Although there are only nine slots, there could be a lot more legal diversity.

    1. I have always liked Jane Kelly as a Supreme Court prospect in part because of her background as a federal public defender for nearly 15 years.

      1. Me too. And it’s also important to note that someone who is appointed the federal defender for a district is chosen by the circuit court where the district is located. So it’s not just some bottom of the barrel attorney who couldn’t get another job.

        1. “Kelly became an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013.”

          Seems like a mid level lawyer.

          She went to yale Law. I thought you wanted more diversity?

          1. Harvard. I stand corrected, apparently she wasn’t appointed as the federal defender. The circuit-appointed defender appointed her to supervise one of the office.

            A woman who is a former public defender serving on the Eighth Circuit would be a big change in comparison to the backgrounds of the Court’s current justices, even if she went to Harvard. See, it’s not just the school, it’s everything about the nominated person. The school is part of it, of course. But again, when you end up with a situation where you nominate two justices back to back with such starkly similar demographics and legal background, I don’t think that’s good for the credibility or quality of the Court long term.

  8. Unlike President Trump’s original list, the current list was not released–or even endorsed–by any campaigns.

    So why are we even talking about it?

    1. Because the Democrats aren’t going to warn us about who they’d put on the Court, this is the best clue we have.

  9. I’m surprised there isn’t a race/ethnicity/gender identity score card out there linked in the article.
    You could also throw in a Law School scorecard as well.

  10. What percentage of these judges attended Harvard or Yale law school?

  11. 1) Judge Dredd
    2) Judge Judy
    3) Mike Judge
    4) Judge Knott

    1. Judge Reinhold?

      1. In recognition of thr playoffs, I nominate Aaron Judge.

  12. Republicans pick judges who are conservative. Democrats pick leftists who are judges. You can deny this all you want but you can’t change the fact that for the past several decades Justices chosen by the left have been a lot more in lockstep with their overlords than the Justices chosen by the right.

    1. Trump’s judicial nominees have been as white and male as the Conspiracy.

      Just the way to-be-replaced clingers like it.

      1. So is this a roundabout way of saying Jews are over-represented in high prestige areas and this needs to change?

        I think you should get to know some of the people you criticize. You might like them more than you think.

      2. I get the idea that the Rev is (a) old (b) white and (c) of Southern origin. Maybe he’s hoping that if he denounces old white Southerners the SJW crocodile will eat him last?

        1. He’s a self-hating goober.

  13. Josh Blackman: It isn’t clear that Demand Justice considered elected officials, such as Klobuchar and Booker.

    Also Josh Blackman: Current/Former Government Officers … Katie Porter (House of Representatives).

  14. Also, is DemandJustice the group that tried to label Eric Miller as unqualified for the Ninth Circuit because his firm often represented parties in opposed to tribal interests and tribal sovereignty? That struck me as incredibly odd because the firm, Perkins Coie, is the go-to Democratic Party firm which represents the DNC, the Democratic Leadership Council, the DSCC and DCCC.

  15. Hi, Josh. Many years ago I taught for one night at South Texas in place of a friend who had to be out of town. It was Torts, not ConLaw. Hope the school is doing well. Jim Brock, JD Georgetown 1960

    1. The guy was Bernie Reiter. Some of your buds might remember him.

  16. Whoever’s comment was ‘flagged for review’
    about 6:15, sorry, was trying to close an ad.

  17. And now the right wing list, headed by Franklin Graham, John Bolton, and Steve Bannon.

  18. Oh, great, Catharine Lhamon, the gal who screwed the campus court system. We may be better off if Trump gets re-elected.

  19. But, but, but …. keeping Garland off was literally worse that Hitler!

    Surely he is the only name on the Democrat list, right?

  20. Mike Judge.
    But seriously: why isn’t Kamala Harris at the top of this list?
    All kinds of diversity, including the most needed diversity (career background).

  21. “it isn’t clear that Demand Justice considered elected officials, such as Klobuchar and Booker.”
    They must have as Becerra is on the list and he was the Rep. for Cali’s 34 congressional district. Maybe they only ruled out existing congress critters and will accept those that have been reformed.

  22. Catherine Lhamon, ugh. Always great seeing an anti-civil rights extremist on the list. Sucks seeing the left betray its otherwise superior position on civil rights in order to completely gut the entire idea of due process when its in conflict with this ridiculous ‘social justice’ fad where the answer to unfairness in the past is to be just as unfair to the other side.

  23. It appears the climate on the left has changed and more overtly political candidates are favored, to the point where a Merrick Garland would be considered a stuffed-shirt traditionalist in comparison.

    Some of the candidates appear to be roughly comparable to a Republican President nominating the general counsel for National Right to Life or similar.

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