I mean really, the Republicans can do away with the hearing all together if they wanted to at this point. Nuke the filibuster, and simply hold the vote. The next opening comes up and Trump could nominate Pryor or someone more conservative, and screw the pretense of a hearing at all, just have a vote and be done with the theater show. I don’t see anything that prevents that legally.
And you reached this conclusion by reading the specific texts of the laws under which these drunk individuals were convicted, did you?
In my state, one cannot be convicted of drunk driving merely by sitting drunk in a parked car. To sustain a conviction, the Commonwealth must show that the intoxicated person was:
[ul]
[li]seated behind the steering wheel of a motor vehicle;[/li][li]on a public roadway;[/li][li]with the key inserted into the ignition switch of the vehicle.[/li][/ul]
See Enriquez v. Commonwealth, 722 S.E.2d 252 (2012); see also convictions sustained following cases (case cites on request; all cited in Enriquez): Gallagher v. Commonwealth, drunk defendant found sitting at the steering wheel of a car, which was stuck in a ditch with the motor running, the car in gear, and a rear wheel spinning; Nicolls v. Commonwealth, drunk defendant found slumped over steering wheel of car, which was parked on hard surface of road with motor running, high beam lights on, and heater in operation; Williams v. City of Petersburg, drunk defendant found slumped over steering wheel of vehicle on a paved parking lot with motor running, headlights not on, car doors closed and locked; Lyons v. City of Petersburg, drunk defendant found seated behind steering wheel of car but made no statement about his striking of an unoccupied parked car in the rear and pushing it 25 to 30 feet; Nelson v. Commonwealth, drunk defendant found hunched over in the driver’s seat of a vehicle parked on a cul-de-sac with the radio playing and the ignition key in an “on or accessory position”); Rix v. Commonwealth, drunk defendant exchanged seats with driver and was found by police sitting behind the steering wheel with keys in the ignition and the engine running.
Note that the conviction was overturned in the case of * Overbee v. Commonwealth*, drunk defendant found standing in front of a pickup truck with the hood up, engine not running, and key not in ignition.
You see the distinction? If the standard you propose is followed, he can stay in the cab without the key in the ignition, or he could unhook the tractor and drive five feet away instead of leaving the scene, and not get fired.
The truck driver was on a public roadway. I’m sure he was expected to have his key in the ignition, requiring heat and a radio.
So how big is the gap between Garland and Gorsuch? Like a Kennedy vs. a Scalia?
Well, if we actually do ALL believe that, it follows logically that Congress, being a subset of “all of us”, would have passed a law preventing this firing had it occurred to them, so what rational reason could there be for objecting to a judge ruling in accordance with this universal belief? If the legislature specifically meant to permit employers to fire employees for taking life-saving actions in emergencies, they can pass a law to that effect, and only this one guy will have gotten away with doing what anyone with any common sense would have done in the situation. If, as seems more likely, no politician wants to take the side of this trucking company, justice will have been served without having to waste the legislature’s time with trivialities.
It appears to me that “originalist” judicial philosophy is a cruel and cold-hearted school of thought which delights in using hyperliteralist, hair-splitting arguments in order to smugly announce that it regrettably finds itself ethically obligated to support an outcome which it acknowledges to be morally abhorrent.
The time to object to judicial “activism” is when it affects matters that we DON’T all agree about. I would agree with you, for instance, that Roe and Oberkfell are bad law; neither the literal wording nor any reasonable inference about the intention of the authors supports the argument that the Fourteenth Amendment enshrines the right to have access to a particular medical procedure or to marry a particular person. Although I am personally strongly in favor of abortion rights and marriage equality, these are highly controversial questions, on which it is reasonable to assume that a legislature’s failure to change the status quo is a deliberate decision rather than an oversight.
Judges shouldn’t issue sweeping rulings establishing new rights for large groups of people, no matter how strongly they feel that a particular ruling is just. But on narrow rulings that affect a particular person and will set a precedent which might be applied once every decade or so in the future, they should interpret the law in accordance with the principles of humanity and common sense. Gorsuch’s failure to do that in this case is a valid, though certainly not decisive, argument against his nomination.
My apologies. It’s just that the Washington Post cites different research that comes to a similar conclusion, based this time on the actual decisions handed down.
And at the same time produce decision after decision that is absolutely shit for the American people. I’m sorry, when I think of major right-wing victories in the courts lately, you know what I think of? Citizens United, what could have happened if Obamacare was overruled over a basic oversight that ignored what the person drafting the law had actually meant, what could have happened if Obergfell went the other way, what could happen if we no longer interpreted Title IX to talk about sexual and gender identity discrimination. But hey, you don’t have to care about that shit. You work a high-end, well-paying job that probably gets decent benefits or at least makes enough money to cover your health care, you clearly value “have a conservative on the court” over “have sane governance”, you’re straight, and you’re cisgender. So none of this shit really has to matter to you.
So what?
Expected by whom?
What the hell are you saying, specifically? Explain how this statement ties into 49 U.S.C. § 31105(a)(1)(B). Or whatever argument you are making?
He was on a public roadway. Yes.
He needed the key in the ignition to get heat. So why didn’t he just stay there, idling, getting his heat and radio, and wait? Then he doesn’t get fired.
He got fired because he disconnected his trailer and drove away.
If he does not drive away, he does not get fired.
Now, please explain what you mean.
It’s not a power of Congress, for one thing. Congress has power only where the Constitution grants it, as opposed to states, which have plenary legislative power.
And more generally, I don’t want judges who feel empowered to create new law to sustain their opinion of “universal belief.” Congress, or any legislature, speaks through its written laws, not through a judge’s opinion of what they meant to do, but did not do.
Congress has limited power. They can’t legislate in any area they please.
The problem is that granting them the power you mention is simply a step to surrendering the power to create new rights for large groups of people. After all, if it’s good and just to help one person, then surely its gooder and juster to help ten. And ubergood and superjust to help 100.
I was born into poverty and grew up poor as the child of a Salvadoran immigrant. And when I was poor and concerned about paying for basics like food, I held similar opinions to the ones I have now. I certainly envied the people with good jobs. But I did not believe that the country owed me court decisions that would assist me regardless of what the written law said.
I’ve addressed this at some length in post #247. Let me know if there’s something else you’re asking.
Lot of Republican smugness on display here. Note that, if any of your absurd examples had in fact happened, Gorusch’s reasoning would not apply, and the statute would protect the employee. Remember, Gorusch’s argument is that by driving he vehicle, he was in fact “operating”, so he wasn’t protected by a statute that protects for “refusing to operate”.
Addressing your final question (which I wouldn’t need to do if you had in fact read the opinion as you claim): “operate” is not defined in the statute. One reasonable interpretation of “operate” is “control the functioning of”. The employee refused to operate the trailer in that he refused to remain in control of the trailer while waiting for its repair.
This is all explicitly spelled out in footnote 4 of the opinion itself. I trust the issue is now closed.
Looking at some more recent posts of yours, Bricker, I’m wondering: did you overlook the fact that the heater in the truck driver’s cab was not functioning? He could not have “unhooked the trailer and driven five feet away” and changed his circumstances in any material respect. The fact is that he was in his cab, with the motor running, and was freezing, to the point that he couldn’t feet his feet, his chest was numb, and his speech was growing slurred.
As I said yesterday, Gorsuch’s confirmation is 100% guaranteed:
McCain, when asked about Dem filibuster: " “I think we’ll address it when it happens. None of us want to do it, but we’re going to confirm Gorsuch.”
Lindsey Graham: “Whatever it takes to get him on the court, I will do.”
If Democrats filibuster, the filibuster goes away. Guaranteed.
Staying in the cab was a dangerous instruction. The heater wasn’t working properly and he’d gone numb from following that order for three hours.
I think so too. Though I read on The Hill where some Democrats speculated that the Republicans might not be able to pull it off.
It’s a bit ironic that Democratic resolve here is being stiffened by the specter of the Tea Party. Democrats as well as Republicans have learned the lessons of what can happen to comfortable incumbents in relatively safe districts if they get primaried by an enraged base.
So what?
Again, single sentences are meaningless. It was a dangerous thing to do to remain in the cab, so he drove away in the cab?
Let me ask you a more basic question.
Do you understand that if you work for me, and I ask you to return books I borrowed to the library, and you arrive at the library only to discover a hostage situation underway, a burning car near the front door, and live anthrax spores released into the air, and you decide to not enter the danger area, I can legally fire you?
No. It’s not closed. Operate cannot mean “remain in the vicinity of.” It’s true he refused to “control the functioning of” the trailer. Yes. Good. No problems there.
But that’s not why he was fired. He was fired for LEAVING.
He refused to control the functioning of the trailer, and his job was safe. Then he left it and went away from it. That’s the action that got him fired.
Lots of Deomcratic “words mean anything they need to if it helps the helpless” on display here.
In my opinion.
No.
But what does “changing his material circumstances” have to do with the law in play here? Your argument, unstated, is, “Do I realize that the company was asking him to choose between getting fired and freezing to death?”
Yes. I do.
Now tell me what law the company violated by doing that. The underlying message here is, “Because the company acted so poorly, we’ll contort the law to achieve justice.”
Sorry. I prefer to ask the legislature to fix the law. And for all I know, there are a host of civil actions the company’s conduct could trigger. What it should NOT trigger is 49 U.S.C. § 31105(a)(1)(B)(ii) refusal to operate protection.
Turn it around. Suppose we were discussing identical circumstances, but the law in question said that refusal to operate an assigned vehicle was a permissible termination offense. And the driver said, contesting his firing, “I didn’t refuse to operate – I drove the only part of the equipment I safely could. And I did it to avoid freezing.”
What would you say then? Would you still contend that “operate” has the same broad meaning?
I am very confident the answer is no. You’d indignantly (and this time correctly) point out that he did operate the tractor cab. Right?
Staying in the parked cab was a dangerous order. He feared freezing to death if he stayed and guarded the traiker as ordered. Driving 5 feet away wouldn’t have saved his life.
Yes, I agree.
SO WHAT??
Do you understand that if you work for me, and I ask you to return books I borrowed to the library, and you arrive at the library only to discover a hostage situation underway, a burning car near the front door, and live anthrax spores released into the air, and you decide to not enter the danger area, I can legally fire you? That if I order you to go in and you don’t, I can fire you?
Yes or no?