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.

Suffering

Wikipedia
: ^[2] Suffering is the basic element that makes up the negative valence of affective phenomena.

Merriam Webster

:  ^[1] the state or experience of one that suffers

A brief look at the days' news headlines, and it is not difficult to see; the impact of war, the struggle to pull people out of poverty, deteriorating environment, from glaciers to endangered species, disease, famine etc. And though the two definitions above both suggest that suffering is a human experience, not until Wikipedias' second explanation (listed above) do they infer suffering in the boarder sense of things not human as well.  This is the context in which this article is written.

This morning I woke up at approximately 4:00 a.m. EST, disturbed by the matter of suffering; different images and thoughts entering my mind about suffering from a historical perspective to modern day.  For over an hour I could not shake the visions and thoughts from my mind.  I don't generally have a propensity towards these thoughts, but they arise periodically; it is not an emotional struggle in the sense that it disturbs my thought process, but more along the lines of an overwhelming desire for a different sense of the human experience as it relates to all things that result in, interact with or are some part based on human actions as a causal factor of suffering.

After reflecting on a statement captured from a food critic on a local Boston radio show, a rather odd source to be sure; it helped create some context for this approach for suffering.  The essence of the food critic's argument was that farm-to-table  is a way of life and not a propaganda technique to get people or consumers in the restaurant.  We cannot use propaganda to end suffering. Authentically doing something about suffering actually holds  value.  Perhaps that is not the most productive way to put it, because there are multiple agents of change who "want to do something about it", but where does the real change occur?  What type of campaign, commitment, determination, endurance and perseverance would it take to ensure suffering comes to an end?  Can we achieve that?  Authenticity however, may suggest something all together different, a more active role in ending suffering.

By saying or assuming ending suffering is not possible, not related to personal injuries of course, then why would we attempt to change the course of events at all?  Does that result in some sort of fatalistic view that there is no hope.  Yet and still, even the sound of the word "hope", brings with it an air of never-going-to-happeness.  It is that very sense of jargon, and hyperbole that often results in the autonomic response of head-nodding.  Out of the jargon jar, and into a more productive script may be one possibility; that with a lot of will power, political effort and fundamental shift in the way humanity thinks about suffering and the ability to end it, that we perhaps will emerge on the other side.

This article will begin a short journey into my exploration of suffering, and what we will do, are doing and can do to end it.  My initial thoughts are that it requires a never ending effort, the kind of effort business people put into running their company, but with a different objective.

All of this begins with the belief that suffering exceeds all other priorities and that it is not limited to people, but animals, the environment or anything else that is subject to virulent exploitation by the human species.  Ending suffering is a way of life.

I look forward to discussions and insights.  I can also be reached on twitter @scotlandwillis

Freedom & Liberation

Mans greatest ambition is not to be better than anyone else, mans greatest ambition is to live free; it is the sense of freedom that comes from doing something that no one else has done--can do, that liberates one from all others and all other attachments; it is why we marvel as what we have not yet seen. Live free or die

Sex in a Series

The Society for the Scientific Study of Sexuality states that "Women are more likely than men to feel that a poor sex life is an unfortunate, but separate part of the couple’s relationship. Men are more likely to feel that a poor sex life undermines the entire relationship."

While some of their research goes back to the late 1990's, it is difficult to believe the full breadth of this research.  Times have changed, in a variety of ways.  There is research that the physical strength of women is increasing more rapidly than that of men; but that is just a semblance of what changes are occurring in our society among women and men.

Just as womens' physical state is advancing so to is there thinking.  And this brings us to the topic in this article.

This is completely non-scientific in nature, merely an opportunity to share a few thoughts.

As times have changed regarding sexuality and the liberation of women's commitment requirements, sex for women seems also to have emerged in a whole new light.  Women are no longer locked down due to advances in the medical industry i.e. The Pill.  Other advances in the Day After product, also allow women to have more control over the outcome of pregnancy.  Controls such as these also play a role in what opportunities women have; in the workplace, among competitors etc.

Emerging on the other side, women of today could very easily feel differently about the role of sex in a relationship. Most importantly perception of a poor sex life with a partner has also evolved.  Television programs seem to be an accurate reflection about the more carefree nature of female sexuality, e.g. Sex In The City, promiscuity, and sexuality experiences for pleasure rather than commitment.  This is not a broad statement of the character of women today, but rather a suggestion that the opportunities for vastly different perspectives on how women are expected to behave is different.  Rather than this being a bad thing, it is really just a thing-- call it evolution of the woman.

With downturns in religious commitments, increase in divorce rates and a broader length of time women are remaining unwed, all seem to trend towards a more independently minded woman.  And it seems that the line between women and men's belief that sex undermines the entire relationship, might be thinning.

I welcome the change, not in terms of a value system of ones integrity but rather the equanimity between men and women.  Sure we are different physiological creatures wired differently psychology, but what lies over the horizon for society can only be great, a place where the other is challenged by the privileges of control.

Germanwings / Lufthansa Solutions

One Possible Solution

Lufthansa Flight Solutions
There is a solution to the locked door. In the mid 1990s Electronic Data Systems, Hughes Electronics and GM developed OnStar; this satellite system could be used as a secondary backup for extreme scenarios such as with the Lufthansa/ Germanwings flight. This remotely controlled apparatus, would be engage by a pilot, face with the current situation of Germanwings. 

The pilot would carry an emergency warning mechanism that could transmit a signal to the radio control tower over the geographic area in which it is flying;  It could employ biometric recognition, issued by the airline carrier so that no one else could steal it and use the device.  With today's transmitters and nanotechnology, I believe this is quite possible.

Digital Globe launched one of the most powerful satellites in Aug. 2014; this device would seem to have the necessary power to engage in such a task. It is a fine line however as you risk infiltration (hackers) but a type of firewall could be developed and the main control would reside in each air traffic control tower under the NTSB. Nonetheless, there are potential applications for use of this technology.