Keep America Great

US flag at half staff
First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.” – Dietrich Bonhoeffer

How we respond to the disaster at the gay nightclub in Orlando clearly depends on who we are. Hillary Clinton responded by asking for better gun control, a stronger fight against ISIS, and national unity and resolve. Donald Trump announced the need to get tough fast or “we are not going to have our country anymore.”

According to Trump, the reason the shooting happened is that the shooter’s parents immigrated here legally, 30 years ago. Trump wants to bar Hispanics and Muslims alike from entering this country. When a second-generation American offends him, whether it’s a Muslim shooter or a Hispanic judge, the answer is the same: they are products of their foreign forebears, not to be trusted. So ban them from this country.

It is trite to say that we as Jews have an obligation to support immigrants and immigration. Trite, but true. Our obligation is to the Constitution and also to ourselves, our parents and especially our children.

A serious problem is the widespread unhappiness with the workings of our economic system, and lack of faith in the ability of government to meet people’s needs. The unfortunate result is that a candidate for the presidency who builds a campaign on hate and fear can amass 13 million votes, and in doing that, secure the inside track to nomination by one of our two major political parties.

A hallmark of democracy is respect for law. We have come through major attacks on that respect: Orval Faubus, Governor of Arkansas, standing on the steps of a public school defying court-ordered integration. Sen. McCarthy reading names of alleged proponents of the overthrow of the government with no evidence or due process whatsoever. Frank Rizzo, as police commissioner, allegedly boasting about his department’s handling of demonstrators: “When I’m finished with them, I’ll make Attila the Hun look like a fag.”

What we must recognize is that all the gains of the Civil Rights Movement are reversible, as soon as we – who fought for them – stop fighting for them. The First Amendment freedoms of speech and association, and separation of church and state, are reversible. In the primary campaign, candidate after candidate expressed the goal, if elected, to strengthen religion, meaning to use the power of government to strengthen Christianity.

But this is not just theoretical. Fifty years after Brown v. Board of Education, achieving school integration remains a battle. Every woman’s right to choose is challenged repeatedly by state legislatures, despite the likelihood that a court will strike down each effort. Under FISA, the Foreign Intelligence Surveillance Act, we are told that the government monitors millions of telephone calls and Internet messages daily under blanket orders of a secret court. And we stand at a crossroads at which the next appointment to the United States Supreme Court could change the course of our civil rights and voting laws for decades. In short, our civil rights never stand still — they are always growing or shrinking or both.

So I am a one-issue voter, and that issue is keeping America safe for democracy. That includes respect for the government, along with a healthy desire to see it improve. That includes shouting out every sign of xenophobia, fear of the “other,” whether based on ancestry, race, religion, gender or sexual orientation. Before I even think about the traditional “bread and butter” issues, I insist on a candidate for whom equality and justice are real, not just fashion statements to be mouthed or discarded depending on the audience.

Preserve Unpleasant History or Eradicate It?

By Rs-nourse (Own work) [<a href="">CC BY-SA 4.0</a>], <a href="">via Wikimedia Commons</a>

Harvard Law School’s former shield
Courtesy of RS-Nourse

Princeton University and Harvard Law School have asked very similar questions and reached opposite conclusions: how should we address our history, the victories and defeats?

Princeton, where Woodrow Wilson served on the faculty and was university president before his election as President of the United States, displays his name prominently. There is a Woodrow Wilson School of International Affairs as well as a Wilson dormitory.

But it has recently become known that Wilson harbored racist feelings and appears to have acted on them, keeping blacks out of the University and later out of some government offices during his presidency. A movement developed on the campus to eradicate the Wilson name.

Harvard Law School has had a shield adopted in 1936 with symbols including a sheaf of wheat. This seemingly innocent drawing turns out to honor Isaac Royall, an 18th-century landowner who donated land to establish the first law professorship at Harvard. Royall, it has been discovered, was a slaveholder.

Students and faculty at both institutions have now protested the symbols, and both universities have ruled: Princeton will retain Wilson, while Harvard will remove the wheat sheaf from its symbols. Which is the correct route, to preserve history or relieve newly empowered hard feelings?

Our community preserves symbols of its successes and failures forever. Hanukkah and Purim recall battles won or lost, Tisha b’Av marks the destruction of Solomon’s Temple 2500 years ago. Preserving the Holocaust might be our equivalent to the challenges at the two universities. We oppose any representation of the swastika in public, in the belief that it implies approval of Hitler’s regime. At the same time we heap opprobrium on Holocaust deniers. We seek to preserve the memory of the Holocaust out of concern that it could recur, somewhere at some time.

Isaac Royall and Woodrow Wilson were great men of their times, however imperfect as measured today. Very few people outside of Harvard are likely to know what the sheaf of wheat represents. The dormitory and the School of International Affairs at Princeton are not symbols of slavery by any reasonable measure. In the battles over these symbols, the combatants are measuring each other’s commitment to the principle of freedom as they (differently) perceive that principle.

At Harvard, expunging a tie to a figure in history is considered acceptable. Nobody suggests that Harvard find Royall’s heirs and return the value of his gift. The Law School simply disowned the offending history.

Princeton will keep the symbols but is has created an exhibit of Wilson’s achievements and also his flaws, presenting the policies and practices he followed as university president and then as the nation’s leader. Princeton faces the more difficult situation, dealing with a figure of modern history whose strengths and weaknesses are fair subjects of study by scholars inside and outside the institution. Yet Princeton has chosen the path of intellectual honesty. It will mark the flaws in Wilson’s life and character but not seek to expunge his name or the favorable aspects of his legacy.

So what is most important to our community: suppression of symbols that deliver a mixed message, or do we prefer the preservation of history with its many human flaws?

JSPAN Haggadah Supplement: The Immigration Crisis

supplementThe 2016 Jewish Social Policy Action Network Haggadah Supplement edited by Steven Sussman and Kenneth Myers is entitled “The Immigration Crisis: A Pesach Seder Reflection for 2016” and focuses on immigrants and refugees. Their plight calls to us at this season of the Jewish year when we remember that we were exiled from our homeland and enslaved in Egypt for four hundred years, and then stateless nomads for forty years in the wilderness of Sinai, at the mercy of the elements, often losing faith as danger surrounded us.

At your Seder, consider the crisis in Europe and what we can do to relieve the suffering of refugees.

The supplement is now available for download.

[Read more…]

Leonard Bernstein Concert Draws Large Audience in Elkins Park

From left to right, some of the cantors who organized the concert: Cantor Joshua Gordon, Cantor Amy Levy, cantorial soloist Rebecca Schwartz, Hazzan Jeffrey Weber, Hazzan David Tilman, Cantor Elena Zarkh

From left to right, some of the cantors who organized the concert: Cantor Joshua Gordon, Cantor Amy Levy, cantorial soloist Rebecca Schwartz, Hazzan Jeffrey Weber, Hazzan David Tilman, Cantor Elena Zarkh

The coming 100th anniversary of Leonard Bernstein’s birth was the occasion for a concert of his music at Reform Congregation Keneseth Israel. The concert was produced by the Kehillah of Old York Road and cosponsored by the Federation of Greater Philadelphia.

Under the direction of Hazzan David Tilman, cantors, other soloists and a chorus of forty voices delivered Bernstein music from his show “West Side Story,” from his operetta “Candide,” and from his more serious symphonic work “Mass.” The concert concluded with a full performance of the three movements of “Chichester Psalms.” Solo performers included Hazzan Jeffrey Weber, Elizabeth Weigel, Rebecca Schwartz, and in the performance of “Chichester Psalms,” boy soprano Owen Yoder, who brought the audience to its feet with applause.

The Kehillah of Old York Road is comprised of Congregations Adath Jeshurun, Beth Am, Beth Sholom, Keneseth Israel and Kol Ami, all located in Elkins Park. The event marked twelve years of joint activity by the Kehillah and attracted about eight hundred guests.

The Real Opportunity Confronting Israel

US Secretary of State John Kerry and Ukrainian President Petro Poroshenko.

US Secretary of State John Kerry and Ukrainian President Petro Poroshenko.

Iran has performed the steps required under the multinational agreement negotiated last year.  It has dismantled its rapid capability to  develop a nuclear bomb, has accepted international monitoring, and now is released from international sanctions. A new era of better relations between Iran and the U.S. could happen. Israel’s inappropriate attack in the U.S. Congress on the multiparty agreement with Iran  could be forgotten.

Or could it? Israelis need to address the next phase of their relationship with Iran and the the Arab states and with the U.S. Will the Netanyahu government seek to participate in the coming U.S. presidential election in a continuing battle to advance American militarism and the candidates who walk that line? Or will  Israel take the opportunity that the Iran Agreement offers to try for a better future?

Argument will not cease over whether the Iran Agreement is good or bad, or better or worse than the U.S. (and the nations China, France, Germany, Russia and the United Kingdom who joined with us) might have achieved. What is undeniable is that the Agreement sets the stage for a 15-year period of opportunity.

David Hazony argued that Netanyahu is a centrist measured against the majority of the Israeli body politic. He said that American Jews in the “moderate middle” have lost touch with the authentic Jews and Jewish sovereignty that exist in Israel today.

But leadership, whether by Netanyahu or Obama, has the obligation to carry us in productive directions. For America this means building relationships across the world, because we are the preeminent world power. For Israel this means building bridges between their political island and the sea of Arabs that surround them.  At a minimum, Israelis must accept that their government has no veto on American foreign policy, and must make its own way.

Israelis may believe that they are invincible. Their government may have sold them the idea that they can live with occasional terrorist activity, and if the level of that activity grows objectionable from time to time, they can launch a military strike to quell it.  As a standing bet, that is tough. Technology moves forward, and seemingly impervious defenses are sometimes breached. Then there is the question of sustaining a confrontational posture in the face of a growing Arab population within Israel.

Israelis need to find their own pathway to the future. The challenge to Israel today is to make the best use of the 15-year multinationally supervised breather with Iran, its most vocal enemy. Every step Israel can take to come to terms with its Arab neighbors that remain estranged, and everything that Israel can do to advance the condition of Arabs within and along its borders, deserves to be explored in the most serious way.

That is the real opportunity that is available to Israelis. We can hope that they are not blinded to it by the ferocity of the rhetoric of their leadership.

Reinterpreting the Religious Freedom Restoration Act

070314.N.DNT_.HobbyLobby%201_0[1]Blowback for the Jewish Community?

Jeffrey I. Pasek spoke recently to a large and completely engaged audience at Congregation Adath Jeshurun in Elkins Park about the Religious Freedom Restoration Act (RFRA) and why Jews should care about it. Pasek, a partner in the Labor & Employment Group of the law firm Cozen O’Connor and a longtime leader in Jewish communal affairs, explained the modern legal history of religious freedom under the First Amendment and its statutory sequel, the RFRA. He discussed the Supreme Court’s unexpected expansion of this law and the potentially troubling consequences it could have. [Read more…]

Voting Rights In the Wind?

How_to_Steal_an_Election_-_Gerrymandering.svgThe right to vote is a foundation of American democracy, along with freedom of speech and the press. When the Supreme Court speaks on the subject, or even just listens, it has an importance well beyond the seemingly minute legal details that the Justices can take up. On December 8 two voting rights cases came before the Court.

Voters are slotted into districts from which they choose their members of Congress and their state legislators. Although individual ballots are secret, today computers can tell us a lot about voting habits, and can redesign districts to shape the outcome of elections. Increasingly, elected officials know how to use this technology to choose their voters and assure their continuation in office.

One of the  two cases before the Court was the oral argument in Evenwel v. Abbott, in which Texas citizens complain that the number of registered voters varies widely between voting districts. They want the Court to require equal registration in each voting district, even if that results in widely different populations represented.  The second docket was Shapiro v. McManus, in which the Court unanimously decided that the challengers to a gerrymandered voting district in Maryland made out a case for a  three-judge trial court.

Historically the establishment of voting districts was a state legislative matter, a political matter that received very little attention from the Court.   As population moved and changed, often voting maps stayed the same, resulting in very large inequalities in representation.  Then in Baker v. Carr in 1962, the Court declared that unequal districting could be justiciable, and two years later declared that fair voting districts must have closely equal population. Since then, redistricting carried out every 10 years has focused on population equality.

Evenwel argued that population may be equal, but there are 50% more voters registered in his Texas district than the number of voters in some other districts.  Therefore he claimed that his vote has less weight than votes of those in the other districts. But is this a denial of equal protection under the Constitution?

History favors the present practice. The Constitution allocates congressional districts among the states in proportion to total population, not voter registration. Women and children were counted well before the 19th Amendment giving women the vote. The ignoble three-fifths compromise was based on the number of slaves, none of whom could vote. For the 60 years that we have had the need to equalize voting districts, population has been the measure.  Almost every state follows the same model in drawing the voting maps for the  state legislature as well.

The State of Texas argued for allowing states to continue to base districts on equalizing population. Counting voter registration, not population, would seem to exclude people who cannot vote from representation: immigrants who are not yet citizens, undocumented people, those who are less than 18 years old, as well as those who decline to vote for religious reasons.  Philosophically, legislators are expected to represent and serve all people, not just registered voters.

More practically, voter registration changes materially in ways that population usually does not. Before a presidential election, registration rises. If those registered decline to vote in “off year” elections, state law may strike them from the polls. Moreover, our reapportionment is based on the national decennial census which does not try to document voter registration, usually purely a matter of state law.

What appears clear is that Evenwel’s proposition, if adopted, would significantly shift voting power from urban to rural areas. So there is much riding on the Court’s decision, which is expected in June 2016.

Shapiro presents a seemingly narrow question but has the Court watchers sifting the tea leaves for some hint that the gerrymander problem may be seriously addressed in the future.

In a district that is gerrymandered to favor one party, voters of the other party may as well stay home. They cannot hope to alter the result in an election. In such districts, important decisions are made in the primary, but only the primary of the favored party. In most states a voter can take part only in the primary of the party in which he is registered.

An obvious inconsistency in the Court’s jurisprudence is the exacting attention to equalizing the population of districts, while allowing gerrymandered districts in which disfavored voters need not even go to the polls. It is estimated that 90% of congressional districts are “safe” seats in which one party has control; how many of these districts are intentionally gerrymandered is less clear, but it is surely an important number.

Federal law grants a person challenging the constitutionality of a voting district the right to a three-judge district court for trial. In this case individuals challenged their district on grounds that it was formed from two separate areas, linked by a “ribbon” and created solely to disenfranchise the voters in the smaller half of the barbell shape.

A single judge of the United States District Court for Maryland decided that the plaintiffs did not have a claim sufficient to go to trial, based on an unbroken line of rulings of the Supreme Court and lower federal courts that district maps — except in cases of racial discrimination — are non-justiciable. Reasoning that the plaintiffs had not shown a claim sufficient to even get to a trial, the single judge rejected the claim for a three-judge court and dismissed their case.

The Supreme Court reversed and remanded the case. Justice Antonin Scalia, usually in the vanguard in cases dismissing gerrymander claims, wrote the brief opinion ruling that the plaintiff voters’ claim against the barbell district could not be dismissed as “insubstantial.”

Alone, that ruling might itself be insubstantial. But Scalia chose to find support in Justice Anthony Kennedy’s concurring opinion in Vieth v. Jubelier in 2004. That case is the leading modern decision that election districts are political and non-justiciable.

In concurring with that decision, Justice Kennedy stated: “I would not foreclose all possibility of judicial relief [in a future case] if some limited and precise rationale were found to correct an established violation of the Constitution …” Justice Scalia wrote the opinion of the Court in Vieth, and included an extensive critique chiding Justice Kennedy’s “never say never approach.”  It seems that “never” may have arrived.

So should we hope that Justices Scalia and Kennedy have now discovered that some gerrymanders are “justiciable” and will join with the more liberal wing of the Court to grant voters relief in Shapiro or future cases? Stay tuned for more words from the Court.

Note: The author is chair of Common Cause of Pennsylvania, one of the nonprofit groups participating in briefs before the Supreme Court in these two cases.

Redistricting Looking Up in Pennsylvania

Maryland's 3rd Congressional District

Maryland’s 3rd Congressional District

The new makeup of the Pennsylvania Supreme Court as a result of the election this month changes the prospects for repairing the way we set our voting districts.

Because Pennsylvania judges, once elected, only run for retention and that occurs only every 10 years, it is very likely that the Democrats sitting on our Supreme Court as of January will still be in the majority in 2021 when the next census is released and the redistricting process plays out.

Republicans control our state legislature and so control congressional redistricting.  Because of the gerrymander in place, it is quite likely that the legislature will continue to be held by Republicans in 2021, even if Pennsylvania continues to trend toward the Democratic Party.

However, the our state legislators run in districts drawn by the Pennsylvania Legislative Reapportionment Commission. Four legislators, two from each major party,  sit on our legislative reapportionment commission.  But the fifth member, the “swing vote,” is appointed by the Pennsylvania Supreme Court if the other four members cannot come to agreement.

Any challenge to the 2021 redistricting under the one-man one-vote principle will inevitably go to the Pennsylvania Supreme Court for review.  Even with a reform of the political redistricting method, such as S.B.484 submitted by Senator Boscola to substitute a citizen commission, all issues ultimately go to the Pennsylvania Supreme Court for a binding decision. Thus with Democratic judges in the majority on the court, the seeds of ultimate destruction of the present gerrymander are planted.

Moreover, if Democrats take over the legislature, it would be no more than human nature for them to develop a redistricting plan just as lopsided in their favor as the present plan is lopsided in favor of the Republicans.

So the Republicans who control the legislature now have every reason to adopt a fair process that is not likely to produce a highly political gerrymander in 2021.

As for the congressional districts, they are set every tenth year by a statute adopted by the legislature. So the Governor also has a role to play in signing or vetoing whatever bill is produced. If Governor Wolf earns a second term in office that would be his opportunity to work to level the playing field – or even tilt it his way, if he felt so inclined.

Thus there is plenty of reason for Pennsylvanians to continue to press for reform. What may be different now is that there is also plenty of reason for Republicans who control the General Assembly to join with Democrats to reform the flawed redistricting system.

Palestinian Speaks Against BDS — Or Not

Bassem Eid

Bassem Eid.

Bassem Eid, billed as the former director of the Jerusalem-based Palestinian Human Rights Monitoring Group, was born in Jerusalem but spent most of his life in a refugee camp.

Eid addressed an audience of close to 100 people on November 4, 2015 at Congregation Beth Hillel Beth El in Wynnewood. Continuing with a speaking tour that has taken him across the nation, Eid explained his claim that the boycott, divestment and sanctions program targeted at Israel (BDS) is harmful to Palestinians.

Eid’s talk was sponsored by Gratz College and the organization Scholars for Peace in the Middle East. David Weinstein, chairman of the Gratz Board of Governors, Yaron Seideman, Israeli consul in Philadelphia, and Jon Cohen, vice president of the Scholars for Peace organization, each gave introductions of the speaker and attacks on BDS.

Consul Seideman described BDS as anti-Semitic and an effort to “deprive Israel of a voice.” According to Cohen, Eid is a critic of the security forces of both Israel and the Palestinian Authority.

As Eid describes the problem of the Middle East, the issues are Hamas on the one hand, the Palestinian Authority under Abbas, and finally Israel. He blames Hamas for destroying economic recovery in Gaza that began in the period of Israeli control beginning in 1967. The PA, Abbas and Israel are blamed for entering agreements and then not moving forward to carry them out.

The disengagement of Israel from Gaza, according to Eid, was Prime Minister Sharon’s biggest mistake. By withdrawing and leaving a vacuum, Sharon allowed Hamas to take over and to claim credit for forcing Israel to withdraw. The Oslo Accords also have damaged the Palestinians, substituting a dictatorship of Abbas for the dictatorship of Arafat.

Today, according to Eid, all three parties are relatively satisfied. Hamas has Gaza, Israel transfers funds to the PA but maintains security, and Abbas has lost popularity and could not win an election but remains in full control.

BDS, says Eid, is just another organization sapping money that could otherwise be used to advance the welfare of Palestinians. He complains that the organization lacks transparency, but suspects that it is the “precursor of a genocide against Palestinians.” Its goal is to destroy both the Israeli and Palestinian economies. Boycott, he says, is not real but just “stickers” and posters playing on Arab cultural susceptibility and the force of nationalism.

Responding to questions from the audience, Eid reiterated his view that improving the Palestinian economy would relieve the conflict. Economics, not ideologies or religion, is the controlling force in his view.