Saturday, July 18, 2009

Link to Singer's Article on Health Care Rationing

Peter Singer wrote a thought-provoking op-ed in the magazine section of The New York Times this week.

The whole article is worth the read but his main point for those who fear health care rationing is ...

WE ALREADY RATION OUR HEALTH CARE!

"There’s no doubt that it’s tough — politically, emotionally and ethically — to make a decision that means that someone will die sooner than they would have if the decision had gone the other way. But if the stories of Bruce Hardy and Jack Rosser lead us to think badly of the British system of rationing health care, we should remind ourselves that the U.S. system also results in people going without life-saving treatment — it just does so less visibly. Pharmaceutical manufacturers often charge much more for drugs in the United States than they charge for the same drugs in Britain, where they know that a higher price would put the drug outside the cost-effectiveness limits set by NICE. American patients, even if they are covered by Medicare or Medicaid, often cannot afford the copayments for drugs. That’s rationing too, by ability to pay."

Duh!

So the key question that must be asked isn't whether we should ration halth care or not but how best to ration it if it is possible.

Friday, July 17, 2009

Sonia Sotomayor a Stealth Nominee (for us anyway)

Unless there are any new revelations, the Senate will probably confirm Judge Sonia Sotomayor's nomination to the Supreme Court of the United States. She is, to all intents and purposes, a stealth nominee. Conservatives believe, with some good reason, that she will vote with on affirmative action programs (they are still needed) given her vote to summarily dismiss a "reverse-discrimination" claim filed by white firefighters, and against incorporating the Second Amendment (too bad) since she did not vote to do so in a case involving the use of a martial arts weapon, and property rights (again, too bad).

She is, however, on most issues a stealth nominee. Unlike Chief Justice John Roberts, Sotomayor heard no cases involving the indefinite detention of administration-declared "enemy combatants" or any gay rights challenges. Her record on religious exercise, separation of church and state, abortion and civil rights cases offers us no clue how she will vote. Her opinions, we have heard, are narrowly based and largely adhere to established precedents.

The man she is replacing too was a stealth nominee. He too, lacked a paper trail on the hot button issues that were discussed at his nomination hearings. Women rights groups opposed his nomination, fearing the worst but liberal groups breathed a sigh of relief when he voted to uphold the central holding of Roe v Wade.

Liberals who urge the Democrats to confirm her are rolling the dice. They may luck out. They might not. It might depend upon the issue. I personally would have preferred a justice with a known moderately liberal-to-libertarian record but her credentials, like Chief Justice Roberts' are impeccable and she had said nothing during the hearings or even in her past to warrant a vote against her.

Sonia Sotomayor Hearings Day Four: Updated The Links

Day One Links

Day Two Links

Day Three
Links

Day Four Links

Key Excerpts


Gun Rights

Gay Marriage Rights
Separation of Powers

Wednesday, July 15, 2009

Sonia Sotomayor Hearing Day Two: Graham's Condenscension and Ego

"OK. Now, let's talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you." Senator Lindsey Graham contradicting himself and sounding like a pompous you-know-what at the same time.

Then he begins to meander - talking about subjects that do not concern this committee:

"Let's talk about the wise Latino comment, yet again. And the only reason I want to talk about it yet again is that I think what you said -- let me just put my vices on the table here. One of the things that I constantly say when I talk about the war on terror is that one of the missing ingredients in the Mid-East is the rule of law that Senator Schumer talked about. That the hope for the Mid-East, Iraq and Afghanistan is that there'll be a courtroom one day that if you find yourself in that court, it would be about what you allegedly did, not who you are.

It won't be about whether you're a Sunni, Shia, a Kurd or a Pashtun, it will be about what you did. And that's the hope of the world, really, that our legal system, even though we fail at times, will spread. And I hope one day that there will be more women serving in elected office and judicial offices in the Mid-East because I can tell you this, from my point of view. One of the biggest problems in Iraq and Afghanistan is the mother's voice is seldom heard about the fate of her children."



Before returning to his "explanation" of what the nominee, who graduated cum laude from and Ivy League School, had to "understand." Note the words I bold-faced:

"And the one thing that I've tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we're talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we've got a long way to go in this country, and I can't find the quote, but I'll find it here in a moment -- the wise Latino quote."


Wow. What a - no I won't say it.

And did you see how Sotomayor responded to these degrading questions and paternalistic comments? "No sir," Yes, sir." I guess she was told to sound like a servant and remind the white southern male Republicans of 'hem stereotypical maids. They don't feel threatened when the Hispanics behave like servants.

It reminded me when the president was stumping on the campaign trail. He almost never let one of his campaign staffers (and never, that I can recall anyway, a white staffer) carry his luggage. He knew that, unfortunately, there are too many people who would get all riled up if a white man was serving in the capacity as a black man's servant.

Chris Matthews Homophobia

"Isn‘t it refreshing to meet Southern liberals? Because the great thing about Southern liberals is they don‘t have—they‘re not competing for the latest nuance of sexual freedom, like in Greenwich Village. They are liberals, meaning they‘re—they‘re for black equality, for example, things like that that are pretty nice and wholesome." Chris Matthews talking to Bill Maher on "Hardball"

Does Chris Matthews know when to shut up or does he get rewound like an old-fashioned alarm clock.

Sonia Sotomayor Hearings Day Three Links

Senator John Cornyn (R-Texas)

Senator Benjamin Cardin (D-Maryland). Judicial Deference to Congress on Voting Rights Act and Environmental Regulations.

Senator Tom Coburn (D-Oklahoma): Abortion, End of Life Issues, Gun Rights

Senator Sheldon Whitehouse (D-Rhode Island) Sotomayor's Work for the Puerto Rican Legal Defense and Education Fund, Separation of Powers, Applying Search and Seizure from the Perspective of New Technology's encroachment on Privacy Expectations

Senator Amy Klobuchar (D-Minnesota). Search & Seizures and the Melendez-Diaz case.

Senator Ted Kaufman (D-Delaware) Commerce Clause, Congressional Authority to Regulate Commerce, Business Regulations, Her Background in Corporate Law

Senator Arlen Specter (D-Pennsylvania) Defense of "Wise Latina" Comment and the Role of Empathy, Case Load Increase, Executive Power Overreach on FISA, Abortion and Right to Privacy as "Super-precedent," "Congruence and Proportionality" Standard Use for Americans with Disabilities Act"

Senator Al Franken (D-Minnesota) Abortion and Right to Privacy, The Internet and Free Speech, Perry Mason Episode

Senator Benjamin Cardin (D-Maryland)

Sotomayor Hearing Day Two: Interesting exchange Between Durbin and Sotomayor on "Judicial Activism"

from the hearings

Senator Richard J. Durbin: "Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?"


Sotomayor: "The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you."

Um. what should those of us from the liberal end of the judicial spectrum think of these remarks? Was she channeling Justice Scalia? or was she rejecting Durbin's suggestion on narrower grounds (perhaps the 14th amendment question was not addressed in the lower courts in this hypothetical case)

Sonia Sotomayor Hearings Day Two: Grassley

Senator Grassley and Sonia Sotomayor had an interesting dialogue on private property rights and the taking clause. As you should know, the Supreme Court narrowly upheld a Connecticut city's right to take private property from one owner in a "blighted" community in exchange for compensation and sell it to another private interest group for "public use."

I was not pleased by that ruling. Senator Grassley pointed to one case where she apparently dismissed a lawsuit from one New Yorker villager whose property was taken from him by the government for a private developer. She however attributed that dismissal to the villager's failure to file his claim on time. Statute of limitations. It seems as if the "blight" claim was dubious given that the owner who lost his property was going to build a CVS, which is a pharmacy Store and the land was taken to build a Walgreens (also a pharmacy store). The summary judgment affirming the district court's dismissal cited Kelo v. London as well as the statute of limitations. Sotomayor did not cite Kelo in her response to Senator Grassley which I found odd since that would buttress her case that she was merely following Supreme Court precedents.

Sonia Sotomayor Hearings Day Two: Brief Thought on the Non-Debate

I find the hearings rather disappointing so far (up through Feinstein's first line of questions). The Democrats are, to be expected, defending Sonia Sotomayor's prior rulings because she is a Democratic appointee. They say she is a modest judge who followed the law but of course judges do not have that option to follow the law and adhere to precedent or reverse course. A Supreme Court justice, which Sonia Sotomayor was nominated to be, can. They are not challenging her commitment on privacy rights, the separation of church and state, civil rights and its offshoot, gay rights. Sotomayor obviously won't answer questions concerning how she would rule in any specific case they can ask her what standards she would use to overturn Supreme Court precedents or when "settled law" becomes "unsettled." And they can ask her what criteria she would use to determine whether a law or administrative decision is an unconstitutional abridgment of equal rights or a legitimate law that disparately impacts two groups of people.

Amendment: Apparently Senator Feinstein asked Sonia Sotomayor when overturning precedents is proper and when it is not.

The Republicans, (Senator Hatch being an exception) have rallied around the usual talking points concerning bias. I found Senator Sessions' questioning to be a complete waste of time. He basically called her a racist without explicitly saying so and she vehemently denied it.

Senator Hatch asked her some probing questions concerning her views not only on the Second Amendment but also on the incorporation of constitutional rights and when such rights can be treated as fundamental and when they should not be treated as fundamental.

Sonia Sotomayor Hearings Day Two: Sotomayor's Answers to Three of Kohl's Questions: Vague on Two, Fairly Indicative on Another

When she was questioned by Senator Herb Kohl, Judge Sonia Sotomayor gave me the impression that she believes in affirmative action programs of one kind if not another and that she would vote to uphold, in theory, programs that specifically designed to promote diversity. No news there, given her ruling on the Ricci case:

"To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court.

It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation. That's the hope."
- Judge Sotomayor

Her answers on property and privacy rights were far less revealing.

Koh's wasted his time on the justice term limit question since that would require a constitutional amendment.

Sonia Sotomayor Hearings Day Two: Sessions v. Sotomayor

Here's the summary of this exchange between Senator Jeff Sessions (R-Alabama) and Judge Sonia Sotomayor.

Sessions: "You are a racist."
Sotomayor: "I am not a racist."
Sessions: "You are a racist."
Sotomayor: "I am not a racist."
Sessions.: "Darn gonnit! You are."
Sotomayor: "I am not."
Sessions: "Stop lyin'!
Sotomayor: "I am not lying."
Sessions: "Yes you are."
Sotomayor: "No I am not."


Get the picture?

Tuesday, July 14, 2009

Sotomayor Hearing Day Two: Leahy and Sotomayor on Incorporating Constitutional Amendments

"And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.

Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states."
Senator Leahy

Technically Senator Leahy is right. The Seventh Amendment, which guarantees Americans to a right to a trial by jury in certain civil trials (the right to a trial by jury in criminal matters is incorporated so states are bound to honor those rights). But I find it troubling and questionable why the states are honor-bound to uphold some but not all of our constitutional rights.

I'd like to know what she thinks should determine whether a right is incorporated or not. What would make her decide whether the Second Amendment right to bare arms should be incorporated or not and whether and why that process would differ when someone asks if the sixth amendment or any other amendment should be incorporated.

Sotomayor Hearings Day One: The Contradictory Demands Made by Senator Hatch

1. "Judge Sotomayor, you are nominated to the highest court of the land which has the final say on the law."

2. "Our democratic system of government demands that judges not take on the role of policy makers. That's a role properly reserved to legislators who can be voted out of office if people don't like what they legislate, unlike judges not being voted out of office." Senator Hatch

So, how does a justice not "make policy" if he or she has "the final say on the law?" If the Supreme Court has the right to overturn laws it deems unconstitutional because they infringe upon an individual right which we all have, is it not engaging in a "the role of policy makers" and if in fact it deems a law some believe to be unjust constitutional is it not acting in the capacity of a policy maker?

3. "So it's incredibly important that we get it right and confirm the right kind of person for the Supreme Court. Supreme Court nominees should respect the constitutional separation of powers. They should understand that the touch-stone of being a good judge is the exercise of judicial restraint. Good judges understand that their job is not to impose their own personal opinions of right and wrong. They know their job is to say what the law is rather than what they personally think that it ought to be. Good judges understand that they must meticulously apply the law and the Constitution even if the results they reach are unpopular. Good judges know that the Constitution and law constrains judges every bit as much as they constrain legislators, executives, and our whole citizenry."

If it was as simple as saying "what the law is" then we'd have no need for the three-level court system (District Court, Appeals Court, and Supreme Court) nor would we need a panel of justices.

Sotomayor Hearings Day 2: The Links

from Senator Patrick Leahy (D-Vermont) Sotomayor Receives His Blessing And He Urges Colleagues to Keep Tone and Questions Respectful, Ricci Case and Affirmative Action, Tough on Crime Record Suggested

from Senator Jeff Sessions (R-Alabama) Racial Bias/Prejudice Asserted with "Wise Latina" comment, Affirmative Action and the Ricci Case.

from Senator Herb Kohl Race, Affirmative Action, the Ricci Case, Bush v. Gore and Kelo (property rights)

from Senator Orrin Hatch (R-Utah) Incorporating the Second Amendment (Gun Rights)

from Senator Dianne Feinstein (D-California) Upholding/Reversing Potentially Conflicting Precedents Particularly in Relation to Abortion Rights, Executive Power and Signing Statements, Commerce Clause's Reach

from Senator Chuck Grassley (R-Iowa) Property Rights and the Kelo decision, The Environment

from Senator Russ Feingold (D-Wisconsin) Executive Power Overreach on Surveillance and War Detention, Separation of Powers (when President and Congress Conflict over Prerogatives), Potential Recusal in Hearing a 2nd Amendment Case She Heard in Lower Court

from Senator Jon Kyl (R-Arizona) Attempts to Extract a Commitment to Recuse Herself in 2nd Amendment cases, "Wise Latina" comments and racial revisited.

from Senator Chuck Schumer (D-New York) Every Case Where Sotomayor Displayed "No Empathy" or Where She Comes across as a Villainous is Cited to Defend her from Charges of Pitying Those who Appear Before Her in Court

from Senator Lindsey Graham (R-South Carolina) Strict constructionist judges, Sotomayor's judicial philosophy and her temperament, military law, her role on the Puerto Rican Legal Defense Fund and that organization's support for abortion funding and the death penalty

from Senator Richard J. Durbin (D-Illinois) Death Penalty and DNA Evidence Review

Monday, July 13, 2009

Sotomayor Hearings Day One: Obsectons to Sessions Statement o

1.
"Second, this hearing is important, because I believe our legal system is at a dangerous crossroads. Down one path is the traditional American system, so admired around the world, where judges impartially apply the law to the facts without regard to personal views. This is the compassionate system, because it's the fair system."
-

Well as I have noted in a prior post applying the law isn't as simple as Senator Sessions is making it out to be since the wording of Constitutional passages are in numerous occasions vague or not directly spelled out. Both Justice Scalia and former Chief Justice William Rehnquist believe they applied the "law to the facts" in the flag burning case but they ultimately came to two very divergent conclusions.

2.
"In the American legal system, courts do not make law or set policy, because allowing unelected officials to make law would strike at the heart of our democracy."


Justices may not make law or set policy per se but they certainly strike them down if they are deemed unconstitutional.

3. Down the other path lies a brave new world, where words have no true meaning, and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political or social agenda.

I reject that view, and Americans reject that view.

4. "We have seen federal judges force their political and social agenda on the nation, dictating that the words "under God" be removed from the Pledge of Allegiance and barring students from even private, even silent prayer in schools."

How does one ban "private, even silent prayer in schools?" Students can, on their own time and without the school's prodding, say a prayer before and after homeroom, before, in between classes, before and after lunch and before and after extracurricular activities.

5.
"Judges have dismissed the people's right to their property, saying the government can take a person's home for the purpose of developing a private shopping center."
Sessions must be referring to Kelo v. New London.

He's right about this one. Judges can strip homeowners from their homes in order to build new shopping centers and that is outrageous.

6. "Judges have, contrary to longstanding rules of war, created a right for terrorists captured on a foreign battlefield to sue the United States government in our own country."

Actually, Senator Sessions is overstating the rights which these prisoners were given. These administration-declared "enemy combatants" are not allowed to sue. They are, however, allowed to challenge their status as "enemy combatants" through legal proceedings that offer them less protection than they would if they were tried in civil courts. Moreover, we don't know how many of these prisoners are in fact terrorists since many of them were not tried. Those who say they are terrorists are taking former Bush administration officials at their word.

7. "Judges have cited foreign laws, world opinion and a United Nations resolution to determine that a state death penalty law was unconstitutional." - among other things (like national trends in the states)

Sessions again is overstating how the Supreme Court reached its decision in Roper v. Simmons. Though he doesn't specifically mention the Roper case by name I assume Sessions must be talking about this case which concerned the use of the death penalty on juveniles. The Court did cite foreign laws in its opinion but it was only one aspect of a multi-pronged argument that included this nation's "evolving standards of decency," and sociological statistics that point to a disparity in maturity between adults and minors. Now I have my own problems with arguments which base constitutional rights on an "evolving standard" of decency but that is besides the point. Sessions did not address those arguments. He picked one part of an argument to make it seem like we are losing our sovereignty.

8. "Like the American people, I have watched this process for a number of years, and I fear that this thinking empathy standard is another step down the road to a liberal, activist, results-oriented, relativistic world, where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than as simply Americans, where the constitutional limits on government power are ignored when politicians want to buy out private companies."

"Unelected judges" do not set policy. Supreme Court justices can on those rare occasions when they are asked to hear a case where a law's constitutionality is challenged. As to the question of hyphenated Americans it should be noted that had minorities within this country been treated equally they might not think of themselves as African Americans, Native Americans, Hispanic Americans, Asian Americans, Jewish Americans, gay Americans or women. Eliminate racism, xenophobia, sexism, religious bigotry, homophobia and the discrimination that follows and the aggrieved parties will begin to think of themselves as one group of people - Americans.


10. "I feel we've reached a fork in the road, I think, and there are stark differences. I want to be clear. I will not vote for, and no senator should vote for, an individual nominated by any president who is not fully committed to fairness and impartiality toward every person who appears before them."

Then don't.


"And I will not vote for, and no senator should vote for, an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of or against parties before the court."


Then don't.

Sotomayor Hearings Day One: Klobuchar on Background Diversity

"We've been tremendously blessed on this committee with the gift of having members with different backgrounds and different experiences, just as different experiences are a gift for any court in this land. So when one of my colleagues questioned whether you, Judge, would be a justice for all of us or just for some of us, I couldn't help but remember something that Hubert Humphrey once said. He said, "America is all the richer for the many different and distinctive strands of which it is woven." Senator Klobuchar in her press statement

This seems obvious. When you are forced to work with people from diverse backgrounds, you get to see how the others think and may in fact find some merit in their arguments or hone your argument against the opposition's opinion.

Sotomayor Hearings Day One: Whitehouse on "Discovering Gun Rights"

"For all the talk of modesty and restraint, the right-wing justices of the Court has a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights; the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases,, the first limitation on Roe versus Wade that outright disregards the woman's health and safety; the D.C.-Heller decision discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some balls and strikes."

I have but one objection to Senator Whitehouse's statement - the so-described "discovery" of the right to own guns.

The second Amendment's wording is no doubt vague but it is explicitly cited in the Constitution - something that cannot be said about "Roe versus Wade." If we are going to read the 14th Amendment's "Due Process" liberty clause broadly (and I believe we should), then we should read the Second Amendment broadly. Consistency on this would be deeply appreciated.

Sotomayor Hearings Day One: Chuck Schumer's Weak Umpire Claims

"Mr. Chairman, just four short years ago, then-Judge Roberts sat where Judge Sotomayor is sitting. He told us that his jurisprudence would be characterized by modesty and humility. He illustrated this with the now well-known quote: "Judges are like umpires. Umpires don't make the rules. They apply them." Senator Chuck Schumer in his opening statement.

Chief Judge -- Justice Roberts was and is a supremely intelligent man with impeccable credentials, but many can debate whether his four years on the Supreme Court he actually called pitches as they come or whether he tried to change the rules.

But any objective review of Judge Sotomayor's record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years far more closely than Chief Justice Roberts has during his four years on the Supreme Court."
Senator Chuck Schumer in his opening statement.


Senator Chuck Schumer is comparing apples and oranges. Justices (and Schumer is referring to John Roberts in his capacity as a justice) write and rewrite rules. Judges (and Schumer is referring to Sotomayor's role as a judge) adhere to them.

Sotomayor Hearings Day One: Feingold on Judicial Activism

"That is why I suggest to everyone watching today that they be a little wary of a phrase they're hearing at this hearing, "judicial activism." That term really seems to have lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as activist in their disregard for precedent and their willingness to ignore or override the intent of Congress.

At this point, perhaps we should all accept that the best definition of a judicial activist is a judge who decides a case in a way you don't like. Each of the decisions I mentioned earlier was undoubtedly criticized by someone at the time it was issued and, maybe even today, as being judicial activism. Yet some of them are, of course, as the judge well knows, among the most revered Supreme Court decisions in modern times."

Senator Russ Feingold in his opening statement.

Nothing to add here.

Sotomayor Hearing Day One: Feinstein on The Umpire Canard

"As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases; a case involving assignments to attain racial diversity in school assignments, a case overruling 70 years of precedent on the Second Amendment and federal gun control law, a case which increased the burden of proof on older workers to prove age discrimination, a case overturning a 1911 decision to allow manufacturers to set minimum prices for their products, a case overruling two cases from the 1960s on time limits for filing criminal appeals, a case reversing precedent on the Sixth Amendment right to counsel, a case overturning a prior ruling on regulation of issue ads relating to political campaigns, and a case regarding prior law and creating a new standard that limits when cities can replace civil service exams that they may believe have been -- have discriminated against a group of workers.

So I do not believe that Supreme Court justices are merely umpires calling balls and strikes. Rather, I believe that they make the decisions of individuals who bring to the Court their own experiences and philosophies."
Senator Dianne Feinstein


During his confirmation hearings, Justice (then Court of Appeals Judge) John Roberts likened his role on the Supreme Court to that of an umpire who calls "balls" and "strikes." He, I believe, minimized the role which he (and any justice for that matter) has in deciding who wins and who loses cases.

Umpires however don't change the rules. They apply them. Supreme Court justices can decide for themselves which rules (or precedents) they will uphold and which ones they will break (or overturn). The Supreme Court that once deemed "separate but equal" permissible later held it unconstitutional and the Supreme Court that once upheld laws banning dissent in times of war later upheld the right of schoolchildren no less the right to wear arm bands protesting our war policies.

One need only look at two cases where Justices Antonin Scalia and Clarence Thomas, two conservative "umpires" voted differently. Justice Antonin Scalia voted to overturn a law banning flag burning; Chief Justice William Rehnquist voted to uphold it. Justice Scalia voted to release a U.S. citizen whom Bush held as an enemy war combatant while Justice Thomas voted to uphold the citizen's incarceration. Both cases dealt with enumerated (explicitly cited) rights guaranteed by our Constitution.

The first concerned the First Amendment's free speech clause while the second concerned habeas corpus rights (which as the Constitution explicitly makes clear, cannot be suspended without an act of Congress). How can these two conservative justices differ in how the law is interpreted? Scalia thinks the First Amendment implicitly protects the right to free expression even though it explicitly only protects the right to free speech. Rehnquist evidently did not.

Scalia treated Hamdi v Rumsfeld as a criminal case while Thomas considered the defendant's incarceration as an act in war.

Sotomayor Hearings Day One: Kohl on What's At Stake

"

Our democracy, our rights, and everything we hold dear about America are built on the foundation of our Constitution. For more than 200 years, the court has interpreted the meaning of the Constitution and in so doing guaranteed our most cherished rights: the right to education regardless of race; the right to an attorney and a fair trial for the accused; the right to personal privacy; the right to speak, vote and worship without interference from the government.

Should you be confirmed, you and your colleagues will decide the future scope of our rights and the breadth of our freedoms. Your decisions will shape the fabric of American society for many years to come. And that is why it is so important that, over the course of the next few days, we gain a good understanding of what is in your heart and in your mind.

We don't have a right to know in advance how you will rule on cases which will come before you, but we need and we deserve to know what you think about fundamental issues such as civil rights, privacy, property rights, the separation of church and state, and civil liberties, just to name a few. Some believe that the confirmation process has become thoroughly scripted and that nominees are far too careful in cloaking their answers to important questions and generalities and with caveats about future cases. I recognize this concern, but I also hope that you'll recognize our need to have a frank discussion about these important issues."




from Senator Herb Kohl's opening statement.

Sonia Sotomayor is replacing a liberal so the cultural conservatives really have no reason to oppose her nomination. (She can't be any worse than Justice David Souter). Liberals however, have to worry since she is replacing one of their own and her record on these issues is sparse.

We need to know whether she believes in (a) the separation of church and state or the democratically-justified religious favoritism adopted by conservatives, (b) a broad right to privacy with the expectation that the government must justify every intrusion or the curtailing of such rights, an expansive view towards the 14th Amendment's Equal Protection Clause or a narrower view that rationalizes prejudice and (d) an individual right to bare arms or a state-controlled militia's right to bear arms.

Economic Leadership Call

Before I read the opening statements and make a few comments I want to point my potential readers to this article by Joe Klein I read in Time Magazine last weekend.

Links to Sotomayor Hearings

The Washington Post has a special web page devoted to the Sonia Sotomayor hearings.

First the opening statements from:

Senator Patrick Leahy (D-Vermont)

Senator Herb Kohl (D-Wisconsin)

Senator Dianne Feinstein (D-California)

Senator Chuck Schumer (D-New York)

Senator Ben Cardin (D-Maryland)

Senator Sheldon Whitehouse (D-Rhode Island)

Senator Dick Durbin (D-Illinois)

Senator Amy Klobuchar (D-Minnesota)

Senator Ted Kaufman (D-Delaware)

Senator Arlen Specter (D-Pennsylvania)

Senator Al Franken (D-Minnesota)

Senator Jeff Sessions (R-Alabama)

Senator Chuck Grassley (R-Iowa)

Senator Orrin Hatch (R-Utah)

Senator Lindsey Graham (R-South Carolina)

Senator John Cornyn (R-Texas)

Senator Tom Coburn (R-Oklahoma)

Senator Jon Kyl (R-Arizona)


Then the nominee's statement:

Court of Appeals Judge Sonia Sotomayor

The Introductions:

Senator Chuck Schumer (D-New York). Yes, I know. He got to speak twice.

Senator Kirsten Gilibrand (D-New York)

Sunday, July 12, 2009

Matlin's Defense of Cheney and NonDisclosure

makes no sense.

Here it is in its entirety.

MATALIN: Morning, Wolf.

BLITZER: Your former boss, the former vice president of the United States, you saw that front page New York Times. Let me put it up and show our viewers. "Cheney is linked to concealment of CIA project," "Congress was in dark." Panetta, the current CIA director is said to have oversight panels of direct orders.

How big of a problem, potentially, is this for the former vice president?

MATALIN: It's a big problem for the administration.

BLITZER: The Obama administration.

MATALIN: This is very suspect timing. The president's agenda is almost in shambles. His numbers are dropping. Isn't it coincidental they gin up a Cheney story. What The New York Times is saying in that story is they're accusing the vice president of telling -- of ordering the CIA to not tell the Congress about a program that didn't exist.


So Matalin first tries to change the subject by accusing the president of well, changing the subject. Her argument. The former vice president isn't the one in trouble. The current president is. President Barack Obama's s economic agenda isn't working so he has CIA Director Leon E. Panetta bring the former vice president's name up, knowing he is the person the media loves to demonize. Talk about conspiracy theories.

Obama doesn't need this disclosure to change the subject when the media's attention will shift to the Sonia Sotomajor nomination hearings tomorrow anyway. Besides, as I have noted in my last post, Panetta has his own motive for accusing the vice president of withholding CIA information from Congress.


"It wasn't operational, it was never operational. Further, there's a reason -- which he had every right to do, even if it was operational. There's a reason that executive branch withholds information, which they're entitled to do, because when it leaks it renders said programs ineffective or inoperative."

Matalin needs to read the paper so she can get her facts straight. The program was operational, according to this report in The New York Times, and there is every indication that it was in fact operational. Why? CIA officials would not object to the CIA Director's decision to terminate a non-operational program (what would be the point?) nor would there be any reason to withhold information concerning a program that did not exist.

CIA Nondisclsoure: Cheney v Panetta

CIA Director Leon Panetta told the Senate and House Intelligence Committees that the agency which he now runs had failed to inform them of a covert counter-terrorism program. Today, we are told from "two people with direct knowledge of the matter" that Vice President Richard Cheney may have ordered the CIA to withhold information concerning this classified program.

The Vice president hasn't responded to Panetta's accusations and he may not be forced to disclose such information since the language in National Security Act of 1947 may have provided him and Bush administration officials with the loophole allowing them to withhold information from Congress.

Panetta himself has an agenda that calls into question his accusation. He needs Congressional support to ensure funding for his agency and denying House Speaker Nancy Pelosi's accusation that the CIA misled her on matters concerning the CIA's torture program did not help. By shifting the blame for this latest revelation on Vice President Cheney, Panetta minimizes (or so he hopes) the damage which was done by withholding this information. The vice president and not the CIA itself, Panetta would have the members of the intelligence committees believe, was the sower of distrust.

Mr. Panetta may of course be telling the members of the intelligence committee the truth. The Bush administration did not tell everyone on the intelligence committees about the administration's national surveillance program. Repairing this breach in trust between the CIA and Congress, however, requires full disclosure. Mr. Panetta will have to provide the members of the intelligence committees the information which was withheld from them and now that the former vice president isn't there to order CIA officials to remain silent the Central Intelligence Agency has run out of excuses.

For its part, Congress must, in spite of President Barack Obama's objections, must pass into law a bill closing the loophole and mandating full disclosure to all members on the House and Senate Intelligence Committees. Mandating such full disclosure will restore the proper balance of power between the legislative and executive branches by prohibiting administrative officials from disclosing such information in a manner that suits its political purposes and it shields the CIA from accusations that it functions as a political (as opposed to a neutral information gathering) agency by prohibiting administrative officials from selectively disclosing the intelligence that suits its political purposes.

Thursday, July 09, 2009

Two [Now Three] Conservatives Say Nothing Good About Palin

"She lacks any real accomplishment - no military or private-sector career of note, no academic achievement beyond a frenetic bounce between five colleges, including a sun 'n' surf-oriented outfit in Hawaii. She has served only two years as governor of a small and uniquely easy-to-govern state (other governors pine for Alaska's small population and billions of dollars in easy revenue from oil production), a job she has now abandoned." Mike Murphy in The New York Daily News


oh and he forgot - she's an idiot.

"Harriet Miers was not their idea of a Supreme Court justice. She was, they noted, intellectually undistinguished, ill-qualified for the job, lacking impeccable conservative credentials and inept in handling basic constitutional questions.

All those things, of course, could also have been said about Sarah Palin. But just as quickly and vigorously as conservatives rejected Miers, they embraced Palin. Even after her bungling performance in the 2008 presidential campaign and her recent strange decision to resign as governor of Alaska, some of them still do.

"This unusual move might be the right move for her to become president of the United States," insisted William Kristol, editor of The Weekly Standard. Columnist Jonah Goldberg assured the governor that no matter what, "You are the 'It Girl' of the GOP." National Review editor Jay Nordlinger confessed, "I am an admirer and defender of Palin's. Oh, what the heck: I love the woman."

Why are they infatuated with her? Palin has hardly helped to revive the conservative cause. For all her alleged star power, she did nothing to improve the GOP ticket's fortunes. She showed no gift for articulating conservative themes, beyond ridiculing liberals as overeducated elitists -- a description that applies equally well to most conservative commentators.

In two months on the ticket, she boosted her unfavorable rating to 48 percent from 7 percent, while the unlovable Joe Biden ended up viewed negatively by only 32 percent of Americans. Finally, last week, she gave a pitifully incoherent explanation of why she was stepping down as governor of Alaska with a year and a half left in her term -- which you might think would mortify anyone who put his faith in her.

But it's really not hard to see why Palin inspires such devotion. And I do mean "see." She has one obvious thing going for her that Miers didn't: She's a babe, and she doesn't try to hide it. As an article in the latest Vanity Fair puts it, Palin "is by far the best-looking woman ever to rise to such heights in national politics." And while that fact doesn't earn her points with me, it obviously does with many people."
Steve Chapman in The Chicago Tribune

You know the stereotypes - dumb blondes, beauty queens.

Yeah. As a gay man this is hard to appreciate but then again I can't help but recall what Richard Lowry of the conservative National Review once wrote:

"A very wise TV executive once told me that the key to TV is projecting through the screen. It's one of the keys to the success of, say, a Bill O'Reilly, who comes through the screen and grabs you by the throat. Palin too projects through the screen like crazy. I'm sure I'm not the only male in America who, when Palin dropped her first wink, sat up a little straighter on the couch and said, "Hey, I think she just winked at me." And her smile. By the end, when she clearly knew she was doing well, it was so sparkling it was almost mesmerizing. It sent little starbursts through the screen and ricocheting around the living rooms of America. This is a quality that can't be learned; it's either something you have or you don't, and man, she's got it."

Little starbursts. Well the love affair is over. Lowry and Palin broke up.

Addendum:

Add Peggy Noonan of The Wall Street Journal to the roster of conservatives to call Palin a know-nothing:

"She went on the trail a sensation but demonstrated in the ensuing months that she was not ready to go national and in fact never would be. She was hungry, loved politics, had charm and energy, loved walking onto the stage, waving and doing the stump speech. All good. But she was not thoughtful. She was a gifted retail politician who displayed the disadvantages of being born into a point of view (in her case a form of conservatism; elsewhere and in other circumstances, it could have been a form of liberalism) and swallowing it whole: She never learned how the other sides think, or why.

In television interviews she was out of her depth in a shallow pool. She was limited in her ability to explain and defend her positions, and sometimes in knowing them. She couldn't say what she read because she didn't read anything. She was utterly unconcerned by all this and seemed in fact rather proud of it: It was evidence of her authenticity. She experienced criticism as both partisan and cruel because she could see no truth in any of it. She wasn't thoughtful enough to know she wasn't thoughtful enough. Her presentation up to the end has been scattered, illogical, manipulative and self-referential to the point of self-reverence. "I'm not wired that way," "I'm not a quitter," "I'm standing up for our values." I'm, I'm, I'm. In another age it might not have been terrible, but here and now it was actually rather horrifying."


Well, Noonan was tough on her during the campaign season as well now that I think about it but even so, the conservative elites (those with brains) don't think too highly of her. She finds her support with the conservative value-voter base because (a) the conservative straight males think she is pretty, (b) she has many children, reflecting their value in having children and (c) she has that folksy charm. All style, no substance.

Wednesday, July 08, 2009

Governor Palin the Know-Nothing

Richard Cohen had it best:

It would behoove us, though, to consider how close we all came to utter disaster -- the "counterfactual" suggested above. A recent Vanity Fair article clarifies just how awful a vice president (or president) Palin would have made. During the campaign, she proved allergic to briefings and remained determined to stay uncorrupted by knowledge. More recently, she explained her decision to -- permit me some GOP talk -- cut and run as Alaska governor by lapsing into no known language, explaining herself afterward in a burst of Tweets that only raised more questions. One question, though, has been settled: She is unfit for office.

Another expert

Oh my god. Another qualified individual gets the job. I thought he'd pick a former commissioner for the International Arabian Horse Association like Michael D. Brown for the role for director of the National Institutes of Health.

Marion Barry: Serial Loser

I think the voters in Washington, D.C. have given their one-time mayor and current Council person way too many chances. He may beat the wrap on the stalking charges but the council person will now face an investigation into a $60,000 contract awarded to his ex-girlfriend. If he had any honor Barry would resign but then again, the voters that elected him got what they deserve.

Stimulus v. Health Care Reform

President Barack Obama wants Congress to pass a health care bill by the end of August but the latest job reports and Vice President Joe Biden's admission that the administration "misread the economy" may slow his momentum. The economic stimulus package which Obama pushed through Congress on an partisan vote (only two Republican senators voted for it) isn't working as of yet.

On ABC's "This Week," Vice President Biden said this can be attributed to, at least in part, to the fact that the bulk of the funds have yet to be spent. We won't know if the stimulus package is working until that money is spent on projects that create jobs. And Biden is right - up to a point. It might save many Americans their jobs but we don't know whether it will save enough to offset the loss in jobs that will occur when states either (a) close government programs or (b) raise taxes in order to balance their budgets.

Paul Krugman, a distinguished economist who writes a biweekly column for The New York Times, wasn't impressed with the President's economic stimulus package when it was unveiled.

The administration probably opted against a larger economic stimulus package for two reasons. First, members within the administration were looking for some Republican votes and they did not believe they could get a larger spending bill to the president's desk with bipartisan support. Second, and this was probably as important to the White House, they did not want to provide the Republicans with an argument against health care reform by suggesting that we are spending too much.

Though administration officials believe (correctly in my view) that both, a larger economic stimulus package and health care reform are needed, neither were politically feasible. The president probably thought he needed to choose whether he would push for a large economic stimulus package in the first year while putting health care reform on the back burner or push for a smaller economic stimulus package and health care reform in his first year.

How he may get neither when both were needed. The economic stimulus package that was passed earlier this year may not create enough jobs to offset the continued loss in jobs and that continual loss in jobs leads to the rising number of people in need of health care.

National Intelligence: Congress Must Roll Back Excutive Power

The House and Senate should pass this bill quickly and ignore the president's veto threat if they fail to remove language requiring the CIA to brief every member of the intelligence committee.

President Barack Obama's predecessor decided to brief those he wanted to brief and House Speaker Nancy Pelosi (D-California) was able to deny (implausibly) that she knew about the prior administration's interrogation techniques since it did not keep a record suggesting that she was told about the CIA's torture program.

By requiring the president to disclose critical national security information to the full committee, Congress protects career officers from the CIA from having their research misused, thereby allowing the CIA to fulfill its roll as a neutral information gathering agency. It also restores the balance of power between the White House and Congress. Unless this bill is signed into law, this and future presidents will be able to withhold vital information from our legal representatives when they deem it inconvenient to do so.

Monday, July 06, 2009

Frank Rich: the Public Would be Rooting for Dillinger; not the Banks he Robbed

"In 2009, too many who worked hard and played by the rules are still suffering, while too many who bent or broke the rules with little or no accountability are back reaping a disproportionate share of what scant prosperity there is. The tepid national satisfaction taken in Bernie Madoff’s terminal prison sentence should be a warning to the White House. In the most devastating economic catastrophe since Dillinger’s time, many Americans know all too well that justice has yet to be served." - Frank Rich in The New York Times

Yep. Didn't Bill Maher call for a lynching or two? The president has to decide who he works for. The the rich cheatin' fat cats who work at the "banks" or the people. We know where the Republicans stand. Who does Obama side with?

Sunday, July 05, 2009

Marion Barry Should Go

The incident marks Barry's third run-in with the Park Police since his six-month jail term on misdemeanor drug charges in 1992.

In 2002, Park Police said that they found traces of marijuana and crack cocaine in his car. Barry said the drugs were planted, and charges were not filed. In 2006, Park Police cited Barry for operating a vehicle on a suspended license after he was pulled over for driving too slowly.

The same year, Barry was sentenced to three years of probation for not submitting federal and D.C. tax returns. In May, Barry's probation was extended by two years after prosecutors argued that he also failed to file his 2007 taxes on time.
in The Washington Post

This former mayor, (and now council member)had enough chances. He should go.

"Misread the economy"

"The truth is, we and everyone else misread the economy. The figures we worked off of in January were the consensus figures and most of the blue chip indexes out there." Vice President Joe Biden on "This Week"

He's right. They did misread the economy and I'm glad that someone within the administration is willing to own up to his part in the problem. Yes, President Barack Obama's predecessor bares most of the blame for getting us into this mess but the onus for reversing the economic trend falls on the Obama administration. Obama must enact the policies that would reverse the trend and protect us from a future economic downturn.

He must think big. World War II helped us get through the Great Depression of the 1930s. Republicans like to use that to "disprove" the claim that President Franklin Delano Roosevelt's spending programs didn't work. What they forget to note was that WWII was a spending program. The whole country was mobilized. We turned the nation into one colossal manufacturing plant that employed nearly everyone including those who were not even in the labor force (women). That's one helluva job program!

I think Paul Krugman had it right from the very beginning. The "stimulus" package that Congress passed was too small. The vice president says it isn't working because it really wasn't implemented as of yet. That may be true but its effect will be offset by the cuts in spending (and in some cases the taxes raised) by the state governments which are required (in many cases) to balance their budgets. Those tax levies will hurt potential consumers. Job security must be at an all-time high now that the unemployment rate is at 9.5%. Many families are cutting back and the tax raises will force them to cut back even more.

States that do not raise taxes (or can't) will have to gut state programs and lay off workers (thus adding to the unemployment rolls). At this time, officials on Capitol Hill and Pennsylvania Avenue should not be thinking about our long term debt. They have to pump a lot of money into the states' coffers so that the states do not have to (a) raise taxes and/or (in some cases states have to do both) (b) gut programs that provide services to the public. At the same time the Obama administration must invest in a new environmentally-friendly energy infrastructure. The funding provided for the electrical grid and high speed rail is a start.

The president's ability to revitalize this economy has no doubt been hindered in part by the Republican obstructionists with some help from "moderate" Democrats. They negotiated a weak bill down further and the fact that Senator Alan Specter thought he couldn't win after voting for the weak stimulus bill Obama signed into law says more about the Republican base than it does about him.

Mr. Obama will have to make the case for a second stimulus package and push his spineless Democratic allies in the senate to vote for it.

Saturday, July 04, 2009

Happy Fourth

To all who might be reading - I wish you all a happy 4th of July.

Outrageous Quote of the Day

"The only way to fight a moral war is the Jewish way: Destroy their holy sites. Kill men, women and children (and cattle) ... ... Living by Torah values will make us a light unto the nations who suffer defeat because of a disastrous morality of human invention." - Rabbi Manis Friedman

The Right to Park

Just a comfortable reminder that we aren't the only ones who must live with those who believe the world revolves around their religious beliefs. Apparently some believe it doesn't matter if you practice or not. On Saturdays you should not be allowed to go out and find a parking spot in Jerusalem. Tony Perkins, meet the Haredi protesters.

The things we take for granted.

Victory for Free Speech

Obviously we don't know the reasoning behind the Supreme Court justices' votes to either hear or decline a case but either way an 8th Circuit Court of Appeals ruling prohibiting the enforcement of a law banning anti-gay protests near military funerals will stand.

Vigilance and discipline is required to protect our freedom. Often we'll be challenged to uphold the rights of those whose positions we abhor (holocaust-deniers included). Fred Phelps' rights are our rights. There are ways of responding that stop short of censorship.

Iraq's Kurdistan

Well worth the read. This has, of course, been noted before when former President George W. Bush's troop surge "strategy" (more like tactics) was being debated in Congress. The troops can enforce an uneasy truce between competing ethnic and sectarian factions but they cannot offer the lasting peace that a mutually acceptable political settlement alone could provide.

We have removed our troops from Iraq's cities. Eventually we will have to leave and Iraq's political factions will have to decide whether they can live together or not and if not, how they will divvy the nation's economic resources among them.

President Barack Obama's predecessor added more troops to the ground in Iraq but squandered his opportunity to condition our support on the sectarian Maliki administration's willingness to negotiate with the Sunnis and Kurds over provincial elections, revenue distribution, federalism, and territorial disputes. To date Maliki had failed.

We ultimately signed onto an agreement that would have us leave no matter what happens in Iraq. The president ultimately will have to decide whether he will live by that agreement and uphold his campaign promise to end the war in Iraq or prolong our stay in Iraq by renegotiating our departure date from Iraq. The former would force the Iraqis to grow up or risk civil war. The latter would cost us more lives and money with no end in site.

If (and this is a big if given his history), Vice President Joseph Biden (D-Delaware) is speaking for the administration, then we are headed in the right direction.

Friday, July 03, 2009

Not a Special Interest Group

"No president possesses that magic wand, but Obama’s inaction on gay civil rights is striking. So is his utterly uncharacteristic inarticulateness. The Justice Department brief defending DOMA has spoken louder for this president than any of his own words on the subject. Chrisler noted that he has given major speeches on race, on abortion and to the Muslim world. “People are waiting for that passionate speech from him on equal rights,” she said, “and the time is now.”

Action would be even better. It’s a press cliché that “gay supporters” are disappointed with Obama, but we should all be. Gay Americans aren’t just another political special interest group. They are Americans who are actively discriminated against by federal laws. If the president is to properly honor the memory of Stonewall, he should get up to speed on what happened there 40 years ago, when courageous kids who had nothing, not even a public acknowledgment of their existence, stood up to make history happen in the least likely of places."
Frank Rich in The New York Times

Legislative Pragmatism v. Policy Pragmatism

"All of this has produced a ruthlessly pragmatic victory machine. Last week Democrats were able to pass a politically treacherous cap-and-trade bill out of the House. The Democratic leaders were able to let 44 members vote no and still bribe/bully/cajole enough of their colleagues to get a win. This was an impressive achievement, and a harbinger for health care and other battles to come.

But the new approach comes with its own shortcomings. To understand them, we have to distinguish between two types of pragmatism. There is legislative pragmatism — writing bills that can pass. Then there is policy pragmatism — creating programs that work. These two pragmatisms are in tension, and in their current frame of mind, Democrats often put the former before the latter."
David Brooks in The New York Times

Hard to disagree with him, particularly with his point about the Democrats will not "will not go to war against the combined forces of corporate America."

Good Behavior Credit for Obtaining GED's?

"Stephen Andrew Moller was released from his 5-year suspended sentence on July 1. His sentence had already been reduced by two months after receiving a good behavior credit for receiving his GED while in prison." from QNotes which focuses on gay news in the confederacy.

WTF? Why is receiving a GED in prison grounds for receiving "good behavior credit?" Isn't in everybody's interest to obtain a GED?

(For more background news, about the story wikipedia offers a brief summary. Note that Moller was 18 at the time he killed Sean W. Kennedy).

Note to NY Times: Proofread you Book Review Section

"Wright tentatively explores another claim, that the history of religion actually affirms “the existence of something you can meaningfully call divinity.” He emphasizes that he is not arguing that you need divine intervention to account for moral improvement, which can be explained by a “mercilessly scientific account” involving the biological evolution of the human mind and the game-theoretic nature of social interaction. But he wonders why the universe is so constituted that moral progress takes place. “If history naturally pushes people toward moral improvement, toward moral truth, and their God, as they conceive their God, grows accordingly, becoming morally richer, then maybe this growth is evidence of some higher purpose, and maybe — conceivably — the source of that purpose is worthy of the name divinity.

It is not just moral progress that raises these sorts of issues. I don’t doubt that the explanation for consciousness will arise from the mercilessly scientific account of psychology and neuroscience, but, still, isn’t it neat that the universe is such that it gave rise to conscious beings like you and me? And that these minds — which evolved in a world of plants and birds and rocks and things — have the capacity to transcend this ­everyday world and generate philosophy, theology, art and science?

So I share Wright’s wonder at how nicely everything has turned out. But I don’t see how this constitutes an argument for a divine being. After all, even if we could somehow establish definitively that moral progress exists because the universe was jump-started by a God of Love, this just pushes the problem up one level. We are now stuck with the puzzle of why there exists such a caring God in the first place.
quote (bold faced my emphasis) by Paul Bloom in his book review that appeared in last Sunday's New York Times.

Um. You cannot disprove an argument by conceding to the material fact that "proves" it nor can you undermine it by objecting to an argument that was not raised.

"Also, it would be a terribly minimalist God. Wright himself describes it as “somewhere between illusion and imperfect conception.” It won’t answer your prayers, give you advice or smite your enemies. So even if it did exist, we would be left with another good news/bad news situation. The good news is that there would be a divine being. The bad news is that it’s not the one that anyone is looking for." - more from Paul Bloom's book review.

Um. but I do not get the impression from your critique that Mr. Robert Wright is attempting to answer this particular question concerning "God's" real nature so this objection has no relevance. Mr. Wright is, as you have previously noted, has written a book focused on why the attributes we ascribe to a god evolve as our attributes evolve. (We were jealous; hence God was jealous. We began to love, so God loved, etc. etc.)

But then again, perhaps Bloom is proving Mr. Wright's point by objecting to the notion of a "minimalist God" that "won't answer your prayers, give you advice or smite your enemies," leaving you and me with a "good news/bad news situation."

The Top Ten Reasons You Might be an Evangelical

Here.