Franken, Gorsuch and the Ghost of Scalia

Senator Al Franken and Judge Neil Gorsuch


Once  upon a time there was a trucker named Alphonse Maddin, who was fired for making a commonsense decision to save his own life — and to protect others as well.

The facts of the matter were perfectly straightforward. As summarized by the court, “In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm (his employer) and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.”

Maddin successfully sued for reinstatement, the court explained, under a provision that “makes it unlawful for an employer to discharge 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.’”

After Maddin made a stop at about 11 p.m. on the night in question, he noticed his brakes had frozen. He called for repairs.

“The dispatcher says wait, hang on there. OK, couple hours goes by, the heater is not working in his cab, it’s 14 below zero, . . . 14 below zero. He calls in and says, ‘My feet, I can’t feel my feet. I can’t feel my feet, my torso, I’m beginning not to be able to feel my torso,’ and they say, ‘Hang on, hang on, wait for us.’ OK, now he actually falls asleep, and at 1:18 a.m., his cousin calls . . . and wakes him up, and his cousin says that he is slurring his speech.”

Maddin is in the initial stages of hypothermia.  He calls them back again and his supervisor says, ‘Wait. You gotta wait.’ So he has a couple choices here, wait or take the trailer out, with frozen brakes, onto the interstate.

Maddin, facing either continuing to sit until he froze to death or taking a massive trailer out onto an icy interstate with no brakes finally acted:  he disconnected the trailer from the cab and drove the cab and himself to safety.  He returned as soon as he was able to safeguard and reconnect the trailer to continue on his journey.

He was terminated for abandoning the trailer during the storm.

He got his job back in court   One judge alone among all the judges who ruled on the case, TransAm Trucking v. Dept. of Labor,  thought that was perfectly fine to fire the near frozen trucker.

Neil Gorsuch, our Trump nominee to the Supreme Court to fill the vacancy resulting from the death of Antonim Scalia 13 months ago.

Day before yesterday during a Senate Committee meeting with Gorsuch, Senator Al Franken of Minnesota, former comedian and host of Saturday Night Live pummeled Gorsuch for his reasoning and his vote during the case, quoting from Gorsuch’s dissenting opinion.

“And what would you have done?” Franken asked. “I’m asking you a question. Please answer the question,”   “Senator, I don’t know,” the finest legal mind in all of conservative America answered. “I wasn’t in the man’s shoes, but I understand why . . . ”

“You don’t know what you would’ve done,” Franken summed up for him. “OK, I’ll tell you what I would’ve done. I would’ve done exactly what he did. And I think everybody here would’ve done exactly what he did. And I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that.”

“From there, Franken turned to the dissent Gorsuch wrote. As Franken described it, the issue came down to a “plain meaning” rule: “When the plain meaning of a statute is clear on its face, when its meaning is obvious, courts have no business looking beyond the meaning to the statute’s purpose.” That’s what Gorsuch relied on in his ruling.”

“But the plain meaning rule has an exception,” Franken continued. “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning,” he said. “It is absurd to say this company is within its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.”

Walking through the entire case and questioning Gorsuch’s judgement leads one to inevitably question his entire legal philosophy; indeed it leads to questioning the legal philosophy the right has spent decades in constructing.  If you think the law condemns Alphonse Maddin to death or dismissal, then the law is no place for you.

On every issue, from gender and racial equality, affirmative action, voting rights, abortion, gay rights, marriage equality, money in politics, the death penalty, the right to own guns, Bush v. Gore, Antonim Scalia, for all his brilliance and education, was on the wrong side.

His argument against abortion rights for example was essentially that it isn’t in the Constitution therefore if the nation wants abortion rights they should be legislated and not established by the Court’s “activism” in striking down state laws against abortion.  He refused to recognize that the Court has been striking down laws it considers unconstitutional since Justice John Marshall.  The Court didn’t make an abortion law; it struck down anti-abortion laws made by the states.

One could make the same argument against school segregation.

He raged when the Court struck down Texas’ sodomy laws ranting that it would lead to homosexual marriage – marriage equality.  And indeed it did to Scalia’s dismay.  Still, the sun rose over the Republic.

Scalia opined that it was ok for Oklahoma to execute someone who was 15 years old when the crime was committed, mocking the majority’s claims that a national consensus had emerged against the execution of those who killed while under age, and noted that less than half of the states that permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states that had abolished the death penalty entirely.

That’s cold.

No one in the back alleys of our cities, in those mean little houses in the dismal corners of our great land, where that American dream has been long forgotten, where a rusty coal stove sits in the living room, daddy smells of gasoline, momma is unpredictable, and where there is not a single book, none of these human beings was helped by the god like presence of Antonim Scalia.  His passing might have brought about a heart felt  flood of grief and tears from the poor, the oppressed, the marginalized -but didn’t.  He never stood with them.  He stood always with power.There has always been a heartless cruelty behind the conservative “legal philosophy.”

Gorsuch’s opinions, like Scalia’s reek of “faux originalism” and a “historicizing glaze on personal values and policy preferences”.  His education and ‘brilliance” will benefit no one but himself.  Certainly not the common man.


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Vultures – (NOT About Wall Street!) – A Re-Post

No. This post is not about Wall Street or vulture funds.

It’s been 20 years since I was last in Bombay. Old habits die hard. It’s been 20 years since I was last in Mumbai.

I was having a chicken tandoori lunch with a number of colleagues, all of whom were Hindu – except for one.

He was Parsi.

A Zoroastrian. A member of a group that practiced the original religion of Iran until it was annihilated there by the Islamic invasions. His family had fled Iran centuries ago and settled in India. Most of the Parsis live in and around Mumbai.

We were sitting outside enjoying a pleasant day, a nice lunch and good conversation. I was bringing my co-workers up to date on what was happening at our New York headquarters.

Suddenly the sky went black – and I mean black. It seemed as if a thousand birds suddenly filled the sky, virtually blocking out the sun.  Ok.  Maybe not a thousand. Just lots of birds. Big birds.


What the f…!

Our Parsi colleague Homi smiled at me.

“The birds are ours!” Seems the Parsi “Tower of Silence” was nearby on Malabar Hill. At the Tower of Silence the Parsi community continues with its 3,000-year-old Zoroastrian tradition of disposing of the dead by exposing the body to scavenger birds.

The prophet Zarathushtra insisted on a reverence for all elements. None of them is to be defiled. A corpse is considered impure not just physically on account of infection and decay, but also because it is swiftly colonized by evil spirits. Therefore, cremation and burial on land or sea are unacceptable.

Keeping aside the macabre imagery, this system of exposure is swift and ecologically sound. It’s also softened by mythology: the soul’s cosmic transition is aided by the vulture’s mystic eye, and the feeding of one’s dead body to the birds is considered the devout Zoroastrian’s final act of charity.

The practice originated in ancient Persia, the homeland which the Parsis fled, circa 900 AD, to protect their ancient faith from an emerging Islam. The practice survived in pockets such as among the Yazid, but Iran’s towers were declared a health hazard and illegal in the 1970s because urbanisation had marched upon these once-desolate ‘sky burial sites’.

The Tower of Silence, called a dakhma, is a circular amphitheater like structure with walls about 18 feet high and only one door. Inside are three concentric circular levels – the outer level for men, the center for women and the inner circle for children. Bodies are left exposed to the vultures who quickly strip the body within an hour leaving only bones which were downed with the rain into a receiving well, it’s floor covered in sand and charcoal. The bones would completely bleach out and rains wash away the remains through the filtering.

But there is trouble.

India once had hundreds of millions of vultures, a vast population that thrived because the nation has one of the largest livestock populations in the world but forbids cattle slaughter. When cows died, they were immediately set upon by flocks of vultures that left behind skin for leather merchants and bones for bone collectors. As recently as the 1980s, even the smallest villages often had thousands of vulture residents.

At the turn of this century the vultures began to die off in dramatic numbers.  Some 98% of all of India’s vultures perished within five years.  No one knew why. This event caused great stress in the Parsi community. Bodies were not being consumed in the traditional manner. There suddenly weren’t enough vultures.

The Indian government conducted an in-depth investigation of the vulture holocaust. It found Vultures died off in massive numbers due to the use of the veterinary drug Diclofenac in animals, which causes kidney failure in vultures who feed on the animal corpses.  It is similar to the medicines found in Advil and Aleve.

The government banned Diclofenac’s use in veterinary medicine although  it is still used on humans as a pain killer in hospitals.

The Parsi’s have petitioned the government and the government has agreed to a vulture breeding program to repopulate the species in India with the proviso that no Parsi must use the drug Diclofinac to relieve the pain of a dying relative in hospital.. But it will be a long time if ever before vulture hoards fly over the Tower of Silence again.  Two aviaries are being built at the site fifteen years after vultures disappeared from Mumbai’s skies so that the giant scavengers can once again devour human corpses; hopefully Diclofenac free.

Meanwhile the community is in crisis over the issue. Reformers want to embrace cremation but traditionalists found an alternative in powerful solar concentrators which desiccate the corpse admittedly not in the half-hour that a hungry flock of vultures accomplished, but which still keep to Zarathushtra’s injunction not to defile the elements.

Funny how today I remembered the vultures and that lunch and lovable eccentric Homi.  I wonder how he would feel about no longer seeing his vultures.

He once said to me “It is the last thing you can do when you die.  The supreme act of charity. You feed your body to the birds”.  Homi was a decade older than I twenty years ago.  He had a heart condition.  He may be long gone for all I know.

If he is I hope he went out the way he wanted.  Willing his body to the birds.


Update – Following revelations that diclofenac was deadly to the birds, the governments of India, Pakistan and Nepal banned the use of the drug for cattle. Bangladesh followed in 2010, and in May 2012 the four governments reached an “unprecedented political agreement” to prevent unintentional poisoning of vultures from veterinary drugs

To help these large raptors rebound, conservationists have established vulture-safe zones. Within them are “vulture restaurants” that provide the birds with diclofenac-free carcasses  –  which offer birdwatchers keen to track down vultures a chance to see them.  Vulture numbers have leveled off in many areas, and increased elsewhere. In India, all three critically endangered species of vultures appear to have stabilized. 

Conservation can work, even in extremely challenging circumstances — in this case an elusive and diffuse threat covering an entire subcontinent — provided there is political will, carefully targeted research and a willingness to work together.



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A Spoonfull of Rice

First spoonful of rice!

Gramps and Clark Cassius!



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Going Bi-Coastal


Toritto on the Masawa Road – Eritrea – 1965

Today I am leaving the virtual world for a week or so.

I am traveling to spend time with my eldest daughter, her hubby and my new grandson, Clark, now four months old. , I haven’t seen him since the holidays.

I am going from the coast where the sun sets in the Gulf to the coast where the sun rises in the Atlantic.

I will leave my laptop at home;  since I have no smart phone, am not on Facebook, Instagram, snapchat or Twitter I will be out of touch so to speak.  I don’t spend any time looking at my old flip-phone since there is nothing to see on it but the time.  I actually converse with people, have dinners, drinks, cigars.

So don’t look for any posts, comments or “likes” from me till some time next week when I will return home to a couple of hundred e-mails and will reappear refreshed and rejuvenated on the net at the same old place.

It’s good to get away.  See you all next week

Regards from Florida.




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Today it was reported that Iraqi troops have retaken the great antiquities museum in Mosul from ISIS fighters.  All of the priceless exhibits have been destroyed.

Once this sand and wilderness
were gardens, where we greeted
mighty Cambyses

glittering dancers whirled
as your priests
filled our cups
with liquid glory.

‘til Macedonian javelins
rained down and runners
brought dread
from the River Granicus

You stood silently winged one
through the millennia 
your illuminated manuscripts
once used for wrapping fish

now art. no longer god;
treasured by the children
of Darius, of Xerxes
by the sons of Alexander

until the coming
of the new Luddites
smashing you with hammers
as if you were a loom.


Ancient Palmyra before the coming of ISIS.



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Learning from Crassus – A Re-Post For Our Time

delightful paintings

Marcus Licinius Crassus was the richest man in Roman history. Indeed, he is considered one of the richest men who ever lived. He made his fortune as a supporter of the dictator Sulla by confiscating the properties of Sulla’s political enemies. He was also a shrewd acquirer of real estate, especially when it was on fire. Rome had no fire department; fires were left to burn themselves out. Crassus organized some 500 men and, when there was a fire, he would show up and offer to buy the property for a song. After the beleaguered owner sold out the burning buildings, Crassus would call on his fire department to put out the flames and then restore the buildings.

In any case, Crassus was described by Plutarch as the ultimate man of avarice. Crassus never had enough and always wanted more. It was Crassus who, wishing to add glory to his wealth lead the legions which defeated Spartacus in the slave revolt. Several Roman armies were off fighting elsewhere and Crassus offered to personally equip several legions and lead the fight against the slaves. Initially he had trouble. Spartacus consistently outmaneuvered him. Finally Pompey the Great returned to Italy with his legions and Spartacus was forced to fight. Crassus won the victory. He crucified six thousand of the spartacists on the Appian Way and left their bodies to rot – but he got not the glory. Pompey wrote to the Senate that he had really won the war and Crassus had only defeated slaves. Crassus received only an Ovation rather than a Triumph.  He wasn’t happy.

Crassus succeeded in becoming a member of the first triumvirate – Julius Caesar, Pompey and himself. He and Pompey were elected Co-Consuls. Rome had a confidence about it; call it exceptionalism. Romans were better than other people. The Roman way was the clearly the better way. Romans were superior. The Roman state was superior. And Crassus was the richest man in the Republic.

Julius Caesar was conquering Gaul, Pompey was now Pompey Magnus and Crassus was feeling like a fifth wheel. He had done nothing but make a lot of money and conquer an army of slaves. He decided to do something worthy. He would conquer the Parthians. Besides, Parthia was extremely wealthy, sitting astride the Silk Road. And he would bring his son, Publius Crassus with him; Publius was with Caesar in Gaul and conquering the Parthians would help pad the family resume as well as add to the riches of the world’s richest man.

Parthia was on the fringe of the Roman world, far in the east – in modern day Iraq and Iran. Crassus got himself appointed Governor of Roman Syria and he planned to use it as a base to attack the Parthians.

Now Parthia had done nothing to justify an attack. Romans viewed the Parthians as a “threat” just as they viewed anyone who could oppose Rome as a threat. Opposition arose in Rome to Crassus’ plans. Cicero rose in the Senate to denounce the planned war – there was “nulla causa” – no justification to attack Parthia. Rome had a treaty with Parthia. The Tribune, Atelias Capito, put up strenuous opposition; to no avail. Besides, Crassus expected a military victory to be easy. Roman legions had easily crushed more numerous eastern armies, such as those of Pontus and Armenia, and Parthia was expected to be easy pickings.

Crassus marched his army of seven legions (around 35,000) heavy infantry and 4,000 light cavalry out of Syria, across the desert toward the Parthian capital Ctesphon, along the Tigris and south of modern Baghdad. The King of the Parthians, Orodes, sent an army to meet him – entirely on horseback, lead by his best general, Surena.

Crassus blundered into the Parthians at Carrhae where, for what may have been the first time in history, Roman infantry saw warriors and horses in chain mail armor, armed with lances and thousands of mounted archers with composite bows capable of piercing Roman armor. The Parthians, it seems had regular contact with the Chinese.

Carrhae turned into one of the bloodiest defeats in Roman history. Cassius Longinus, loyal friend and brother-in-law to Brutus and one of the officers in Crassus’ army implored him to redeploy the legions but Crassus refused. He figured the Parthians would run out of arrows. He didn’t know Surena had used thousands of camels to keep the arrows coming across the desert.

The skies were filled with clouds of arrows. The legions took cover under their shields which could not protect the entire body. Thousands were wounded in exposed limbs – and then they were charged by the first “knights” in chain mail the West had ever seen, with lances on horseback.

Crassus sent his son and light cavalry to attack the mounted archers, who simply withdrew – Publius learned the hard way they could fire arrows while riding away from him. Crassus next saw his son’s head on a Parthian pike.

Crassus was killed by Surena’s men. His head was cut off and, with his avarice known throughout the world, his mouth was filled with molten gold, his head presented to the King. The Parthians thought it a fitting ending.

Cassius lead the defeated legions back to Syria, fighting Parthians all the way to the Roman border. Twenty thousand infantry had died and ten thousand captured Worse still, the legions had lost their Eagle Standards; each legion had one, to be protected at all cost. Losing a standard to the enemy was the greatest shame a Roman legion could face. Crassus’ army had lost several – a great shame and decidedly evil omen.

The death of Crassus had a profound destabilizing affect on the Roman Republic. Think of it as the unforeseen developments which occur when launching a war of choice. Caesar and Pompey were soon at each other’s throats and in less than four years Caesar would cross the Rubicon beginning civil war against the duly consitituted government. Pompey would die in Egypt after his defeat at Caesar’s hands. Cassius and Brutus and the Senate would strike one last blow for the Republic but could not save it.

The war against the Parthians in the east was a war of choice, waged by a man rich beyond our wildest dreams, waged in a land where empires in the west still wage war, waged by a people who thought they were superior, indeed exceptional, a people with little regard for “the other”, waged by a man who wanted “more” riches, waged by a man who wanted “glory”, waged by a people who underestimated the “lesser peoples”.

Decades later, Augustus would enter negotiations with the Parthians for the return of the precious Standards of Crassus’ legions. Others had wanted war but Augustus would have none of it. He bargained. When the Standards were returned to Rome, both sides claimed “victory”. Seems to me we have much to learn from this tale.



illustration:  Roman Legion:


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Driving in Addis


Meskel Square, Addis Ababa

Been there!  Did that!

Watch the Pedestrians!


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