Friday, February 26, 2016

1608 Just Cause Firing and Other Relics

Back in ancient times, maybe 25 or 30 years ago, our employment contracts often had “just cause” firing provisions.

That meant the boss couldn’t fire you just because he felt like it… or because someone else would do the job cheaper.  He had to have a reason and the reason had to be spelled out.

--Incompetence.
--Drunk on the job.
--Theft.

These were the big three.

They worked in favor of both the worker and the boss.  For the worker it meant he or she couldn’t be fired because a supervisor didn’t like the hairdo.   For the employer, it didn’t have to tolerate incompetence, drunkenness, stealing or anything else both sides agreed to put on the list.

Maybe our public officials don’t realize it, but they have contracts.

For many, it’s the constitution.  You agree to its terms by default or you make an effort to change it.  Usually those amendment efforts fail, for good or for bad reasons.

Some recently suggested changes:

--The Equal Rights Amendment.
--The Anti-Abortion Amendment.
--The Balanced Budget Amendment.

Each either died aborning or has become trapped in the molasses the original document foisted on us, intentionally and with good reason.

A lot of what’s in the constitution is either vague or has been made to seem vague.

A fine example:  the second amendment … the one about gun rights.  Constructionist justices seem to think there’s something vague about the “well regulated militia” part of the right to bear arms.

Okay.  That’s wrong headed, but it’s become a common point of view.  So be it.

But there’s nothing vague about the part where a President has to nominate someone for a vacancy on the Supreme Court.  And the Senate gets to consent.

Here’s the sentence from Article II, section II  

The President “...shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges of the Supreme Court…”

What part of that is unclear?  It doesn’t say “...wait ‘til next year…” or “...wait ‘til the next President is elected…” or “...wait ‘til the sun shines, Nellie.”

And note that it says “shall appoint” not “may appoint.”

The good news is that it’s possible to expel a Senator who doesn’t do his job. The bad news is that it’s a long and complex process -- as it should be -- and requires a ⅔ majority vote which these days is pretty close to impossible.  Just cause firing.

So the next best thing for the President may be a recess appointment. It’s hard to tell, but the Senate is currently in recess (2/16.) So the president is free to plunk someone into Scalia’s chair at least for awhile.

There haven’t been a lot of those appointments recently. One that comes to mind was Associate Justice William Brennan.  Republican Eisenhower appointed him in 1956.  An election year.  A Republican. An Election year.

If he wanted to, the President could appoint Charles Manson.  But a better choice might be someone of enormous standing, preferably a Republican,  someone who wouldn’t hold the job all that long.  Someone who has already been thoroughly tested.

Anyone have a phone number for Sandra Day O’Connor or David Souter?

I’m Wes Richards. My opinions are my own but you’re welcome to them. ®
Please address comments to wesrichards@gmail.com

© WJR 2016

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