A Pause for the Clause...Good Faith

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In light of the death of Supreme Court Justice Scalia, it is important to reflect on his role as well as his contributions on both sides of the fence. On the surface we see a staunch republican whose views might be directed by his political beliefs; dig a little deeper and some of his positions on SC decisions might surprise you. More on that later. What is more important to understand is the implication of the circumstances which surround this conundrum of the vacant seat that now exists in the Supreme Court.

Known for his fiery descents, if ever there were a scenario that explains away the division in congress right now and for the past eight years at a minimum, this is yet another one. “take care that the laws be faithfully executed.”

Mitch McConnell, Jr, to delay a nomination would be a failure to your constitutional obligation on the grounds of the evidence you publicly pronounced: "The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” (Facebook page Feb 12, 2016)

Chuck Grassley Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa),"has no plans to start up the confirmation process on his panel." accord to Politico.

"This president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda," Grassley said. "It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

The oath of office for congressional leaders includes the following: "I will well and faithfully discharge the duties of the office on which I am about to enter."  This would include maintaining the balance of Justices to the U.S. Supreme Court-- that number is currently nine; and unless modified by Congress, should remain at that number; it is not a personal choice but a congressional obligation.

Article I Sec. 2 of the U.S. Constitution states:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. Would this attribute of the Constitution exempt SCJ, when the very same doctrine later states the responsibility of the Supreme Court itself.

Can one honestly state that Justice Scalia, were he obligated to make a decision on whether President Obama had a responsibility to appoint a new Justice, if  one were  prematurely removed, that Justice Scalia, would argue against a nomination rather than President Obama's (or any other president) legal obligation to submit a nomination for replacement.

Constitutional Interpretation
More importantly under Article II Sec. 2 of the Constitution it states that: "... he 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."  There is neither precedence nor written law that states that the President should not at any time fill a vacancy of a Supreme Court seat. He in fact has an obligation to fill such a position immediately as the number of SCJ's is established by Congress under Article III Sec. I of the Constitution. Again nowhere in the Constitution does it state that there should be a delay in the nomination of a SCJ at any point in an administrations tenure.

As Politico reported "no Senate leader has ever asserted a right — and there is no precedent for a sitting president to hand over his power of high-court appointment at the request of any member of the legislative branch."

In an article from the Washington Post, Barnett states the following regarding the interpretation of the good faith clause:

He is executing the laws passed by Congress, which includes this discretion. If Congress doesn’t like this, it should change the law... He goes on to counter this statement, he once held by asserting in an example of a tenant who has a contractual fiduciary responsibility to their landlord based on a volume of business "... it would be bad faith for the tenant to refer the customer to the tenants other store for the purpose of avoiding the percentage lease¹.

This is a poor example of bad faith in the context of the good faith clause, as 1) POTUS is not pondering a decision so simple as a few revenue dollars in a lease agreement; as an authority on Constitutional law, he more than likely understands the gravity of this nomination 2) his contract comes with a moral obligation to a much wider audience i.e. citizens of the United States. And just as he has stated in the past that he could not show favoritism for people of his own race because he is representative of all citizens not solely his own ethnic group; it is a moral compass and obligation that goes beyond the dynamics of a 1 to 1 relationship-- such as that given in Barnett's example, a elementary oversight. Both the repercussions and expectations are exponentially more significant. Would you not say that a SCJ position influenced by his/er upbringing would render their decisions unfaithful? At which point do we then distinguish between experiential influence and moral obligation, and which persons are manipulated by those factors.

The Senate and House behavior in matters relative to advancing legislative action in the interest of the United States, borders on criminal.  Never should personal emotions be engaged or confused with the foundation of what the Constitution was built on-- morals and responsibilities.  For it is not possible to build a more perfect Union, without fully embracing its predecessor:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

As an originalist, the late Justice Scalia, would have encouraged a replacement, under a judicial obligation, were he around today to submit a decision.



1. Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution.

Victims and Vigilance Who is to Blame

This is just a surface analysis of the Trayvon Martin case.  While it provides some detailed references and questions, it is by no means comprehensive.  It is simply to state that each person with an opinion should do some research and think more critically about the circumstances surrounding this case.  Arguments can be made for both sides; it is a troubling case that will be studied for years to come.


There is a troubling culture in the United States-- violence.  From the outsiders perspective, the disparity in the level of imprisonment in the U.S. outweighs that of any developed nation.  The United States not only has the most prisoners among any developed nation, the United States has the highest prison population in the world (2009 International Studies for Prison Studies) with over 2 million individuals incarcerated.  So while we might not be able to compete for low wages in the functioning part of society, our prison population quite possibly offsets that factor through privatization of the prison systems.  Is there something wrong with this association?  Yes.

Who was following whom?  Who was carrying a gun?  Who ignored the police urging that he stay in his car?  Who thought that the other was one of "them," someone about to get a away with something? (Southern Poverty Law Review)

Currently with the debate regarding George Zimmerman acquittal of murder and or/ manslaughter of Travyon Martin, United States is once again facing its shadow that prevails over its glory-- events which occurred on the night of February 26, 2012.

Despite the strong bias one might feel in this case, it is important to look more deeply at some facts and issues surrounding this case.  It is the nature of humans especially in the U.S. to look only at what comes out in the news and other media sources; we also listen to public figureheads that are not quite as reliable as we would like them to be.  In situations such as this it is important to delve more deeply into the matter to arrive at some deductions and conclusions that offer a more accurate and reliable data conclusion.
At first glance it can be troubling to see the results of this Travon/ Zimmerman case, but there are some important factors and legal aspects to consider to think more critically.  So helpful at doing some surface analysis I considered the following:

1. defining the terms of the accusations in the case
2. understanding more about the case itself 
3. listening to the 911 call recordings
4. considering the timing of events
5. assessing the factors in the causes of action
6. reviewing the explanation of the laws regarding manslaughter and second degree murder

More alarming is the disproportionate number of people who are Black or Hispanic where the conviction rates and sentencing are off the chart when compared to their white counterparts.  Some data suggests that

Paul Barret of Business Weeks Politics and Policy laid out valid points regarding the case the first of which is that Zimmerman is guilty for pursuing his victim when he should have remained in his car as advised by law enforcement.  Had Zimmerman remained in his vehicle, the fact is Trayvon Martin would likely still be alive.

• According to the Sentencing Project's website, the rate of incarceration for white Connecticut residents in 2005 was 211 per 100,000 people; for black residents it was 2,532 per 100,000. 

Beyond that we must look at the law however fair or unfair it might appear.  Issues that would come up causing a verdict against plaintiff would be adequate provocation; withdrawal, .  Self defense is the easy low hanging fruit that we as observers would gnaw away at, but would our assessment be accurate?  From a bias perspective it is easy to say that a man with a gun could not possibly be defending himself against a teenage boy with no weapon; however, one the act of violence is initiated several other factors come into consideration.  Did the defendant attempt to remove himself from harm, or did Trayvon attempt to remove himself from harm recognizing that Zimmerman was drawing a weapon.  Additionally did his actions (the defendant) have any other purpose?  If Trayvon was intimidated (which is almost impossible to determine), he could easily have murdered Zimmerman if he felt his life were in jeopardy. 

Murder requires unlawful killing with "malice aforethought" (i.e., intent to kill, knowledge of death or unreasonably high risk of injury will result / “depraved heart”, or intent to commit a felony).   While Zimmerman could be culpable based on his intention of following the victim; it is difficult to state that his intent, based on his conversation with the 911 operator, was to "kill or commit a felony".  Under the "Substantial Step", penal code, Zimmermans decision to get out of his car and follow Martin, could be punishable by law if his intent was to commit a crime of murder.  The challenge to this fact is that he called the police, an action an individual with criminal intent would not likely carry out, unless she/ he had planned out such a crime.

Actus reus and mens rea both come into play here (i.e. the physical portion of the crime and the mental portion of the crime).  When Zimmerman got out of his vehicle we cannot with absolution determine that he made a mental decision to attack and kill Martin.  His physical behavior was not aggressive nor was his mental behavior that of someone who intended to kill an individual as mentioned above, it is not likely that one would call the police while intending to commit the crime of murder (which would essential seal their fate). 

What Does "...up to no good." Mean

There is much to be said however regarding Zimmerman's conversation with the 911 operator.  For example the language "I think he is up to no good", followed by "these assholes, they always get away." suggest a turning point in Zimmerman's behavior, from observer, to stalker.  Perhaps the prosecutors should have spent more time considering this angle.  At this point he is making a conscious decision to exercise prejudice in his actions.

What were Zimmerman's Actions 

Did Zimmerman use his gun to protect himself because of a perceived threat, or was he in control of his actions?  Because so little is truly understood about Zimmerman's actions, we cannot say whether he lost control of his abilities regarding he being the attacker (initiating the conflict) or the victim (i.e. Martin initiated the attack).  This makes this case more challenging.  The autopsy should have revealed more in terms of the struggle itself.

Drugs
THC levels and whatever amount of marijuana found in Martin's system or on his person are by no means rationale for mind altering responses.  

The 911 Recordings

If you listen to the 911 Operator recordings, you hear concerned residents calling (wikipedia files) in the event from where they stand, hear, and see, but you cannot conclusively say that the individual shouting for help is Trayvon Martin or Zimmerman, before hearing the assumed shot in the background.  Again, none of the witnesses stated that they actually saw a gun, but we can draw certain conclusions and testimony and collected evidence answers the weapons possession issue.  Law enforcement officers were also negligent for sending narcotics investigators rather than detectives to provide a more accurate assessment of the circumstances.  This would clearly work in Zimmerman's favor.  

The autopsy states that the gun was between 1-18 inches from Trayvon's chest.  There is a significant difference in this research.  One's actions at one 1 inch suggest a very different action that one's potential actions at 18 inches.  At 18 inches, the opportunity to offer a warning from a pursuant are much more likely to deter that pursuant if you have a gun.  At a range of one inch, it could be argued that there was a struggle and the firing of the gun was a result of that struggle.

The conversation Mr. Martin was having with his girlfriend moments before his death suggest that she was advising him to run, while simultaneously Zimmerman was speaking with police that Martin was on the run.  These two pieces of information clearly have very differing perspectives on what was occurring.  For Mr. Martin, he was being pursued and felt threatened by Zimmerman, immediate grounds for self defense, therefore Martin could have been vindicated in his response to Zimmerman approaching him.  Attacking Zimmerman would be completely justified.  While Zimmerman (a perceived assailant) was monitoring Martin's activity.  Did Zimmerman have a right to stalk, Martin?  Which would be Martin's perspective if he 1) understood the law and 2) was still alive. 

These events surrounding Trayvon Martin should really force and encourage all citizens to look at the disparities rather than solely the event itself.  If in fact Trayvon Martin killing should have been resulted in the conviction of Zimmerman's for manslaughter and second degree murder, but did not; we need to arrest our law; look at what revisions mandate change; and accommodate a more balanced system that is truly based on one's actions.  

Under the law, Zimmerman should never have left his vehicle; the 911 operator should have given firm instructions for Zimmerman to remain in his vehicle rather than state that "...you don't need to do that..."; Fact, Zimmerman pulled a gun and a trigger, but that in itself is not a crime if you are "defending yourself" against a life threatening confrontation; and prejudice is not enough to convict someone of a murder.  Yet, it is Zimmerman's perception that a threat was real, his belief that "those people always get away" that resulted in Trayvon Martin's death.  

One thing is certain, taking one's life must be based on more than looking like a suspicious character.  But at the same time we cannot overwhelmingly state, beyond a shadow of a doubt that George Zimmerman is guilty.  It is difficult to reconcile this but it is something that should force us to assess the legal system which allows an individual to walk away with complete freedom after taking another persons life based on perception. 

Condolences to the family as no persons child should leave this planet before their parents.

Anonymous...What is the Absence of a Name Responsible for Action or Justice; The Question Is...

"We are group of concerned citizens that have recognized an injustice in the system."


It is 11:24 and I have just returned home from working with a client.  HP posted an article that continues to surface in the plight of women, girls and injustice in the balance of the Scale-- we know as Justice.
One can debate what is right or wrong according to the rule of law, but what cannot be disputed is the fundamental understanding of human nature's moral compass.
We don't resist government as a people for the sake of resisting government.  With the proper infrastructure, accountability and commitment, a governing body can be very effective.  There is no reason be stand against corporations, if they are guided by the same standards and expectation that individuals are suppose to be held to.  What then is the problem?


Exceptions!
Exceptions interfere with consistency and continuity.  A claim is made about right or wrong; positions are taken on behalf of interest...  But who's interest.  Sure our founding bodies that created the Constitution had ideals in mind that would protect the well being of individuals, however corruption and currency got in the way and forever changed our destiny.
So at this cross roads what do we do?  We could minimize years of fabricated and/ or real conflict and get at the root of such disharmony by rethinking about how we look at more effective ways to meet the needs of the general population.  From redistribution of wealth to people friendly policies (so as not to get conflicted with social policies).  We are the People; and the only entitlement we deserve is a society based on egalitarian structures that rectify the imbalances of greed and secularism.
Liberate justice, not in the form of retaliation but restoring balance and accountability.  Is government is off kilter? Yes.  

Can it be fixed? Yes.  But the road to redemption is a long one. This oration is not a depiction of religious discourse, but that of the moral compass of man kind.


Fix what is wrong as leaders, not to control or punish but to bring back the balance to a scale that has long remained uncalibrated and diminishing in purpose and meaning. 

" I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice." (Theodore Parker; wikipedia)