Fair Reading

Linda Greenhouse positively gushes over the commencement address David Souter delivered at Harvard.

As she describes it, his argument is as follows: Judges ought go beyond any "fair-reading model" and "make choices among the competing values embedded in the Constitution." The American people want "to have things both ways" and so the "court has to decide which of our approved desires has the better claim." Those who limit themselves to fairly reading the law "'egregiously' miss the point" driven by longing "for a world without ambiguity, and for the stability of something unchanging in human institutions." He, on the other has come to "embrace the 'indeterminate world'" and to understand that "meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page." As evidence/illustration he cited the Pentagon papers, which required the court to weigh national security against the First Amendment, and Brown v. Board, in which the "meaning of facts" and therefore decision, but not the facts themselves, changed from the earlier Plessy case.

An op-ed in the Journal, critiques Souter's argument by noting that Plessy went every bit as much as Brown beyond a fair reading. This critique misses its target because Souter's argument -- shockingly, but inarguably -- hinges on Plessy being correctly decided (one can only guess his view of Dred Scott).

Souter is certainly right to this degree: Justices cannot hide underneath a text to escape responsibility for their decisions; Ultimately, they have the power.

On the other hand, his application of the banal liberal conceit that Conservatives are afraid to boldly go is the opposite of profound. Prudence dictates that an unelected Court in a Democratic system -- even one that recognizes, with Souter, the ultimate difficulty of fairly reading -- operate roughly within the parameters of public expectation (which it can, in turn, help to set). The American people plainly want their Court fairly-reading, not approving/deciding-amongst our desires -- we put obscure lawyers skilled at reading legal texts, not revered philosophers or trusted teachers, on the court.

Put slightly differently, the difference between Souter and Scalia is that not, as Greenhouse would have it, a sort of existential bad faith on Scalia's part. Rather, Scalia is more conscious, or conscientious, than Souter of the context in which Judges operate. While to Souter, the common notions of what Judges ought do are something to be overcome, to Scalia, they form the basis of Judicial authority in a Democratic society.

Uncomfortable Zionism

Peter Brienart caused a bit of a stir with his article The Failure of the American Jewish Establishment. Stated clearly, his argument is, on its face, horrifyingly bizarre:

His main thesis is that American Jewish leaders, who advocate support for Israeli government policies as the product of a democratic process are wrong morally and pragmatically. They are wrong morally, because, he says, Democracy in Israel is slipping away -- he approvingly quotes Israelis proclaiming "Israel has not been democratic for some time now" and comparing their government to "Franco’s Spain." They are wrong pragmatically, because supporting this illiberal system is, he believes, alienating a generation of American Jews. Instead, he suggests American Jewish Leaders ought be promoting authentically liberal democracy in Israel, what Avraham Burg calls an "uncomfortable Zionism."

To respond to this with rational argument or fact would largely miss the point, although it is of some interest that while, to some, the rise of Likud has meant Israel is now a more representative, truly competitive multi-party democracy, to others, Israel was more truly democratic under narrower rule. Brienart makes his position clear in lamenting the political influence of the "Russian immigrant community" and the party representing "Jews of North African and Middle Eastern descent."

Which is not to say he should be dismissed: Underneath lies a clear threat -- the asymmetrical relationship between Israel and the diaspora. Israel needs Liberal Diaspora Jews far more (or at least more directly), than Liberal Diaspora Jews need Israel; Israel's existence is jeopardized by the loss of a generation of diaspora Jews. Brienart's implication is accurate: Might, in this instance, makes right and so the onus is on Israel, and its supporters, to pander to these enfant terribles.

Brienart also gets one (somewhat tangential) point right when he argues that Zionism needs more positive ("based on the precepts of liberty, justice and peace taught by the Hebrew prophets") and less negative (e.g.: victimhood-driven) content. On this, he takes the opposite side of Michael Chabon. Brienart's unstated critique of Orthodox parochialism is particularly on-target: They, above all, should understand that The Hope of Two Thousand Years can not be a state like any other.

Truth and Consequences

Supporters of Israel are speaking a clear truth when they argue that "the mob that assaulted Israeli special forces on the deck of the Turkish ship Mavi Marmara on Monday was not motivated by peace." Best one can tell, by and large, the flotilla was populated by people who empathize with Palestinians and de-humanize Israelis:  As far as Israelis are concerned, this was no Love Boat.

Critics of Israel (e.g.) speak with less truth -- the general line of argument being that the the Gaza blockade is a failed Israeli policy designed to overthrow Hamas and immorally collectively punish the Gaza population.

The collective punishment argument is revealing. Few would argue that, for example, the global boycott of apartheid South Africa was an immoral policy designed to collectively punish a civilian population. In fact, many of those horrified by collective punishment targeted at Gaza, would eagerly impose it on Tel Aviv. Obviously a blockade is more onerous then a boycott, but the difference is in degree, not principle. Ultimately, those who oppose the blockade on the collective punishment basis take less seriously then do Israelis, Hamas' stated genocidal intent.

The "failed Israeli policy argument" is willfully ignorant. Critics point to the problems it has not solved while ignoring its achievements. If Hamas is in no danger of being overthrown in Gaza, neither does it -- as it did in 2006 -- pose a meaningful challenge to Fatah's over-all leadership. If it is not un-armed, it is at least, not armed like Hezbollah. It also is likely not simple co-incidence that where Fatah once strove to out-Hamas Hamas, they are now, apparently, moving in a more peaceful direction.

Further, and for that reason, it was hardly Israel's policy alone: Hamas/Gaza was locked down -- with broad international support -- as much, if not more, for Fatah's benefit than Israel's.

The most likely outcome now appears to be a revised policy that preserves Israel's key interest -- weapons inspection -- but frees Hamas to, again, compete more vigorously with Fatah.

This may prove a blessing in disguise. Ultimately, Fatah may understand that it cannot win by out-Hamasing Hamas, that its only real path to continued relevance is a negotiated peace, that the longer it takes to reach that peace, the more powerful Hamas will become, and therefore the more difficult it will be. For the first time in memory, we may now have a Palestinian leadership which sees its self-interest tied to a quickly negotiated peace. Similarly, the President may finally be finished giving the parties reasons to not negotiate.

Despite themselves, and beyond their bigoted understanding, the blockade runners may have actually given peace a chance.

All Politics is Local

Turkish Prime Minister Recep Tayyip Erdoğan, never a friend of Israel's, has been the most vigorous voice condemning the Israeli raid on the Turkish Flotilla. His strong position neatly matches his domestic political calculus. Only three years ago, one million Turks protested against his government:

As many as one million people rallied... accusing the government of planning an Islamist state...  denouncing... Erdogan... as a threat to a secular order separating state and religion...

Only 10 years ago the army, with public support, hounded out of office a democratically elected Islamist government...  The army General Staff raised the stakes on Friday... with a threat to intervene in the election.  The Istanbul protesters said they backed the army, long viewed here as the ultimate guardian of the secular republic.

In the context of the historically close ties between the Israeli and Turkish militaries, Israel is, for Erdogan, likely a convenient proxy through which to attack/undermine his domestic secular/military political enemies.  Along the same lines, Israel's attempt to link the flotilla organizers to Islamic extremists, while galling to the American-left-of-center, is, in part, directed towards Turkish secularists.

The Israeli response will most likely prove Pyrrhic.  It will be all the harder for them, now, to maintain the blockade.  On the other hand, few Israelis believe Hamas ought not be blockaded and watching the videos, few Israelis see humanitarianism at work.  The greater the international condemnation/isolation, the more likely Israelis will be to rally round the flag.

Obama faces, perhaps, the toughest political dilemma. A big part of his base -- one which till now has had strong influence on his Israel policy -- would like to see Israel further under the bus. Especially after signing the NPT resolution singling out Israel, but not Iran, any hint of that here risks further decay in his support amongst Jewish-Americans.

On the other hand, Obama now has an opportunity to validate his diplomatic approach. The administration, in an attempt to please all its constituents, is advocating an "Israeli investigation" with "international participation." If Obama can get Israel and the international community to productively co-operate, he will have earned his Nobel prize.