Politics and substance in the Sotomayor nomination

by

Frank Kaufmann

May 31, 2009

We are moving toward a just society.

Not because we are seeing things in the moment grow increasingly just, but because the instruments necessary for justice are gradually falling into place.

Injustice is possible under conditions of imbalance of power, and under conditions of shadow and secrecy.

The communications revolution (spawned by the popular use of internet technology) of the past 10 - 15 years is eroding both these necessary conditions for injustice.

Two things remain missing to complete more sound and rapid progress. These are: 1. Some form of religion in our midst that is void of petty conflict and parochialism, and 2. the evolution from knowing to doing among the increasingly empowered "common" people.

A wholesome and orderly society requires harmony and collaboration among its religious institutions, its political institutions, and its economic institutions. These core pillars are supported by the academy, journalism, and the arts and entertainment.

The population at large is becoming increasingly knowledgeable and expert about society's core pillars little by little. This increasingly widespread knowing will make for a better society, provided a helpful and reliable spiritual element can arise, and if increased knowing can be translated into increased doing, informed action.

Our latest growth of knowledge has come in the area of economics, even at the complex levels of banking, finance, and international, economic relations. This is because, rampant greed collapsed the towers of the economy on each of us personally. We have learned and are learning about economics and finance in the effort to survive. In seemingly no time at all, the same guy beside me at the bar who used to make me feel like an idiot for not knowing what quarter Gretsky's 700th goal was scored, now makes me feel like an idiot for not getting exactly how accrual basis accounting doesn't really work for equity REITs. How and when did that happen?

On Tuesday, President Obama nominated Sonia Sotomayor to replace David Souter on the Supreme Court.

Due the the poverty and superficiality of most news media (especially cable news networks), it will probably be sometime before idiot-Frank's bar friend will have much to say about libertarian, constructionist, or originalist judical philosophies, but he will know that the Sotomayor nomination makes Republicans crazy.

Why though? What even allowed Judge Sotomayor to be positioned to receive Obama's nomination? Answer? Her 1991 appointment to U.S. District Court for the Southern District of New York by George H.W. Bush.

Bush? Then surely she must be a moderate since a major stepping stone in her rise to this moment came at the hands of a Republican president?

In fact no. That lower federal position was approved by GHW Bush as part of the simple horse-trading on which no major political figure ever spends political capital. It was Moynihan's turn to pick, D'Amato's turn to let it go, and the president's turn to leave cease-fires in place. (See Byron York, Washington Examiner, May 26). So the Bush notch in the belt is greatly helpful for the politics of it all (from President's and the Democrat's point of view), but it is unrelated to the substance of the issues at hand, and to why there is a fight over Sotomayor at all.

Wendy Long of The National Review (May 29) helps us understand Republican opposition to Sotomayor. Long identifies three bright lines in Sotomayor's record for anyone interested in moving beyond politics to substance, people more concerned with issues than with the titilating gotcha rants that fuel cable news ratings. These substantial moments are a 1996 law review article said to support "Legal Realism," a 2002 law review article dealing with race, gender, and ethnicity, and a 2005 appearance at Duke Law School stating that appellate courts make policy.

The sum of Long's notes helps us grasp the fact that the substance of what is at stake with this nomination has to do with what is called "judicial restraint," (i.e., preference for the impartial application of neutral principles) on the part of conservatives, as opposed to what conservatives often call "judicial activism," the label they give to judicial-philosophical impulses of liberals or progressives.

It is time that these categories, like so many others have in recent times, yield to a more subtle, youthful, creative, and energetic bent of mind. The entrenched arguments that stand fast in the structures of battle and conquest fairly well have been perfected. A thinking person should be capable of seeing the wisdom in judicial restraint, every bit as much finding the same degree of wisdom and promise in judicial activism. The very fact that both positions are held passionately all but establish that wisdom and value lies at least in part in both impulses.

It is unlikely that a higher and more profound judicial philosophy with the power to substantially advance the ideal of justice will arise in the already fiery and petty habit of battle that instantly ignited following Sotomayor's nomination.

But surely it is not too much to hope that we can do with questions of justice what we just so quickly did with economics. We have begun to envision more wholesome and more balanced possibilities embracing profit and social care in the way forward. Is it not possible for a better dialogue to emerge in the arena of judicial philosophies? One that allows the emergence of softer, more constructive, less embattled thought, thinking that steps away from old battle lines and is drawn in humility toward the dream and the light of a just society.

Frank Kaufmann is the director of the Inter Religious Federation for World Peace
The opinions here are his own

Please pray for the health of Aung San Suu Kyi

Suu Kyi health a 'grave concern'

The health of jailed Burmese opposition leader Aung San Suu Kyi is a cause for "grave concern", her National League for Democracy (NLD) party has said.

The NLD says the 63-year-old has not been able to sleep at night because of continuing cramps in her legs and needs urgent medical attention.

Ms Suu Kyi is on trial for allegedly violating the terms of her house arrest after a US man broke into her home.

She denies the charges and faces five years in prison if found guilty.

Ms Suu Kyi has suffered from ill-health in the past. Shortly before her arrest on 14 May she was treated for dehydration and low blood pressure.

The NLD said she was "in desperate need of proper medical treatment".

"We are very much concerned about her health," it said in a statement.

BBC News

The Dawn of Creation

(BBC News 4/8/09)

"'It was like seeing the sun for the very first time," said one spectator

Across the world Jewish people have been celebrating Birkat Hachama, or the Sun Blessing, as Erica Chernofsky witnessed in Jerusalem at daybreak.

The blare of a ram's horn filled the early morning air, alerting the thousands of people gathered at the Western Wall that the sun was about to rise.

When it finally appeared above the ancient stones on Wednesday, the crowd gasped in unison and then began to recite a special blessing: "Blessed are you, Lord our God, king of the universe, who makes the works of creation."

To those standing at Judaism's holy place, known to them as the Temple Mount, this was no regular sunrise but one that only occurs every 28 years.

The Sun Blessing - Birkat Hachama in Hebrew - takes place when the Sun returns to the point at which it was, Jewish tradition says, when God created the world thousands of years ago.

How many chances do you get to do something like this? Shelby Atkin

"What an amazing experience," said Joel Atkin, who came to watch with his daughter Shelby, 17.

"It was like seeing the Sun for the very first time."

"How many chances do you get to do something like this?", Shelby asked excitedly.

The source of the ancient tradition comes from the Talmud, a set of holy Jewish writings which states that, "he who sees the Sun at its period recites the blessing".

"Its period," it later explains, recurs every 28 years on the vernal equinox, the date when the Sun crosses the equator.

It is more commonly known as the first day of spring, when Jews believe the Sun was created.

In the Biblical book of Genesis, the Sun, along with the moon and stars, was created on the fourth day, which in modern times translates to Wednesday.

The Sun returns to this position, believed to be its first position, every year.

Emotional moment

But only once every 28 years does this happen both on the vernal equinox (as calculated by Jewish tradition) and on a Wednesday - just as Jews believe it did when the universe was created.

Some view the Birkat Hachama as an important reminder not to take the Sun's energy for granted

"It's one of those occasions you just don't miss," echoed Jeremy Shebson, in Jerusalem from London on holiday.

"The one thing we don't appreciate are all the wonders of the world, and an event like this makes you appreciate something that happens every day."

As the sun began to rise slowly higher above the Wall, the throngs of Jewish men clad in black and white prayer shawls, their heads adorned with tefillin (black leather boxes containing Bible scrolls), jostled for the best spot.

A few women shed tears as the sun lit up the morning sky, and held up their prayer books to block the sharp rays as they recited the special blessing.

'Outdated'

However, the tradition is deemed by many to be based on archaic calculations, which today are known to be erroneous.

I heard this could bring redemption, and I came because I want redemption to come today!" Tzippora

Two thousand years ago, Judaism, along with other Middle Eastern cultures, believed the length of the year was 365 days plus 6 hours.

But centuries later, Judaism readjusted the calendar year to 365 days, five hours and 55 minutes, while modern science now puts the year at 365 days, five hours and 48 minutes - 12 minutes less than the original calculation.

This small discrepancy adds up when multiplied by thousands of years.

Wednesday's event was actually celebrated 19 days later than the real first day of spring, which fell on 20 March, explained Professor Ariel Cohen of the astronomy and atmospheric physics department at the Hebrew University of Jerusalem.

"So it's a very nice tradition but 2,000 years ago, it was a tradition based on scientific values, and today they need to re-evaluate,' he said.

"Now that we know it is no longer accurate we have to either modify the tradition or abandon it completely."

Rabbis acknowledge this inaccuracy but stress that the mathematical calculations are less significant than the meaning behind a tradition that has been kept by Jews for centuries.

"There are many opinions as to when exactly to say Birkat Hachama, some even say you should recite the blessing if you haven't seen the Sun in three days because it is cloudy," says Rabbi Shlomo Vilk.

Crowds of worshippers gathered to say the blessing

"But it's not the day which is important, it's about appreciating the creation of the Sun, such a powerful source of energy that we all take for granted."

This year, the event has added significance as it falls on the eve of the holiday of Passover, marking the exodus of the Jewish people from Egypt.

Some rabbis even view it as a sign heralding the coming redemption and arrival of the Messiah.

"In Judaism we want the Messiah to come every day, but we do say there are times that are more opportune and significant," explains Rabbi Mordechai Genut, an astronomy expert and prominent figure in the ultra-orthodox Jewish community.

"It doesn't mean it will happen, but it's a good sign."

Rabbi Vilk relates redemption less to the cosmic event and more to the people who celebrate it.

"The Messiah will come if we will all be good. If everyone goes out to say this blessing, the Messiah will come because we appreciate what we have and bless God for it."

While not everyone who woke up early to witness the special sunrise expected the Messiah, Tzippora, 42, had not entirely ruled it out:

"I heard this could bring redemption, and I came because I want redemption to come today!"

The End of Philosophy

By DAVID BROOKS
(NYT April 8, 2009)

Socrates talked. The assumption behind his approach to philosophy, and the approaches of millions of people since, is that moral thinking is mostly a matter of reason and deliberation: Think through moral problems. Find a just principle. Apply it.

One problem with this kind of approach to morality, as Michael Gazzaniga writes in his 2008 book, “Human,” is that “it has been hard to find any correlation between moral reasoning and proactive moral behavior, such as helping other people. In fact, in most studies, none has been found.”

Today, many psychologists, cognitive scientists and even philosophers embrace a different view of morality. In this view, moral thinking is more like aesthetics. As we look around the world, we are constantly evaluating what we see. Seeing and evaluating are not two separate processes. They are linked and basically simultaneous.

As Steven Quartz of the California Institute of Technology said during a recent discussion of ethics sponsored by the John Templeton Foundation, “Our brain is computing value at every fraction of a second. Everything that we look at, we form an implicit preference. Some of those make it into our awareness; some of them remain at the level of our unconscious, but ... what our brain is for, what our brain has evolved for, is to find what is of value in our environment.”

Think of what happens when you put a new food into your mouth. You don’t have to decide if it’s disgusting. You just know. You don’t have to decide if a landscape is beautiful. You just know.

Moral judgments are like that. They are rapid intuitive decisions and involve the emotion-processing parts of the brain. Most of us make snap moral judgments about what feels fair or not, or what feels good or not. We start doing this when we are babies, before we have language. And even as adults, we often can’t explain to ourselves why something feels wrong.

In other words, reasoning comes later and is often guided by the emotions that preceded it. Or as Jonathan Haidt of the University of Virginia memorably wrote, “The emotions are, in fact, in charge of the temple of morality, and ... moral reasoning is really just a servant masquerading as a high priest.”

The question then becomes: What shapes moral emotions in the first place? The answer has long been evolution, but in recent years there’s an increasing appreciation that evolution isn’t just about competition. It’s also about cooperation within groups. Like bees, humans have long lived or died based on their ability to divide labor, help each other and stand together in the face of common threats. Many of our moral emotions and intuitions reflect that history. We don’t just care about our individual rights, or even the rights of other individuals. We also care about loyalty, respect, traditions, religions. We are all the descendents of successful cooperators.

The first nice thing about this evolutionary approach to morality is that it emphasizes the social nature of moral intuition. People are not discrete units coolly formulating moral arguments. They link themselves together into communities and networks of mutual influence.

The second nice thing is that it entails a warmer view of human nature. Evolution is always about competition, but for humans, as Darwin speculated, competition among groups has turned us into pretty cooperative, empathetic and altruistic creatures — at least within our families, groups and sometimes nations.

The third nice thing is that it explains the haphazard way most of us lead our lives without destroying dignity and choice. Moral intuitions have primacy, Haidt argues, but they are not dictators. There are times, often the most important moments in our lives, when in fact we do use reason to override moral intuitions, and often those reasons — along with new intuitions — come from our friends.

The rise and now dominance of this emotional approach to morality is an epochal change. It challenges all sorts of traditions. It challenges the bookish way philosophy is conceived by most people. It challenges the Talmudic tradition, with its hyper-rational scrutiny of texts. It challenges the new atheists, who see themselves involved in a war of reason against faith and who have an unwarranted faith in the power of pure reason and in the purity of their own reasoning.

Finally, it should also challenge the very scientists who study morality. They’re good at explaining how people make judgments about harm and fairness, but they still struggle to explain the feelings of awe, transcendence, patriotism, joy and self-sacrifice, which are not ancillary to most people’s moral experiences, but central. The evolutionary approach also leads many scientists to neglect the concept of individual responsibility and makes it hard for them to appreciate that most people struggle toward goodness, not as a means, but as an end in itself.

Travels to Slovakia and the Czech Republic

I spent from March 4 through March 12, 2009 in Bratislava, Slovakia and in Brno, the Czech Republic.

The time for me was splendid and enlightening.

I stayed at the home of Julius and Gordana Alexy. Left you see their little ones, Marinka (4) and Dagi (2).

I was treated with great hospitality, and found my students and my peers to be of exceptional quality in character and virtue.

Part of my trip involved me in a teaching program for young people in their 20's. I offer a small report and some pictures from that time here (<-- click).

I then had a day free and was able to see a few local sites in Slovakia. These travels can be seen here (<-- click).

Finally, the day before my return journey, I spoke at a scholarly conference in Brno, Czech Republic. I offer a word on this conference, and again some pictures here (<-- click).

Thanks all for your constant encouragement and support for me.

The Clinton Visit to Indonesia: Islam is a Religion

Newy York, NY, United States,

Indonesia was the second nation, after Japan, visited by U.S. Secretary of State Hillary Clinton on her first overseas mission for the Obama administration. This was brilliant and correct. There is broad consensus within foreign policy circles that the Asia rim poses the most complex challenges for the Obama administration.

Clinton, quite properly and naturally, had a center of focus for each Asian nation she visited. In Japan, it was strengthening the two countries’ alliance – with an angry glance over her shoulder at North Korea. In South Korea, the North Korean missile threat brought out the weary phraseology of conflict diplomacy – that the North’s actions were "very unhelpful” and the U.S. was “watching very closely."

That is good enough, though no nation considers itself a "rogue state," and normal human pride, not to mention Beloved Leader pride, raises the question of who gets to decide who's allowed to test missiles, and who not?

The Indonesia stop had a different essential message. "Secretary of State Hillary Clinton, seeking to reinvigorate Washington's ties with the Islamic world, said the Obama administration will develop relations with Indonesia as part of a U.S. diplomatic push in Southeast Asia," the Wall St. Journal said.

Again, this is a fine direction and an excellent message from the Obama administration, one of urgent necessity and launched in the right place. Indonesia is the world's most populous Muslim-majority country – around 200 million, or 86 percent of the population, are Muslim. A highly blessed confluence of geography and cultural and religious history has evolved into an exemplary vision for Muslim politics and society.

As Mark Duff, religious affairs reporter for the BBC, put it:

The national motto is "unity in diversity."

The founding principles of Indonesia, the Pancasila, include a belief in God. But beyond this, religious tolerance is seen as the cornerstone of relations between different faiths - even though almost 90 percent of Indonesians are Muslim.

Moderation is therefore built into the country's constitutional framework.

Also part of the wisdom of placing this childhood home of President Barack Obama in the front line of foreign relations is its important domestic implications.

There are now 7 million Muslims in the United States, and another 1 million in Canada. Though still a small percent of the population, Muslims in America are important for a number of reasons: They are a multiform community – multi-ethnic, made up of both indigenous and immigrant communities – and compared to the rest of the population, they tend to be young, well-educated and positioned in solid middle-to-affluent economic demographics.

But perhaps most important is that Muslims in America tend to be religious, with attendance at Jumma, or Friday prayers, at a full 94 percent and mosque participation growing fully 75 percent in five years.

It is foundational to American thinking that religiosity functions as a spiritual and moral force in society. Spirituality and religiosity are helpful for the health and well-being of a country, especially in multi-faith environments with religious freedom.

Yet there is a vital cautionary note that must be recognized by Clinton and Obama. Islam is a religion. The administration’s actions and policy must reflect a deep understanding of the purely religious aspects of relations with "Islam."

To move properly in this arena requires consultation with knowledgeable religionists, most especially those with hard-won wisdom and expertise in interfaith relations. Despite well-meaning intent, these political figures cannot risk confusing political activity such as U.S.-Indonesia relations with religious activity such as improving relations with "the Muslim world."

This distinction is urgent and imperative. Failure to recognize the distinction is fraught with peril. U.S. relations with Indonesia, and with all the world's "Muslim regimes," must include elements that are "purely religious" in nature. Nations and religions and religious belief are different, and people like Clinton and Obama are trained in the former and not in the latter.

Obama is a self-confessed Christian. It is not impossible for him to understand and appreciate Islam, but it is not automatic either. Forging ever-deepening bonds across boundaries of true and passionately held religious faith is hard work and traverses a rewarding if perilous course. Missteps are easy in the world of interreligious relations and can have dire political consequences.

I offer praise for both the fact and the substance of the Indonesia visit. But I urge caution and beseech Clinton and Obama to avail themselves of sound counsel from people who know the difference between international and interreligious relations, and who are deeply steeped through life accomplishments in the latter.

Frank Kaufmann is the director of the Inter Religious Federation for World Peace. The opinions here are his own.

1.http://www.allied-media.com/AM/
2.http://www.cair.com/Portals/0/pdf/The_Mosque_in_America_A_National_Portrait.pdf

Stimulus Counter Proposal

This morning a friend (a political professional) called:

"Excellent article Frank. I fully agree with the critique you laid out vis a vis the process that led up to passing the current stimulus package. But I must ask, what is your counter proposal?"

I responded that I did in fact have one, but my ignorance of the technical aspects of political life made me reluctant to put it forth.

He encouraged me on two fronts:

1. As a person of ideas, it is your responsibility to live under that maxim that no idea is a bad idea. Others will help and refine on those occasions when your recommendations lack understanding.
2. Secondly, the actual counter proposal I DID have, and proceeded to explain, in fact (according to this fellow) warranted airing in its content, substance, and its own right (not just "on principle").

The counter proposal view that I did not delineate as the way to approach the stimulus package in the "new way of politics" that Obama (and every president before him ) promised, lies in working one's way systematically, piece by piece through the available resources (780 billion) with consensus and emergency as the twin poles for generating prioritization.

Spending available funds piece by piece as emergency generates consensus and cooperation, does 3 things:

1. It creates incentive for cooperation
   
2. It nullifies horse-trading as a corrupt and sleazy form of "cooperation," "compromise."
3. It allows ideological encounter on a high minded platform of care and public service en route eventually to collaborating on the most difficult areas of difference.

I compared this approach to the stimulus bill to "leaving Jerusalem for last," alluding to my view that there are tremendous steps toward peace that Israelis and Holy Land Arabs can take, without forcing onto the conversation as a massive stumbling block at the very outset the most intractable and difficult elements of the dialogue. Leave the biggest differences out (for the time being), and build up the muscles of cooperation while practicing on the matters where differences are small and emergency allows for cooperation over small gaps of difference.

This is the only pattern toward reconciliation that can work. Horse trading simply does not work. It does not create (the all necessary element of) deeper understanding of opposing passions and ideologies.

Thus all 780 billion in the stimulus package did not have to be decided upon before a dollar could be spent. It is that assumption that results in politics as usual, in pork, horse trading, and in ongoing partisan entrenchment that I criticized in my article.

Here's the model. My family has $5,000. We will spend all of it. The roof is leaking, Dad "needs" new clubs, daughter "needs" a new phone, the block association is threatening to have us evicted over the length of our grass. OK old politics, "Dad you can have your clubs if I can have a new phone every 6 months for the next 3 years." "The roof is leaking, can we take care of this please?" "You don't touch the roof until I get my phones." What family would possibly live like this?

The only way a family would suffer through such an absurd scenario is if there were some unexamined rule that the entire 5000 had to be "spent" all at once or not at all. No family would behave this way, yet this is how we run our nation, and this is how we just treated nearly a trillion dollars!

The normal way to proceed is. We've got $5000 and we need $650 to fix the roof. We all agree on that right? Good, let's do that, but while we're at it, we need $120 to hire a guy for the yard. The block association's patience is wearing mighty thin. The roof might be a shoo in as a family decision, instant agreement. The grass might need a little debate. Different opinions, but it can be talked out quickly and easily enough, especially as pending eviction looms.

The same pattern could have been done with stimulus money. The absolute emergencies can be worked out, agreed upon quickly, and instantly be acted upon. De-freeze credit and lending, tax relief for small businesses etc. As emergency measures are applied, economic developments follow, and expenditure plans might change to meet the new circumstances.

This simple shift in assumption would allow the new administration immediately to sever life support to "how Washington does business," as was promised.