Saturday, September 12, 2015

Andrew Napolitano: A Constitutional Boob in Fox's Clothing

My dad served just about 38 years in the Marine Corps, including fighting in the Pacific Theater of WWII, the Korean Conflict, and Vietnam. He used the GI Bill after WWII to get his education, including a law degree. When the Marine Corps began its own Judge Advocate General corps, he joined it. He prosecuted and defended Marines and sailors. Later, as Vietnam was drawing down, he served on the Navy-Marine Corps Court of Review, the intermediate appeals court. His last duty station in the Marines was as the Senior Courts Martial judge for the Navy Department's Piedmont District, which covered from Philadelphia to Puerto Rico.

After he retired, he worked briefly in Jacksonville, NC, as a criminal defense attorney. One of his colleagues in that practice had a brother that was also an attorney. He was apparently not successful. I remember my dad, his colleague, and the others in the firm spending nights and weekends putting up signs for the fellow in support of his bid to be elected judge. We talked about it. He told me that they were supporting his bid to be elected judge because he couldn't survive as a lawyer.


And there you were thinking that the whole process moved the cream to the top, and forgetting that feces float too.

So, now, Jim Henderson?, what is this rant about, really? It's about Judge Andrew Napolitano.Napolitano has written a column criticizing Rowan County, Kentucky, Clerk Kim Davis' refusal to issue licenses to anyone because she will not issue them to same sex couples.

If you watch Fox News, you have seen him. Whenever the Supreme Court issues a controversial decision, he is on Fox News. Whenever a dispute has Supreme Court potential, he is there to provide his insights. Andrew Napolitano, a former New Jersey trial court judge, is synonymous with Fox News legal coverage. Fox News describes their relationship with the Judge in this way:
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

Napolitano has built quite a following in his years at Fox. A couple years back, Napolitano enhanced his stature among conservatives, libertarians, and TEA party activists with a tirade about America’s supposed “two party system” and the complicity of news media in maintaining the impression that our “two party system” actually represented a duality in which ideas competed, rather than a carefully scripted Kabuki theater set piece. Napolitano warmed the cockles of many a Libertarian’s heart that day.

But Napolitano has revealed himself a piker, and shirker of research responsibilities. He did so when recently engaged in a flailing failure of an attack on Rowan County Clerk Kim Davis. “Kim Davis and the rule of law: Lessons from Kentucky,” screams the headline on the Fox News website, over Napolitano’s byline.

Napolitano’s op-ed recounts the recent goings on in Rowan County, Kentucky, where the elected Clerk, Kim Davis (Democrat), discontinued issuing marriage licenses for anyone in order to avoid committing an equal protection violation against same sex applicant couples by only issuing marriage licenses to opposite sex couples.
“Clerk” is a deceptively simple title, and may draw to the mind of different people quite different concepts of the duties and responsibilities of a Kentucky County Clerk. In the Commonwealth of Kentucky the County Clerk is not a clerk of either the Circuit or District Courts. The County Clerks of Kentucky have responsibilities related to elections, voter registration, vehicle and boat registrations, state and county licensing (including marriage licensing) and a variety of other responsibilities not related to the judicial process.

The US Supreme Court, earlier this year, asserted the equally stunning positions that marriage laws of the Nation, which, in almost every State limited marriage to opposite sex couples, violated the rights of same sex couples, and that its decision was of constitutional predominance over those marriage laws.

The Judge takes Davis to task.

He correctly notes her status as an agent of the government. From that base, he diverges wildly from any constitutionally supportable position. He asserts that Kentucky’s law does not limit marriage to opposite sex couples. He is wrong. The Kentucky Constitution was amended precisely on this point. He asserts that Davis wrongly imposed her religious views as a substitute for legal requirements. In fact, the Supreme Court’s decision does not remove that provision of Kentucky’s Constitution, and the Supreme Court lacks constitutional authority to render the seemingly sweeping decision it issued.

Now, on one important point of analysis, Napolitano supports my previously published assertion that federal trial judge David Bunning overstepped his bounds by choosing to incarcerate the County Clerk after a motion for civil contempt was filed by same sex marriage applicants who were unable to get a marriage license application from Davis’ Rowan County office. In that post, I stated, “Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.” In his September 10 op-ed on Fox’s site, Napolitano wrote: “But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available.” So, we agree on that point: Judge Bunning overstepped his bounds in addressing Davis’ refusal to comply with his Order.

Most strangely, and the point of my close criticism of Napolitano’s article, the Judge offers his view of the relief federal Judge David Bunning should have granted:
I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.

The idea that a federal judge would issue an order of the sort described by Judge Napolitano is shocking. The County Clerk is an elected office in Kentucky. The duties of the County Clerk are established by State law. Neither the United States Constitution, the Civil Right laws under which same sex couples sued to force Davis to issue them marriage licenses, nor Kentucky statutes or Constitution authorize judges of the Commonwealth, let alone federal judges, to rearrange the duties and responsibilities of State officials.

Judge Napolitano’s proposed resolution far outstrips the incarceration order of Judge Bunning for its sweep, for its disregard of federalism, and for its faithlessness to the constitutional order.

Imagine how such a power in a judge undermines federalism, that being the division between States and the federal government of powers and spheres of authority. In the Judge’s apparent view, if a City Manager ought to issue a permit for a special event, and refuses to do so, because, for example, the special event sponsors fail to provide proof of insurance, Judge Napolitano, acting as a federal judge in a case, would, he leaves us to believe, order the City Dog Catcher, or the Commissioner of Land Conservation, or whatever official is unfortunate enough to come within Napolitano’s view, to take over the City Manager’s relevant and unfulfilled duty.

Is this the doggerlizing of constitutional bounds to which we have come? Does Judge Napolitano think that, given President Obama’s truculent disobedience of the time frames set out in Obamacare that he could order the Chairman of the Federal Communications Commission to vacate the Obama administration’s waivers to corporations, waivers and delays of effective dates for the employer mandate?

The disregard for the power of the States in our national arrangements that Judge Napolitano’s op-ed evinces makes a constitutionalist’s head spin.