Weekend Media (May 29-31): Sotomayor, Ricci, and Gitmo

The Sotomayor Debate Continues

Over the past week, I've written two posts and a miscellaneous comment on Judge Sotomayor. I've already taken a position against the confirmation of Sotomayor. But it never ceases to amaze me how many times people say things about the nomination that merit further discussion.

Geraldo At Large

I'm getting tired of hearing the same old same old poliltical spin from Democrats. This weekend's Geraldo Rivera program Geraldo at Large on Fox News featured Los Angeles' first Hispanic mayor in over 100 years, Antonio Villaraigosa, widely expected to run next year to become the first Hispanic ever to be elected governor (the only Hispanic to serve as governor was Romualdo Pacheco, whom assumed the title as lieutenant governor when the sitting governor went to the U.S. Senate). You don't think he might have some self-interest in promoting confirmation of the nation's first Hispanic justice, do you?  In any event, we hear the same discussion about her having the most extensive and varied judicial experience of anyone on the bench. First, tenure on any bench is not necessarily correlated with excellence of performance but simply reflect the nature of employment. As I've mentioned in other posts, there are other relevant criteria concerning her experience, such as her judicial temperament and leadership on the court (e.g., the prevailing opinion on a decision). The fact that 3 of her 6 opinions before the Supreme Court have been overturned is not reassuring. Second, Sam Alito had 16 years on the Court of Appeals; Sotomayor's 17 years as a federal judge includes 6 years as a district judge. Sam Alito, in fact, had nearly 30 years of experience as a public sector lawyer, including about 15 years working for the Solicitor General, the Attorney General, and as a US Attorney or assistant, presenting a dozen cases in front of the Supreme Court. Sotomayor has no national litigator experience and has not (to the best of my knowledge) brought a case before the Supreme Court,  and her prior legal experience was in private sector and working at the New York county level. Apparently, diversity of legal experience counts at the county level but not at the national litigator level. It's not a question of whether Sotomayor is qualified by her legal experience; the question is whether she was chosen for promotion to the Supreme Court based on substantive reasons or primarily symbolic reasons (e.g., a prominent female Hispanic judge). I suspect the latter; if there's one thing Obama knows, it's symbolism.

Face the Nation

Senator Dianne Feinstein repeated the usual Obamaian talking points on Sotomayor's life story and the disingenuous attempt to bolster the alleged bipartisan credentials, attempting to imply that Sotomayor was chosen (vs. nominated) by President G.H.W. Bush. (Senator Jon Kyl corrected the record, pointing out that Democratic Senator Moynihan pushed her nomination under a bipartisan agreement with Republican Al D'Amato). As to the life story of Sotomayor, as impressive as it is, it certainly doesn't measure up to the more compelling life story of Miguel Estrada, a Horandan immigrant who came to this country at the age of 17 with a limited knowledge of English and graduated magna cum laude from two Ivy League universities. If life history makes for a good federal judge, Ms. Feinstein, thn explain why you and other Democrats prevented a floor vote on the Estrada nomination to the Court of Appeals? The Democrats put forward a sham justification of his lack of judicial experience, even though the ABA unanimously found him well-qualified (based on his legal credentials and years of experience as a national litigator). [The reports that Napolitano, the Homeland Security Secretary, without judicial experience, was one of Obama's four finalists for the Supreme Court vacancy makes the hypocritical stance of the Democrats even more galling.] In fact, there are reports in February 2004 of internal memos to Illinois Senator Durbin expressing concern that Estrada was being groomed for a potential first Hispanic Supreme Court nomination and suggested the use of liberal Hispanic groups to do the dirty work of taking down Estrada, so Democrats would not be accused of discriminatory treatment of a qualified Hispanic nominee.

Dianne Feinstein did have an interesting rationalization on the often-replayed comment where Sotomayor catching herself talking about judges' making policy from the bench, saying, in effect, it's much ado about nothing, claiming that judges do that all the time when decisions don't have precedent. This is a sophistical argument: the establishment of new laws (policy) occurs through the legislature. Judicial review simply determines the legality or constitutionality of laws. Judge Sotomayor understands judicial activism doesn't simply refer to business as usual; that's why she sought to rephrase it after she said it. I would hope, among other things, that the senators question her views on something like the unconscionable 2005 Kelo v. City of New London decision, which materially expanded eminent domain rights of cities at the expense of individual property rights,a clear violation of the spirit and intent of the Bill of Rights, a potential majoritarian abuse of power, which was supported by all the court's liberal jurists and none of the court's conservative jurists.

Goldstein: Sotomayor and Race

I also believe that there was reference to a May 29 post by Tom Goldstein on SCOTUSblog, entitled "Judge Sotomayor and Race". Now Goldstein is patently pro-confirmation; this is clear from the fact that he totally ignores the Obama/Democratic hype on the nomination, her life story, etc., he simply dismisses the Ricci case as consistent with precedent--that there are no substantive issues raised in Ricci vs. others, he double-quotes words and phrases, mostly from conservatives and the national media, etc. In particular, he asserts he's taking the higher ground, focusing on her legal decisions. He then attempts to argue she often votes the same way Republican-nominated judges do. After reviewing the most recent 50 decisions on race, Goldstein reports that only 3 times among the 50 cases did Sotomayer rule in favor of discrimination claims, and those 3 cases were unanimously decided (including Republican-nominated judges)--and similarly the 45 cases rejected were also unanimous.

I find this line of argument rather amusing. Even if we take his analysis at face value, what do we make of it? Judge Sotomayor herself said being a Latina makes her a better judge; now if being ethnic and female makes a difference anywhere in a judge's decision, it should show up in disposition of these cases. If all we have are unanimous decisions to go by, you can't argue that Sotomayor's decisions are "change": they're simple "more of the same". So what's the evidence of her "empathy", her being a better judge as a Latina? And I'm assuming that the President's staff examined the very same decisions, yet let the President promote her candidacy in terms of her life story. If she's voting "mainstream", what does she bring to the table to qualify her for the Supreme Court?

However, Goldstein is basically misleading those of us whom are not lawyers. What I take away from a large number of unanimous decisions is that the case scenarios are highly structured, say, for instance, a number of frivolous appeals. But what Goldstein fails to point out is that the Ricci case is different.

Ricci v. DeStefano

The basic facts are that 15 firefighters passed a promotion exam carefully constructed for racial neutrality. No African-American candidates placed above the cutoff. The City of New Haven decided that the exam "discriminated" against African-Americans, simply based on the outcomes, and threw out the exam (based on the legal theory of  "disparate impact")--and the promotions based on the exam. There is no doubt this logically implies the equivalent of a racial quota for promotions (prohibited by  precedents like the 1978 Bakke decision) and relevant due process concerns (cf. the 2003 Gratz decision).

There is no doubt the mayor was facing pressure by local advocacy groups threatening lawsuits. But is it possible that disparate outcomes reflect disparate preparation effort?

According to Lawrence Taylor in yesterday's post in National Journal Magazine, after Sotomayor and two other justices agreed to dismiss the appeal of the Ricci cases after the district judge's rejection of the discrimination suit brought by the denied firefighters (note that all 4 judges in question were Clinton appointees):

The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel's curiously "perfunctory disposition" that he sought to have it reconsidered by the full 2nd Circuit.He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve "an unconstitutional racial quota or set-aside." He added:

"At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

The problem is, as Justice O'Connor noted (or implied) in the Grutter case, the use of adjustments to facilitate affirmative action policy cannot be maintained indefinitely in the long term. In many cases, African-Americans are trapped in failing public schools--schools that have been failing for decades, despite massive amounts of money and the "best efforts" of teacher unions and dysfunctional school administrations: high schools graduating students, often barely at suburban junior high school levels of basic skills. The solution is to provide  better education opportunities and to encourage personal initiative and responsibility. As Taylor also writes:

The disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities. But it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn -- both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test.

That is a most unhealthy message to be sending to blue-collar families at a time when America's competitiveness is being crippled by the inferior educations of many of our high school graduates compared with those in other developed countries.

Measuring Judicial Performance

In devising a test or a measure, what you are looking for is not so much items which rate the same but those that discriminate between between "above-average" and "below-average" students in a class. Now, granted, we probably don't have good, reliable, validated measures on judicial performance, but there are some obvious operationalized metrics of judicial performance to me, for example, how often a particular judge's opinions are cited by other courts, the relative frequency a judge's opinion is reversed by a higher court, how many judges on a court join in the same opinion, etc. If I'm a senator preparing for the judge's confirmation hearing, I'm looking for maker cases and decisions to distinguish a consistent judicial disposition or philosophy.

Media Misrepresenting Position of GOP Senators on Sotomayor

Finally, there is a continued bias of the national media, including CBS, to focus on Limbaugh and Gingrich's "reverse racist" remarks (i.e., Sotomayor's widely reported quote that her experience as a Latina and a woman makes her an intrinsically better judge than any white man, something Obama unconvincingly tries to dismiss as nothing more than a bad choice of words and out of context. Tell me, Obama, what is the theory and evidence behind that statement, and if her judgment leads her to make those conclusions, why should we trust her judgment on more substantive issues?)

Bob Schieffer: Back on Planet Earth (Guantanamo Bay Detainee Camp Closure)

Bob Schieffer is basically saying that Obama on Planet Campaign found it easy to talk in terms of symbolic goals, but when it comes to governing on Planet Earth, he's discovering it's easier said than done, i.e., it's easy to announce the closure of Gitmo, but finding homes in our domestic prison system has run into political resistance with a vote total of around 90% not to fund the Gitmo closure without a specific plan in place. Don't you find it ironic, Bob, that we elected a senator with less than 4 years of national experience (2 of which he spent full-time running for the White House) and the President now is finding it important to note that Judge Sotomayor has 17 years of federal judicial experience? What exactly do we expect? We've seen numerous problems--running up a $2T deficit, missteps on AIG bonuses, Iraq/Aghan photos, military tribunals, etc. I attribute part of it to inexperience.

I do not understand the rush to close down the Guantanamo Bay detainee facility. Especially when the prison facility is modern and is already paid for. Yes, I understand it's very unpopular in some European circles. But Obama has responsibiilty for the trials, imprisonment, etc. I don't think the issues involved the facilities. So tell me, why are we speaking of dispersing these detainees at other facilities? Among other things, we don't want them to have access to general prison populations for purposes of spreading terrorism, and from what I understand, there are only a limited number of very expensive maximum-security cells. This means unless we have over 200 cells available--and one target location had only 1 spot currently available, we either have to construct new cells or prisons, or rotate out not-so-nice domestic types? Not to mention what do we need to do with new maximum-security domestic prisoners...

Charles Krauthammer on Sotomayor

Last Friday, conservative columnist Krauthammer published a Washington Post opinion entitled "Sotomayor: Rebut, Then Confirm". Among other things, he suggests having Mr. Ricci, the dyslexic firefighter who found out, after scoring well on a firefighter exam specifically tailored to control for cultural bias, that his earned promotion and those others were set aside by the city of New Haven whom rationalized that they might be sued by African-American firefighters not making the cutoff, the lead witness. He then suggests that the Senate minority debate the fine points of judicial philosophy and then set a higher ground of confirming a qualified nominee, despite her judicial philosophy, on traditional groupare these to nds of confirming a President's choices, even if you differ on philosophy. Been there, done that: the Republicans did that for Clinton appointees Ginsburg (3 votes against) and Breyer (9 votes against). Compare the same votes against Bush appointees by Democrats (despite smaller number of votes): Roberts (22 votes against) and Alito (42 votes against). I do agree that the Republicans should not filibuster her. However, I have doubts about her judgment, analytical skills and philosophy in terms of her short-shrifting Constitutional issues in the Ricci case, her leadership and temperament on the bench, and her Freudian slip quotations, which I consider to be unworthy of any federal justice, not just the Supreme Court. Hence I would vote against her confirmation.

Roland Burris: Pay for Play? No

Probably the most powerful politician in Illinois today is Democratic Attorney General Lisa Madigan; with a gravity-defying 74% public approval rating, she leads by a lopsided margin in a crowded primary race for Burris' current seat and also by double digits in the primary for governor (despite Blagojevich successor Pat Quinn's high ratings). It's no secret that Madigan has long coveted the governor's seat. It's very clear that many Democrats would prefer to see Madigan go for the Senate, since Madigan may have the best shot to hold the Senate seat for the Democrats: Mark Kirk, a popular Republican Congressman with no ties to the Chicago machine or Springfield (in fact, I lived in his district before moving to Maryland), has expressed an interest. Kirk has also expressed an interest in running for the governor's seat. My guess is that Kirk will wait out Madigan's decision; running against a Democrat with a 74% approval rating in a state that has tilted Democratic since 2002 would be risky, and moreover he runs about 16 points behind Madigan. However, that lead may largely reflect Madigan's statewide name recognition. The GOP may well prefer to recapture the governor's mansion under a reformist, which could signal a GOP comeback in the state.

Roland Burris is back in the news over the past week with the release of a federal wiretaped mid-November conversation between Burris and recently removed Illinois Governor Rod Blagojevich's brother whom was beating the bushes trying to add to Rod's campaign war chest for an improbable third term as governor. In particular, Roland is under scrutiny for changing affadavits regarding the timing of discussions of the seat with Blago representatives (he indicated no discussions between a summer fundraiser and post-Christmas, but there were apparently calls after Obama's election and hence availability of his Senate seat). There was Roland's unsolicited suggestion during the conversation of possibly making a contribution through his lawyer/partner. This kind of shell game is prohibited by by Illinois campaign laws. Then there's this badly worded discussion from the transcript:

BURRIS: I mean, I'm trying to figure out how to deal with this and still be in the consideration for the appointment.
ROB BLAGOJEVICH: I hear you. No, I hear you.
BURRIS: And if I do that, I guarantee you that that will get out and people will say, Oh, Burris is doing a fund-raiser, and then Rod and I are both going to catch hell. And if I do get appointed, that means I bought it. If I don't get appointed, then my people who I'm trying to raise money from are going to look at me and say, yes, what was that all about, Roland? I mean, so Rob, I'm in a -- I'm in a -- a dilemma right now, wanting to help the governor.

The way a number of people (e.g., Chris Matthews) would understand the emboldened portion of the quote is implying a quid pro quo, e.g., the donators expected some political benefit to Burris in exchange for doing the fundraiser. I just don't know how to interpret how the reaction of the donor fits into the dilemma. I can't for the life of me understand why Burris didn't simply say, "Look, Rob. I want to help, but I'm a candidate for the vacated Senate position and cannot talk to you about fundraising. You know my record for fundraising for the governor, and if and when the timing is right, I hope to help again."

Burris is arguing that the wiretap actually validates his contention that Blagojevich never got any donation to his reelection campaign from him once it became clear that Obama would win the Presidency and his seat would be vacated. He basically told Matthews and others that all he was doing was making vague promises for modest contributions (e.g., $1500), mostly to avoid alienating Rob, which would likely scotch whatever slim chances he had.

There is no doubt that Burris knew that his appointment to the Senate by an indicted governor, about to be impeached and removed from office, was a political kiss of death. The Democrats, both state and national, wanted to distance themselves as far away from Blagojevich and "pay to play" corruption as possible. The fact is, the Illinois legislature had the opportunity to strip Blagojevich of his ability to make the appointment and establish a special election. The fact is that the Illinois Democrats were worried about a voter backlash which could propel a clean-cut Republican candidate, like Congressman Mark Kirk, into Obama's seat, a major setback to the party. I think that at that point, the Senate seat appointment became more a matter of principle for Blagojevich, to defiantly assert his authority as governor and I think he saw the pick of Burris as ultimately validating his position that he didn't sell the seat by naming an established, respected African-American. In fact, in comparison to earlier "pay to play" numbers, it's fairly difficult to make the point Burris was buying the seat even if he had made a $1500 donation. Burris had cooperated in previous fundraising efforts for the governor, and there is no evidence that Burris offered anything over and beyond his normal pattern offundraising to get special consideration. Finally, it's a well-known fact that Congressman Danny Davis had been offered the seat before Burris and turned it down.

Let me make myself perfectly clear: I think the Illinois Democrats have run the state into the ground with tax-and-spend measures and gimmick accounting, and I think that 2010 should be a change election in Illinois--including the election of a Republican governor and a Republican senator.

A renomination of Roland Burris would all but hand the Senate seat to the GOP; I think anyone remotely associated with Blagojevich, including Burris, is done next election. I think Burris was hoping that his preexisting public service record would carry the day and perhaps he would divide-and-conquer his challengers just as Obama did, by getting a huge percentage of the black vote. However, the black vote fragments in a 3- or 4-candidate race (i.e., vs. Giannoulias and Schakowsky). One poll I see shows Burris with a 27% approval rating among next spring's potential primary voters, which is like blood in the water for challenger sharks. My guess is that the state Democratic Party will try to limit the candidates to face Burris assuming Burris announces an intention to seek reelection. The Senate Ethics probe (over the multiple affadavits) and Senator Durbin's announcement he will not support Burris for reelection will probably finish off any diminishing hopes he may have. I expect that Roland Burris will eventually and gracefully withdraw, perhaps to make way for another African-American candidate like Davis or Jackson to enter the race.

Miscellany: 5/30/09

Big Unit (Randy Johnson) Now Gunning for Win #300

Now 45 years old and pitching for the San Francisco Giants, the all-time southpaw (left-handed) strikeout king (currently at 4,843), 6 foot 10 and known for his signature slider, was the first pitcher to win major league baseball's annual Cy Young award in both the American (1995) and the National Leagues (1999-2002). Johnson has led the each league in strikeouts (at least 4 seasons each) and in ERA (Earned Run Average), and he has pitched a no-hitter in each league, the last one being one of just 17 perfect games in baseball history (i.e., retiring all opposing at-bats in a 9-inning game). In his next outing, June 3, Randy Johnson is seeking to become just the 24th pitcher to win 300 games. From one lefty to another, good luck, Randy!

Bonnie Sweeten: You've Just Been Carjacked... 
Where Are You Going Next? "Disney World"

A terrified woman called Philadelphia area 911, claiming her GMC Denali SUV had been rearended by two black carjackers, whom put her and her 9-year daughter (from a previous marriage) in the trunk of a black Cadillac in the heart of Philadelpha. The first call of about a half dozen took place at 1:50PM Tuesday. Subsequent records show that Denali, with no visible damage, was ticketed for a parking violation at 2:20PM in the suburbs, roughly a 40-minute drive away from the purported location of the accident and that the cell calls originated from towers close to the Denali location. The cops and/or the FBI claimed to have discerned other holes in her story among the calls, including the varying location of the daughter in the vehicle, which vehicle they were in, the exact location of the carjacking, and the lack of corroborating evidence (witnesses given the busy intersection where the abduction allegedly took place, video camera footage, etc.) Authorities finally caught up Sweeten with her daughter at a hotel in the Disney World area.

There are unconfirmed reports speculating on Mrs. Sweeten's motives. [What appears in this paragraph is speculative, and I'm not asserting there is a factual basis. To the best of my knowledge, there are no current charges, other than those related to the false 911 call and identity theft. I should also point out that Ms. Sweeten is to be presumed innocent of the charges that have been made, until convicted by a jury or judge.] Supposedly Sweeten handled cash for a legal firm (settlements, etc.) and a related charity and had embezzled several hundred thousand dollars; it's not clear what the purpose of the funds were. Mr. Sweeten says they didn't live a lavish lifestyle, but Bonnie handled the family bills and money. (This is pure speculation on my part; there are reports that she has had a series of miscarriages, and perhaps she had been trying to cover the cost of very expensive fertilization treatments not covered by any relevant health care plan.) It seems that questions were beginning to surface as legal clients were getting stonewalled in the release of their settlement checks and starting to complain. Bonnie, fearing the prospect of going to jail over embezzlement, was frantically trying to restore funds, even apparently changing the amount of a check from her parents to read over $200K. Another rumor suggests that Sweeten felt she was on the verge of arrest and had become suicidal; the motive of bringing her middle daughter with her was viewed as a type of self-restraint, because she wouldn't take her own life with her daughter there.

According to news reports, Bonnie Sweeten used a ruse to steal the identity of Jullian Jenkinson, a former colleague and similar-looking blonde, saying she needed the drivers license to process Jullian's 401K rollover. Since credit card transactions can be tracked, Bonnie used Jullian's identity to purchase two one-way plane tickets to Orlando with cash. It seems that this set off some red flag, and apparently security was slowed at the airport, but Bonnie and her daughter were allowed through by TSA. [Obviously law enforcement was able to track her down and arrested her returning to the hotel with her daughter Thursday; there was also footage released of Mrs. Sweeten going through the airport scanner, but this was obviously identified after Mrs. Sweeten had already boarded the flight with her daughter.]

Besides the unusual nature of this incident, I'm interested in some of the security and information systems issues posed. For instance, Bonnie Sweeten is 5'11"--unusually tall for a woman. I do not know Jullian's height, but I saw an interview clip of her talking to a news crew and she seemed to be medium height at best, at least 6 inches shorter. Since height is listed in drivers license information, I'm not sure how an obvious height discrepancy got past two points of ID check, never mind very tall blonde woman paired with a schoolage daughter. A second point that intrigues me is the identity theft: why Jullian would simply lend Bonnie her driver's license. Usually workplaces already have copies of employee I-9 information on file (and any relevant information--say, the actual drivers license number--can be handwritten), there's the inconvenience of not being able to drive without the license, and a driver's license can be used as a valid ID for a variety of purposes--financial transactions (checks, credit card transactions, etc.), starting a new job, applying for a passport, etc. I do understand Jullian considered Bonnie a friend and did not know of any alleged financial improprieties against her, but what she did was imprudent. We need to do a better job of communicating methods and risks of identity theft. Third, I'm intrigued by why TSA doesn't have an integrated check of daily reservation ids, so, for instance, cash-transaction, same-day or other suspect (e.g., prescheduled fugitive) transactions could be flagged for detailed security checks. The security issues involving the use of false ids highlight the eventual need for reliable biometric checks vs. eyeball checks. Finally, I'm puzzled by the fact that the police didn't locate the Denali until about 12 hours after the SUV was cited for a parking violation. I have not looked at meter maid technology recently, but given widely available handheld devices (including cellphones with cameras) with Internet capabilities and software applications, it would have been very useful for the police to have had the location of the vehicle earlier, which was possible if the license plate of the illegally parked SUV had been promptly input and made accessible to law enforcement.

On a final note, Ms. Sweeten's identification of her alleged carjackers as black was, in my opinion, racist and unconscionable.

Cyber Czar?

How many czars is Obama going to propose? Is there any limit to his misguided attempts to micromanage the economy? Don't get me wrong; I think there's a lot to be said about streamlining government information systems, and there are significant issues with computer security. In my most recent work assignment, I got into a disagreement with the prime contractor on the account, by pushing for a minor Oracle database server version upgrade for a federal agency, because the existing version is not supported for Oracle's latest cumulative quarterly security update. The bottom line is: First, Obama is pushing on a string; there's nothing fundamentally wrong with one of the crown jewels of our economy, and imposing undue regulation on the sector may slow technical innovation and risk losing market share to other countries like China and India which already produce more engineers. Second, before Obama, once again, tries to expand his supposed mandate for government interference in the private sector and succeeds in driving down industry profits with additional red tape and related costs, he should mind his own store. Believe me, I have worked in multiple federal locations running obsoleted software and with serious security issues.

In fact, the private sector does not tolerate the kind of nonsense the Obama Administration bears responsibility for--things like mailing out over 8000 stimulus checks to dead people, failures to implement industry-standard anti-fraud measures for Medicare/Medicaid, etc. And yet the public sector thinks it knows how to tell the private sector how to run its business? Give me a break... The Congress must push back on Obama government empire-building! Before the Obama Administration starts trying telling the private sector what to do, it should get its own house in order.

Value Added Tax Dead on Arrival

Rumors abound that the President is thinking of a VAT (a national sales tax on goods and services), yet another shrewd attempt (like universal health care) to emulate Europe's economic policies promising slow economic growth and sticky high unemployment. With Obama tax-and-spend policies raising the number of working households not paying any federal income tax (in fact, getting additional reimburseable tax credits), there is some validity to insisting low to lower-middle class citizens pay SOMETHING towards their fair share of the government cost burden. We can also make an argument that, for instance, employers who offer health care insurance and their employees implicitly already assume a great deal of cost burden for the Medicare/Medicaid paying under the market rate, not to mention a large portion of uncovered costs for the uninsured. I suspect that Barack Obama will find another it's-good-to-spread-the-wealth-around solution in an attempt to limit the effect of the VAT on lower-income people--which means punishing success even more than he is now. It's like he can't help himself...

Okay, Obama, one more time: a VAT is an increase in consumer costs. This causes demand in goods and services to drop. Decreased demand in goods and services means fewer jobs needed to sustain them. Given the fact we are still bottoming out in the recession, the LAST THING YOU SHOULD DO is raise taxes. If you think the GOP is going to approve a VAT, you're delusional. If you think that incumbent Democrats in competitive districts and states are going to give Tea Party protesters and Republicans something with which to beat them over their heads for the 2010 election, you're delusional. A lot of Republicans are looking for ways to implement a fairer, simpler tax system (e.g., Forbes and Huckabee), but if what you're talking about is using yet another tax given the existing tax burden to pay off $2T deficits of Democratic spending sprees to which we strongly disagree, you are out of your mind.

Obama, Sotomayor and the Rush to Judgment

Obama, as usual, is putting on his version of a political full-press, arguing that Sotomayor should have been confirmed as of, say, yesterday. This is little more than the hope of his audacity. It is particularly hypocritical given he and his own party's stonewalling of Bush court nominees, and the nominations of Roberts and Alito, highly-qualified jurists, took 3 months (not to mention his desire to filibuster Justice Alito's nomination): He's shooting for two months. At the same time, he's hyping Sotomayor's bench experience and "hundreds of judicial decisions that every American can read", but seems to think due diligence of Sotomayor's record should take LESS time? Not a chance. I've written in several posts about how "haste makes waste", with Obama being forced into several reversals or setbacks (the Iraq/Afghan photos, military tribunals, funding for Gitmo closure, etc.); Fox News commentators have been counting the number of times Obama has failed to honor his transparency pledge for a minimum 5-day public display of bills.

There are, of course, some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record.

Some who want to draw old battle lines and play the usual political games, "Post-Partisan One"? Like the fact that Senator Obama voted against two highly-qualified nominees to the Supreme Court for purely political reasons or that President Obama, rather than negotiate with Senate Republicans on the so-called stimulus bill, peeled off three liberal Republican votes? Cry me a river... Comments "out of context"? Aren't you the same guy whom so self-righteously proclaimed, "Don't tell me words don't matter..." Aren't you the same guy whom demanded that Don Imus be fired over a single insensitive joke with respect to the Rutgers women's basketball team? Did you think Don Imus' radio show mostly focused on women's hairstyles? And we're not talking about a talk show host with First Amendment rights; we're talking about a federal judge with several years under her belt, a professional lawyer whom knows the importance of words in contracts and other documents. So stop the disingenuous spin; the very fact she caught herself talking about judges "making policy" in a public forum--years after she was grilled in confirmation hearings over her judicial activism--hardly attests to her "fierce intelligence"...

I have held my tongue some time now on Obama's constant promotion of the "rule of law" like he did in today's weekly address. How dare he? This is the same guy whom was telling us just weeks ago he did not accept AIG contracts with managers, stipulating retention bonuses, long before AIG got a bailout. This is the same guy whom gave the unions and their retirees outsized claims on GM and Chrysler stock vs. bondholders, leaving many retirees, investors, and pension funds with literally pennies on the dollar. This is the same guy whom is trying to replace the scales of justice with "empathy" or outcome-based justice. Whatever Obama is trying to peddle, it's not the "rule of law", no matter what he says. I, for one, am sick and tired of hearing Obama saying something his own actions contradict.

He once again tries to intentionally mislead the American people over the "bipartisan" record of Sotomayor's prior appointments and confirmations; the fact is that Sotomayor was the choice of Democratic Senator Moynihan under an agreement that often operates when a state is represented by a member of each party, to which President G.H.W. Bush agreed. It was a quid pro quo for consideration of Republican appointments. Second, Sotomayor's vote for the court of appeals in 1998 was opposed by 29 senators, which is fairly unusual for GOP votes; in comparison, liberal Clinton Supreme Court nominee Ruth Bader Ginsburg in 1993 got only 3 negative votes--and this vote was after unconscionable Democratic smears of Robert Bork and Clarence Thomas.

Gingrich and Limbaugh on Sotomayor: Latina Reverse Racism?

White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.

White male politician too sensitive, should shut up. Someone should take Gingrich's Twitter account away before he shoots himself in the other foot. Newt, you deserve a lot of credit for providing fresh alternative conservative solutions to topical issues like health care and the environment. But I'm stunned that you, an experienced politician, would recklessly throw around terms like "racist". Based on a couple of quotes? As for Rush Limbaugh also raising the term 'racist', I'm glad he "resigned" as "titular head" of the GOP--I certainly never "voted" for him. I, for one, am getting fed up with the angry rhetoric of Limbaugh, Coulter, and Hannity; John McCain last fall paid a stiff price in losing George Bush's share of the Latino vote--largely the result of media conservative opposition to something McCain in fact had championed: immigration reform (something which I regard as an essential ingredient to American global competitiveness). These media conservatives claim to love Reagan--but they certainly don't reflect his optimism and pragmatism.

To me, opposing Judge Sotomayor's nomination is painful, because I've gone to school with and taught Latinos, I've dated a Latina, and I have the highest regard for their work ethic, family values, faith, and heritage. I wanted to support the historic first Latino nominee to the Supreme Court.

I'm not excusing Judge Sotomayor for lacking professionalism and judgment in her public statements in claiming, as I mentioned in an earlier post this week: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life...I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage." It is unfortunate that a judge would engage in stereotypical identity politics; in my view, such banal, superficial, divisive, irresponsible, predictable, politically correct inferences are unworthy of any judge, never mind one nominated to the US Supreme Court. If anything, by resorting to such arrogant, fuzzy, unoriginal, pathetic leaps of logic and evidence, she has undermined her own credibility and reputation as a fair-minded, balanced, rigorous jurist and a definitive role model for young Latinos. People with her intellectual prowess and achievements should know better; as a Latina, Judge Sotomayor (I suspect) has experienced prejudice during her life and knows the harmful effects of judging people not as individuals but as stereotypes. To engage in stereotypes herself undermines the judge's moral authority.

I, of course, realize that when one is giving or participating in a "diversity" event (like the quote given at the University of California in 2001), white males are the principal scapegoats; you have preposterous assertions, not validated by evidence or reasonable in nature, that women are intrinsically better managers or have to work harder to get ahead (analogous claims have been made for members of other racial or ethnic groups as well). I don't think people whom have self-respect and are confident of their abilities and the quality of their work  need to dream up racial or gender conspiracy theories. I can think of 3 female managers (of a number I've dealt with over the years) whom embodied the essence of the "Peter Principle", i.e., "in a hierarchy every employee tends to rise to his or her level of incompetence": they had big egos and bad people and listening skills, they didn't exercise due diligence in decisionmaking, and they jumped to conclusions and overreacted, in personal terms, to ordinary issues. [They acted aggressively and seemed to regard resistance to their boorish behavior as motivated by sexism. I can only speak with respect to my anecdotal experiences with male managers, and any generalizations are limited; in my opinion, male managers have a more subtle approach, maintain a facade they are in control and unflappable, as if any emotional response to adversity is a sign of weakness, and don't sweat the small stuff, i.e., choose their battles.]

For example, I was once tasked to upgrade a version of Oracle application server software. The client had been generating application reports (which required custom print drivers, plus relative busy work by clerical personnel to adjust relevant Microsoft Word document properties). A major defense contractor held the major contract for the military base, had failed twice to install the new application server but told the female Navy project manager that they had already converted the application to run on the new software. After I successfully completedy the app server installation, the prime contractor developers balked, asserting their reports wouldn't run because the app server was malfunctioning or not installed correctly. I investigated the problem and determined that the contractor had not, in fact, upgraded the application. (Oracle had a utility which would locate and replace obsoleted function calls, and that utility came up with matches.) I worked with a prime contractor developer and determined the source of his problem was failing to specify a required new standard document type for reports (e.g., pdf, rtf, etc.) At a subsequent meeting, I found myself under attack by the project manager, whom seemed to believe that my solution to the prime contractor's problem directly contradicted her requirement of upgrade transparency to the users. I'm being quite serious about this: she considered the busy work of preparing Microsoft Word documents (no longer necessary if the application was generating Adobe pdf files) to be an integral part of user activities. She then went on a personal rant against me in front of the assembled prime contractors, claiming that she had told my company to subcontract the installation task to Oracle Consulting. I politely reminded her that I was a former senior principal with Oracle Consulting and could have been assigned to do this project; she retorted that this was not my area of competence. I responded that Oracle's desupport of  custom print drivers was beyond my or any Oracle professional's control, to which she responded, "We're the Navy; Oracle will do whatever we want them to do."  [Of course, she didn't seem concerned that the prime contractors failed twice to do the app server installation, had not briefed her on the nature of the application upgrade (e.g., new standard report options), and had not converted the application as they had earlier claimed. I had proven the application would run on the app server with the right function calls, but she certainly knew her priorities and the key salient problem to address: the fact user clerical personnel no longer had to do busy work.]

I am not suggesting that the above is a typical example of female managers. For example, Martha Stewart is an extraordinary businesswoman whom created her own niche in the market; Oprah Winfrey took over Phil Donahue's Chicago talk show slot and shrewdly built a diversified entertainment conglomerate. Meg Whitman grew an Internet auction company (eBay) and made it a household name, spawning the creation of thousands of home-based businesses. What I do want to stress is that we need to judge people on their individual merits. As a white male, I have a mother, 4 little sisters and 9 nieces, and I want them to be treated fairly, respectfully and experience the career success they have earned on their own merit.

Judge Sotomayor has been building an unfortunate reputation for impatience with lawyers, for her legal craftsmanship, and her poorly organized, superficial or unfocused questioning and draft reviews. Naturally, liberal advocates have responded to conservative criticisms of Sotomayor's indefensible quotes above by claiming hypocrisy, pointing out Justice Alito's own references to bias against and stereotypes of Italian-Americans in providing a context for discussion of civil rights cases. Justice Alito never said or implied his own experience with ethnic prejudices influenced his judicial judgment, made him a better judge, etc. One might argue having been exposed to prejudice makes you more sensitive to how you come across to other people and perhaps results in your being a better person; but the issue of being a judge relies more on being competent, even-handed and objective, without a predisposition to outcome.

 [Pardon me if I retch at the double standard of Democrats and the liberal mass media, whom have maltreated honorable conservative Hispanic jurists such as Alberto Gonzales, a graduate of Rice University and Harvard Law School, and Miguel Estrada, a magna cum laude graduate of Columbia and Harvard Law School, serving as editor of the law review. (Hmmm. What prominent black American politician has degrees from Columbia and Harvard Law School, also serving as editor of the law review? HINT: He nominated Sotomayor.)]

Judge Sotomayor needs to flesh out what she meant to say, because we certainly don't need lawyers coming to the Supreme Court approaching Justice Sotomayor with sob stories, going on politically correct rants filled with victimization rhetoric, trying to manipulate her emotions. I suspect she was probably just playing to a politically liberal crowd, uttering intellectually vacuous nonsense, never dreaming they would be coming back to haunt her. I don't have much sympathy for her; she's over the age of 50 and should know better. She's a judge; it's hypocritical for her to engage in the same type of sloppy, sentimental thinking she would never herself tolerate from lawyers presenting a case in front of the court. Enough of this elitist, self-congratulatory polemics; it is intellectually lazy and adds nothing of value to the discussion.

As a federal judge, Sotomayor is held to a higher standard. The single best thing Judge Sotomayor could do on behalf of the Latino community is to be technically excellent and eloquent, to apply the highest standards to  her craft, for people to admire the quality of her work and her judicial wisdom without even realizing who wrote it or the life story behind the author.

The GOP should be careful in its treatment of Judge Sotomayor. One ABA source (ABA Journal, November 2008) identifies her as a political centrist. Litigator Thomas Goldstein, quoted in a May 26 Debra Weiss post on abajournal.com, regards her as left of center with respect to the existing Court, but not the far left. Sotomayor has also done some solid prosecutory work, and there doesn't seem to a strong or obvious link between her controversial comments and her judicial record. Given the fact that Obama is, by far, the most liberal President elected over the past 40 years, there's always the risk that Obama could nominate an even more ideological jurist. I think we conservatives should hold her feet to the fire, having her specify just what she means by alleging that white males make for inferior judges or decisions, but we should not filibuster this candidate, we should take the higher ground, not treating her the same way the Democrats treated Gonzales and Estrada, and the polarizing comments by Gingrich and Limbaugh should be rejected. I still maintain the position I made in an earlier post: I think Sotomayor's identity politics was an unacceptable breach of professionalism, particularly for a federal judge, I believe that she short-shrifted legitimate Constitutional issues in the New Haven case and will be reversed by the Supreme Court, and I have concerns about her performance (past reverses, temperament, leadership on the court, etc.)

As for President Obama, what can I say? Picking a candidate, whom I'm sure was well-vetted, and as a sitting federal judge, engaged in identity politics? Is this not yet another nail in the coffin of  "post-partisan" rhetoric?

The California Supreme Court Finally Gets One Right...

The California Supreme Court, by a 6-1 count, upheld Proposition 8 results, the second time in 10 years California voters have passed a proposition confirming the traditional definition of marriage as between a man and a woman. The Court did some face-saving, claiming their original decision was sustained except for the use of the term "marriage", that any and all rights of marriage are available through domestic partnerships. They also said that all gay "marriages" performed after its ruling will remain in force.

A Review of the History of California Propositions 22 (2000) and 8 (2008)

In 1977, there were changes made to clarify language in the California Civil Code which described marriage without explicit reference to gender. The subsequent California Family Code had two relevant sections: 300, which explicitly noted in-state marriages were between a man and a woman, and 308, which has language that basically recognizes marriages from other states. Recall that there was a Defense of Marriage Act signed into law by President Clinton in 1996 (opposed by then Illinois state senate candidate Barack Obama--this should be noted by Carrie Prejean and Fox News commentators); the Defense of Marriage Act explicitly defines marriage as between a man and a woman for federal laws and allows states the right to refuse to recognize same-sex marriages from other states.

In 2000, Proposition 22 (the California Defense of Marriage Act) explicitly clarified section 308 and secured the right of refusal to recognize out-of-state same-sex marriage in the national Defense of Marriage Act by adding 308.5: only marriages between a man and a woman are valid and recognized in California. The California legislature attempted to strip the traditional marriage language of section 300, which clearly violated the spirit and intent of Proposition 22 and the mandate of the people, and the bill was vetoed by Governor Schwarznegger, whom argued that only the voters of California could repeal Proposition 22. There were legal challenges to traditional marriage on various grounds, including the state constitution. In May 2008, the California Supreme Court, in a split decision, ruled that the California Family Code traditional marriage definition, confirmed by Proposition 22, violated the state constitution. The state constitution can be amended by a California proposition. Proposition 8 in 2008 added section 7.5 to Article 1 of the state constitution to include the Proposition 22 definition of opposite-sex/traditional marriage. [Carrie Prejean and Fox News commentators should note that Obama opposed Proposition 8, the constitutional version of the California Defense of  Marriage Act, which is consistent with his original 1996 against the national bill. It simply brings yet another example of  Obama's notoriously nuanced views, i.e., how Obama tries disingenuously to play both sides of an issue: he pays lip service to the traditional definition of marriage, but it's not matched by his actions.]

Non-lawyers like myself get exasperated by sophistical hairsplitting. For instance, the California Supreme Court could have originally ruled domestic partnerships were vested with the same constitutional rights as marriages and same-gender "marriages" from other states would be recognized as domestic partnerships in California. This would not have ignited the current political firestorm, given the fact that domestic partnerhships were already a fact of life in California. I do agree many social conservatives do not support the concept of domestic partnerships, but I believe that it's simply an extension of the concept of contracts.

Perhaps the California Supreme Court bought into the "separate but equal" rhetoric relevant to Brown v. Board of Education of Topeka. Recall that up to that point of time there had been workarounds to the Equal Protection Clause by implementing de facto caste systems, including arbitrary race-based filters to local public schools, so long as each student had access to a school, comparable on a variety of metrics (e.g., facilities, curricula, faculty, etc.) What you had was a Byzantine school system where, say, black children in integrated neighborhoods were not offered an opportunity to attend the same nearby public school as their neighborhood friends, because of an unconscionable race filter, certainly an arbitrary policy, without educational merit, inconsistent with the spirit and intent of civil rights laws. Not only that, but it was a dysfunctional, inefficient regulatory system with significant, unnecessary related transportation costs simply to maintain unjust race-based filters.

But there is no evidence here that California or other states institutionally created arbitrary rules for marriage to rationalize a caste system between straight and gay committed couples. Gay relationships and traditional marriages have existed separately for thousands of years. Traditional marriages have been integral for society's implementation of family (given the nature of procreation) and self-preservation.

Discussion

Many supporters of traditional marriage oppose domestic partnerships and/or the sustainment of the interim "marriages". I disagree. I believe that adults in voluntary committed relationships should have legal protections. It's fundamentally unjust that a hospital would allow estranged family members visitation rights but not members of the patient's own household or that partners would be excluded from considerations of inheritance. Second, even though I disagree with the legal activism underlying the original California court decision which overturned an earlier California proposition establishing the traditional definition of marriage, I think that contracts made in good faith after the original decision have to be honored.

This position, of course, doesn't placate the opponents of Proposition 8, whom assert that there is a double standard between interim marriage licenses issued and the fact that this option no longer is available for gay partners and are not comforted by the high court's argument that domestic partners have been granted everything available to married people except for the term "marriage". They are incensed by the alleged unprecedented discriminatory rollback of civil rights. I disagree. The issue was with the original California Supreme Court decision which overruled the definition of marriage specifically mandated by the voters of California and, in fact, has been the law of all 50 states for over the first 200-odd years of the republic (not to mention the thousands of years of history of  the Judaic-Christian tradition).  The California Supreme Court decided not to work through the existing domestic partnership concept and, unlike the historic Brown decision, did not have the moral authority of a unanimous decision on a highly divisive issue. I should point out here that only about a quarter of California voters report themselves as liberal, and despite one of the most organized oppositions of a proposition in the history of California which included all the major newspapers in the state, the liberal mass media, Governor Schwarzenegger, future President Obama, almost all Democratic statewide officials and state legislators, more money ($32M vs. $28M), and Hollywood, Proposition 8 carried.

Kinky Friedman, Texas singer/comedian/gubernatorial hopeful, famously quipped, "I support gay marriage. I believe they have a right to be as miserable as the rest of us." Um, Kinky, they were already miserable in domestic partnerships; they thought the grass was greener on the other side.

Judge Sonia Sotomayor for Supreme Court: No!

I really did predict that Obama would pick Judge Sotomayor, although I didn't publish it. Her name had been raised as a front runner, and she hits multiple symbolic criteria (if there's one thing Obama knows, it's symbolism). She would be the first Latin-American (and first such female) on the Supreme Court. [Some would argue Benjamin N. Cardozo, an FDR appointee, is, but he is of Portuguese descent; not from Spain or from the Spanish or (Brazilian) Portuguese-speaking peoples of the Americas. The term "Hispanic" refers to Spanish-speaking people, i.e., from Spain or the Americas, which does not fit Cardozo's background. Hence, Sotomayor would also be the first Hispanic-American; it should be noted that many Latin Americans consider the term "Hispanic American" a cultural insult, and Sotomayor refers to herself as a Latina.] She was diagnosed with diabetes at a young age and grew up in the South Bronx public housing; this dovetails nicely with Obama's famously obscure non-Constitutional criterion of  "empathy". In certain ways, Sotomayor's story parallels Obama's: she grew up in a single-parent home after her father died and attended Ivy League colleges for her degrees (Princeton and then Yale Law School). Her Princeton graduation with honors (summa cum laude) attests to her high intelligence.

Judge Sotomayor is clearly qualified, with 11 years on the appeals court. But, of course, Obama himself regarded competence and qualifications not to be salient characteristics when he voted against both Chief Justice Roberts and Justice Alito (whom he also supported filibustering). Sotomayor is going to draw some Republican conservative opposition, for some notorious quotations. Back in 2001 at an annual diversity lecture, the judge said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." At a February 2005 forum at Duke University, she said, "The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK."  A third example, from a 2002 speech reported by the Associated Press, said, "I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

The first quotation suggests a reverse racist bias and a rather self-serving one at that, one that seriously calls into question her ability to judge fairly equal protection issues. In particular, one topic which will come up in her confirmation issues is the Ricci v. DeStefano case, which is pending after April arguments before the Supreme Court, over Sotomayor's vote, among others, to summarily dismiss. This case involved a competitive New Haven firefighter exam for promotions designed by a well-known testing company specifically to address any cultural bias concerns. No minority candidates reached the promotion cutoff, and New Haven, based solely on the racial breakout of exam results, threw out the exam results, including the white candidates whom had worked and studied hard to take the exam, including Ricci, whom had overcome the effects of dyslexia to place in the top 10. Dismissing the results of an exam simply because of racial distribution seems to be the logical equivalent of maintaining an unconstitutional racial quota for promotions. The Supreme Court has maintained on multiple occasions that colleges cannot use racial quotas, and Sotomayor's failure to address this clearly relevant precedent seems to suggest she has a hidden policy agenda.

The second quote is red meat for conservatives, whom have long insisted that the role of judges is to interpret the law strictly, not to make policy, which is address by the other branches of government.

Another potential source of criticisms of Judge Sotomayor is a recent (May 4) New Republic post written by Jeffry Rosen, "The Case Against Sotomayor".  Rosen claims to have contacted a number of former or current judges, prosecutors and/or law clerks, most of whom are Democrats. There were rumors that Obama had been seeking a liberal with the intellectual prowess to counterbalance Justice Scalia and a consensus builder, and the feedback Rosen heard seems to suggest that Sotomayor doesn't measure up to those expectations. Some have questioned her judicial performance: her inflated ego and temperament from the bench (e.g., annoying her colleagues or bullying counsel), her uneven judicial analyses, and unfocused questioning from the bench, opinions and memos (inability to cut to the chase or to prioritize issues in terms of judicial substance, missing the forest for the trees, evaluating drafts more on surface-level details (e.g., misspellings) vs. substance, etc.)

Another common judicial performance criterion is reversibility of opinions (with sustained judgments being the preferred outcome). One source says that she's been reversed on 3 on 6 opinions ruled on by the Supreme Court (and probably will be reversed on the Ricci case), which is not regarded as a particularly impressive average.

Barring something unexpected and damaging, I expect that Sotomayor will not be filibustered and will ultimately be confirmed. I seriously doubt that the Maine senators, Senator Hatch or Senator Lindsey Graham would agree to filibuster this nominee, and a GOP filibuster of the first Latina nomination would not go over well, given an already strained relationship over opposition to immigration reform. It is important that any disagreement over Judge Sotomayor's nomination be made respectfully. My personal intuitive guess, unless something unexpected surfaces, is that Sotomayor will win 75 to 80 votes, somewhat analogous to her confirmation to the Court of Appeals where she won about half of the GOP votes.

As for me, I wish that Sonia Sotomayor's record as an appeals justice was as inspiring as her life story. Although I find her qualified, I think her opinion reverses, her unconscionable attempt to bury the Ricci case, and her Biden-like tendency for judicial activist gaffes do not reflect the kind of performance I want to see in a Supreme Court judge, and I recommend her rejection and replacement by a more suitable candidate.

Obama's Comments

Obama, as usual, came out this morning, anticipating objections and denying the obvious, saying she will not legislate from the bench.  The quotes stand on their own; even though she tried to take back what she said after she said it (which was a patently transparent attempt of damage control); even if you claim it was a slip of the tongue, you would think any reasonable judge should have been better disciplined to think before she talks.

However, the fact that he's stressing her personal story, impressive as it is, even after affirming she has the broadest legal exposure of any Supreme Court justice, implies Obama explicitly included a factor that had nothing to do with her judicial qualifications. The arrogant, presumptuous California quote above makes that clear: the idea that a Latina woman can objectively interpret the Constitution better than any white judge does not approach my favorite Leibnizian quote: "The only way to rectify our reasonings is to make them as tangible as those of the Mathematicians, so that we can find our error at a glance, and when there are disputes among persons, we can simply say: Let us calculate [calculemus], without further ado, to see who is right." Sotomayor seems to be suggesting Obama's empathetic ideal: deciding in favor of a politically-correct outcome and then retrofit some dubious legal rationale, much like Griswold's "penumbras, formed by emanations".

Obama's hyped reference to Sotomayor's judicial experience is somewhat disingenuous. Comparing her record with those of Chief Justice Roberts and Justice Alito is ludicrous. John Roberts, prior to joining the Court of Appeals, won 25 of 39 cases tried before the Supreme Court, one of the highest counts of anyone arguing before the Supreme Court. Sam Alito, who also worked for the Solicitor General, argued a dozen cases before the Supreme Court and was on the court of appeals before Sotomayor became a district court judge. I'm not attacking Sotomayor's qualifications here so much as an unfair, misleading and unnecessary comparison with sitting judges. Moreover, keep in mind Obama also said earlier that he was also looking outside the conventional judicial background, and there are reports that Secretary of Homeland Security Napolitano, although experienced as a US attorney and Arizona attorney general, was one of 4 candidates interviewed, despite no judicial experience.

He also misleadingly cited the fact that Republican President G.H.W. Bush nominated her for the district court to imply a GOP consensus; in fact, district judges come from the President's party 90% of the time. But Byron York in today's Washington Examiner points out the facts behind the nomination. Senator Moynihan (D-NY) and Senator D'Amato (R-NY) had a political compromise under the Republican presidents that Moynihan would get 1 of every 4 district court nominations--and Sotomayor was a Moynihan pick, not a D'Amato pick. York discussed the matter with a Bush Administration official whom confirmed that Sotomayor was not Bush's preference, that they didn't pick her for being a judicial conservative or moderate (which she's not),  but it was a political fact of life that often existed when a state has US senators from different parties.

Progressive Catholics, Bishops, and Maureen Dowd

Maureen Dowd Condemns American Bishops

What set off this post was hearing Maureen Dowd, on a recent video podcast of This Week with George Stephanopoulos, lash out at American bishops, whom protested the recent University of Notre Dame invitation and conferment of an honorary degree to President Obama because of his extremist views in favor of elective abortion. I'll refer the reader to my recent Notre Dame post for a relevant discussion of the late Cardinal Bernandin's description of a "seamless garment of life" approach, where a number of political issues were explicitly linked, e.g., abortion, capital punishment, nuclear weapons, health care for pregnant women, etc. Thus, in the eyes of progressives, this expands the concept of what it means to be "pro-life". This doesn't take away from the fact the abortion-tolerant progressives fail to achieve Bernandin's ideal of a seamless garment. But what the progressives attempt to argue is that pro-lifers who do not vote for progressive policies on other issues are hypocritical, arbitrary, etc., and that progressive Catholic politicians may, in fact, be more "pro-life" than politicians whom oppose abortion but also other progressive policies. Maureen Dowd caustically accused American bishops of selectively speaking out on political issues, condemned their alleged silence over the liberation of Iraq, which Pope Benedict opposed, etc.

If Maureen Dowd ranted in the middle of The New York Times, and the paper went bankrupt, would anyone hear her? (Would anyone care?) Never mind; we could just settle for the original column published elsewhere by the real author.

Orthodox and Progressive Catholics

Occasionally as a Catholic I'll write a post bearing on my faith, especially in political contexts (e.g., Democratic Catholic politicians whom are permissive on abortion, Holocaust-denying clerics, Pope Benedict's mixed reception in Israel, and Obama's recent commencement address at Notre Dame). I may eventually start another blog focusing on my Christian faith. There is no official distinction in the Church between "orthodox" and "progressive" Catholics, which I briefly referenced in my Notre Dame commencement post. [I remember in high school I once asked a Jewish friend about dietary restrictions; he looked at me, rolled his eyes, and told me, in a condescending tone, that he was a REFORMED Jew (implying in context he didn't keep Kosher).] An orthodox Roman Catholic regularly attends Mass (on Sundays and holy days of obligation), participates in the sacraments (i.e., confession and Holy Communion at Mass), is responsive to the Church teachings on faith and morals and one's own spiritual and prayer life, and shows reverence for the men and women whom choose to dedicate their lives to Christ through a religious vocation, as priests (and brothers) and nuns/sisters, and, in particular, members of the Church hierarchy (bishops, cardinals, and the Pope).

I am an orthodox Catholic; this may sound obvious for someone writing a politically conservative blog, but I was always a conservative/traditional Catholic, even during my politically liberal period as a young adult. My mom made little vestments for me so I could play priest while in elementary school. I served as altar boy during early morning daily mass at Laredo AFB, and the chaplain made an unsolicited gift to me of his volumes of St. Thomas Aquinas' Summa Theologica. I had some initial contact with the Jesuits while attending OLLU, and my cousin Jackie wanted to gift me with a chalice in memory of her late father. I think my vocation got sidetracked when I started dating my first girlfriend, a beautiful blonde; I remember one day dropping by the women's dorm so we could go to church together, and she showed up in these red hot pants (and I was mesmerized by her legs). I served as a lay eucharistic minister and lector at my first parish in Houston, and after I started attending Mass in the chapel at the University of Houston, I briefly dated a very tall, beautiful woman, whom told me that she had originally noticed me in part because I was the only guy whom showed up to Mass in a suit and tie. But I've never married; a bigger issue for me was a qualitative change in the Church following Vatican II which seemed to appease versus challenge a sexually permissive culture gone amuck.

Progressive Catholics (including priests) often are indistinguishable from orthodox Catholics in terms of regularly attending Mass, participating in church activities, etc. They are known more in context. For instance, you see more emphasis on socially relevant activities (e.g., visiting the ill or senior citizens, meals on wheels, etc.) One incident I may have mentioned in an earlier post was when I briefly attended parochial school in Fall River, our class had "adopted" a black family in the DC area. There was a wish list of items for the family members (food, clothing, etc.), but what I remember most was the sister mentioned that the dad of the family smoked Pall Mall cigarettes. Even in elementary school, I understood this had gone too far. Then there was the time at the University of Texas when the priest played Olivia Newton-John's hit song "Have You Ever Been Mellow?" and preceded to deliver a sermon on it--and I didn't have the slightest clue what religious significance there was to any of it. Some of the feminists at the University of Houston went around scratching out in ink in all the missals the term "men" in the Nicene Creed, i.e., "...for us men and for our salvation.."

The progressives do not focus on personal spiritual development, you rarely hear about sin, prayer, and repentance, and Christ is reinvented into a meek, congenial, socially-conscious political activist, flatly contradicted by the testimony of the Gospels. I do not doubt that progressives are troubled by the "divisiveness" of the public rebuke of sin (e.g., the evil of elective abortion) and feel themselves vindicated by passages such as: "Stop judging, that you may not be judged." (Matthew 7:1). [In fact, Jesus Himself was not indifferent to sin, He condemned Pharisees for hypocrisy, and He was unwilling to compromise His teaching to retain or recruit disciples. (cf. Matthew 10; John 6:66). My interpretation is that He is calling for wisdom and mercy in judgment.]

The fact that Jesus did not fit into the politically liberal stereotype is reinforced by this incident involving Mary, the sister of Lazarus (John 12:1-8):

Mary took a liter of costly perfumed oil made from genuine aromatic nard and anointed the feet of Jesus... Then Judas the Iscariot, one (of) his disciples,...said,"Why was this oil not sold for three hundred days' wages and given to the poor?"...Jesus said, "Leave her alone...You always have the poor with you, but you do not always have me."

Saint John in this passage suggests that Judas is being disingenuous in his concern for the poor, but I think Judas is really putting Jesus to the test, given His teachings on the poor. Jesus here is not arguing that acts of charity to the poor are futile or invalid responses to God's love, but there are many ways one can respond to God's love, and we must be merciful, tempered and wise in our judgments of other people's intentions and actions. In this case, Mary is responding to the presence of God through the actions and words of Jesus, including the resurrection of her brother. Jesus is teaching Judas and the other disciples that each day brings new opportunities for us to affirm our faith and love of God in our thoughts, prayers and actions.

Progressive Catholics, raised in a culture which tests authority and values independent thinking and where higher education is dominated by pervasive social liberalism, often chafe over rules on faith and morals under a Church hierarchy they believe to be out of touch. The dispute between Jesus and the Pharisees nitpicking over what is allowed on the Sabbath (Matthew 12) seems relevant. My interpretation is that Jesus isn't muddling along, arbitrarily observing Jewish laws and traditions. In fact, He has a very detailed understanding of rites, customs, and the historical context of the laws, He wants to register evidence of His healings through specified rituals and established channels, and He has high-level contacts at synagogues and in the Sanhedrin (e.g., Nicodemus and Joseph of Arimathea). My interpretation is that Jesus views these laws as imperfect implementation for the general purpose of making time in one's life for honoring God; at some point, the fleshing out of this concept results in a convoluted casuistry, in which the general intent of the law is forgotten. His intent, as described above, is to focus on wise, merciful judgment of relevant violations.

Gallup Polls: Spring 2009 Comparative Catholic vs. Protestant: Moral Issues, Attendance

There have been two salient polls this spring by Gallup, which I believe pose serious issues for Catholic bishops. The first is the fact that Catholics do not show any significant improvements from other Christians or even the American voting population as a whole on issues where the Catholic Church has strong, unambiguous stands, e.g., sex within the context of marriage, the indissolubility of marriage, no elective abortions, and opposition to embryonic stem cell research. The second issue is the fact that non-practicing Catholics have more "progressive" views on these moral issues. Clearly, the biggest challenge to ensuring Catholic moral values are communicated effectively is to get non-practicing Catholics back in church. But there's also an issue, even among practicing Catholics, because practicing Protestants support the Church's positions better. This seems to suggest that the moral positions of the Church are not being effectively communicated by pastors and their curates; that's a management issue. There are scandals which affect the credibility of the Church, such as the case of Father Alberto Cutie, an Hispanic celebrity priest, caught by paparazzi on a Miami beach with his girlfriend, a divorcee. Apparently 70% of the local parishioners support the right of Cutie and others to marry.

There's a clear message to Catholic bishops in the fact that over the past 50 years the percentage of Catholics which regularly attend Mass has dropped by nearly 40% to the same percentage as Protestants (45%). Over the same time span, attendance by Protestants has actually increased slightly. So we really can't say that the Roman Catholic experience is part of a general American trend. [Also, Gallup looks at the question of the pedophilia scandal a few years ago and said that it had an impact on attendance but only in the short term.] This is not really unexpected, given the steep drop off in vocations to the priesthood and for sisters and nuns. I can only speak in terms of the anecdotal evidence of my own experience, but I have been dissatisfied by what I regard as an insufficient response from Church leadership to insist on discipline, prayer, and repentance and to mount a more proactive leadership and response to our deteriorating sexually-obsessed culture.

[The attached charts are the property of Gallup.com. The first two are in a 3/30/09 post, written by Frank Newport, entitled "Catholics Similar to Mainstream on Abortion, Stem Cells". The reader is encouraged to read the original post. The third comes from a 4/9/09 post, written by Lydia Saad, entitled "Church-Going Among U.S. Catholics Slides to Tie Protestants". The original post is available here.]

A Brief Response to Maureen Dowd

I do not find arbitrary indexes of progressive policies to be a meaningful assessment of Catholic bishop performance. Abortion has been consistently regarded as sinful since the earliest known documents of Christianity; the only difference was how serious a sin it was, and a more lenient approach was based on an obsoleted Aristotelian concept of ensoulment. Other concepts, such as war, are more problematic, because there is a doctrine of just or limited war. But as to Dowd's claim that the American bishops failed to speak out against the liberation of Iraq, Maureen Dowd did not do due diligence. In fact, the US Conference of Catholic Bishops released the following statement on 11/13/02:

Two months ago, Bishop Wilton Gregory, President of the United States Conference of Catholic Bishops, wrote President George Bush... This letter, which was authorized by the U.S. Bishops' Administrative Committee, raised serious questions about the moral legitimacy of any preemptive, unilateral use of military force to overthrow the government of Iraq. As a body, we make our own the questions and concerns raised in Bishop Gregory's letter...

As a conservative, I categorically reject that that progressive policies are efficient, effective means to achieving the goals of social justice. They are like squeezing a balloon; for example, changing tax rates and regulations effects business costs and can create a competitive advantage for substitute investments, goods and services. Conservatives believe in pro-growth policies and minimizing government barriers and intervention (fear, uncertainty and doubt) in the marketplace allows the economy to function more effectively and to yield more opportunities for lower-skilled workers in addition to additional, higher-paying professional opportunities. In terms of social justice ends, we believe that more humane, effective approaches are to leverage and facilitate family-based and philanthropic efforts (versus inefficient, unsympathetic government bureaucrats) and to provide real, cost-effective competition and alternatives to failing public education. We conservatives also strongly believe that there are moral hazard issues with redistributionist and other social democratic policies that fundamentally undermine the actualization of human dignity.

Revisionist Theories About the 2008 Election

I've heard media conservatives (e.g., Limbaugh, whom recented "resigned" from the Obama Administration-specified role as chair of the GOP) suggest that the reason that McCain lost the election to Obama because he is a progressive and Obama was able to portray himself off as a moderate.

We need a reality check. It is true that McCain cites Teddy Roosevelt as one of his favorite Republicans and that has to do with his populist streak. I think the populist streak increases his appeal to moderates and independents. But let's recall that any Republican would have had difficulty separating himself from Bush whom had very low approval ratings, economic problems generally favor the political opposition, particularly Democrats, and Obama had a massive campaign spending advantage to use in battleground states.

There's no doubt that McCain's performance had issues: the suspension of the campaign hurt, the Palin pick as Vice President backfired (others disagree, but the fact is that she had higher negative ratings than Quayle did), and McCain needed a decisive win over Obama during the few debates to which Obama agreed.

But the media conservatives were against McCain from the get-go, mostly for his unpopular votes for immigration reform and the earlier votes against the Bush tax cuts. (The first vote was more of a protest against the structure versus magnitude of the cuts, and he unfortunately used some class-warfare rhetoric in the process. The second was a concern about the size of the cuts given the growth of the deficit. He later voted to make the Bush tax cuts permanent.) The allegations that McCain is a progressive/liberal and the voters didn't have an ideological choice to make are rubbish; in fact, McCain opposed the expansion of Medicare entitlements, voted against the Clinton tax hikes, and has compiled better than an 80% lifetime rating by the American Conservative Union (vs. Obama's 10%). In comparison, the 3 moderate/liberal Republican senators who made a deal on the so-called stimulus bill have lifetime ratings in the 40's.

I think any Republican other than McCain would have done worse. Bush seemed to be resigned to sitting out the last two years of his Presidency, and any Republican would have been in a catch-22. Bush had failed to do things of consequence when the GOP controlled Congress between 2003 to 2006 in terms of entitlements, the federal deficit, the housing bubble stimulated by the Federal Reserve easy money policies and GSE purchases of risky mortgage notes, streamlining of operations, regulatory reform and energy independence; he had undercut Republican claims to better, smarter government by mismanaging operations in Iraq and Katrina, and his government intervention largely undercut the principles of classical economic liberalism (i.e., the free market).

I made several suggestions during the campaign itself, but I think there were two major mistakes: (1) McCain should have dumped Sarah Palin and brought in Mitt Romney. Sarah Palin, although she motivated the social conservative base, simply helped in states that McCain was already going to win. She simply did not have credibility with swing voters. Romney would have brought instant credibility given the ongoing economic tsunami and the media conservatives, who had been pushing Romney's nomination as Veep from the get-go, would have signed on. (2) McCain should not have suspended his campaign and put his full weight behind the House Republicans efforts during the economic tsunami. The House Republicans had tapped into voter anger behind the federal intervention. The Democratic Congressional leadership was on the hot seat during the crisis, and Obama's fortunes were linked to their performance. McCain would have broken with Bush in a very public way, instantly negating Obama's nonsense strategy of saying McCain was "more of the same" and making economic intervention itself an issue during the campaign. I thought it was very bad for McCain to hear the Obama campaign claim that McCain was stealing ideas from their own playbook.

I was a strong McCain supporter, but I had my share of disagreements with him. For instance, he agrees with listing waterboarding as torture and hence asserts it violates the Geneva Convention. I am very hesitant about criticizing McCain on this issue given his indisputable exposure to torture under the North Vietnamese as a POW, but McCain is wrong on two counts: (1) he begs the question of whether the waterboarding procedure as implemented constitutes torture, and (2) Al Qaeda is not a signatory of the Geneva Convention and engages in acts inconsistent with the laws and customs of war. I also think that John McCain is wrong in supporting embryonic stem cell research.

Suggestions for the GOP Future

I have written other posts where I've discussed what the GOP should do, but let me review a few salient points:

• Adopt a More Positive Message. Barack Obama tapped into something legitimate (re: postpartisan America) in the terms of even though I think I would argue his own approach is more window-dressing than substantive (e.g., his speech this week implicitly attacked the Bush Administration over a dozen times, he has talked about willingness to use unconventionally the budget reconciliation process, which doesn't require filibuster-proof majorities, to pass his health care initiative, and he peeled off 3 liberal Republican senators versus negotiating with the GOP leadership for the so-called stimulus bill). One of the things that turned off voters last fall was the negative ads and the attacks on Obama's links with Bill Ayers, Rev. Wright and others. Don't get me wrong: I know negative ads have been part of the game since the birth of the republic. Give America some reason for vote FOR you versus AGAINST the other guy. A smiling, optimistic Reagan's conservative message won 5 of the last 8 Presidential cycles; an unsmiling Goldwater lost in a landslide. It's also important to phrase issues in a more positive way. For instance, we should not be against immigration reform (I've discussed the pro-growth reasons) but for fixing a broken guest-worker program and making long-overdue reforms in terms of criteria, quotas, etc. Reducing the discussion to "amnesty" is polarizing and is perceived by most immigrant communities as thinly-veiled xenophobia. Note that the GOP in California, with the exception of popular actor Arnold Schwarzenegger, has had a difficult time winning on a statewide basis since the Pete Wilson gubernatorial campaigns. The GOP has lost ground not only with Hispanic-American voters, but Asian-Americans and others. This is a shame and a needlessly lost opportunity, because many immigrant groups put high value on educational excellence, are attracted to traditional American values (freedom, hard work, and initiative, e.g., building new businesses), and hold socially conservative values. It should also not escape notice that African-Americans provided a decisive edge in passing California Proposition 8, which supported traditional marriage.
• Provide a Unifying Political Vision and Goals. Instead of disjointed policies, focus on a pro-growth message, and then provide a relevant agenda that will grow the economy: lower barrier to entry (e.g., government paperwork and patchworks of state regulations and mandates), inflexible work rules, counterproductive, uncompetitive tax brackets, etc.). Point out that the Democrats' agenda is actually counterproductive, that the huge deficits will result in inflation and higher costs in servicing the debt.
• Offer a Fresher, More Pragmatic Approach. I believe that Barack Obama last fall largely co-opted McCain's message on tax-and-spend (although Obama's rhetoric on spending merely addressed McCain's obsession with earmarks, a minor percentage of federal spending). I think it's a mistake to allow your political opposition to define you. I think what the Republicans should do is argue lessons from Republican governors whom have had to meet a balanced budget, often by raising taxes and cutting spending; I think the lessons of California will not be lost as we move towards the 2010 and 2012 elections. The GOP should make it clear that there are no preconditions, and they are prepared to compromise in the interests of the United States. However, increasing taxes to cover Democratic spending sprees on behalf of their domestic agenda is not going to happen.
• Tell More Stories. McCain took full advantage of Obama's unforced error in arguing his case with Joe "the Plumber" Wurzelbacher, particularly being caught on tape saying it's "good to spread the wealth around". The problem is: the McCain campaign stumbled upon the issue. cprights.org is doing a good job of highlighting some of the horror stories patients in other nations face. The GOP could do a better job highlighting, for instance, Medicare patients having problems finding doctors, doctors being forced to drop practices because of malpractice insurance, the paperwork demands that take away time from doctors' seeing patients, etc. Obama did a good job highlighting a poor South Carolina school near a rail station with crumbling infrastructure, etc. [Of course, it wasn't clear to me why the federal government was paying for what should have been a local or state funding priority, because I think it sets a bad precedent (especially given the current situation in California).]
• Focus on a "Back to Basics" Message. We need to get expensive unnecessary federal burden out of the hair of the private enterprise, e.g., Sarbanes-Oxley for small business. We need to scale back domestic and foreign entanglements, and we need to pick our political battles smarter and deliver more effectively. Although I'm empathetic to social conservative concerns, I think over the remainder of the Obama cycle, we need to focus on classical economic liberalism and the archetypal self-made man.

Anathema on the University of Notre Dame!

I love boiled egg sandwiches. We used to begin the school day at my Catholic elementary school with Mass. Because of Church-mandated eating restrictions prior to Holy Communion at the time, we would bring something to eat for breakfast after Mass; my mom would pack a boiled egg sandwich. Nothing fancy; just dollops of mayonnaise and mustard and a pinch or so of salt with sliced boiled eggs on bread. These days if I make myself one, it's usually with whole grain bread and reduced-fat mayonnaise.

I think any Catholic boy or girl grows up knowing about and probably has a dream of attending the University of Notre Dame--and, of course, in my case, following the premier college football team. In Laredo, I had Sunday morning newspaper deliveries to make and usually went to the Sunday obligation mass on Saturdays. I babysat my youngest sister Vivian while the rest of the family went to mass. The local television station ran a syndicated one-hour synopsis of the previous day's Notre Dame football game on Sunday mornings. I would make Viv and myself egg sandwiches to eat while watching the highlights. One Sunday morning she got impatient with the rest of my family and told them, "Hurry up and leave so Ronald will make me breakfast." Uh-oh. My mom had strict rules about mealtimes, and I guess I hadn't told Viv that egg sandwiches were supposed to be our little secret. It turned out that my mom thought it was rather sweet I was feeding my little sister.

The ironic thing about that story is that Vivian eventually married another Ronald, a fellow UTSA student and co-worker whom has an Irish surname. He and his late father, on at least one occasion I know about, had gone to occasional Notre Dame home games, even though nobody in their extended family has ever gone there.

As for me, as I worked on my doctorate at the University of Houston, I secretly hoped there would be an opportunity available at Notre Dame by the time I graduated, but that never happened. (It's probably a good thing, because if I had been on faculty, I would probably have resigned over the invitation to and conferment of an honorary degree on Obama. I feel about what Notre Dame did as Socrates felt over the Athenian democracy undermining its integrity with his conviction.) I did go on unfruitful campus visits (academic job interviews) to three Catholic colleges over my academic career, most prominently Providence College (where two of my cousins earned teaching degrees); in a manner of speaking it was a shame because I got my bachelor's degree from a Catholic college, and with all due respect to my former professors at the University of Texas and the University of Houston, the best teachers I had were at OLL. They inspired me to want to be a professor. That's not to say my former professors agree with my political views. For example, I've mentioned in past posts that I was required in one class to attend an on-campus lecture by a then unknown Alex Haley.

Liberal Bias in Commencement Invitations and Faculty Hiring

The fact that the majority of students and faculty at the Notre Dame commencement shouted down the occasional protester didn't surprise me at all, because of the liberal orthodoxy, lack of diversity of viewpoints, and propaganda that take place in academia and have existed for decades. It's self-evident to almost anyone whom has attended and/or taught on the university level over the past 4 decades, but, e.g., academic programs in women's or minority studies or related courses (liberation theology), racial quotas (e.g., University of Michigan) and/or double standards in admissions, and the replacement of Western Civilization courses with surveys of minority literature.

Few conservatives are invited to speak at commencement exercises. David Horowitz published a 2003 study looking at invitations over the prior decade across a large number of elite universities and concluded that the ratio of liberals to conservatives ranged from 10:1 to 15:1, noting this is consistent with a faculty range of 10:1. Fox News pointed out none of last year's GOP Presidential or Vice-Presidential candidates got an invitation (while Obama's wife and Chief of Staff did), and among the few GOP or conservatives who were extended invitations, Ben Stein was uninvited over his stance on evolution, former eBay chairwoman Meg Whitman withdrew when personally attacked over her support for traditional marriage (i.e., California proposition 8), and Court of Appeals Judge Wilkinson drew opposition for his appearance at the University of Virginia Law School.

Is Obama the Middle Way on Abortion?

Barack Obama is not a moderating influence between two sides of the abortion; in fact, he is the most radically pro-abortion politician ever elected President. One of Obama's first acts as President was to rollback restrictions by a Bush executive order denying the use of American taxpayer money to international groups that promote or perform abortion. He did so the day after the anniversary of Roe v Wade, which invented a Constitutional right for an expectant mother to abort her child, regardless of reason. (If there's one thing Obama knows, it's symbolism.) But Obama's radicalism on abortion is best seen in the light of the Born Alive Infant Protection Act.

I touched on this topic during last year's Presidential campaign, and the interested reader is strongly encouraged to read Jill Stanek's original account. (She writes a weekly column, archived on WorldNetDaily.com.) Jill is a registered nurse whom at one point worked at (ironically named) Christ Hospital in Chicago. She discovered that babies born alive through induced labor procedures were routinely refused breathing assistant technology, and the babies (if no one was available to comfort the baby as he or she struggle to breathe until death within 45 minutes) were often left alone to die; Jill speaks of heartbreaking instances of living babies pulled out of trash cans in utility rooms or babies dropped onto floors by careless handling. Jill movingly writes of hearing a little boy's crying as she passed by such a utility room and comforting the boy until he died.

Jill Stanek felt it was unconscionable that doctors and hospitals would knowingly leave babies to die while medical technology was available to save them; this was de facto infanticide. (The response of the Democrats to this fact last year was a state of denial, saying that doctors and hospitals do, in fact, already save such babies as a matter of policy and hence the legislation to compel medical assistance was unnecessary. That claim is directly contradicted by the experience of Stanek and others.) Jill Stanek managed to get a national born alive infant protection law passed unanimously by a voice vote in the US Senate on July 18, 2002; liberal opposition dropped after language was added to the bill reaffirming a mother's right to abort. (Jill Stanek was fired by Christ Hospital in August 2001 over her efforts to overturn born alive policy at the hospital.)

Jill Stanek writes about her efforts to do the same in the state of Illinois, which was almost single-handedly stonewalled by Obama until the year after he was elected to the US Senate, when a Democratic-controlled legislature passed it and a Democratic governor signed it into law. Particularly interesting is her account of what happened in committee over sessions, and here is where you truly see the measure of the man. Christ Hospital after the prior session created an outfitted comfort room (versus the utility room) which allowed parents of their dying aborted babies to comfort them and provided a number of devices to make momentos (e.g., photos, footprints, baptismal supplies, etc.) Jill Stanek recounts when Obama, who had been informed of the comfort room, took political credit for it, initially attacking her for having "reneged" on the "compromise" he claimed to have brokered in good faith to resolve the issue. (The issue was babies dying, not where the babies were dying.) Then in 2003, Obama, now chair of the committee, helped pass an amendment to the bill which recognized Roe v Wade rights--before voting (with the majority of Democrats on the committee) to kill the full bill, essentially the same bill that passed the US Senate unanimously. When you consider that the national act included backing by pro-choice senators, but Obama rejects the same bill, this does not put Obama on the "moderate" side of the debate, but at the extreme. And I don't care about the tone of Obama's rhetoric, true dialog is manifested in conciliatory results; talk is cheap.

We on the pro-life side do understand the views of pro-choice politicians; we simply don't agree with them.

Father Jenkins' Introductory Remarks

The world you enter today is torn by division – and is fixed on its differences...But too often differences lead to pride in self and contempt for others, until two sides – taking opposing views...demonize each other..trust falls,anger rises, and cooperation ends...we can persuade believers by appeals to both faith and reason.

Less attention has been focused on the President’s decision to accept.

Others might have avoided this venue for that reason. But President Obama is not someone who stops talking to those who differ with him. Mr. President: This is a principle we share.

We welcome President Obama to Notre Dame, and we honor him for the qualities and accomplishments.

He is a leader who has great respect for the role of faith and religious institutions in public life. He has said: “Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square.”

First of all, Father Jenkins is engaged in very selective memory of last year's electoral campaign as he makes much of the selflessness of Obama's decision to visit his dying maternal grandmother's bedside during the final weeks of the campaign. Let's review the record of Obama's integrity during the electoral campaign: He had vowed to abide to public financing reform, but when it turned out he was drawing a prodigious amount of money, more than McCain, he expediently declined to particpate and outspent McCain by up to 8-to-1 in battleground states. During the financial tsunami, McCain asked Obama to join him in suspending the campaign to work a government bailout package in Congress; Obama refused, saying he could do whatever he needed by cellphone (coming only when President Bush specifically asked him to come to a White House meeting) using sophomoric rhetoric that McCain was "afraid" to debate him. (In addition, Obama reneged on another promise to appear with McCain in a series of joint townhall meetings.)

Obama's behavior, in short, was motivated more by political expediency than by principle. But let's go back, Father Jenkins, to the very same maternal grandmother that Obama had, in fact, thrown under the bus when the Rev. Wright provocative sermons became an issue. At first, Obama declared Rev. Wright to be a part of his extended family and told voters he could no more disown Rev. Wright than his own grandmother, whom he considered to have been racist (because she had asked her husband to drive her to work, afraid of an aggressive black panhandler whom had been harassing her at the busstop). And, of course, we know what happened to Rev. Wright the day after he suggested that Obama was just like any other politician. (I mean, Obama could put up with "God damn America" but when Rev. Wright said something unflattering about him, Rev. Wright had crossed over the line.)

Going back to Jenkins' original point, Obama had taken back the short lead McCain had take in the immediate aftermath of the GOP convention in early September, but retook the lead to stay when the economy suddenly tanked, which voters seemed to blame on the GOP. After 26 years in Washington, McCain had a tough sell as a change candidate in a change election year.

Second, Father Jenkins implies that Barack Obama is showing great courage in accepting Notre Dame's invitation. Not at all; the fact is that Obama won the majority of Catholic votes last fall, despite his pro-abortion and embryonic stem cell research positions. Catholic voters account for almost a quarter of the electorate. George Neumayr, his post "Ex Corde Ecclesiae and the Notre Dame Affair", points out Obama is engaged in little more than than the age-old political strategy of "divide-and-conquer". The faculty of Georgetown University, a leading Catholic university, according to the Chronicle of Higher Education ranked seventh nationally in contributions to the Obama campaign. Neumayr, in fact, points out the leading role then Notre Dame President Theodore Hesburgh took in 1967 in drafting the "Land O’ Lakes Statement on the Nature of the Contemporary Catholic University”:

Notre Dame, fostering this academic ethos, had honored the modern liberal ideology [Obama] represents by secularizing its curriculum and faculty. It cast aside the magisterium and marginalized the Catholic intellectual tradition as it ceaselessly hired professors who reduced Catholicism to “progressive” politics in the minds of their students

In fact, the liberal mass media deliberately distorted the unprecedented opposition to Jenkins' ill-considered decision, playing up 4 isolated interruptions of the Obama speech, quickly drowned out by vocal partisans in attendance. The fact is that Obama's invitation was opposed by over 80 American Catholic bishops and some 360,000 petitioners (including myself). How shameful and pathetic that a Catholic university would have pro-lifers arrested!

Obama got unprecedented publicity, the lifeblood to any politician, while scant attention was paid to the deep recession and the questionable ethics of Obama's writing an unprecedented and mostly unjustifiable federal deficit on the back of future generations. He also got a high-profile endorsement of his agenda from Fr. Jenkins, whom made it clear he was willing to simply pay lip service to 2000 years of traditional Christian opposition to abortion and infanticide, not on the basis of faith but morals. Jenkins unambiguously subordinated abortion to Obama's secular humanist agenda.

I have made an argument in recent posts, suggesting that the nomological network of Obama's politics must lend itself to validation of predictive hypotheses by relevant, reliable evidence. I find an ambivalent position on abortion to be fundamentally inconsistent with any authentic Christian theory of morality. We don't think parents have a moral right to abuse or neglect born children. We recall what Jesus said: "Amen, I say to you, whatever you did for one of these least brothers of mine, you did for me." (Matthew 25:41) The difference between a born and unborn child is simply a difference in individual development. This is why we reject Rev. Jenkins' appeasement of Obama's radical abortion policies as unacceptable.

Third, Father Jenkins used the occasion to congratulate both Obama and himself/Notre Dame for engaging in this sham, phony "dialogue" over abortion. Precisely what is the nature of this dialogue? Hillary Clinton and Barack Obama, among other Democrats, seem to have discovered adoption as an alternative to abortion and suggested encouraging that. That's really meaningless rhetoric: Pro-lifers have been talking about adoption as an alternative to abortion from the get-go. The proof is in the pudding: What has the pro-choice side done to limit abortions? When have they discouraged irresponsible sexual behavior (beyond discussing the use of contraceptives or condoms)? When have they suggested even minor restrictions to abortions, e.g., against gender selection? The bottom line is, neither Barack Obama nor Hillary Clinton would ever agree in principle to any interference to a woman's right to abort her child for any reason (or no reason). Adoption is simply a choice to the woman, and they agree a woman has the right to bear a child to term and give up the child. But the woman has always had the very same right ever since Roe v Wade. If it means anything substantive, it should be reflected in specific policies.

Related to that point, in addition to Obama's liberalization of overseas funding for abortion-related promotion and operations, Obama has already revoked Bush's executive order allowing for professional conscience objections to participation in abortion activities or distribution of abortifacients.

Father Jenkins is also smearing the reputation of pro-lifers (in particular, more than 80 American bishops) by using judgmental rhetoric like "pride in self and contempt for others, demonize each other...trust falls, anger rises, and cooperation ends". "Stop judging, that you may not be judged." (Matthew 7:1) It is unconscionable for Father Jenkins to lecture the pro-life crowd on its protests; tell me, Father Jenkins, were the protesters for civil rights more equal in confronting injustice? Each year more than a million unborn babies are killed--and that has held true ever since Roe v Wade. Perhaps you are gullible enough to be taken in by Obama's "kinder, gentler" window-dressing of unrestricted abortion; to pro-lifers, this is just the same old same old political spin that Notre Dame now has now unduly elevated to the status of "dialog".

Fourth, let's talk about "accomplishments" that Notre Dame used, not only in inviting Obama but to justify conferring an honorary degree. What accomplishments? He won an election in a change election year, where he was the only major candidate without a vote on authorizing the liberation of Iraq, and he came to the attention of the public from John Kerry's 2004 Democratic convention decision to let him deliver the keynote address. We don't award honorary degrees simply because politicians win elections. He was a 12-year state and US senator. He himself downplayed his effectiveness as a community organizer. He didn't have any experience as an administrator in the private or public sector. He didn't have a leadership position in the Senate and had only a handful of minor initiatives pass. He isn't a polarizing black leader, but in fact many black entertainers, athletes, businessmen and politicians are well-liked. True, he is a good speaker, and he speaks in a measured tone, but we don't go around recruiting motivational speakers as Presidential candidates.

The fact that Arizona State, a secular institution, did not confer an honorary degree on Obama, but Notre Dame, arguably the premier Catholic institution in the US, did really casts doubt on the credibility and judgment of Notre Dame's leadership. To honor a man whom has been willing to build a political career on denying the rights of unborn children? "For whoever wishes to save his life will lose it, but whoever loses his life for my sake and that of the gospel will save it. What profit is there for one to gain the whole world and forfeit his life?" (Mark 8:35-36) Notre Dame's decision to honor Barack Obama? Scandalous! Anathema on the University of Notre Dame!

Finally, the statement regarding how Barack Obama honors the role of faith and religious institutions in public life? Tell me, Father Jenkins, how has Obama improved upon President Bush's faith-based initiative? What about Obama's move to clamp down on deductibility of charitable donations? What about Obama's decision to rule out assistance for private school vouchers, but he pays lip service to secular charter schools? "By their fruits you will know them." (Matthew 7:16)

Obama's Comments

Why should it surprise us that Obama repeats his stump speech arguing polemical class-based economics and scapegoating business for an economic crisis that in part resulted from the willingness of the GSE's (Fannie Mae and Freddie Mac) to buy riskier mortgage notes, a flood of money from the Federal Reserve and the political pressure on banks to lend to higher-risk homeowners unable to come up with a conventional down payment? (Perhaps Obama should engage in "dialogue" with Republicans rather than taking cheap political shots at former President Bush, made behind Bush's back, and accept some political blame from the fact that he was a leading recipient of campaign contributions from the GSE's and opposed reforming them years before the collapse...) Let's not forget Obama's version of "fairness, and diligence, and an honest day's work" is to increase taxes on success and "spread the wealth around" by giving handouts to people whom do not pay income taxes.

This generation, your generation is the one that must find a path back to prosperity and decide how we respond to a global economy that left millions behind even before the most recent crisis hit -- an economy where greed and short-term thinking were too often rewarded at the expense of fairness, and diligence, and an honest day's work.

We have this "insight":

Those who speak out against stem cell research may be rooted in an admirable conviction about the sacredness of life, but so are the parents of a child with juvenile diabetes who are convinced that their son's or daughter's hardships can be relieved. (Applause.)

Pardon my nausea over applause from a Catholic college audience over "miracle cure" selling of unproven research that depends on an indefinite supply of human embryos killed for their parts. Tell me, Father Jenkins, isn't this nothing more than a modern version of sophistry? All moral values are relative? This is "dialogue"? Obama is directly defending his support of embryonic stem cell research by saying those who oppose embryonic stem cell research are no better from a moral standpoint. But if you strip away the sophistical veneer, Obama is implying, by his support for embryonic stem cell research, that the second position is based on a higher moral ground, and he's really indicting pro-lifers for being inconsistent by not being sensitive to the quality of life concerns of the diabetic's parents.

But fortunately this is one of those occasions where a blogger with a background in philosophy can point out that Obama is engaging in the logical fallacy of a false dilemma. It is not true that any and all proposed therapies or cures for juvenile diabetes necessarily depend on the destruction of human embryos.

Obama wants us to believe that the cultural war over abortion is "words, just words":

A [pro-life] doctor...told me that while he voted for me in the Illinois primary, he had a serious concern posted on my website -- an entry that said I would fight "right-wing ideologues who want to take away a woman's right to choose."....We [similarly should] agree that this heart-wrenching decision for any woman is not made casually.

That's right; a pro-life doctor, who assured Obama that he had no problem with voting for him, knowing Obama is pro-abortion choice, but he just didn't like being called a "right-wing ideologue". So Obama thinks what pro-life people are most worried about is their public image, not their substantive principles...And he thinks pro-lifers don't understand that abortion is a difficult decision (for at least some women).

I think if Obama really believes the abortion debate is mostly a disagreement over uncivility of the other side, he is naive. I agree there's a lot to be said about civility in political discourse, but I think it's largely one-sided and unprovoked, e.g., the Angry Left's personal attacks against Governor Sarah Palin and her family or the Miss USA runner-up Carrie Prejean, whom supports traditional marriage.

No pro-lifer suggests having and bringing up a child is trivial or inexpensive. When I asked Sharon, one of my little sisters, what it was like being a real mom versus playing dolls as a girl, she replied that when she was tired of playing with dolls, she could put them away. Pro-lifers have put up with far worse than being called a "right-wing ideologue" . A "pro-life" doctor worried more about his public image than electing a public official whom is committed to protecting the lives of innocent babies, both in words and in actions, has no credibility with me.

Cardinal Joseph Bernardin was the Archbishop of Chicago,... a kind and good and wise man. A saintly man...He stood as both a lighthouse and a crossroads -- unafraid to speak his mind on moral issues ranging from poverty and AIDS and abortion to the death penalty and nuclear war. And yet, he was congenial and gentle in his persuasion, always trying to bring people together, always trying to find common ground....Cardinal Bernardin...said, "You can't really get on with preaching the Gospel until you've touched hearts and minds."

Obama's reference to Cardinal Bernardin is no accident. George Weigel, in a recent National Review Online post named "Obama and the 'Real' Catholics") fleshes out Obama's insidious, earlier-cited "divide-and-conquer" strategy. A non-Catholic, Obama is subtly interfering in the internal affairs of American Catholics by praising Cardinal Bernardin, Cardinal Bernardin is a key cleric cited by progressive versus orthodox Catholics; he advocated a "consistent ethic of life", which attempted to link various issues, e.g., abortion, nuclear arms, and capital punishment (as, in fact, Obama recites in his speech), more popularly known in public policy and referenced by Mario Cuomo and others as the "seamless garment". Former NY Governor Cuomo in 1984 gave a famous address at Notre Dame and is the architect of what Weigel and others refer to as the Cuomo Compromise (“I’m personally opposed [to abortion], but I can’t impose my views on a pluralistic society"), which has become the predictable rationalization for pro-choice Catholic politicians. Cuomo and others would argue that their political positions must be viewed in the context of their consistent orientation towards life, that their permissive position on abortion is not material relevant to the preponderence of their "pro-life" votes across a continuum of relevant issues. In fact, Obama adds nothing new to the discussion, rehashing many of the same points as the Cuomo address (e.g., arguing for health care of expectant mothers).

Closing Comments

I think the review of Deal Hudson (InsideCatholic.com) is spot on:

If you watched it, the commencement itself was a spectacle of non-stop self-congratulation, supercilious flattery, and scripted self-justification. Eloquence was not to be found, though every inane claim to the moral highground received thunderous applause, until even the robed dignitaries placed carefully behind Obama began to look bewildered...

Notre Dame, like many Catholic institutions, has become Catholic in name only, whereby the Magisterium is ignored (e.g., over 80 bishops protesting Obama's appearance). Academic freedom has been used to justify material departures from distinctive orthodox faith and morals. (This is true not only with Notre Dame but other well-known elite Catholic institutions, such as Georgetown.)

I think Notre Dame needs to rediscover its Catholic roots and to stop trying to implement a second-rate imitation of a secular humanist agenda and identifying with secular progressive politics. There is an overwhelming need of authentic Catholic leadership in higher education that challenges versus accommodates the popular culture. I do not think Father Jenkins' "slobbering love affair" with Barack Obama is conducive to this end. We need new leadership at the University of Notre Dame to overcome the scandal of the Obama invitation.