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Courts Should Not Be Engines of Social Change (Townhall.com) June 12, 2013

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The Supreme Court has been asked to define marriage to include same-sex couples. It is an invitation they should decline.

As the Court has held, marriage and domestic relations belong to the states, not the federal government. We live in a society where people aren’t satisfied unless everything is protected by the federal constitution. But that’s not the kind of government we have.

Further, courts should not be engines of social change. When the Supreme Court took it upon itself to create a right to abortion, it launched four decades of ill-tempered political and legal battles. These social questions should be decided by the people and their elected representatives, not by a handful of judges.

The Supreme Court would do well to decline the invitation to define marriage, leaving the matter to the states, where it belongs.

Please click on the link to listen to the op/ed: http://townhall.com/talkradio/dailycommentary/673544

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The Supreme Court Blocks The Politicization Of International Law (Forbes.com) April 25, 2013

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Sometimes the reaction to a Supreme Court decision is as telling as the opinion itself. So it is, I think, with the Court’s recent judgment in Kiobel v. Royal Dutch Petroleum Co., in which the Court decided that the Alien Tort Statute does not allow tort cases to be brought in U.S. federal courts when the actors and territories involved are outside the U.S.

At first blush, this seems like a relatively straightforward case, one of statutory interpretation and the seemingly arcane rules of legal jurisdiction. But, in fact, a human rights cottage industry had formed around this statute, such that the New York Times editorial board and Amnesty International have decried the decision as an assault on human rights, and the Chamber of Commerce saluted a welcome limitation on expensive lawsuits against corporations. It is one more example of how international law is as much about politics as it is law.

What the Supreme Court was trying to say is that the United States is not the world’s courtroom (even if it is the world’s policeman). The Alien Tort Statute, enacted as part of the Judiciary Act of 1789, permits federal courts to recognize private claims in for a limited number of international law violations. The legislative history suggests that its purpose was to open federal courts to legal claims by foreign ambassadors serving in the U.S., and the statute remained in relative obscurity for its first 171 years, being invoked only three times.

But as California Governor Jerry Brown wisely observed, “Needs very quickly turn into rights, and rights turn into laws, and laws turn into lawsuits.” And so beginning in the 1970s, nearly two hundred years after its enactment for a different purpose, creative human rights lawyers found a way to bring foreign nationals who suffered injury or loss of human rights at the hands of foreign corporate entities or government officials to bring claims in U.S. federal courts. The laws of jurisdiction normally require that cases be brought where the plaintiffs or defendants reside, or where the acts complained of occurred, where there is a direct stake in the matter and witnesses are located. But the 33 words of this old statute looked like a loophole waiting for lawyers to drive through, and those cases began to be brought. Finally, last week, the Supreme Court closed the door, saying there was nothing about this law to give it “extraterritorial application.”

In response, the New York Times editorial board reminded me why I almost never read their work anymore. The opening line of their editorial attacked the “Supreme Court’s conservatives” for dealing “a major blow” to human rights. Not until you got to the fourth paragraph did you learn that, in fact, all nine justices agreed with the basic outcome of the case, though concurring opinions were filed. So as far as the Times is concerned, this case was not really about the 33-word statute from 1789, nor its extraterritorial application to make the U.S. into the world’s courtroom for torts. It was about five conservatives out to undermine human rights. You wonder if they even bothered to read the case.

The concerns of Amnesty International and other human rights organizations were at least more thoughtful, if still more political than legal. These organizations, which are often thought to wear white hats and represent the greater good, are in fact single-issue advocates who are not as concerned with legal process as they are winning on their issues. The case at hand involved Nigerians whose rights were allegedly violated by corporations based in the Netherlands and the U.K. Their claims could be heard by courts in Nigeria, where the alleged conduct occurred, or in the countries where the corporate defendants are based. But lawyers like to “forum shop,” choosing courts that are most sympathetic to their cases and the laws of jurisdiction are rarely their concern. So this case about limiting a jurisdictional loophole became all about limiting human rights enforcement for them, even though the plaintiffs were left with perfectly good legal options.

Finally, the U.S. Chamber of Commerce viewed this as a tort reform case, protecting corporations from further expensive cases in U.S. courts. That wasn’t really the point either, since it was really about the laws of jurisdiction more than the law of torts, but they were happy to celebrate the victory.

In my view, the Court wisely exercised judicial restraint and, in an essentially unanimous decision, ruled that U.S. federal courts are not prepared to take torts cases from all over the world. But you would never have known that was the legal question or the Court’s answer from the retort by political players who surround and fuel international tort and human rights litigation.

Please click on the link to the article in Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/04/25/the-supreme-court-blocks-the-politicization-of-international-law/

The Supreme Court Should Leave How We Marry To The States (Forbes.com) March 25, 2013

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At one level, this week’s Supreme Court arguments are about same sex marriage and whether it should now be protected under federal law. But in another dimension, same sex marriage is only the context for a fundamental constitutional, not social, question: who owns and therefore decides about marriage, the federal government or the states? The right answer—that marriage belongs to the states—would decide both cases before the Supreme Court, invalidating as unconstitutional the federal Defense of Marriage Act, but upholding the right of Californians, and by implication other states, to decide whether or not to allow same sex marriage in their state.

Of course this is not the outcome either side wants. Proponents of same sex marriage think it’s high time for their rights to be guaranteed by federal courts as a constitutional matter. Even though public opinion is shifting, and by now nine states have affirmed a right for same-sex couples to marry, proponents would prefer that a federal constitutional right be created by the U.S. Supreme Court. This obviates the need to continue to try to win the issue state-by-state over time, and it creates a guarantee that cannot easily be undermined or withdrawn by state legislatures and the political process.

Opponents of same sex marriage would prefer that the Court affirm that marriage is only between a man and a woman, upholding both the federal Defense of Marriage Act and California’s Proposition 8, and in effect declaring that same-sex marriages do not merit the same “equal protection of the laws” as heterosexual marriages.

But courts should not be engines of social change. It is up to the people, through ballot measures and their elected representatives, to decide social questions. When the Supreme Court took it upon itself to create a constitutional right to an abortion (Roe v. Wade, 1973), there followed decades of ill-tempered battles about judicial activism as well as over abortion itself. Is the Supreme Court ready to do this again with respect to same-sex marriage, especially when the states are actively taking this up? One would think that this is a bad idea, both politically and constitutionally.

Even more important, constitutionally marriage is not a federal question, but rather a state matter. In 1948, the U.S. Supreme Court affirmed that “under the Constitution, the regulation and control of marital and family relationships are reserved to the States.” (Sherrer v. Sherrer, 1948). Even in the judicial activism of the 1970’s, the Court again held that the regulation of “domestic relations” is within the “virtually exclusive province of the states.” (Sosna v. Iowa, 1975).

How might the Court, then, avoid both judicial activism and simultaneously affirm that states are the locus of decision about marriage? First the Court would hold that the federal Defense of Marriage Act (DOMA) is unconstitutional as a federal incursion on state power. Its one-size-fits-all attempt to regulate marriage—defining marriage for federal purposes as a legal union between one man and one woman—takes away state powers in violation of the Tenth Amendment (power not delegated to the federal government remains with the states or the people). But, in the other case before it, the Court would also rule that Californians have the right to make their own decision about marriage and that the federal courts below it were wrong to invalidate Proposition 8. Alternatively the Court could decide that there is no standing for private citizens to defend the California law, since the state of California declined to do so, and leave the one same-sex couple free to marry but not allow the case to serve as a precedent.

So many of the cases before the Supreme Court appear to concern the hot issues of the day: immigration, healthcare, same sex marriage. But, in the end, these cases are really about Constitutional power, and they should be decided on that basis. Our society is better off when social questions such as same sex marriage are decided through debate and discussion by the people and their elected representatives, not by a handful of judges.

This article is available online at:
http://www.forbes.com/sites/daviddavenport/2013/03/25/the-supreme-court-should-leave-how-we-marry-to-the-states/

The Supreme Court Will Decide a Federal-State Tug of War (Forbes.com) April 24, 2012

Posted by daviddavenport in Newspaper Columns/Essays.
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The U.S. Supreme Court is closing its term with a bang, having devoted several days to the historic battle over healthcare and concluding this week with the legal challenge toArizona’s immigration law.  But below the surface, these landmark cases are not just about newly enacted laws.  In fact, these lawsuits constitute major battles in a larger tug-of-war between state and federal power.

The healthcare case has brought the commerce clause into popular conversation, since the mandate for individuals to buy health insurance is defended by the federal government’s authority to regulate matters affecting interstate commerce.  Is no commerce (refusing to buy health insurance) commerce?  And if the federal government can regulate that, is there any limit left to its power under the commerce clause?  Several justices asked the government lawyers to articulate a “limiting principle,” a query that could hardly have been surprising, yet was never satisfactorily answered. 

But at least as important to states is the provision of the new healthcare law that would give them new federal money for state Medicaid programs, but with powerful strings, requirements, and additional expenses attached.  This clever deployment of federal power to regulate health and general welfare, a matter belonging to the states, is defended by resort to the Congressional spending power.  The Supreme Court has said that Congress may place conditions on the use of federal money by states, but not so heavily as to constitute “coercion.” 

You may wonder, for example, how K-12 education, a classic state and local policy matter, has become federalized through “No Child Left Behind” and “Race to the Top” reform programs.  The answer is:  through the Congressional spending power.  The feds, in effect, bribe states to follow their ideas about education reform by putting out precious grant money to cash-starved states and school districts.  As some of the justices asked in oral argument, how could states not feel “coerced” to follow federal rules at the risk of losing the largest grant program they now receive fromWashington? 

Tallying our inventory of federal challenges to state power, so far we have the most important commerce clause litigation since the New Deal, and the largest case questioning possible federal coercion of states in 25 years.  Then comes theArizonaimmigration case, in which the federal government has deployed its preemption power in an attempt to stopArizonafrom increasing enforcement against illegal immigration, an area in which the federal government has taken the lead but, by all accounts, has woefully underperformed. 

Here the federal government’s power comes from the supremacy clause, establishing that federal law is the supreme law of the land.  But states are still free to operate in those areas unless federal law “preempts” the field and states are not acting in conflict with the federal approach.  AsArizona’s attorney, Paul Clement, pointed out:  “This is another federalism case.  This is not all about immigration.  It’s really about the relationship between the federal government and state government.” 

Next up, perhaps next term, will be same sex marriage cases, which again raise fundamental questions of federal and state power.  Who decides what the law of marriage is, what marriage itself is?  Is that a question for states or for the federal government?  And surely someone will challenge the federal takeover of K-12 education through reform and testing laws such as “No Child Left Behind” and “Race to the Top” as unlawful exercises of “coercive” federal spending powers.

Beginning with the “New Deal” legislation of the 1930’s, we have witnessed a steady expansion of federal power, much of it at the expense of state sovereignty.  We may well have reached a tipping point where the Supreme Court will say “enough”, and in at least one of these cases—healthcare, immigration, same sex marriage—federal power will be pushed back. 

Do we really needWashingtonto tackle every question?  Is everything “a federal issue?”  Is there no room for variety among the states, especially on social and values questions?  DoesKansasneed to follow everythingCaliforniadoes?  And if so, will we reach a point where state governments themselves—which were an essential part of our founding and federalist system—seem like unnecessary layers of middle management?  Stay tuned for the Supreme Court’s response this summer. 

To view the article in Forbes, please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/04/24/the-supreme-court-will-decide-a-federal-state-tug-of-war/

Roberts: Prevent the Power Grab (Townhall.com) July 23, 2010

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The U.S. Supreme Court will have a chance to stop one of the biggest 

Courtesy of Townhall.com

federal  power grabs in our history in several cases working their way through the system.

 Twenty states are suing the federal government arguing that the commerce clause can’t be stretched to require every citizen to buy health insurance.  The state of Arizona will be defending its right to enforce immigration laws that the federal government has failed to carry out. And at least two cases question, one from Massachusetts and one from California, question who s the right to decide social issues such as same-sex marriage.

When a President and a Congress of the same party expand the power of the federal government, it is the job of the judicial branch to serve as the check and balance.  Let’s hope the Roberts court is up to the challenge.

To listen to the audio:  http://townhall.com/talkradio/Show.aspx?RadioShowID=11

Kagan Shows Process Trumps Qualifications (Townhall.com) June 28, 2010

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Washington, we’ve got a problem. Does anyone really think a young law school administrator, with little courtroom and no judicial experience, is the best possible candidate for a lifetime appointment to the Supreme Court? Yet that is what we get when selecting a stealth candidate to survive the confirmation process trumps nominating a seasoned expert.

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Kagan nomination shows process trumps experience (San Francisco Chronicle) May 16, 2010

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Photo: Evan Vucci / AP

 Washington, we’ve got a problem. Does anyone really think a young law school administrator, with little courtroom and no judicial experience, is the best possible candidate for a lifetime appointment to the U.S. Supreme Court? Unfortunately that’s what we get when selecting a stealth candidate who can survive the confirmation process trumps nominating a seasoned expert who will excel on the bench.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/05/15/IN1F1DDU84.DTL#ixzz0oOAj0xhq

Same-Sex Marriage Moving to the Courts (Townhall.com) August 20, 2009

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Same-sex marriage may soon be moving from the political branches of 

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 government, where it belongs, back to court.

A recent poll shows public opinion shifting away from same-sex marriage—dropping 9 points from its high of 42 percent. Supporters may now delay their political fight against Proposition 8, feeling California voters may not be ready.

Unfortunately two prominent lawyers have challenged Proposition 8 in federal court in California, a case that could well end up in the U.S. Supreme Court.

Surely the lesson we learned from Roe v. Wade, which set off a culture war from which we have not yet recovered, is that social change is the role of the people and their elected representatives—not a handful of lawyers in black robes.

To listen to the audio:  http://townhall.com/TalkRadio/Show.aspx?RadioShowID=11&ContentGuid=18418e66-1e50-45f3-b02f-1e45e05135f8

Life tenure for justices outdated (San Francisco Chronicle) November 6, 2005

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It’s just our luck to live in a time of nonstop political campaigns. As soon as this week’s special election is over, the next campaign begins in earnest: the campaign for (and against) Samuel Alito Jr. as associate justice of the U.S. Supreme Court. No, you and I aren’t voting on this one. But in every other respect, the constitutional process that calls for the president to “appoint” a Supreme Court justice with the “advice and consent” of the Senate has, in recent years, been transformed into a full-scale political campaign, complete with all the special-interest lobbying, media frenzy and political warfare.

This process – one of few intersections where the executive, legislative and judicial branches of our government meet – has now become a notorious cash site. People tune in to watch pompous senators grandstanding, court nominees finessing and presidents calling in political debts and favors. Will the nominee be “Borked”, a reference to a prior crash victim? Will the president blink and withdraw a controversial appointment before the actual collision, as Bush did recently with Harriet Miers? At least in academic circles, people are beginning to ask whether we shouldn’t do something to fix the Supreme Court appointment process. One suggestion is to admit that it is now a political campaign and allow voters to choose justices at the ballot box. In his recent book on the subject, Brigham Young University professor Richard Davis points out that in 21 states, voters participate in choosing state supreme court justices, and in another 13, appointed justices must later face the voters. With two-thirds of state supreme court justices standing for elections, why not the national justices also, or so the argument goes.

Others think the Constitution was right to place the appointment in the hands of the president and the Senate, but that something should be done to reduce the political warfare. One of few reform proposals that would not require a constitutional amendment would be to eliminate the possibility of an endless Senate filibuster on judicial appointments. Since Article III of the Constitution provides for a majority vote to confirm judicial appointments, the Senate filibuster means that a minority of senators can block an appointment. This seems like an obvious end-run around the constitution and the rule should be changed to require only 51 votes to stop a filibuster. Making certain judicial nominees can receive a “yes” or “no” vote would reduce some of the animus and warfare.

Even more creative are proposals to turn down the politics by lowering the stakes. A recent paper by professors Steven Calabresi and James Lindgren of Northwestern University proposes term limites for Supreme Court justices who, under their formula, would serve staggered 18-year terms, providing the appointment of a new justice every two years. Part of the problem, they argue, is that lifetime appointments in a time of improved medicine mean that justices are serving much longer and that there are fewer vacancies and less turnover than before. For example, there has been no change on the court for 11 years now, with two vacancies, the political pressure is unusually high. With life expectancies more than double those of the Founding Fathers’ era, and judges now serving, on average, 10 years longer than those who served before 1970, their point is well taken. Indeed, among the 50 states, only Rhode Island has lifetime tenure for its supreme court justices and no other democracy in the world provides a lifetime appointment for the judges of its highest constitutional court. All the other courts either have term limits, a mandatory retirement age, or both. Structural reform is not substitute for statesmanship and good judgment by our elected leaders. But I, for one, am ready for term limits and changes to the filibuster rules. An appointment process that leaves judges in place too long and requires “Armageddon” to replace them needs to be fixed.

This op/ed appeared on Page E-7.

Appoint a constitutional conservative (San Francisco Chronicle) July 15, 2005

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It’s not enough anymore to describe someone’s political views as conservative. Now we must add adjectives to the term, giving us social conservatives, economic conservatives, neoconservatives and traditional conservatives, just to name a few.

When Republican Sen. Orrin Hatch, a member of the Judiciary Committee, says the president is going to appoint a conservative to the U.S. Supreme Court, what does he mean? Or when 40 percent of Americans recently told Gallup pollsters they believe the court should move in a more conservative direction (compared to 30 percent who want a more liberal court), which direction is that?

The Terri Schiavo case illustrates that one brand of conservatism is not like another and how those differences could affect a Supreme Court appointment. Social conservatives — who seek to enact a conservative social and cultural agenda through government — succeeded in getting Congress to pass and President Bush to sign an extraordinary bill creating special federal court jurisdiction over this one case. Round-the-clock vigils by Christian activists and other social conservatives urged federal courts to intervene in what many traditional conservatives considered a personal, family decision.

But then the social conservatives met a constitutional conservative on the federal bench, Judge Stanley Birch of the U.S. Court of Appeals in Atlanta. Birch rightly did not even address the ideological questions others were pressing in Schiavo vs. Schiavo, holding instead that our Constitution did not allow congressional activism to create special federal court jurisdiction in this one case. He said that the Congress and the president had acted “in a manner demonstrably at odds with our Founding Fathers’ blueprint for governance of a free people — our Constitution.” This conservative judge, appointed by President George H.W. Bush, said that ruling otherwise would violate the Constitution’s requirement of a separation of powers and would cause him to be one of those dreaded activist judges.

No crowds cheered for Judge Birch. Sadly, three’s not much more of a lobby for the champions of constitutional processes. But I submit that Birch, in his decision in the Schiavo case, demonstrated the kind of conservative President Bush should appoint: a constitutional conservative. We need judges whose primary agenda is to conserve the processes of government laid out in the Constitution, and who are willing to let the political chips fall where they may.

Standing in review of the passions and whims of the legislative and executive branches of government in a nonpartisan, nonideological way is precisely the role of the founders of our republic conceived for the judicial branch. In No. 78 of “The Federalist Papers,” Alexander Hamilton spoke of the courts as “the bulwarks of a limited constitution against legislative encroachments.” Foreshadowing the role of Judge Birch in the Schiavo case, Hamilton said the judiciary must be on guard when “a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions of the existing constitution.”

If, as expected, President Bush appoints some kind of conservative to the court, which type will he choose? That is devilishly difficult to predict, because President Bush’s policies seem to draw from all these varieties of conservatism. His neoconservative advisers and tendencies take him into expansive foreign policies and federalized education programs that traditional conservatives oppose. His social-conservative roots and supporters seem to guide his thinking on the right to live and the role of religion in government policy. The president’s history of lower court appointments and his own statements — that he has no “litmus test” and seeks judges who will “faithfully interpret the Constitution” — suggest he is a constitutional conservative in the judicial appointment arena.

If the nominee is a constitutional conservative, his or her views on that most divisive of all topics, abortion, may not even be known. And if President Bush is serious that there is not litmus test, “don’t ask, don’t tell” might be the order of the day on such matters. Happily, a constitutional conservative judge might have any other kind of personal political views — neoconservative, social interpreting and defending constitutional processes.

Come to think of it, why not Judge Stanley Birch for the U.S. Supreme Court? You heard it here first.

This op/ed appeared on Page B-9.