Can Obama directly appoint to SCOTUS?

“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
— Constitution of the United States, Article II, Section 2

The President has floated the name of Chief Judge Merrick Garland to the Supreme Court, succeeding the late Antonin Scalia.

However, the current Senate leadership continues to doggedly state they refuse to meet with or even consider the candidate, much less place the candidate up for a vote. This would seem to stop the candidate dead in his tracks to his place on the Supreme Court Bench.

…or could it?

The Constitution is clear: nominations for “judges of the supreme court” must be made with the “Advice and Consent of the Senate.” However, is failure to vote for or against (i.e., taking no action) a statement waiving its right to act?

Indeed, Diskant, the senior partner of law firm of Patterson Belknap Webb & Tyler opined in the Washington Post that this is indeed the case.

“It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.  Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.”

This would break what Diskant noted as a “logjam” in our current legislative system. but could also set a new precedent in Presidential appointments: making the Senate act in one way or the other, requiring it to exercise its duty: even if its vote is in the negative, its still exercising its duty. Could this help break the ice of the current system of partisan stonewalling, by strongarming the opposition to act?

This isn’t entirely unprecedented — when the Senate was holding proforma sessions to stonewall Obama’s nominations, particularly to the National Labor Relations Board back in 2012, President Obama unilaterally declared the Senate out-of-session and exercised his appointment power and named his candidates to the Board. While the Supreme Court later ruled these exceeded his ability, this is somewhat different — the Senate is simply not willing to act; and therefore is not approving, but not denying either — and is taking no steps to decline his nomination.

I believe this very well could be a point: by giving the Senate ample time to act, and its refusing to, the reasonable person, and a living Constitution could accommodate the notion that the Senate is willing to waive its right to stop, and therefore grants an approval by being properly notified, and declining its right to stop the nomination and appointment.

Could this set a new precedent in Presidential appointment power? How will the Supreme Court view it; as power grab, or a break in Congressional gridlock?

Further Reading:

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Should Puerto Rico become the 51st State? Yes.

American-and-Puerto-Rico-FlagConsider the fact that Puerto Rico has been a property of the United States since the 19th Century, and the citizens of it have been citizens of the United States since 1917.

Add to that the fact that they can vote in the federal election [the primaries, NOT the general, though], are subject to Federal law, and enjoy many of the benefits offered to citizens of the United States — such as diplomatic representation, protection by the United States Armed Forces and are able to come and go with ease from and to the mainland.

However, there are many things they do NOT enjoy: Puerto Rico has one Delegate in Congress who speaks for them, but is unable to vote in a tie-breaker situation; they don’t have electoral votes for the Presidency. This quite effectively disenfranchises United States citizens of Puerto Rico at the federal level.

Add to this the fact that a majority voted in a 2012 plebiscite (61%) for statehood, and that the statehood movement in Puerto Rico continues to gain steam — both in Puerto Rico and indeed, in our own government.

Said Dr. Ben Carson: “When you stop and think about it Puerto Ricans have been Americans for a century or more already,” “You’ve already paid your dues,” “There have probably been more patriotic Puerto Ricans than any other state. Look at all the contributions that have been made to America.”

He further went on to mention that Puerto Rico’s proximity to Cuba, and its position in the Caribbean make it ideal for granting full statehood to.

Moreover, the fact that Statehood would eliminate the limbo that Puerto Ricans find themselves in: citizens in fact, but do they have the same privilege? In a lot of ways, no — particularly at the federal level. When you further consider granting them statehood would effectively eliminate their current sovereign debt burden, become a means of tax revenue for the federal government and engage already-citizens of the United States in the political process of their own country, the usefulness and positivity of this prospect crystalizes into a solid “YES!”

Is Kim Davis defending Religious Freedom? No. Here’s Why…

There is no short of controversy surrounding Rowan County Clerk Kim Davis, and her continued denial of marriage licenses to homosexual couples. On face value, it may seem indeed, that Kim Davis is entitled “reasonable accommodation” for her sincerely held religious beliefs.

I don’t believe so — and it may not be for the reason you think.

Wether or not Kim Davis’ beliefs are “right” or “wrong” is of no moment, nor is the fact that they are “deeply held.” Indeed, I have no issue conceding the fact that anyone is entitled to believe anything they like; and I have no real problem with that.

Here’s where the reasonable accommodation issue loses integrity:

– The issue isn’t “hers,” it’s that of those she is refusing service to. If this were an issue of “No Shirt, No Shoes, No Service,” or some other codified, specific law that can be pointed at — with reverence or dejectedness. Indeed, the ban that did exist no longer does, per the ruling of the Supreme Court.

– Mrs. Davis also had the ability to redress her grievances without violating law by allowing her deputy clerks to act in her capacity, while she brought the issue forward with the State government. Her failure to do so, and to simply say “No,” and pointing to her beliefs as a right to do so took the issue of “deeply held, sincere religious belief” out of the equation, and knowingly placed HERSELF in the mix — not her beliefs. Indeed, if her beliefs required her to not do such a thing, is she now legally able to discharge her office? As such, is she legally able [or even CURRENTLY STILL] the county clerk? Many public offices have a “capacity clause,” stating that if the officer in question is unable to discharge the office to which s/he took, that the individual is declared temporarily incapacitated, and the duty falls to that officer’s deputy. If that’s the case here, does her senior deputy clerk now act in her capacity — legally? That I don’t know, but an interesting thing to investigate. As a government employee specifically charged with issuing proper and legal marriage license, assuming that there were no other issues surrounding the validity of the request, ability to pay, or whatever — she’s willfully violated her contractual and even fiduciary duty to the State, and to her constituents.

– Governor Huckabee, and others on the side of Kim Davis, often cite the issues surrounding the Supreme Court’s “ability to write law,” and that the Supreme Court overstepped its bounds in “legislating from the bench.” This also doesn’t hold water for several reasons, but it stems from one very important supreme court case:

In Marbury v. Madison, the Supreme Court was confronted with a question surrounding federal appointments. In its review of the laws surrounding them, it determined that indeed, Marbury was entitled to his appointment and that his suit through the court system was a rightful correction to his grievance. This case established the process known as “judicial review,” a court test that grants the Supreme Court the ability to review a case, a law, a regulation or other question that the Supreme Court grants certiorari to; as a form of checks and balances on Federal, State and Local government regulation. Using the authority of Judicial Review, the Supreme Court trailblazed civil rights and fostered the safety of the people through overturning poll taxes [Harper v. Virginia Board of Elections, 1966], that random drug testing of students involved in intramural sports don’t violate their Constitutional rights [Board of Education of Independent School District #92 of Pottawatomie County v. Earls, 2002], the “Separate but Equal” doctrine [Brown v. Board of Ed, 1954], the establishment of “Miranda Rights” [Miranda v. Arizona, 1966] and that the President is not above the law [U.S. v. Nixon, 1974]. The power of judicial review has allowed the courts to correct legislative errors or otherwise “fill in the gaps” where laws, the Constitution or other codified law stops, but injury can begin.

Often, pundits claim that judicial review isn’t constitutional, or otherwise “allowable” by law, because it allows for judges to effectively write law and legislate from the bench.  There is a Constitutional flaw in that logic:

– The Judiciary Act of 1789 [in the First Congress] was signed into law, which allows the Supreme Court to hear cases on appeal from State courts — Section 25 specifically states:

“And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.”

This law alone forms the basis for judicial review.  Further is that of the Equal Protection clause [Section 1] of the Fourteenth Amendment, which reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

— Establishment Clause, First Amendment of the Constitution


– Of further note: there’s an obvious Establishment Clause violation here — but not just ON Kim Davis, but BY Kim Davis. As a government employee, holding an office she’s freely run for, and unwilling to resign from, by denying government services to a [seemingly] qualified constituent due only for religious reasons, SHE has raised an issue under the Establishment Clause, by forcing her religious beliefs on the constituents. Where do her rights as a religious adherent end, and her duty as a government employee begin? Indeed: in 2006, the conservatives on the court stated in Garcetti v. Cebalos, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

To sum it up, does Kim Davis deserve to have her deeply held religious beliefs? Of course she does.

Does she deserve to enforce them on others through her elected office? No. This is an Establishment Clause violation.

Is the State or Federal government in violation of the Establishment Clause? No. She is an employee of a local government, and the government is charging her with a duty — not stating what religious beliefs she must or must not have.

Does Kim Davis belong in jail? No, I don’t think so. I think it was wrong [legal, and “a bluff,” perhaps — but one she called] to do so.

Is she the “new” Rosa Parks?   No.  She willingly put herself, as opposed to her beliefs, in the middle of this issue by letting herself get involved with the situation, as opposed to letting the government handle the issue on her behalf.  If a decision is “above your paygrade,” there’s nothing wrong with handing that issue to your supervisor and awaiting instructions.  Her supervisors are anyone from a county executive all the way up through the Governor.  She chose to simply “deny” her constituents.

Does she deserve an accommodation? Maybe. There are arguments either way — that she shouldn’t have to violate her religious conscience to carry out her duty. But on the flip side, if a Muslim banker found bank account interest distasteful and denied an interest bearing bank account to a non-believing customer, would people be so quick to defend him? If a Jewish teacher refused to read a paper because the subject included Buddhism and found it objectionable — is that right?

Further, if we put the shoe on a similar-sized foot — my computer handles my email.  Should my computer determine wether or not I should be able to read it?

Is Tenure important? Yes. Here’s why…

Tenure is one of the more controversial benefits offered to educators in the United States, in particular. Teachers who are “tenured” often are difficult to discipline constructively if they commit violations — even some severe violations.

But when examining the benefits, it becomes clear that Tenure is necessary for a classroom that is as little motivated by external politics as possible.

Consider the fact that Governors often appoint Regents to the University’s management board. This function allows the Governor to effectively control policy at a State school of learning, by and through his appointees to the Board of Regents. While this in and of itself doesn’t sound overly daunting, consider the following:

Consider an instructor teaching a course in a college the Governor appoints Regents to, and this instructor teaches philosophy contrary to the opinions of the Governor. The Governor finds this out, and wishes to see that this employee is somehow sanctioned; which he could theoretically do through his Regent appointees, because the Chief Executive of the State often has the power to “unappoint” individuals, as these individuals often serve at the pleasure of the Governor. The Regent could feel pressured to sanction the employee in some way, including not approving a new contract of which the employee is a part. Regardless of the issue, it gives one individual a LOT of power — that power being the Governor’s.

Without Tenure protections, teachers who teach “politically inconvenient” subjects or topics could find themselves in very serious trouble — and even fighting for their job. With this type of pressure in mind, is a teacher able to remain unbiased from external forces when building a lesson plan? Maybe so, maybe no.

Tenure helps deflect issues such as these — and allows the individual teacher to teach and conduct pedagogical methods or even politically or internally unpopular ideals, methods or philosophies, with a far diminished fear of retribution.  This allows the instructor to be influenced as little as possible by external forces, including shifting political views with the times, changes in administrative or executive leadership — both internal and external to the school, and other forces that drive education.

With these things in mind, what do you think?  Should teachers be as isolated as possible from forces outside the University or School System, or should they be directly held accountable — not the school?

I’ve always believed in holding the school accountable, so schools can error-correct themselves, particularly when it comes to more simple issues such as methodology, research or general practice.   [I’m not taking into account things such as gross dereliction, or showing up to work drunk, or other massive concerns where Tenure shouldn’t count as much, I’m assuming your average, every-day teacher].  Placing individual educators under the microscope of the public, or to forces outside the institution politicizes them — and that simple act causes a change in how the teacher will function, pure and simple.

Further Reading:

NYT: Tenure Firmly in Place, but Colleges Grow Wary of Lasting Commitments

Signs of Pre-Revolution France becoming alarmingly apparent in America…

Anonymous_-_Prise_de_la_Bastille

Storming of The Bastille by Jean-Pierre Houël

Continued income inequality… continued loss of political capital… wage stagnation… as these problems continue — they’ve alarmingly become worse — and with that, warning signs have begun to appear.

Back in the 18th Century, we had the French Revolution. Maybe you’ve heard of it. Jocularity aside, it was a time of political and social realignment in France that saw an end to established power and an economic and social liberalization that rapidly changed the face of the nation forever.

In a time where powerful oligarchies, the Church and economic elites ran the nation, the people themselves felt pushed out of the system, felt out of control and oppressed by the aforementioned elites. With them holding the political capital of the nation, the people turned against the ruling classes and gave rise to a liberal France, Napoleon Bonaparte and a shift in French history that’s seen and felt even today.

Fast forward to the United States of America in 2014. Still reeling from major political decisions such as Citizens United v. FEC and the Hobby Lobby case — where old power bases, such as religiously conservative institutions and “Old Money” continue to gain political capital in America; add to that stagnating wages, a growing income gap, a continued gap of benefits compared to the industrial/post-industrial world AND a continued rise in the wealth of the top 10% of America… and what do you have? You have a dangerous recipe for what sounds a lot like the French Revolution.

The New York Times published an op-ed of Steven Rattner, a Brown-educated presidential economic analyst, who illustrated that the income and wealth gap — already a chasm, continues to widen. The bottom 90% continue to lose as the top 10% continues to grow. Add to this mix the Supreme Court decisions such as Citizens United and the Hobby Lobby case, along with mounting conservative pressure in America to resist a liberalization of the economy and way of life — such as same-sex marriage, and other liberal reforms.

Add to that the recent economic problems — and the near-collapse of 2007, which wiped out many jobs, and replaced them with jobs that often paid less, and required more work.  An abysmal recovery, that — while gaining traction, is doing so at an anemic pace, while the upper echelons of society continue to reap the benefits.

Sound familiar?

Could it happen tomorrow? Not likely. Could it happen if some kind of realignment doesn’t happen and the bottom-half of society isn’t allowed to catch back up? I think so. There’s gasoline being poured in what’s already a spark-filled room. Could it ignite?

Further Reading/Watching:

NYTimes Op-Ed: Rattner:
http://www.nytimes.com/2014/11/17/opinion/inequality-unbelievably-gets-worse.html

YouTube: Nick Hanauer: Warning to Plutocrats: http://www.ted.com/talks/nick_hanauer_beware_fellow_plutocrats_the_pitchforks_are_coming?language=en

The Average American Taxpayer pays… WHAT?

If you’re a taxpayer in the United States, you may find it interesting how much you actually pay to businesses and other interests you already pay money to…

Thanks to some compiling by Moyers & Company, and a couple of other sources; I’ve put together a list:

– A policy analysis from the Cato Institute from 2012 shows that the United States Federal Government loses about $100 Billion a year to corporate subsidy, on everything from energy, to the food and housing industries.  With the methodology of 115 million families, that’s over $800 a year.

– The State and Local Governments themselves are different picture.  The New York Times ran an investigation that determined that State and Local (i.e., the County and City/Town level) gave on average $80 Billion.   That adds up to be almost $700 per year.

– Retirement Banking Fees are another hefty loss for taxpayers — on average costing over $350 per year; which assumes a 1% management fee per year of one’s retirement fund, and a middle-range percentile retirement fund amount as cited by the Economic Policy Institute was assumed to be about $35,000.

– A report by the International Monetary Fund reports that over $83 Billion winds up in interest payments on loans and banking.  That accounts to $722 per year.  A further sobering fact: the five wealthiest banks in the world, JPMorganChase, Bank of America, Citigroup, Wells Fargo and Goldman Sachs account for THREE QUARTERS of these subsidies!

– Overpriced Medications were a surprise to me on this list — while the notion itself was not, the amount certainly was.  A study conducted by the Center for Economic and Policy Research found that US drug patent monopolies raises the price of prescription medications in the US by over $270 Billion per year!  That translates to over $2000 per year.

– $870 per year goes to corporate tax subsidies, which total about $100 Billion per year, as mentioned by The Tax Foundation.  This includes everything from depreciation, and even experimental tax credits.

– Corporate Tax havens are a very serious problem.  Indeed, the US Public Interest Research Group found that the average taxpayer family paid $1231 per year to offset the losses by those [such as large banks and wealthy individuals] who offshore their monies to avoid taxation.

According to my calculations, that’s $4873 PER YEAR.  Almost five thousand dollars; assuming an average income of about $50,000.

Consider these numbers, when one looks at what they pay out for social programs:

The Examiner released some information in 2012 about what Americans pay in social programs, such things as Education, etc.  A complete list can be found at that link, but leaving out the costs of Defense [as the Military Contract Industry is another racket in and of itself…], the costs turned out to be LESS than $500 PER YEAR.  This accounts for everything including Veterans Benefits spending, Housing, SSI, and even things like our contributions to the Railroad Retirement Fund!

…who should you *really* be mad at when it comes to who can’t afford what?  Where *IS* the “Big Government,” really?  I’ll let you decide.

I freely admit, I’ve abridged *some* information — mostly, related to Defense in Social Spending, but that, to me, doesn’t count…  and even then, admittedly, is only another $250 per year.  I also admit, I rounded *UP* on those figures — so the *actual* costs for Social Programs, are ACTUALLY a little lower.   But I’m a fair guy.

All of a sudden, the political cartoon above isn’t so ridiculous, is it?

I want to especially thank Moyers & Co., and Paul Buchheit for their work on compiling some of this data.

China shields North Korea from reports, citing them “divorced from reality.”

Having not posted recently, I figured this was as good a topic as any to cover…

The People’s Republic of China, through its representative in China’s Mission in Geneva, said of a UN Report on Human Rights abuses in North Korea; that the reports of Human Rights abuses in the Democratic People’s Republic of Korea are “divorced from reality,” placing themselves in the way as a shield to the atrocities reported of North Korea, particularly their prison camps.

The report itself, made by a panel of jurists commissioned by the United Nations, specifically pointed to reports from political prison camps; and indeed, by those fortunate few who have escaped and are able to give eyewitness [and, further, often physical evidence] accounts to the regimes tactics of political imprisonment.

The government of the DPRK has stated that the reports are “a fabrication by hostile forces,” the standard-issue rhetoric when North Korea speaks in relation to critical statements made of it.

By Beijing’s willful “shielding” of North Korea’s human rights abuses, it makes one wonder if they may not take further action to shield their ally — and how far they may go to do so.

Further Reading:
UN Report on North Korean Human Rights

Russian Military lands in Ukraine… What now?

The Ukrainian President has been removed from office.

Former Prime Minister [and oligarch?] Yulia Tymoshenko has been released from prison.

…and Russia has begun an armed invasion.

Those are the images seen from the Ukrainian Crimean Peninsula today — Russian Spetsnaz gunships landing in civilian airports, Russian soldiers crossing the border on foot, and reports of telecommunications sabotage.

These events happening in just a matter of hours all begs the question: what’s next for the former Soviet republic?

Eurasian Union compared to the European Union

Eurasian Union compared to the European Union

With the so-called Customs Union of Belarus, Kazakhstan and Russia, as well as Russian Chairman President Vladimir Putin’s brainchild of the Eurasian Union, which is billed as an European Union-answer to post-Soviet states; to which its own stated policy seems to be more a 21st century answer to the USSR than another EU — this apparent military takeover of a pro-West/pro-European Union nation seems to be more a politically self-serving move for Putin than an allied military entering to assist a nation to restore order.

General Wesley Clark, former Supreme Commander of NATO

General Wesley Clark, former Supreme Commander of NATO

Former NATO Supreme Commander General Wesley Clark states this is “an armed invasion.”  Ukraine’s Ambassador to the UN has said that his nation is prepared to defend itself, and urged the UN to support it.  This isn’t a nation who’s “friend” is entering to “assist” the government in Kiev.

So… what now?

An upcoming Constitutional Crisis… Same-sex Marriage.

I had an exam in a State and Local Government class where we were asked about the “Full Faith and Credit Clause” of the United States Constitution.  I see a very big crisis coming in the future with Article IV here, very soon…  What do you think? Continue reading