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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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

Americans with Ebola Released From Hospital… But…

The fact that the Americans who contracted Ebola and returned to the United States for treatment — and have now been released from the hospital after apparently recovering should be a cause for celebration. We now have a potential cure for such a devastating disease.

However, there are those who have said that it took Americans to get sick to come up with a cure for the disease. To a point, that’s kinda true — however…

The Scientific Method

The Scientific Method

As a scientist myself [admittedly in my own crack-pot, not-yet-a-REAL-doctor, amateur, Emmett-Brown kinda way], there’s one thing drilled into the psyche of every scientist: be it a surgeon, a researcher, a social scientist or a biologist: the Scientific Method. “Real” research takes time, indeed, often a lifetime’s worth of testing, re-testing, hypothesizing, re-hypothesizing, failures, and successes, before the fruit can be borne. Indeed, Albert Einstein’s own “Great work” which he died writing, is still being written even now by his successors! [That being a revision of general relativity, essentially.]

It takes a lot of work, a lot of time and a lot of effort to come up with true scientific data, particularly when it comes to that of real scientific progress, as opposed to an undergraduate paper being written the night before its due.

It *did* take Americans getting sick to get approval for the drug, “ZMapp” to be released, it would seem — but… it’s still untested. Its side effects, if any, are unknown. Could Ebola be completely wiped out of the body by the drug? Or, could the treatment be similar to how HIV is treated: where it can be functionally eliminated, but still “hide” in the body somewhere, and when treatment stops, the virus gains a foothold on you again. We simply don’t know.

The FDA’s “Compassionate Use” protocol allowed those who knew full-well the risks involved, indeed, scholars in the area themselves, to take part in treatment, knowing that further down the road could bring more problems. What if there is some side-effect that the medication has that winds up causing problems down the road? Could it be an unknown carcinogen? Could it degenerate the brain? That’s what painstaking research and the scientific method is all about — and that’s exactly why it takes years for drugs to be made available for everyone.

Is the system perfect? Of course not. Do “bad drugs” still slip through the system? Of course. But its BECAUSE of the system of test, re-test, test again, test repeating and re-testing the test results that people don’t die from new drugs every day. I herald the day that these people were allowed to go home and continue their recovery, indeed, I celebrate it — Ebola DIDN’T lose two of its most prominent soldiers fighting against it, and indeed, I’m willing to bet that these individuals may find a renewed determination in fighting this terrible disease because of their experience. But, it doesn’t mean that Americans get “preferential” treatment just-because. The rest of the world isn’t a petri dish for the American way of life. We care too — which is exactly why untested drugs don’t go to just “anyone.”

For Behold: The power of political incumbency?

Cynthia Brim, a Cook County, Illinois judge was suspended in 2012, after a series of bizarre incidents wound up having her declared “legally insane.”

cynthia-brim

Judge Cynthia Brim

While the board investigating this incident (a panel made of two judges and two civilians) continue to investigate and determine her plausibility to stay on the bench, not only is she continuing to collect her nearly $200,000 a year salary while on suspension — she’s since won RE-election to the bench.

Reportedly having been hospitalized for mental-related illnesses nine times since 1994, including after having gone catatonic during an official proceeding, the major problem came after she assaulted two Deputy Sheriffs; one was struck by her, and another was thrown a set of keys in an allegedly dangerous manner.

While her case continues to be evaluated, she continues to serve as a suspended judge — meaning she takes no cases, but receives all the pay and honors of a member of the bench; and indeed, has since been RE-elected.

Does this say something about the power of political incumbency?   I encourage you to do your own research and find out.

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

Former Ukraine PM released from prison, a new beginning?

The embattled former Ukrainian Prime Minister, Yulia Tymoshenko, was released from prison in the middle of what appears to be a monumental shift in government in the former Soviet republic.

A stark contrast from her usual publicity photos pre-prison, the wheelchair-bound former head of government broke down in tears when she announced that her countrymen were “heroes, [and are] the best of Ukraine.”

No stranger to political revolution, the then-recently defended Ph.D. student was instrumental in bringing about the Orange Revolution, a political shift that brought her and her political coalition, “Bloc Yulia,” to power in Ukraine, becoming Prime Minister, and Forbes-rated third most powerful woman in the world, behind then-Secretary of State Condoleezza Rice and Communist China’s Vice Premier Wu Yi.

With the release of Tymoshenko, the sitting President’s effective political enemy, does this signal a true shift of power within the former Soviet state; or just a simple placation move while the President figures out his next move from a Russia-bordering stronghold?

Michigan Supreme Court, including the disgraced former Judge Diane Hathaway

Should Court Judges be elected… or appointed?

Image

A man insults Broward County Judge John Hurley after an unfavorable bond decision, to which he has an astonished look upon his face, who later handed down two consecutive 60-day contempt of court convictions.  Judge Hurley is an elected official.

A question that’s recently been raised to me is:

“Why do we ELECT judges as opposed to having them appointed?”

I’ve always been extremely uncomfortable with elected judges; particularly with educational or other professional credentials required simply to get on the ballot; and the argument is simple: elected judges become constrained and influenced by the political process.

This is a contrast to an appointed judge — someone who is selected by an executive or other governing body, to some term, and is not subject to the political or partisan process otherwise.

With this in mind, I think it’s reasonable to conclude that Judges may find themselves rendering politically-biased and motivated decisions and findings if they are subject to an election.  Indeed, this is evidenced in several case studies, one in particular by Loyola Law Professor Berdejô and Berkley Professor of Business Noam Yuchtman found that in Washington State alone, judges who were up for re-election gave considerably harsher sentences in the time leading up to their election compared to their appointed peers; a figure that sharply declined following their re-election.

Another issue to consider is one of judicial bias — not toward the people, as-such, but toward those who are funders, or otherwise their political “heavyweights.”  For example, the justices of the Michigan State Supreme Court enjoy election, and while on the ballot as non-partison, the individuals are nominated for the ballot by the party.  This not only lends to possible bias, but even “judicial gerrymandering.”  All it would take is one “bought” justice to walk to the offices of all the others and say “Look, I’m facing a re-election battle, this guy could pull out on me if we rule unfavorably against him.”

Possible?

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

Republicans picking back up in 2014 Polls

It’s true that Democrats tend to blow Midterm elections — for some goofy reason.  It’s historically true, anyway, particularly in the last 15 years.

However, that having been said, with this being an early poll, I don’t think it really *matters,* because polls are a flash in the pan, of “that moment,” just like even elections are.

The CNN/ORC poll also shows that Republicans seem to be more enthusiastic about the upcoming elections than Democrats — however, I think this is also a sign of the historical Democratic midterm malaise that’s become true in recent history.

Could a balance of power tip be coming soon?  Sure, things go in cycles, like anything else.  However, I think the Government Shutdown and the blunders of the cronyism of the Bush Administration will still weigh on the minds of the voters when they go to the polls.  Sure, Obamacare’s roll out was lackluster — but it’s working now; and people are getting insured.  Overall, while the Obama Administration’s approval rating has taken a beating, overall, he’s still getting the job done, and young people still respect him as the Commander-in-Chief, regardless of what SuperPAC attack ads say.

What do you think?