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Monday, November 9, 2020

MY SON HAS ECLIPSED ME

While I was brooding about what to say today, my son Tobias posted this brief essay on his Facebook page.  It is well worth reading. Tobias, by the way, is the Jefferson Barnes Fordham Professor of Law at the University of Pennsylvania.


A Note to the World:
When this atrocity of an administration began nearly four years ago, we asked for your forbearance as we tried to do the work necessary to restore decency and the rule of law to the Executive Branch of our national government and rejoin the community of responsible nations. We know, we said, and we are sorry. Give us time and we will do the work to fix this aberration. But the truth is that this monster who has occupied the West Wing of the White House these last four years is not an aberration, even if his particular combination of personality disorders and moral emptiness is singular. This happened because of long-unaddressed pathologies in the American spirit.
It happened because we did not complete the work of Reconstruction following the close of hostilities in the Civil War, betraying the Black men and women who had built the economy of the United States while being subjected to forced labor, torture, rape and murder in favor of some long-forgotten petty political gain of the moment.
It happened because the soul of America has been riven by the brutality of White Supremacy since its founding, defined first by the abomination of chattel slavery, then the domestic terrorism of lynching and violent apartheid, then by the euphemized racism of disenfranchisement, voter suppression and mass incarceration, always with the evil bargain that masses of White Americans could be exploited and abandoned so long as they were offered a hollow promise of centrality in the definition of American identity.
It happened because some of our most celebrated political leaders took the script of the racial other and turned it against Chinese Americans, Japanese Americans, Vietnamese Americans, Muslim Americans, Mexican Americans, Guatemalan and Nicaraguan and El Salvadorian Americans, each in their turn when the script became convenient, and we have venerated those leaders while treating their assaults on our non-White brothers and sisters as footnotes to be mentioned only in passing.
It happened because we have allowed a media culture that glorifies sociopaths, obsesses over narcissists and normalizes anti-Semitism to predominate in the public square and mock the values of integrity, earnestness, care and compassion that are the foundation of any just society.
It happened because our system of government still wears the structural skeleton of the abomination of slavery and the unabating betrayal of Native American nations and peoples, allowing a relentless minority to shut the majority out of the political process.
It happened because of our two and a half century failure to carve the beating heart of White Supremacy out of our system of government and our collective spirit. That infrastructure of injustice is what made it possible for this most atrocious of men -- this pathetic, dysfunctional, emotionally arrested, corrupt, serially predatory fraud -- to occupy the most powerful position of governmental authority in the world.
And so, for the last four years, we have organized and donated, protested and inspired, contributed our skills, searched our souls, and put forward a united effort to make clear that this bonfire of hate and corruption and toxic infantilism would not stand. We asked you to believe that we would do that work. And we have. The madman will exit this office in ignominy after one term and a decent, serious man and a powerful, joy-filled woman will start the work of governing and engaging with the world once again.
But this victory is not the end. It is barely even a beginning. The deep pathologies remain, given more power and reach for having been brought to the surface and embraced by the nominal head of our government.
So it is time for a new commitment. It is time for the American people to embrace the long-overdue task of creating a just society. Not merely a society that congratulates itself for making loud and sanctimonious commitments to justice, but a truly just society in which two hundred and fifty years of moral compromise are confronted and repudiated. It is time that we reckon with the generations of moral failure that made the last four years possible and require of ourselves that we address those failures.
The world should hold us accountable for the last four years. And we, in turn, should demand nothing less of ourselves than a commitment to transformational justice that will make the ideals we claim to hold a reality.
The great work begins.

25 comments:

David Palmeter said...

Hard to argue with, but difficult to implement. What exactly can I do "to embrace the long-overdue task of creating a just society?" There seem to be 70 million people out there who don't see the need to do any such thing.

Anonymous said...

Is Biden really the right individual to lead us through this phase of transformational justice? He is a career politician and also VP with a black president, but not much transformation there. And nearly half the country voted for this "monster". Not trying to be contrarian, but the average citizen doesn't know what going on right now, other than a contest among the elite with our votes.

Robert Paul Wolff said...

Do we have a choice? As Donald Rumsfeld said, we go to war with the army we have.

Christopher J. Mulvaney, Ph.D. said...

David,
It seems every revolution has a counter-revolution. While the last 40 years have been dominated by republicans, the younger cohort of voters is decidedly progressive. I think that is, in large part, due to the huge changes created by leftist/progressive/neo-Marxist academics who have redefined the social science disciplines, and hence how the next generations will understand the world. People aren’t born racists or fascists, and to the extent that we can bring about progressive change, we will be changing the conditions out of which the racists developed. In theory, anyway.

Now that’ the most optimistic thing I’ve written in decades and I better stop before my normal cynicism kicks in again,

David Palmeter said...

Christopher,

Mine has kicked in. We can't even take much joy in the fact that Biden won the popular vote by so much--a lot of it came from Republicans who were anti-Trump. Nonetheless, in the true spirit of Donald Rumsfeld, I will continue to confront, the the best of my ability, the known knowns, the known unknowns, and the unknown unknowns.

MS said...

(My insincere apologies to “Anonymous” for posting again.)

I commend your son for his ambitious program to cleanse this nation of injustice and racism.. And while it is certainly a tall order, as several prior commenters have noted, there are many things which can be done which can change the zeitgeist of our country by gradual measures. And I would recommend that your son, and others reading this blog, after the inauguration on January 20, 2021 (which, by the way, I suspect former President Trump [damn his name forever] will boycott) start by writing letters to Vice President Harris and whomever is appointed Attorney General to reopen the federal investigation of the lynching death of Lennon Lacy, about which I commented at some length in Prof. Wolff’s October 31 post titled “Queen’s Gambit.” As I argued in that comment, the evidence clearly points to the conclusion that Mr. Lacy was murdered. The State of North Carolina, however, has conducted a cover-up, assisted by the FBI office in North Carolina, and closed their investigation, concluding that Mr. Lacy committed suicide. Her did not commit suicide; he was lynched. And Vice President Harris, having been the sponsor of a bill to make lynching a federal crime (which did not pass, primarily due to the actions of that great Senator from Kentucky, Rand Paul), will not require much encouragement to take up this cause.

I want to also thank your son for also mentioning the issue of anti-Semitism, which is on the rise both in Europe and here in the United States, in ways which are quite shocking. I know, because one of the federal lawsuits I am litigating involves anti-Semitic protests which have been occurring every Saturday morning, for now 17 years, in front of a synagogue located in, of all places, Ann Arbor, Michigan, the home of the University of Michigan, as members of that synagogue enter their house of worship, many accompanied by their children. in order to celebrate their Sabbath. While the protesters have been violating the City Code of the City of Arbor the entire time they have been engaging in their protests, the City has refused to enforce the Code provisions against the protesters. The case pits the 1st Amendment right of free speech against the 1st Amendment right of the free exercise of religion, and is the first case of its kind in American jurisprudential history. Among the protesters are individuals who claim the Holocaust did not occur, and who claim that Israel was responsible for 9/11. While I am not a religious person, I believe that those who choose to believe in a religion have the right to exercise their freedom of religion without being harassed in proximity to their place of worship – and this includes adherents of all religions – Protestants, Catholics, Muslims, Hindus, Sikhs, Mormons, Native Americans, and yes, Jews. I am opposed in this case by lawyers for the individual protesters, as well as lawyers for the ACLU, of which I was once a proud member.

Danny said...

From the op Tobias Barring ton Wolff lines, I scanned the part about a media culture that 'glorifies sociopaths, obsesses over narcissists and normalizes anti-Semitism'. The normalization of anti-semitism, I think this kind of a novel locution. I would better understand and unpack this audit on antisemitism. Indeed, what is it to glorify sociopaths? You don't decide to become a sociopath. That huge paragraph you just wrote just made all the fake ASPDs even more intrigued. Are you referring to all Reddit trolls or just some of them? Nobody who isn't misinformed is trying to glorify sociopathy. I imagine being a psychopath as how I am when I'm a few beers in, but I wouldn't be able to handle the empty void and viewing other humans as tools to be used and discarded of. Why would anyone want to be a sociopath? Most people will misunderstand and condemn you as a monster, which brings me to this:

'this monster who has occupied the West Wing of the White House these last four years is not an aberration'

I think you mean Trump, eh? Thus, we might compare him to the Cyclops, the Kraken. The idea that Trump is a defender of Christianity is absurd but evangelicals still believe it. Along with Roman Catholic bishops. It occurs to me to juxtapose how Trump calls Harris a 'Monster'.

Also, the 'madman'?

Plus, I wonder if we can manage 'a decent, serious man and a powerful, joy-filled woman' with a straight face, here -- you mean, Biden and Harris. Well, to me, 'joy-filled' sounds like a 100% plant-based supplement for anxiety & depression relief. We at Happy Healthy Hippie, etc. Sure, Kamala Harris is an Oakland native, but couldn't it have been 'joy and sobriety'? Sure, Harris' white suit and sure, Next In Line, but couldn't we have gone with 'joy, tempered by determination'? Get emotional as you watch your granddaughter and all, sure, racial justice for all, heck, upbeat tunes pump from a pair loudspeakers, it's the power of human-to-human giving, and as miracles go, we get a world-class prosecutor to argue our case. And so this jaded and weary heart etc. Kamala Harris dancing in the rain shows black joy, I've been watching the heavily GIFed and memed clip. Biden, a 'decent, serious man'? Why not a decent, serious man who cares passionately and is not afraid to challenge fashionable orthodoxy? He's practically Prince Charles. Whatever their faults, these are not bad people. If Biden is a 'decent, serious man', then I guess he's ready to be vice president.

s. wallerstein said...

"He's practically Prince Charles."

That was my first laughter of a not particularly amusing day. Thanks.

levinebar said...

Interpreting the Law
On that day Rabbi Eliezer brought forward all of the arguments in the world [in favor of his position on a certain matter of ritual cleanliness], but they [his colleagues] did not accept them from him. He said to them: “If the law agrees with me, let this carob-tree prove it.” The carob-tree leaped a hundred cubits from its place in the garden. The sages replied: “No proof can be brought from a carob-tree.” He said to them: “If the law agrees with me, let this stream of water prove it.” The stream of water began to flow backwards. The sages replied: “No proof can be brought from a stream of water.” Again he said to them: “If the law agrees with me, let the walls of this schoolhouse prove it.” The walls began to shake and incline to fall. Rabbi Joshua leaped up and rebuked the walls saying: “When disciples of sages engage in legal dispute what is your relevance?” In honor of Rabbi Joshua the walls did not tumble. In honor or Rabbi Eliezer they did not right themselves, and are still inclined even to this day. Again Rabbi Eliezer said to the sages: “If the law agrees with me, let it be proved from Heaven.” A divine voice came forth and said: “Why do you dispute with Rabbi Eliezer, for in all matters the law agrees with him!” But Rabbi Joshua rose to his feet again and exclaimed: “It is not in heaven” [Deut. 30:12; implying that the divine law is now in human hands and open to human interpretation regardless of God’s position]. Some time later, Rabbi Nathan met the prophet Elijah and asked him: “What did the Holy One, blessed be He, do when rebuked by Rabbi Joshua?” Elijah replied: “He laughed with joy saying ‘My children have defeated me, my children have defeated me.’” [Crawford, World Religions and Global Ethics, p. 166; Babylonian Talmud, Bava Metzia 59a-b.]

MS said...

levinebar,

Thank you for that beautiful allegory, which I have read before, but always enjoy reading it again..

I have promised my clients – one of whom is a Holocaust survivor – that if I lose the case involving the protesters in front of their synagogue, I will eat Elijah’s yarmulke.

MS said...

Post-Script:

When I used to work at a law firm, I had on one of my walls a framed copy of Kafka’s ”Before the Law,” which you can read here: https://www.kafka-online.info/before-the-law.html

It is not an optimistic view of the law, and effectively conveys the inscrutable traps for the unwary which the law can spring, and which require constant study and attention to detail to avoid. I kept it on my wall to keep me alert to the forces I was up against. If you are a lawyer who represents plaintiffs in civil suits, or defendants in criminal suits, as I did , one has to remain perhaps foolishly optimistic, or you could not do it every day. And I am pleased to say that sometimes – not always, but sometimes – my optimism paid off. And I am optimistic that I will win the lawsuit against the ant-Semitic protesters in front of my clients’ synagogue. And that will be my contribution to advancing Tobias Wolff’s ambitious program of making this country a better place.

Anonymous said...

It ain't over 'til it's over.

https://www.realclearpolitics.com/elections/live_results/2020/president/

"And that will be my contribution to advancing Tobias Wolff’s ambitious program of making this country a better place."

Oh brother.

Anonymous said...

I would never want my lawyer to comment on a random message board about my case that is ongoing. It seems like a boundary pro Lem.

MS said...

Anonymous 10:48 and Anonymous 10:52,

Are you the same Anonymous who has continuously carped at me in prior posts?
Attorneys discuss their clients’ cases in public venues all the time. There is nothing unethical or unprofessional about it, particularly when the case has significant implications for the constitutional and civil rights of the general populace. You apparently have some sort of grudge against me.

Danny said...

We lawyers are free to say whatever we want.

Danny said...

MS said...
--anti-Semitic protests which have been occurring every Saturday morning, for now 17 years, in front of a synagogue located in, of all places, Ann Arbor, Michigan .. Among the protesters are individuals who claim the Holocaust did not occur, and who claim that Israel was responsible for 9/11.'
--

--one of Michigan’s most liberal cities
--pro-Palestinian protests outside a synagogue, the Beth Israel Congregation
--for nearly 20 years

It seems that this anti-Israel protest group is Jewish Witnesses for Peace and Friends, and in short, founded by a former Beth Israel (Ann Arbor) congregant!

Perhaps, a fitting addition to the local activist scene in Ann Arbor, home to the MC5 rock band, the Rainbow Peoples Party, and other such radicalism?

Danny said...

these protesters—most of them septuagenarian and octogenarian retirees, many of them former labor activists. I try to imagine how February is there, versus in Florida.

I ponder the now-routine pickets of pro-Israel events including the annual American Israel Public Affairs Committee conference in Washington by Code Pink, but that's different, than an old-fashioned intra-faith grudge.

This fellow, the synagogue refused to let him present a slideshow of photographs he’d taken at a Palestinian refugee camp that he felt documented human rights abuses. And the protest is 'remove the Israeli flag from the sanctuary'.

I query, whether the protests are clearly anti-Semitic. Separately, I incline to revisit this assertion:

'While the protesters have been violating the City Code of the City of Arbor the entire time they have been engaging in their protests, the City has refused to enforce the Code provisions against the protesters.'

This sounds like an agreement has been reached with the City Attorney’s office? Are there correct communications channels in the City Attorney’s Office?

Are there actually, any legal proceedings against this 'Witness for Peace' outfit?

MS said...

Danny,

So I gather you are also an attorney. I have read many of your comments with fascination (and sometimes perplexity) – you have an interesting staccato style.

And yes, attorneys can pretty much say anything in public about their cases without violating legal ethics, as long as they do not violate a gag order, or disclose a information protected by the attorney-client privilege, and I have done neither. However, for legal reasons separate from these considerations, there are some restrictions on what I can discuss about the litigation. Regarding whether the protesters are anti-Semitic, I believe that signs which state such things as “Jewish Power Corrupts”; “Resist Jewish Power”; and which assert that those who support Israel are the equivalent of Nazis, are anti-Semitic, and can be quite painful to see as you approach your house of worship, especially if you are a Holocaust survivor and have seen in your lifetime things that would give most of us nightmares. And while several of the protesters are somewhat advanced in age, a few are younger. The legal issues in the case go beyond how one feels about Israel and its treatment of the Palestinians, which is being used by the protesters as a cover to harass Jews. I would make the same argument on behalf of African-Americans attending a predominantly Black church if KKK members showed up in front of their church with signs using the N-word and posters showing photographs of burning crosses - and did this for 17 years. Absolutely protected by the right of free speech? I do not believe so.

Why the City has behaved as it has is not entirely clear, but it and several of its administrators, including the mayor, have been named as defendants, as has the organization Jewish Witnesses for Peace, which has dropped the word “Jewish” from its title. While the ringleader was born Jewish (none of the other current protesters are Jewish), he has pretty much disavowed his religion and was reported as saying that it was too bad that Hitler did not finish the job. Sad, but not unprecedented. Bobby Fischer, whom I admire as a chess player, died expressing virulently anti-Semitic views.

s. wallerstein said...

Here's an article on the synagogue protests, from the Jewish News, by the way.

https://thejewishnews.com/2020/08/21/judge-dismisses-lawsuit-against-protesters-at-ann-arbor-synagogue/

MS said...

Just to provide context for the article which s. wallerstein has referenced, the case is currently on appeal before the 6th Circuit Court of Appeals in Cincinnati. I filed the Appellants’ brief on November 3. The issue on appeal is a very narrow one – whether the emotional distress experienced by the plaintiffs in seeing the signs in front of their house of worship as they approach the building in order to exercise their 1st Amendment right of freedom of religion constitutes a “concrete injury” which gives them standing to sue. The federal judge held that it did not. Her decision is contrary to numerous other decisions by federal courts which have repeatedly held that emotional distress alone is sufficient to give a plaintiff standing to sue (consider, for example, sexual harassment cases in which the plaintiff has been the victim of sexual insults and banter– which is speech – without any claim that the sexual harasser has had any physical contact with the victim, and yet the courts have held that the speech is offensive enough to give the victim standing to sue based on the emotional distress that speech has caused).

I am confident that the judge’s decision will be reversed and the lawsuit will be reinstated. And then we will proceed to address the central issue in the case – is the protesters’ speech so absolutely protected by the 1st Amendment that a federal judge is precluded from issuing an injunction that places reasonable time, place and manner restrictions on the protesters’ right to picket in front of the synagogue – for example, placing distance restrictions on their protest, and limiting the number and time periods when they can engage in their protest. The plaintiffs, by the way, have not argued, and will not argue, that the protesters should be prohibited from engaging in their protest in other parts of Ann Arbor, or Michigan, or the United States. We recognize that they have a 1st Amendment right to express even their anti-Semitic views – just not in front of a synagogue (whether this synagogue or another synagogue) as members of that synagogue are entering their house of worship to pray. I would make the same argument for any other religion – that, for example, protesters can be prohibited from picketing a mosque using signs accusing the members of that mosque of supporting ISIS or having been complicit in 9/11. Or protests in front of a Catholic church accusing its congregants of tolerating pedophile priests.

Danny said...

Says here original case terminated Aug 19, 2020.
https://www.pacermonitor.com/public/case/31476466/Gerber_v_Herskovitz_et_al

Marvin Gerber, et al v. Henry Herskovitz, et al
Judge Victoria A Roberts

A minor setback?

So, you take issue with judge’s dismissal of this lawsuit? A federal judge’s ruling. The judge found the plaintiffs failed to assert a concrete injury and lacked standing to sue. Also, the First Amendment:

“more than protects the expressions by defendants.”

“Peaceful protest speech such as this – on sidewalks and streets – is entitled to the highest level of constitutional protection, even if it disturbs, is offensive, and causes emotional distress,” the judge wrote.


Apparently, the Lawfare Project is involved, and is a New York-based legal fund with a focus on Jewish and pro-Israel cases. Lawfare Project executive director Brooke Goldstein. The Project defines lawfare as the use of law as a weapon of war, or the wrongful manipulation of international and national law to pervert the original intent of the law.

'We do not regard the term as having only negative connotations.'

I wonder if directing attention away from the merits of the underlying legal and policy debates themselves would
maybe be regarded as having only negative connotations?

Danny said...

No I'm not an attorney. 'We lawyers are free to say whatever we want', was me being ironic.

Also, I'm in Los Angeles, where local synagogues, day schools, and Jewish-owned businesses are facing thousands of dollars worth of repairs after vandalism that occurred during the protests over the killing George Floyd. And, then, there is what some media outlets would have you believe -- in several cases, misleading posts contributed to the sense that anti—Semitism fueled the protests. I recall, for example, a video the White House tweeted, and later deleted, that misidentified bollards in front of the Chabad of Sherman Oaks as a cache of bricks for use by anarchists. That post, and 6,200 people had “liked” it an hour after it went up, was claiming that “antifa and professional anarchists” were instigating violence in the nationwide protests, and of course, President Trump has said he believes left-wing agitators are behind the violence.

Also, the website StopAntisemitism.org uploaded a photo of the tagged sign to its Instagram, Twitter, and Facebook pages, concocting a caption on the image reporting that the spray-painted words (illegible in the photo) read “KILL THE JEW.” In actuality, they read “KILL THE RICH.”

If some Israeli media coverage of the protests contributed to the misconception that Jews in L.A. were under siege, then this may not seem relevant to you. To me, it seems like there is a certain audience, and appetite for seeing, is this the moment when antisemitism becomes mainstream?

..not that I’m seeing. ut if you’re predisposed to thinking that way then you get this visual of ‘Kill the Jews’, that’s going to be your worldview all of a sudden. Quite frankly, when you consider that there were thousands of people on the street in an almost lawless environment .. well, let me see, it troubles me that there’s a correlation being made in social media between the protest and a rise in antisemitic activity in Los Angeles -- especially if there’s no factual evidence of that. And anyways, this is why I made time to read up on this silly Ann Arbor thing, which is neither here nor there to me otherwise.

Danny said...

'And yes, attorneys can pretty much say anything in public about their cases without violating legal ethics, as long as they do not violate a gag order, or disclose a information protected by the attorney-client privilege, and I have done neither.'

Well, one question is what I might label as an 'the ethical rules of most states would probably allow this' question. Or, a 'do you think that's professionally ethical' question. I suppose you mean, without getting the client’s permission.

But whether 'there are many reasons never to discuss a case', that's another question, Mark.

MS said...

Danny,

With all due respect, I am having some difficulty following the theme of your three comments. I, need, however, to correct some of what you have said about the lawsuit related to the protesters in front of the synagogue in Ann Arbor. The statement that the case is terminated refers only to the status of the lawsuit in the United States District Court in Detroit. The case is not over, since a timely appeal has been filed in the United States Court of Appeals and is currently pending. I have stated that the trial court’s dismissal is a “minor setback” because I, and other attorneys familiar with the case, are 99.999 % certain that the decision is going to be reversed. The judge held that the federal court did not have jurisdiction because the plaintiffs did not have standing under Article III of the Constitution. (Standing is often an issue in federal lawsuits. It means that the party suing has suffered some sort of legal injury – a physical injury in a car accident, for example; emotional distress caused by the defendant’s conduct; or the denial of a statutory or constitutional right – which allows them to sue in court. If you listened to the oral argument this morning regarding the constitutionality of the ACA, questions were raised regarding whether some of the parties claiming the ACA is unconstitutional had standing to do so.) The plaintiffs in the lawsuit against the protesters claimed both an emotional distress injury and a violation of their statutory and constitutional rights. The trial judge only addressed the question whether their emotional distress caused by seeing signs attacking their Jewish ethnicity (“Jewish Power Corrupts”; “Resist Jewish Power”) using age-old anti-Semitic tropes in front of their house of worship was sufficient to give them standing to sue. She ruled that it did not. In this regard, she was obviously mistaken (judges do, after all, make mistakes) because there are literally hundreds of federal decisions which have held that a plaintiff’s emotional distress caused by a defendant’s conduct constitutes an injury which confers standing to sue in federal court. In addition, the trial judge totally ignored the other bases the plaintiffs claimed they had standing to sue, that certain statutory and constitutional rights were being violated by both the protesters and the City. So, yes, I am confident that her decision is going to be reversed.

Regarding the judge’s comments about the scope of the 1st Amendment, an answer addressing that issue gets complicated from a legal perspective. Let me just say that in making these remarks, which were not part of the reason she dismissed the lawsuit, which was based exclusively on whether the plaintiffs had standing to sue, the judge clearly overstepped her bounds, because these remarks addressed the merits of the lawsuit itself, which federal law is quite clear, she was not allowed to do in ruling on the question of standing. If the plaintiffs had no standing, as she claimed, then they had no right to be in court, and she was precluded from addressing the 1st Amendment question. I am confident that she will also be reversed in this regard as well. In terms of your remark that this “silly Ann Arbor thing,” I assure you it is not a silly thing for those members of the congregation who simply wish to enter their house of worship without being insulted and accused of being Nazis.

With respect to the rest of what you have written regarding allegations of anti-Semitic attacks in California related to the Black Lives Matter protests, those allegations have absolutely no relevance to the lawsuit in Ann Arbor. There is no dispute about what the signs say which the protesters have been using in front of the synagogue for 52 weeks a year, for now 17 years, and there is no question that a sign which accuses Jews of having excessive power and influence in U.S. politics is anti-Semitic. The Nazis used such claims against Jews with tragic consequences for the Jews in Europe.

Anonymous said...

meh