Leave the Jury System Alone ....

The following is taken from Townhall.com:

Washington Knows Best?
By Ken Connor
Sunday, December 2, 2007

We are all used to Liberals telling us that Washington D.C. knows best, but now Republicans, claiming to be conservatives, are echoing the same sentiment. Campaigning in Iowa last week (Nov. 20th), former Massachusetts governor and Republican presidential candidate Mitt Romney reiterated his proposal for federal caps on medical malpractice lawsuits. "I believe we have to enact federal caps on non-economic and punitive damages related to malpractice," Romney stated in a speech at Des Moines University. Other Republican presidential candidates, trying to claim the conservative mantle, have made similar proposals. Apparently they don't consider respect for "federalism" and "states rights" to be conservative principles. They seem to think Washington knows best. I beg to differ.

True conservatives support the idea that states are generally better suited than the federal government to decide what works best for its citizens. We believe that government works best when it’s closest to the people. Currently, state courts are where victims of medical malpractice bring their claims when they have been injured. The claims are tried under state law and in front of a jury of their peers. Some states have set caps on medical malpractice awards, while others have not. That is what federalism is all about—the people of the several states deciding what works best for them in their state.

Governor Romney, while invoking the cloak of conservatism, doesn't see it that way. He apparently sees a "one-size-fits-all", Washington-dictated policy prescription to cap medical malpractice awards as the answer to a local question. This belies any trust in the people and perpetuates the "Nanny State" conservatives so despise.

Why does Governor Romney think Washington knows best? Do all states have the same problems; do all states have problems? Of course not! Does he think Ted Kennedy and Chuck Schumer are better finders of fact than a Texas jury that has just heard all the evidence? I would hope not. Or, is it because "tort reform" opens the doors to corporate campaign contributions and he is willing to put politics before principle?

The Founders were very deliberate in fashioning a republic that did not cede too much authority to a central government. They created a federal court system that provides for a measure of Congressional checks and balances. They left states free to create their own court systems and did not presume to dictate how those courts would operate. Yet today, that structure has been turned upside down. The meddlesome government in Washington is trying to dictate the workings of state courts while it prostrates itself in passive submission before an activist federal judiciary.

The civil justice systems of the states are too important to expose to the ever-changing political winds blowing inside the Beltway. The tort system promotes responsible behavior by holding wrongdoers accountable for the harm they cause others. State civil justice systems provide the mechanism where local people, through a jury of their peers, decide what is reasonable and appropriate within their own communities. The jury system is beyond the influence of special interests because jurors cannot be paid by either side. Such a system affirms local control and, therefore, is the very essence of federalism—a quintessential conservative principle.

Liberals, for many years, have worked to undermine the authority of state and local government using the federal courts as their mechanism. Knowing that their agenda would never fly in "fly-over country" they petitioned the federal courts to ram it through. And like-minded, activist judges obliged. Mr. Romney and the other Republican presidential candidates rail against this judicial activism and promise that their judges will be different. But using the forces of the federal government to dictate the outcomes of state court proceedings is just as "activist" and destructive of state and local rights. The only difference is the mechanism that is used. The outcome is the same—local citizens lose control.

"Washington knows best" is not a federalist principle. Politicians in Washington should not decide the outcomes of state court cases. That is best left to the ladies and gentlemen of the jury.

Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case.

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