Awww, isn’t that just about the cutest thing you ever did see! The Counselor serves me an After School Special, promoting legality over justice. When the law supports and empowers justice, it is good, when it does not, its just another brick in the wall. And so are you.
I cannot reach through the monitor to pinch your adorable little cheek. Would you do that for me? Thanks.
I’m not storyteller0910, but speaking for myself, I say “True.”
I don’t want a robot on the bench. Justice should be blind, but not to the circumstances of the case, and not to the fact that everyone is a human being with feelings, loved ones, and attempts at rationality. The “blindness” just means that wealth, power, and status doesn’t matter, not to deny our humanity.
If we just replace the human judge with a robot that only looks at the letter of the law, then we lose out on any compassion that can be done when the law is enacted. This didn’t even happen in the Judea of old; the rabbis and scholars saw all the rules that led to death, and were horrified. They rationalized and twisted the words so that it was really, really hard to kill, even if the letter of the law was for it, because that was the compassionate and humane thing to do.
If we throw away what makes us human, and just go by the letter of the law, that’s not a land I want to live in. The law has to be harsh, at times, because some people advocate for it, or the wrong people get to write it. But when it comes down to brass tacks, and the situation plays out right in front of you, I hope for compassion.
This is too far out for a bet to make sense. My ballpark estimate is 2022 at the earliest, but it could be at any indeterminate time after that depending on how many times Dems allow SCOTUS to strike down their laws based on bullshit legal rationales.
STILL, certain things would constitute an immediate Court-packing response. The big, most glaringly obvious one would be if SCOTUS declares Medicare-for-All unconstitutional, which, would they? John Roberts obviously doesn’t want to turn his Court into a sea of hacks, but if Trump replaces any more Justices it may not be Roberts’ choice to make.
We might get there during the Trump administration depending on whether the Court strikes down the ACA’s preexisting conditions protections based on the spectacularly bullshit Texas et al lawsuit that the Trump administration has tethered itself to.
Counterpoint: when you arm judges with that kind of freedom, what happens when five of them are on the Supreme Court and they say, “My compassion for the deaths of unborn children demands that I act?”
In other words: when the judges are confined to the written law, then we, the people, control outcomes through elections. But when lifetime-appointed judges are granted the norm of using their personal version of compassion to create new social policy, what is your response when you don’t like the results?
Vote for people that will nominate “better” judges.
It is not as if whether they follow what you envision as the proper rule of the judiciary has any impact on whether they continue to be judges.
Judges will be chosen because they will further the agenda of the party that chooses them. Either way will justify their interpretations, but in the end, they don’t even really have to do that.
I like to imagine that the agenda of my party is to seat power in the electorate, not the judiciary.
Recent events have shaken my belief in other aspects of my party, but …
Apparently, the majority of the judges involved would agree with ME. …
Neil Gorsuch and the “Frozen Trucker”
The judge’s infamous dissent reveals he may not have the temperament to serve on the Supreme Court.
I have tried to be balanced in reviewing Judge Neil Gorsuch’s record. In a post right after his nomination, I called his decision criticizing “Chevron deference” (Gutierrez-Brizuela v. Lynch) brilliant, a thorough and deep defense of judges deciding “what the law is” rather than deferring to agency officials. His opinion in TransAm Trucking v. Administrative Review Board, though, exposes a big hole in Gorsuch’s anti-Chevron theory, showing that judges can abuse statutory interpretation just as badly as bureaucrats. Gorsuch’s opinion in what’s known as the “frozen trucker” case also demonstrates an arrogant and cold judicial personality. I have read very few modern opinions that were more callously written than Gorsuch’s TransAm dissent.
Here are the basic facts. Alphonse Maddin was a truck driver for TransAm. Late on a January night in temperatures below zero, he discovered that his trailer’s brakes had locked up due to the cold weather. (The truck itself could drive but not when attached to the trailer). He called TransAm’s road service for help at 11:17 p.m., and then discovered that the truck cabin’s heat was broken. He fell asleep and woke up two hours later with a numb torso. Maddin also could not feel his feet. He called the road service again, and they told him to “hang in there” despite the life-threatening conditions. He waited about 30 more minutes before unhitching the broken trailer. Although his supervisor ordered him to stay, Maddin decided to drive off with the truck after almost three hours in the subzero cold. A service truck did arrive 15 minutes after he left, but it’s hard to blame him for deciding not to risk his life. It’s amazing he waited so long at all.
TransAm fired Maddin for abandoning his trailer. Maddin filed a complaint with the Occupational Safety and Health Administration, an agency of the Department of Labor. He claimed that TransAm had violated the whistleblower part of the Surface Transportation Assistance Act, which prohibits an employer from firing an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The agency concluded that he had indeed been fired for refusing to operate his vehicle, and that he had a reasonable apprehension of danger.
Here’s where we get to the legal dispute. TransAm argued that Maddin did operate his truck, so he was not covered by the text of the statute. In the appeal to Gorsuch’s panel (three judges on the 10th U.S. Circuit Court of appeals), two judges applied a rule called “Chevron deference,” which means that if a statute is ambiguous, and if Congress delegated interpretive power to an agency, then courts must defer to any reasonable interpretation by the agency. The statute did not define the word operate. The agency decided the word operate includes not only driving but “other uses of a vehicle when it is within the control of the employee.” In other cases, the agency had decided that partially unloading an overweight trailer and driving counted as a “refusal to operate,” because it was a refusal to operate in the directed manner. The majority of the panel also noted that Congress passed the statute so employees would be protected for bringing safety risks to their employers’ attention. Considering all of those factors, the majority found the agency’s interpretation of the ambiguous statute was reasonable.
Now, Gorsuch has already told the world he does not believe in Chevron deference. Given that, he was welcome to entertain a better interpretation than the agency’s. For example, instead of focusing on the word operate, one could conclude that the word vehicle is open to interpretation—that the vehicle here was the truck and trailer together. (Legal scholars have noted the ambiguity of the word vehicle for decades via the famous “No Vehicles in the Park” example.) Thus, Maddin refused to operate his vehicle—the truck and trailer—and only operated the truck. The majority probably did not discuss this alternative interpretation because they were engaged in Chevron deference, and deferring to the agency means focusing on its stated interpretation.
Instead of considering such possibilities, Gorsuch concluded that the statute did not protect Maddin from his firing and that he did not find the word operate ambiguous at all, declaring that no possible meaning beyond drive is reasonable. Since Maddin drove his truck, Gorsuch agreed with TransAm that he should not be protected by the whistleblower statute. In a long footnote to its opinion, the majority writes that Gorsuch has decided to change the text of the law from operate to drive, and they quote Gorsuch back to him from oral argument: “Our job isn’t to legislate and add new words that aren’t present in the statute.”
In addition to Gorsuch’s rewriting of the statute with his preferred narrower term, and in addition to his refusal to entertain his own interpretationn (which would be fair from an anti-Chevron judge), Gorsuch’s wording was dismissive of Maddin’s dangerous situation
“Seven different judges heard my case — one of those judges found against me,” Maddin said. “That judge was Neil Gorsuch.”
Senate Minority Leader Charles E. Schumer (D-N.Y.) said cases such as Maddin’s show Gorsuch “prefers CEOs over truck drivers, executives over employers, and corporations over consumers.”
The facts in Maddin’s case are not in dispute. Hauling a load along Interstate 88 in Illinois for a Kansas-based trucking company, Maddin missed a refueling stop and pulled to the side of the road to decide his next step. In the subzero weather, the brakes on his trailer froze. He radioed for help, and the dispatcher told him to stay put and that a repair truck would come.
Maddin said he awoke hours later in the unheated truck cab, numb and with his speech slurred. Ignoring orders, he unhooked the truck from the trailer and drove off to look for help. He turned around when the repair truck came.
Later he was fired.
An administrative law judge and a review board of the Labor Department concluded Maddin was fired in violation of whistleblower provisions. They protect an employee who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”
Gorsuch’s two colleagues on the appeals court panel agreed Maddin’s actions were consistent with “refusing to operate” his truck in a dangerous way.
But Gorsuch dissented. “The trucker in this case wasn’t fired for refusing to operate his vehicle,” Gorsuch wrote. Perhaps TransAm should not have fired him, Gorsuch said, but Maddin’s only legally protected option was to sit and wait.
So yeah, fuck Gorsuch.
U.S. Constitution, Article I, Section 5, Clause 1:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
If Senate Democrats orchestrated a walkout, the Senate would only be able to reach 50 members (because Senator McCain is ill) which is less than “a majority,” and therefore would be unable to “do business” (e.g., act on nominations).
There will always be power in the judiciary. There are laws that conflict with each other, and there is also a 200+ year old document that they need to be able to fit into.
There will be different ways of interpreting that document. You can’t actually call it textualism when it requires interpretation to get the “textual” result. It’s just interpreting it, and putting a label on it to claim that you interpreted it “correctly” as opposed to those other “activists” that interpreted it differently.
For instance, going back to Roe v Wade, conservatives say that the court made up out of whole cloth the right of a woman to get an abortion, while I see it the other way, in that the court limited the power of an over reaching the government to intrude into the private lives of its constituents.
Both interpretations could be correct, but I see the one that lessens govt intrusion into people’s private lives as being a better interpretation. YMOV[sup]1[/sup], and YAAL[sup]2[/sup], so I’m sure that you can come up with lots of wordy reasons that will convince you and others who agree with you that the interpretation that puts the govt into a position between a person and their doctor to be the right one, I’m sure that if I dug into it, I could even understand your rationalization of the legality of that interpretation.
I would still vote for people who would put up justices that affirm a woman’s right to bodily autonomy, no matter how much you argue that she should be legally required to be a fetal incubator.
The Constitution as a suicide pact.
Trump is at the center of a shit storm, involving criminal charges and indictments. There is more than enough reason to believe there is more, worse stuff to be made public as we go along, including Trump’s own money laundering, bribes, and conspiracy to commit treason. Not just “obstruction”. At this point, “obstruction” would be the low hanging fruit and to let it go at that is a cheap cop out.
Allowing him to pick the judges who might possibly decide his fate, is a gross conflict of interest. It is Trump, the GOP, and the “base” saying fuck the law, we make our own.
If a justice is confirmed before election day, then the Republicans lose a major rallying cry that could otherwise be used to get their voters to the polls.
‘The Democrats are trying to keep your beloved President from seating the Justice of his choice! Come out to vote and show them who’s in charge!’…and so on.
Then, after the results—with the GOP vote duly gotten out—the GOP Senate can confirm anyone. (Lame duck as they may be.) Maybe someone from the Federalist Society list, as many are assuming. But then again, maybe Don Jr., Jared, or Ivanka. They can be counted upon to vote to keep Daddy safe!
And since the election will be over and done with, no congressional Republicans will be tempted to voice objections in order to look “reasonable” to voters.
“Reasonable” be damned! Let’s stop pretending the USA isn’t, now, a dynastic autocracy!
Gorsuch’s two colleagues, faced with a choice of reading the law neutrally or reading in a way to side with an unjustly-fired trucker, chose to side with the trucker.
But Gorsuch was, in my view, correctly and neutrally reading the law. The Chevron evaluation should have stopped at its first prong; the statute did speak plainly to the question at hand.
His colleagues agree with you, but they do so because they prioritized what they viewed as the right result – helping a poor trucker who was fired for bad reasons. And to do this, they took pains to distinguish language in a way that, in all fairness, is not neutral.
The trucker claimed he was fired for “refusing to operate” an unsafe vehicle.
But that’s not why he was fired. He was fired for disconnecting the trailer and driving away. The trailer was the problem: the brake lines for the trailer had frozen.
So while it’s true, in a sense, that he “refused to operate,” the unsafe trailer, that’s not why he was fired. He was fired because he was ordered to stay in the truck until repair crews arrived. He was afraid if he did that he’d freeze. So he disobeyed that order, disconnected the truck, and drove away.
That’s a very sensible thing for trucker Maddin to have done, but it in no real way can be neutrally described as “refusing to operate.” He was told to stay, and he left.
Why was “refusal to operate,” so important? Because the Surface Transportation Assistance Act has a whistleblower provision that immunizes from firing someone who refuses to operate unsafe equipment. There was no other law that might save this guy’s job.
So two judges weighed the equities, and decided to stretch “refused to operate,” to cover driving away against orders to stay, because it was done to avoid freezing.
See the problem here? It’s a horrible dilemma to face, but that dilemma is not solved by the Surface Transportation Assistance Act. The STAA does many good things, but one thing it does not do is save a guy’s job if he’s fired for ignoring orders to stay in sub-zero weather. That’s just not one of its provisions.
Gorsuch decided the case on the text of the law. Murphy and McHugh decided it based on their idea of justice, bending the law to make the case come out “fairly.”
Fun fact. One of Trump’s facilitators of shady loans through Deutsche Bank isJustin Kennedy, son of Anthony Kennedy.
They say New Orleans is a marvelous environment for coincidence, but it’s got nothing on the White House these days.
Wow, you’re a fucking scumbag and no mistake. Get the hell out of my galaxy.
The Rules of the Senate require that a quorum is presumed unless a senator suggests the absence of a quorum. To do that, he must have the floor.
If a single Democrat remains on the floor to suggest the absence of a quorum, then there would be 51 senators present. And if they all walk out, no one will remain to raise the absence of a quorum.
Insist again that you get to define justice, then tell me how that’s working out in the real world.
Go ahead. I’ll wait.
Nothing seems to be changing.
Hmmmm.
It’s fascinating how we worship a Constitution that has already failed once and is probably going to fail again in our lifetimes.
While you’re waiting, perhaps you could tell me which members of my family the government should allow to die for the sake of not upsetting you by involving itself in health care. The first time I asked you, you bolted like a coward. The second time you acted like you didn’t remember your own ideological beliefs.
I, however, do. Here’s the post in question.
https://boards.straightdope.com/sdmb/showpost.php?p=20567336&postcount=169
So, who gets to die so you aren’t upset that the government isn’t overstepping what you consider its bounds.