Apr 152017

I have often disagreed with your party’s positions, but I usually could tell what they were. Although there were always some exceptions, there was a general coherence to them. You were the Sam the Eagles of American governance, statesmen above all else, and champions of a steady hand on the tiller of America, even when progress might perhaps have required a somewhat freer one.

That is not who you are now. You have put a mercurial, war-mongering clown at the head of your party, installed him in the White House, and are now standing silently by as he is aided and abetted by a team that, with rare exception, is at best incompetent if not also purposefully bent on undermining every institution that has protected the American people for generations. Far from being the conservative play, by letting his intemperate and frequently lawless behavior go unchecked you have been enabling the dissolution of every bit of stability – economic, political, and, perhaps worst of all, diplomatic – the nation and its security depends on. Stability that your own party has proudly claimed to have worked so hard to build.

While there are some among your ranks who appear to be gleeful for the GOP to suddenly be unshackled from the norms of decency, diplomacy, and competency, I have to believe that they are the minority. But as long as the majority is frozen in paralyzed impotence, the minority is redefining who you are, and who this country gets to be. Continue reading »

Apr 112017

Dear United:

I write this letter as someone who has been a rather loyal United customer to date and would generally wish to remain so. I want to make clear at the outset, however, that this loyalty does not allow me to exonerate you of the serious concerns raised by your appalling treatment of Dr. Dao both on your flight and in your subsequent correspondence with employees. Both – and in many ways the latter especially – give me great pause and make me wonder if I can continue to patronize this airline. Unhappily, due to consolidation and other market failures, I may not actually have much choice: the best airline for me is one that offers plenty of direct transcontinental routes out of SFO and a global alliance I can use my resulting frequent flier miles on. Unfortunately, your closest competitors can only meet some of these needs, and thus any threat to take my business elsewhere is generally an idle one.

However, one of the reasons that I became a United customer in the first place, and have remained one more or less happily up to now, is that I like your airline. Flying another carrier always feels like visiting a stranger, whereas I’m used to the operational rhythm of how United works and how it works for me. I like liking it, and I want others to like it too, even if for no other reason than that your success helps improve my own travel experience (more routes, more flights, more amenities, etc.).

But your behavior this week, as well as on some other some other recent occasions, has made it difficult to recommend you, and that is no good for either of us. When passengers have to fly you begrudgingly it is unpleasant for everyone. For us, it makes us impatient, inflexible, and defensive, and thus for your employees, the same. We are all much better off when everyone can be proud to choose United, and that’s what the rest of this open letter is intended to make sure we all can be. Continue reading »

Apr 032017

As the nomination of Judge Gorsuch for the vacant seat on the US Supreme Court continues to move forward, I find myself, as someone who generally characterizes herself as liberal and who tends to “vote blue,” torn.

Given my policy predilections there are in fact some significant reasons to favor his nomination. In particular he seems willing and able to clip the wings of government power when it tries to act beyond its authority. In light of a presidential administration that seems inclined to flex its muscles far beyond the bounds of how the Constitution permits it to, those sorts of libertarian leanings could be an important check on executive abuse, abuse that often targets liberal values.

On the other hand, although his jurisprudence on the subject is thin, miscellaneous comments he’s made about reproductive freedom make me concerned that his notion of individual liberty does not extend to a woman’s right of self-determination over her own body. Similarly, the hearings suggested that he may lack sufficient empathy for the lives his jurisprudence will touch. While I don’t generally agree that all liberal policies are necessarily a good idea, or constitutionally permissible, the intent behind them has always struck me as inherently valid and consistent with what it takes to form this more perfect union. Too much pushback against these policies, particularly when rooted in obliviousness to how Americans of differing backgrounds find themselves needing to live their lives, will not lead to liberty and justice for all.

And yet Gorsuch is educated, capable, and presumably persuadable. He is not a rabid ideologue. Thus there remains the concern for what might happen if his nomination is rebuffed and the next candidate put forth is.

It is hard to know how to counsel Democrats to proceed. There is a significant risk in rejecting him. On top of tempting an even worse candidate now, the mechanics of resistance, of pushing the filibuster and daring it to be destroyed, may remove it as an option to use against a worse candidate in the future. On the other hand, there’s no guarantee that it couldn’t be destroyed later, for that worse candidate.

Furthermore, Democrats still have two significant structural concerns about proceeding with Gorsuch’s appointment, concerns apart from qualms about his jurisprudence and that can’t simply be dismissed. Continue reading »

Feb 092017

Yes, I know I read judicial decisions for a living, and as someone practiced in it my notion of whether reading one is “easy” may be different than someone who has never read one. But the Ninth Circuit’s decision on the immigration Executive Order is remarkably well-written and clearly walks through each and every issue before it. In fact it is so well-written that everyone, lawyers and non-lawyers alike, should be able to read it. And it’s of such importance that everyone should try to, so that when people debate and discuss it in the coming days everyone will be able to have an informed opinion about it.

So what follows is a guide to reading this decision, a roadmap that explains what you are reading to help make its pages less seem less intimidating. Go on and give it a shot. It’s a little long, but there’s not too much legal gobbledygook, and what there is I try to translate below. Continue reading »

Jan 022017

I knew when I applied to UC Berkeley that I wanted to major in mass communications. It was not a major that you could simply sign up for, however; one had to apply.

The following is the bulk of my application essay that I found while looking through old papers recently. Given the current discussions about the role of the 5th Estate in public affairs it seemed as relevant as ever — even though it was written in 1993…
Continue reading »

Jun 202016

In light of today’s Fourth Amendment-eroding Supreme Court decision in Utah v. Streif, and Justice Sotomayor’s scathing indictment of it:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting
you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

I thought I would repost something I wrote in law school about an earlier Supreme Court decision, Hiibel v. Sixth Judicial District Court, that ran roughshod over the idea that people might have a constitutional right — and need — to refuse to identify themselves to the police. Given, as Justice Sotomayor notes, that such an identification can lead to other incursions on one’s liberty I think it’s worth remembering some of the earlier jurisprudence that has brought us to where we are with this case today.

(Originally posted 3/23/04. I’ve edited the writing slightly now to make sure the point I was trying to make back then are more clearly conveyed now, but I have not otherwise edited it for substance. While today I would tend to frame my legal analysis slightly differently, I think the rough take of a 1L still captures valid concerns that today’s ruling exemplifies and exacerbates.)
Continue reading »

Jun 082016

Seeing news that Israel has named a street after Chiune Sugihara, I thought I’d repost what I wrote about him in law school:

There was another excellent show on PBS this evening on Chiune Sugihara, a Japanese diplomat in Lithuania who wrote visas for thousands of Jewish refugees during World War II. He suffered for his actions personally afterwards – his foreign career effectively destroyed as a punishment (a true shame, given his remarkable linguistic and cultural acclimation skills) – but today thousands and thousands of people and their descendants are alive because of his sacrifice, to risk sanction from his superiors and write all those visas.

The show was also interesting to me on another point: examining the relationship between the Jews and the Japanese. In particular it explained a comment I had heard in my family that previously had no explanation.

I’ve written before about my great-grandmother’s brothers who had escaped Russia in the early 1900s by running east to China. There they settled in Harbin, a city full of expatriate Europeans, including many other Jews. They thrived there, even through World War II. And that was the comment – that the Japanese treated the Jews very well. Unfortunately during that period the Japanese army treated the Chinese people very poorly, which is why there was such confused marveling over why my relatives had no problems themselves.

There seems to be two explanations: one, that there were industrialists in Japan who actively wanted to settle Jews in China, to develop industry using their skills and education. In fact, at one point the Japanese, at the urging of these industrialists, offered to Jewish leaders that it would accept all the European Jewish refugees, with or without passports, so that they could settle in Japanese territory. This offer, however, was unfortunately declined by an American Jewish leader in the misplaced hope that if the European Jews had no viable options left, Roosevelt would step in and finally let them come to the United States and England would let them enter Palestine. Sadly neither of these things came to pass. Boatloads of refugees were turned back at Palestine, many to end up immediately shipped off to concentration camps upon return to Europe, and largely at the urging of anti-Semites in the State Department, America’s borders stayed shut as well.

The other explanation stems from a conversation between Japanese officials, by then allied with the Germans, and a Jewish leader representing the large population of Lithuanian refugees who by now were temporarily settled in Tokyo. Their numbers and the irregularities surrounding their immigration were cause of some concern to the Japanese officials, and Germany was heavily lobbying for Japan to adopt its policies of Jewish extermination. So the Japanese officials asked the Jewish leaders why they should not abide by the Germans’ wishes.

“Because we are all Asians,” was the response. You from the eastern side in Japan, and we from the western in [Israel]. Besides, when the Germans talk about the population they aspire to have, it is all Aryan. It’s all about blonde hair and blue eyes, which the Japanese don’t have. Believe us, they said, when they’re done with us they’ll come for you next.

Whether this explanation was the reason or not, the Japanese chose to resist the Germans’ urgings and let the refugees stay. And Mr. Sugihara was eventually vindicated by history, being honored by the survivors, the State of Israel, and also his native Japan. In Israel, like Schindler, he is known as a righteous person, and more people should know of his deeds.

Originally posted May 5, 2005.  I then had a sad update about his widow here.

Jun 072016

As I’ve mentioned before, I’ve gone back and forth, and back and forth, and back and forth some more about whom I would vote for in the California primary today. It is in many ways an awful choice to have to make, choosing between two such supremely qualified candidates. On the other hand, it is also the best possible choice to have to make, to have one’s electoral cup runneth over with two such excellent choices. Given the way they complement, and the way they differ, I wish they were the principle choice for the general election in November.

But I have to make a choice today, and I’ve chosen to go with Clinton. It’s hard because there is so much I like about Sanders: I like that he has forced a public dialog about wealth distribution in the United States and championed having the fundamental underpinnings of modern American life – in particular health and college education – available to all. I like that he has been able to move the needle as far as he has as an outsider, and, indeed, that he has challenged the status quo that tends to benefit political insiders at the expense of important policy values carried by outsiders. I like him as a man, and as a refreshingly ordinary man for whom intense attention does not appear to have caused him to internalize his own celebrity. And, as a Jewish person in America, I like that he has been able to open doors I was not convinced were open to other Jewish people aspiring to serve the country in such an office.

Identity politics are not the basis by which I generally like to make political decisions, however. Choosing the “X” candidate without any other inquiry into the candidate’s qualification is not likely to lead to good governance. And in this primary they are of little utility to me in any direct way anyway, because while on the one hand I’m Jewish, on the other hand I’m also a woman. Either way my purely demographic interests are advanced regardless of which candidate wins.

At the same time, one of the reasons diversity is an important value is because everyone is both shaped and inherently limited by their own lived experience. Problems and solutions will go unseen when they fall into blindspots, which is why it is good to have a diversity of perspectives represented. And I was starting to see a problem.
Continue reading »

Mar 132016

When I was a young reader I used to read Nancy Drew mysteries. And they scared me: I couldn’t take the suspense, so I often found myself flipping to the back of the book, checking out the last page, just to know that somehow the good guys were going to come through ok. Once I knew that, I could enjoy letting the rest of the book unfold.

I find myself in this election wishing I could flip to the back of the book just to know if it’s true that everything will be ok. Continue reading »