Jewish Insider's Daily Kickoff: April 26, 2018

Why Justice Kagan used the anti-Semitic president hypothetical | Bob Iger vs. Brian Roberts | Spotted in the Wadi Rum Desert

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Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, June 29, 2010, during her confirmation hearing before the Senate Judiciary Committee on June 29, 2010
Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, June 29, 2010, during her confirmation hearing before the Senate Judiciary Committee on June 29, 2010Credit: AP

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INTERFAITH PRINCELINGS -- "Josh Kushner travels through Jordan with Crown Prince Hussein, girlfriend Karlie Kloss, pop star Ellie Goulding and friends" by Chris Spargo: "Josh Kushner and girlfriend Karlie Kloss managed to get the VIP treatment during their visit to Jordan this week. Jared's kid brother and his supermodel squeeze were photographed with friends including Mikey Hess, singer Ellie Goulding, and documentary filmmaker Bryn Mosser exploring the Wadi Rum Desert on Wednesday, where they rode camels, watched a battle reenactment and rode ATVs through the area. Photos posted to social media also show that the group brought along one very famous tour guide... Prince Hussein, 23." [DailyMail; Instagram]

DRIVING THE CONVO -- Supreme Court Justice Elena Kagan questioned a government lawyer yesterday during oral arguments regarding President Trump's policy of banning travelers from a number of Muslim-majority countries from entering the US. One of the key questions is whether campaign statements should be considered relevant to actions once that person is president. Solicitor General Noel Francisco argued for treating campaigning and governing as unrelated. In order to test Francisco's position, Kagan offered up a hypothetical scenario of a "vehement anti-Semite" candidate who then as president issued a proclamation barring Israelis from entering the country. 

Kagan: "So this is a hypothetical... Let's say in some future time a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign, and in his presidency... in the course of that, asks his staff or his cabinet members to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's. And what emerges -- and, again, in the context of this virulent anti-Semitism -- what emerges is a proclamation that says no one shall enter from Israel. Do you say Mandel (Kleindienst v. Mandel) puts an end to judicial review of that set of facts?"  

Solicitor General Noel Francisco: "If his cabinet -- and this is a very tough hypothetical that we've dealt with throughout -- but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus... I think it would be very difficult for that to even satisfy Mandel rational basis scrutiny. I'd need to know what the rationale was. Given that Israel happens to be one of the country's closest allies in the war against terrorism, it's not clear to me that you actually could satisfy Mandel's rational basis standard on that, unless it truly were based on a cabinet-level recommendation that was about national security." 

Kagan: "This is a out-of-the-box kind of President in my hypothetical (laughter), and -­- you know, he thinks that there are good diplomatic reasons, and there might -- who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does. And who knows what his heart of hearts is. I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think given this context in which this hypothetical President is making virulent anti-Semitic comments." 

Francisco: "It's a tough hypothetical, but it's why I also think that this is a relatively easy case because... given the process and substance that form the basis of this proclamation, no matter what standard you apply, this proclamation is constitutional." 

ANNOTATED -- "Justice Kagan Has a Plan to End Trump’s Travel Ban" by Noah Feldman: "Her questioning at oral arguments seemed designed to sway Justice Kennedy to strike down the order as anti-Muslim... The only way the ban will be struck down is if five justices -- including Kennedy -- focus on Trump’s openly Islamophobic statements during the campaign. If that happens, they will in effect be treating version 3.0 of the ban as a product of the same motive as the first two versions. And that motive can potentially be characterized as unconstitutional." 

"The genius of pressing the anti-Semitic president hypothetical was partly that it was designed to make Solicitor General Noel Francisco say that even on those facts, he actually believed the travel ban could survive... Francisco’s answer highlighted that the case for keeping the ban in place depends on the idea that there really is a pressing national security threat. If there isn’t, then Trump is just like the president in the hypothetical: a demagogue enacting an executive order based on prejudice."

"Francisco seems to have picked up on this, and after giving the answer that Kagan had expected, he tried vaguely to distinguish the circumstances of the hypothetical by saying that Israel is a close ally of the U.S. in the war on terrorism, and so the hypothetical didn’t quite fit... Kagan brilliantly turn the effort against Francisco with humor: “General, this is an out-of-the-box kind of president in my hypothetical,” she said, to courtroom laughter. With this quip, Kagan reminded everybody in the room that Trump really is an out-of-the-box president with respect to his open expression of anti-Muslim sentiment. Her point had been made." [Bloomberg

TOP TALKER -- “Patriots owner Robert Kraft reportedly criticized Trump in a secret NFL meeting last fall” by Jaclyn Reiss: “Patriots owner Robert Kraft delivered what appeared to be a forceful criticism of his longtime friend, President Donald Trump, during a confidential emergency NFL meeting convened last fall to discuss player protests during the national anthem, according to The New York Times “This kneeling,” Kraft reportedly said, addressing what he called an “elephant in the room.” “The problem we have is, we have a president who will use that as fodder to do his mission that I don’t feel is in the best interests of America,” Kraft reportedly continued. “It’s divisive and it’s horrible.” [BostonGlobe

Eagles owner Jeffrey Lurie at the meeting: “We’ve got to be careful not to be baited by Trump or whomever else. We have to find a way to not be divided and not get baited. Another fact I want to throw out there: Many of us have no interest in supporting President Trump. Yes, there are some. There are some players who do, too. But this is not where you brandish a group of people because they own assets in a sport we love, supporting what many of us perceive as, you know, one disastrous presidency. Don’t quote me.” [NYTimes

SCENE LAST NIGHT IN NYC -- by Jacob Kornbluh: Dr. Mohammad Al-Issa, Secretary General of the Saudi-based Muslim World League, discussed Muslim-Jewish relations and the Muslim acknowledgment of the Holocaust at an event hosted by the Conference of Presidents of Major American Jewish Organizations and the American Sephardi Federation at the Museum of Jewish Heritage in Battery Park. [Pic]

"We must overcome the hurdle that has been put in our way, trying to prevent us from helping others. We must follow the seeds that our forefathers have sown and try to serve peace the best way possible,” Al-Issa said in a conversation -- through an English translator on stage -- with Dr. Robert Satloff, Executive Director of the Washington Institute for Near East Policy.  “We have to try to assert our joint values and our joint goals simply because society loves harmony. We should carry on with dialogue, and we should never listen to voices of hatred and exclusion.”

Al-Issa, a former Saudi justice minister, also discussed a letter he sent in January to Sara Bloomfield, Director of the U.S. Holocaust Memorial Museum, about the Holocaust. “This human tragedy perpetrated by evil Nazism won’t be forgotten by history, or meet the approval of anyone, except criminal Nazis or their genre,” he wrote. “True Islam is against these crimes. It classifies them in the highest degree of penal sanctions and among the worst human atrocities ever. One would ask, who in his right mind would accept, sympathize, or even diminish the extent of this brutal crime?”

What made you write that letter, why now? Satloff asked.

“What prompted me to do so is tell the truth, and from my understanding of Islam, it cherishes to tell the truth any way you find it,” Al-Issa explained. “We wanted to show the world that this horrible event is not to be denied, and nobody should remain silent and not tell the world about the atrocity that happened in one part of the world against a religion in any place in history." 

SPOTTED: Joseph Chetrit, Ike Sutton, Malcolm Hoenlein, Stephen Greenberg, Bukharian Chief Rabbi Itzhak Yehoshua, Simon Wiesenthal Center’s Rabbi Abraham Cooper, Dr. Brenda Shaffer, Sam Schear, Richard Stone, Arthur Stark, Oliver Stanton, Herbert Block, Jason Guberman, Irina Tsukerman, Barbara Fix, Jamil Ezra, Dr. Yehuda Mimran, Dan Pincus, Yanky Samet, Dan Smith, Rabbi Rafael Benchimol, Jason Epstein.

HEARD YESTERDAY IN DC -- "President of France fields student questions about Syria, climate change at town hall" by Parth Kotak: "Macron spoke about rising instances of attacks on Jewish people in France, calling the trend a resurgence of anti-Semitism exacerbated by the divisive Israel-Palestine conflict. The solution to the problem, Macron said, is to fortify Jewish communities, educate students in school about religious tolerance and reaffirm a vision of French society that includes Jewish people as vital members of society. “We have to protect our Jewish people and reaffirm every day that they are part of the French Republic,” he said. “I often say that the French Republic would not be the same without Jewish people.”" [GWHatchet]

"Macron Says Trump Will Likely Kill The Iran Deal" by Ben Smith: “My view — I don’t know what your president will decide — is that he will get rid of this deal on his own, for domestic reasons,” Macron told a group of a dozen reporters and editors in an exchange at George Washington University... “When people say President Trump is not predictable, I think the opposite — he is very predictable,” Macron said. “Look at his campaign commitments [Trump] repeated in his office two days ago that this was the worst deal ever — it’s a nightmare, it was a catastrophe, and so on and so on." 

"Macron said he saw his trip as a success not in changing Trump’s mind, but in advancing a potential framework for both the US and Iran after the current deal collapses. “I think the US will decide very tough sanctions” after pulling out of the deal on May 12, he said. “I want to be the honest broker of the situation.” [BuzzFeed]

"Iran deal may survive an initial blow from Trump" by Nahal Toosi: "Some experts say the deal can survive even if Trump sits back and allows the sanctions that must be reviewed by May 12 to take effect once more. The potentially more important deadline, they say, arrives around July 11, when Trump must decide whether to reimpose a substantially larger batch of sanctions... The deal is “unlikely to completely blow up [May 12], since neither side wants that or to be blamed,” said Philip Gordon, a former senior foreign policy adviser to President Barack Obama. “But still it can only take so many blows before it will die a death by a thousand cuts.” [Politico

A group of bipartisan House members sent a letter to President Trump urging him to treat Iran’s intercontinental ballistic missile program as part of Iran’s nuclear weapons program and impose sanctions on the program. The letter was spearheaded by Reps. Tom MacArthur (R-NJ) and Josh Gottheimer (D-NJ). 

"Russia sees no room for changes, additions to Iran nuclear deal: foreign ministry: "Russian foreign ministry spokeswoman Maria Zakharova said on Thursday... Moscow was seriously concerned by comments made by the presidents of France and the United States about the deal." [Reuters]

"Israel wants Russia to remove pro-Iran militias from Syrian border" by Barak Ravid: "Israel has approached Russia several times in the last few weeks to demand that they meet their obligations under a cease fire deal signed with the U.S. last November by preventing pro-Iranian militias from entering a buffer zone on the Syrian-Israeli border... According to the deal, the Russians were the responsible for enforcing the zone... The Israeli officials said that despite the protests, the Russians haven’t taken any action." [Axios

"'If Iran hits Tel Aviv, we'll hit Tehran' defense minister tells Saudi paper" by Liad Osmo: "Speaking in an interview with the London-based online Elaf Saudi newspaper, Avigdor Lieberman said that while Israel did not seek war with anyone, it will not tolerate an Iranian presence in Syria—”whatever the cost may be... We hear many threats. If they attack Tel Aviv, we will attack Tehran. If there is not silence in Tel Aviv and in Israel, there won’t be in Tehran,” Liberman warned." [Ynet

Shalom Lipner writes... "Don’t Stand So Close To Me: Iran is Netanyahu’s signature issue. And he has the wind at his back. His Likud party continues to ride high in the polls. More importantly, on the narrow question of an Iranian beachhead on Israel’s border, Netanyahu is channeling the prevailing consensus... All this amounts to a green light for Netanyahu to do almost anything he deems necessary for the sake of deterring Iran in Syria." [ForeignPolicy

"Egypt enraged at Netanyahu over Gaza" by Ben Caspit: "Israel promised Egypt that it would encourage and advance the [Fatah-Hamas] reconciliation process... But then the process began. At its most critical stages, Israel underwent a transformation... “President Sisi is very disappointed with Netanyahu,” an Israeli security source close to these contacts told Al-Monitor... “This is the second time that Netanyahu stabbed him in the back. The first was when he added [right-wing Yisrael Beitenu head] Avigdor Liberman to his government instead of [center-left Zionist Camp leader Isaac] Herzog. But Sisi doesn’t have the privilege of a chillier relationship with Israel right now, so he prefers to sit quietly and let off steam.” [Al-Monitor]

"Behind a Roadside Hit in Malaysia, Israeli-Palestinian Intrigue" by Hannah Beech and Ronen Bergman: "On the day he was killed, [Fadi al] Batsh was supposed to travel to Istanbul to attend an academic conference. One Middle Eastern intelligence official, however, said that Hamas’s efforts to cultivate its scientists living abroad were directed from Istanbul, and that Mr. Batsh was scheduled to meet with the head of the unit, Maher Salah, upon arrival in Turkey. Western and Middle Eastern intelligence officials said that Mr. Batsh may have been involved in negotiating North Korean arms deals through Malaysia. Egypt recently seized a shipment of North Korean communications components used for guided munitions destined for Gaza, they said. One intelligence official said that Mr. Batsh had helped mediate the deal." [NYTimes

ON THE HILL -- The Senate will vote today on Mike Pompeo's nomination for Secretary of State. At least four Democrats have said they will vote in favor. [TheHill

Sen. Ben Cardin writes “We need a secretary of state critically. I still won’t vote for Mike Pompeo: America needs to work with and lead our allies in pursuit of our shared national security interests and values. But Pompeo has demonstrated repeatedly that he is willing to back up the president’s go-it-alone approach to international affairs. Nowhere will that be more consequential than the Iran nuclear deal. Pompeo spoke out loudly against diplomacy, advocated launching up to “2,000 sorties to destroy the Iranian nuclear capacity” and supports the president’s eagerness to tear up the agreement.” [WashPost

"Pompeo plans to visit Jerusalem next week" by Barak Ravid: "Mike Pompeo... is expected to arrive in Jerusalem next week as part of his first trip abroad in his new post... Pompeo's decision to include Israel in his first trip abroad as Secretary of State is important because his predecessor Rex Tillerson... never came to Israel on his own... It is not clear if Pompeo will visit the Palestinian Authority or meet with Palestinian officials during his trip to the region." [Axios

JERUSALEM EMBASSY -- "May 14 opening of US Embassy in Jerusalem to include mezuzah-hanging ceremony" by Yori Yalon: "According to a Channel 20 report, organizers decided on the unusual move of holding a religious ceremony to install the mezuzah as a gesture to Israel and following the recommendation of U.S. Ambassador to Israel David Friedman." [JNS

"US Embassy move in Israel emblematic of broader policy shift" by Josh Lederman and Matt Lee: "U.S. Ambassador to Israel David Friedman... lobbied heavily for the recognition of Jerusalem and the embassy move but has so far been prevented from adopting the Israeli name “Judea and Samaria” for the West Bank in his official remarks and statements, according to administration officials. Friedman and Trump’s envoy for international negotiations Jason Greenblatt have also led internal administration opposition to criticism of Israel for its response to the recent Gaza protests organized by Hamas." [AP

"Czech Republic to move embassy from Tel Aviv to Jerusalem" by Itamar Eichner: "During a reception making Israel’s 70th Independence Day in Prague Castle, the official office of the President of the Czech Republic, [Milos] Zeman reiterated his intention to move the embassy... Zeman says the move will take place in three steps: An honorary consulate will be opened in Jerusalem next month followed by other Czech institutions before the embassy's actual transfer." [Ynet; AP

2018 WATCH -- "Steve Wynn, Sheldon Adelson are GOP midterm fundraising no-shows for now" by Charles Gasparino: "Some GOP strategists say that Adelson’s near-absence so far this year indicates that he believes the Republicans could lose control of the House... and that his money will be better spent focusing on specific races later in the year...  “Sheldon often holds back and gives later in the year,” the official said." [FoxBusiness]

** Good Thursday Morning! Enjoying the Daily Kickoff? Please share us with your friends & tell them to sign up at [JI]. Have a tip, scoop, or op-ed? We’d love to hear from you. Anything from hard news and punditry to the lighter stuff, including event coverage, job transitions, or even special birthdays, is much appreciated. Email **

BUSINESS BRIEFS: Steven Cohen's Point72 is sued over use of California money manager's name [Reuters]  Here’s how much Jeffrey Soffer paid for the Mardi Gras Casino in Hallandale Beach [TheRealDeal]  South Florida mall, the American Dream Miami  largest in America, in final stretch of approvals [SunSentinel]

STARTUP NATION -- "Former Facebook Executive Joins Autonomous Drones Company Airobotics" by Lilach Baumer: "Former Facebook executive Richard Wooldridge joined Israel-based drone maker Airobotics Ltd. as chief operating officer... Mr. Wooldridge is the former chief operating officer of Facebook's hardware research division Building 8, and the former chief operating officer of Google ATAP (advanced technology and products group)... Airobotics designs and manufactures fully automated drones used for industrial purposes such as surveying, and for security in industrial facilities, mining sites, and refineries." [Calcalist]

SPOTLIGHT -- "The Disney-Comcast war gets personal" by Dylan Byers: "Disney CEO Bob Iger and Comcast CEO Brian Roberts have a deep animus toward one another that is fueling their battle over 21st Century Fox, sources familiar with their relationship tell me. Their intense dislike of one another, dating back to Comcast's hostile takeover attempt of Disney in 2004, means the battle for Fox will be unpredictable and possibly irrational." [CNNMoney]

"Inside Shari Redstone’s Twisted Plot to Breed CBS and Viacom" by William D. Cohan: "What seems to be driving Shari Redstone is familial score-settling, a quest for victory over her father, who never wanted her to have a role in either Viacom or CBS. “It’s the story of a person who was mistreated by her father,” said the source who recently noted Sumner’s physical condition... “She just was a step behind in a lot of ways and treated poorly,” this person continued... “The battle between Sumner and Shari Redstone has become the most notorious of the Redstone family disputes, especially due to its very public nature,” according to the unredacted lawsuit between Herzer and Shari and her son Tyler Korff that has been filed in federal court in California... Shari tried once before to effect a merger between Viacom and CBS, in 2016, but that effort went nowhere. And now she is trying again, with even greater fervor. She has gotten it to the point where the bid and the ask spread is down to around $3 billion." [VanityFair

HOLLYWOOD: "‘Lioness: Golda Meir And The Nation Of Israel’ Is First Project of PatMa Producti" by Anita Busch: "Following a competitive bidding situation, former CBS Entertainment Chairman Nina Tassler and producer Denise Di Novi have acquired rights to the critically-acclaimed, non-fiction book Lioness: Golda Meir and the Nation of Israel... The book was authored by Francine Klagsbrun and presents the life and career of Golda Meir, one of the most influential figures in the history of Israel and one of the most prominent figures in world history. The book spans her birth in Kiev to her American upbringing in Milwaukee, her role in the formation of Israel and her rise to become the new nation’s first and only female prime minister." [Deadline

CAMPUS BEAT -- Hillel Condemns USS For Proposing An Anti-Israel Resolution: "The CUNY University Student Senate tabled a controversial resolution following major concerns over lack of information and strong critique from the Jewish community at CUNY. The resolution, titled CUNY Investment Policy, was in line with the ideology of the Boycott, Divestment and Sanctions movement against Israel. That the BDS resolution would be voted on at the April 15 USS plenary meeting was “leaked” to a member of the Jewish community on Friday night, when many were keeping Shabbat. As a result, members of the pro-Israel community did not find out about the possible vote until Saturday night, giving them less than 24 hours to mobilize." [TheTicker]

HOT TAKE: "Natalie Portman and the Crisis of Liberal Zionism" by Eric Levitz: "There have always been tensions between liberal universalism and Jewish nationalism. But the rise of the Trumpist right has heightened such contradictions. To remain true to both AIPAC and progressivism, a liberal Zionist must now lament border walls in Texas but defend them in the West Bank; condemn Republicans who suggest that nonwhite babies pose a threat to American civilization as proto-Nazis and endorse Israel’s right to defend itself against the “demographic threat” that is Palestinian children; decry Donald Trump’s ban on Syrian refugees and apologize for Israel’s imprisonment of African ones; abhor the president’s indifference to civilian casualties and ignore that Israel’s defense minister believes every man, woman, and child in the Gaza Strip is an enemy." [NYMag]

SPORTS BLINK -- "Josh Rosen can join Sid Luckman on short list at NFL draft" by Josh Peter: "Josh Rosen is expected to end an obscure but notable sports drought: It has been 79 years since the first and last Jewish quarterback was picked in the first round of the NFL draft. That was Sid Luckman, selected No. 2 overall by the Chicago Bears in 1939. Rosen, who played at UCLA, is widely projected to be taken among the first 10 picks of the 2018 NFL draft... “That’s pretty much the primary consideration for inclusion,’’ said Ron Kaplan, author of Kaplan’s Korner, a blog about Jews and sports. He later added by email, “Here's wishing him mazel tov (good luck).’’" [USAToday

MAZEL TOV -- Eli Miller, chief of staff at Treasury, and his wife Jenna Miller on Wednesday welcomed a baby boy, Nathaniel David Miller. "Arrived 4:20 p.m. Sibley Hospital. 7 lbs 10 oz. 20.5 inches. Brother Henry is so excited." [Playbook

BIRTHDAYS: Billionaire businessman and philanthropist, friend of Warren Buffet and early investor in Berkshire Hathaway and a member of its board of directors, David Sanford "Sandy" Gottesman turns 92... Former owner of the NBA's Los Angeles Clippers (1981-2014) until its forced sale for $2 billion to Steve Ballmer, Donald Sterling (born Donald Tokowitz) turns 84... Computer expert, author, lecturer, Jewish genealogy researcher and publisher of Avotaynu, the International Review of Jewish Genealogy, Gary Mokotoff turns 81... CEO of the Jewish Community Federation of the Greater East Bay (Oakland, CA) until 2008, Loren Basch turns 74... Investment banker best known as the Chairman and CEO of Lehman Brothers through its bankruptcy filing in 2008, Richard S. Fuld Jr. turns 72... Professor of computer science and engineering at the Massachusetts Institute of Technology, Hal Abelson turns 71... 

President of Brandeis University since 2016, Ronald D. Liebowitz turns 61... Moscow-born, conservative journalist and political activist in Israel, Avigdor Eskin turns 58... Senior fellow at the Brookings Institution, contributing editor of The Atlantic, author of six books, previously a journalist for the National Journal and The Economist magazine, Jonathan Rauch turns 58... Member of the Maryland House of Delegates (2006-2010) and the Maryland State Senate (since 2010) where he serves as Majority Whip, Roger Manno turns 52... Senior staff editor on the international desk of The New York Times based in Hong Kong, Russell Goldman turns 38... Deputy staff director of the House Rules Committee, Karas Pattison Gross turns 36... Senior publicist for media relations at NPR, Benjamin Fishel turns 35 (h/ts Politico Playbook)... Ahron Singer...