USA Today and the Cincinnati Enquirer recently published op-eds from Mark Weaver from our company. Topic: the Kavanaugh nomination amid the 150th anniversary of the 14th Amendment. Read below or click here.

Opinion: Will Kavanaugh act like a legislator or a judge?

By Mark R. Weaver

Although Brett Kavanaugh was nominated to be a Supreme Court justice, he’ll actually have his choice of two different jobs – a judge who resolves legal disputes or a legislator who makes policy. The approach he selects will be driven by his view of the 14th Amendment, which was added to the Constitution 150 years ago this week.

Ratified amid the gusts of national changes following the Civil War, the portion of the amendment known as the equal protection clause was essentially intended to guarantee equal rights to newly freed slaves. There are academic tussles about this idea, but nearly everyone agrees federal judges have gone much further than that.

Some jurists who prefer a different policy outcome, shall we say, liberally use the amendment to strike down laws passed by state legislatures. In fact, federal judges invoke it as often as dads employ bad jokes. But while dad humor can be amusing, there’s nothing funny about how misuse of the equal protection clause has shifted power from the people to the unelected federal judiciary. 

Since the high court is largely split over how to apply the 14th Amendment, this debate is timely. As the court’s last term ended, some claimed justices “weaponized” the First Amendment. I disagree. A stronger case can be made that the 14th Amendment has been used that way. In a constitutional framework of checks and balances, this particular provision is a check – a blank check.

Kavanaugh certainly understands that the Constitution was drafted to strike a careful balance between state and federal power – the relationship better known as federalism. The term relationship is apt. On minor issues, federal and state leaders quarrel like siblings, and, on major ones, they fight like ex-lovers. If it’s misused by a Justice Kavanaugh, the equal protection clause will exacerbate those disputes and weaken our republic.

To a cloistered judge, it’s no doubt intoxicating to have this or that social movement praise you as their savior. Just ask Justice Anthony Kennedy, whose retirement tributes include fulsome thanks for giving constitutional support to same-sex marriage, after wielding – you guessed it – the equal protection clause. We saw similar farewell toasts to Justice Harry Blackmun, who, as the author of Roe v. Wade, unpacked the clause and discovered a pair of forgotten socks, some loose change, and a constitutional right to an abortion.

My argument is not that those two results are necessarily bad policy. Rather, in a representative democracy, thorny issues like gay marriage and whether women can legally abort their unborn children are best left to the elected, accountable representatives of the people – not to judges. Policies passed with such democratic accountability are more likely to be accepted by the nation than policy conjured by judges using the 14th Amendment as a magic wand.  

This became clear to me in grad school where I spent an entire semester discussing the meaning, application, and history of the 14th Amendment. That class convinced me that local governance by state lawmakers is better governance than that offered by black-robed intervenors in Washington. This notion is more than just common sense – it’s a floor joist of American government, firmly parallel to other foundational concepts like separation of powers and rule of law. 

In 1835, French author Alexis de Tocqueville toured our nascent nation. He showed aptitude for both observation and prophecy when he remarked that, in America, every political issue ultimately becomes an issue for the courts. He pronounced this 33 years before the 14th Amendment would make his reflection truer and the proof of it more commonplace.

Political questions belong in state legislatures, where, as a voter, you can toss out the rascals who pass laws you oppose. When policy issues come before unelected, life-tenured federal judges, the delicate balance of American law and government tilts against accountability. 

In his confirmation hearing for the Court of Appeals, Kavanaugh endorsed using the equal protection clause to get the right result yet, he has yet to employ judicial fiat to substitute his own policy choices for those of state legislators. These mixed views are worthy of discussion.

The president made his choice. Kavanaugh now has a choice: will his role on the Supreme Court be the toadying showmanship of a lawmaker or the quiet reflections of a judge? An expansive reading of the amendment we remember this week could make Kavanaugh a giver of laws while an interpretation more in line with separation of powers and federalism will make him a guarantor of justice.

Mark R. Weaver is the former deputy attorney general of Ohio. He is a lawyer and author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver

Mark Weaver from our firm often writes op-ed columns for major newspapers in cities across America. Here's his latest, featured in the Sunday edition of the Philadelphia Inquirer. Topic: separation of powers. Click here or read below:

Are charges in Amtrak crash about justice or headlines?

By Mark R. Weaver

Playing childhood soccer in the fields of Montgomery County, one thing quickly became clear: the younger the players, the more likely they are to follow the ball around in an eager clump of arms, legs, and colorful jerseys. Children all want to kick the ball, so the notion of patiently staying in their assigned positions is often elusive. In time, they learn that the goals of the game are better achieved when players stay in their lane to wait for the ball or defend against the other team.

If Municipal Court Judge Marsha Neifield better understood this concept, she wouldn't have resurrected the criminal case against Amtrak engineer Brandon Bostian, the key figure in the May 2015 derailment that left eight passengers dead and hundreds more injured.

The public is justly outraged at Bostian's apparent negligence, given that the train accelerated to 106 mph on a 50-mph curve. Many no doubt applauded the judge's decision. But, like a jumble of youthful soccer players, the judge was playing outside her designated position. She substituted her own judgment for the prosecutorial discretion of the elected district attorney, who had determined that there wasn't enough evidence to prove Bostian acted with the "conscious disregard" the law requires for a prosecution.

While a judge overruling a prosecutor — particularly one under indictment like Seth Williams – might seem like justice to some, it creates troubling issues with the separation of powers inherent in our government.

Our founding fathers spent quite a bit of time in Philadelphia discussing how to protect their new nation from the abuses of power by the British monarchy. Indeed, 230 years ago this week, delegates began to arrive here to start deliberations that would result in the approval of the Constitution.

It's not hard to imagine Virginia's James Madison and Philadelphia's own James Wilson strolling down Market Street, discussing the ideas of Aristotle, John Calvin, and John Locke — all proponents of separating governmental power.

Wilson, who later served as a U.S. Supreme Court justice and was the first professor of law at what would become the University of Pennsylvania, saw a king who brandished the powers available to him in a way that created (in the words of the Declaration of Independence) "a long train of abuses and usurpations." Madison, Wilson, and their fellow delegates to the constitutional convention resolved to avoid the corruption that comes when too much power rests in any one office.

Their solution was as easy as the timeless childhood frolic of rock, paper, scissors. Everyone who plays this game quickly realizes that none of the symbols is all-powerful on its own. The same basic principle is the underlying reason why American checks and balances are fair. No branch has more power than the other.

Some judges don't like this notion much. They think the judicial branch gets the last word. They're mistaken.

Unlike judges, prosecutors are bound by rules of ethics that require them to only bring charges when they have good reason to believe they can prove each element of a crime. When that evidence is insufficient, they are ethically bound to decline prosecution. Indeed, Pennsylvania ethics rules give district attorneys a special role in the commonwealth's judicial system. They must not seek to simply prosecute and convict. They must, rather, be a "minister of justice." Sometimes, that means not bringing charges despite public demands.

In the criminal court system, district attorneys propose and judges and juries dispose. A judge has enough to worry about without taking on the responsibility of another player.

To the delight of the plaintiff's attorneys seeking millions of dollars for their clients, the victims of this horrific crash, Pennsylvania Attorney General Josh Shapiro has played along and agreed to prosecute. Keystone state residents ought to wonder whether that decision was more about achieving justice in the court of law or, more worrisome, achieving headlines in the court of public opinion.

When an Amtrak engineer derails a train, it can cause a lot of damage. But when a judge derails the separation of powers that keeps corruption and tyranny at bay, other types of damage ensue. We'd be wise to be concerned about both.

Mark R. Weaver, a native of Abington, formerly served as the deputy attorney general of Ohio and is the author of "A Wordsmith's Work" He teaches at the Ohio State University College of Law. @MarkRWeaver

Here's Mark Weaver's latest op-ed column, published by The Tennessean (Nashville's daily newspaper) - why the Mayor's sex scandal didn't have to end like a sad country song. Read below or click here.

Megan Barry's tenure didn’t have to end like a sad country song

By Mark R. Weaver

There are countless country music songs that include the phrase “I’m sorry.”

The most famous is Brenda Lee’s, where she laments her actions and asks, “Please accept my apology … love was blind and I was too blind to see.”

As if in reply, Blake Shelton sings a different tune, in the power ballad, “I’m Sorry,” crooning: “Oh, you're sorry, you want it back the way it was … but sometimes sorry just ain't good enough.”

The Brenda Lee request from Megan Barry, the fallen mayor of country music’s own hometown, was a hopeful plea for another chance. But the public’s Blake Shelton response brought a discordant coda to her public life.

In the end, it was just another mournful refrain that resounded across town, from the tourist-pleasing cover joints on Broadway to the foam-padded studios along Music Row and far beyond the city limits. 

As a frequent visitor to Nashville, I often speak to conferences here about crisis communications and how public officials can manage the fallout from a big mistake. You won’t be surprised to hear that Megan Barry never took one of my classes.

Those of us who advise government leaders on how to respond to scandal watched the Barry episode with the same kind of grim foreboding of an air traffic controller eyeballing a damaged plane in sharp descent. We know how this flight ends. 

The former mayor tried valiantly to rebound from her serious errors in judgment. In fact, many of her tactics evinced some competent counsel in her corner. Yet she nonetheless resigned, in shame, pleading guilty to a felony.

More people than Carrie Underwood are wondering what “Could’ve Been.” Could the mayor have done something different to survive this shameful experience?

Maybe. She certainly knew there were incriminating texts and improper overtime payments. Paying back the money before she broke the news of the affair might’ve forestalled the need for any investigations. But even more was needed.

Owning up to more than a mere marital indiscretion and telling all the facts at once could’ve prevented the cascade of negative stories that spurred more TV drama and gossip than any show with Connie Britton and Hayden Panettiere. 

And if the mayor had quickly acknowledged that she broke the law and asked prosecutors to treat her case like that of any other person, it would’ve engendered more public support for her. That kind of boost can go a long way to sustaining a public official in trouble.

Her early defense of special security for international jaunts, hot yoga, and Preds playoff games was wrong-headed and suggested that her repeated claims of transparency surrounding the matter were no more than a veneer. 

In the end, Megan Barry was ensnared by the denials, deflections, and deceptions that are now de rigueur for politicians in distress. Not wanting to hand their partisan opponents a club to use against them, they end up beating themselves. 

Mayor Barry might have saved her job. But much of the same poor judgement that got her into the problem was still in play as she tried to wriggle out of it.   

We all screw up. But politicians spend so much energy seeking adulation and burnishing an image of honesty, their human imperfections become all the more glaring.

Indeed – ask anyone down at the Bluebird — the guitar player who insists on his audio being mixed louder than the rest of the band draws the most groans when he plays the wrong chord. 

Mark R. Weaver is an attorney and crisis communications expert who has advised government officials in more than 25 states. One of his primary clients, the National Fraternal Order of Police, is based in Nashville. He is the author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver.

The Wonderful Life of Jon Fox

By Mark R. Weaver

Bedford Falls had George Bailey. And Abington had Jon Fox.

Fans of the classic movie “It’s A Wonderful Life” remember George Bailey as the Bedford Falls hometown boy who devoted himself to helping others and was ultimately rewarded when his countless acts of love and generosity were returned in kind. Friends of Abington stalwart Jon Fox will remember him in much the same way.

Fox, one of the most popular and durable elected officials in modern Montgomery County history, died Sunday night at the age of 70. He was the Abington-born son of a prominent family who rejected a life of privilege to pursue public service and help others. The people he aided repeatedly flocked to the polls to elect him to office, eventually sending him to the United States Congress for two terms. He met and conferred with U.S. presidents, ambassadors, and famous people from across the globe. Yet he preferred the quiet company of friends and neighbors in Abington.

Most of us know how to spot a typical politician: someone looking over your shoulder searching for another hand to shake, another vote to secure. Many politicians promptly forget the people who supported them, content with the prestige and perks of office. For these officeholders, constituent service is handed off to a low-paid staffer, with instructions to do the bare minimum and move along to the next request.

Jon Fox rejected that ethos. Serving in local, county, state and federal office, he shunned contentious partisan fights, preferring the quiet satisfaction of helping people when government stood in their way. His life, his desk, even his car was a messy mix of papers gathered from people in need who trusted that Jon would come through for them. Despite the collection of clutter, he usually did.

Service to others came early for Jon Fox. As a young man, he served in the U.S. Air Force Reserve for six years, building a brimming sense of patriotism that fueled his fervent belief in American exceptionalism. He soon joined the Republican Party and stood by its leaders in good times and bad.

His first exposure to government was working for the General Services Administration in Washington, D.C. Then, after graduating from the first-ever law school class of Delaware Law School in Wilmington, Delaware, Jon passed the Pennsylvania bar and began working as an Assistant District Attorney in Montgomery County. He prosecuted dangerous criminals, volunteered to help battered women, and built a strong alliance with local police. He later established a private law practice, where — unlike almost any other lawyer — he routinely made house calls, helping local senior citizens and those with minor legal problems right at their own kitchen table.

Jon’s first elected office was as a Township Commissioner, representing the Jenkintown and Baederwood sections of Abington. He won votes by sheer persistence and good nature. Once elected, he stepped up his effort to an even higher level, particularly focusing on the needs of local senior citizens. He served two terms and won the respect of leaders twice his age.

In 1984, he earned statewide attention by winning an Abington-Rockledge state legislative seat that had been held by the Democratic Party for several years. In that campaign, he knocked on thousands of doors, worked 18-hour days, and won by a margin of more than two to one. Later, in 1991, Montgomery County residents elected him to be County Commissioner and then, on the second try, he was elected to the United States House of Representatives in 1994, where he served two terms.

He was the son of business titan William Fox, a driving force behind several Abington-area institutions including founding local radio station WIBF, the Fox Pavilion (now known as the Pavilion) and local apartment buildings Benson Manor, Benson East, and Foxcroft. Jon’s mother Elainne was the spark of the family and Jon inherited her enthusiasm and flair for relating to others. The whole Fox family, including sister Caren and brother Larry, quickly learned that Jon had a knack for politics and government.

After graduating from nearby Cheltenham High School, Jon went to Penn State University, where he became a cheerleader, urging on the massive crowds that flock to the Nittany Lion football games. He revered Penn State for the rest of his life. While he was always willing to put a Republican bumper sticker on his car, Jon’s favorite sticker was non-political. It read “if God’s not a Penn State fan, why is the sky blue and white?”

Jon was Jewish but, for many years, he dressed as Santa to bring toys to local children. He had a habit of running late, and one December day, while racing between toy deliveries, he didn’t have time to change out of the Santa outfit. Driving down Easton Road, wearing the red hat and beard, he stopped at a red light, just behind a car sporting a Penn State decal. Jon didn’t know the driver, but he got out of his car, walked up to the other car and tapped on the glass. The man behind the wheel rolled down the window, mouth agape at the white-bearded visage. Jon leaned in and whispered, “even Santa Claus roots for Penn State.”

Jon had one true love of his life, his wife Judi whom he met while she was working for Jon’s father in the 1980s. She cared for him like no other and her love and devotion gave Jon the stability to continue his work for fellow Republicans, people who needed legal help, or just about anyone with a problem.

Jon passed away after battling multiple forms of cancer over the last few years. Despite the toll of debilitating treatments, he continued his legal practice, representing clients in local courts even as he grew weaker.

Jon’s hope for the future was focused on his son, Will — named for Jon’s father. Jon loved Will with the blooming passion of the proudest of fathers. His gentle guidance and doting tenderness encircled Will in an extravagant embrace.

Most members of Congress leave behind a legacy of laws. But Jon’s is a heritage of hope. Like the fictional George Bailey, Jon was beloved by his hometown and his success was built by advancing the success of others. His encouragement of friends was boundless, his optimism untamed.

In his seven decades of life, Jon rarely rested. There was always another person to help, another problem to solve, another burden to share.

Now, he rests.

###

Abington native Mark R. Weaver was the political strategist for Jon Fox’s first major election in 1984. He is the author of the book “A Wordsmith’s Work,” which includes a chapter about Jon Fox and his family. He is a long-time family friend. Twitter: @MarkRWeaver

Here's Mark Weaver's latest op-ed, as published in the Cincinnati Enquirer.

Spoiler alert: government power is like a cube of energy.

Read below or click here.

Both sides misunderstand the role of the president

By Mark R. Weaver

A year ago, roughly half the country was celebrating the inauguration of a new president and the other half was lamenting the years to come. And nine years ago, those respective sides were in near turnabout. Barack Obama took the oath of office cheered by supporters giddy with victory, while the opposition grumbled with despair.

This discord isn’t new, but it’s growing deeper. And it yields a bumper crop of challenges. The problem is complex, yet many proposed responses are equal parts reflexive and reductive.

Much of this American anger focuses on who resides in the White House. Too often, when the candidate we opposed wins the presidency, we become gloomy about the fate of the nation.

This melancholy of the vanquished can be traced to at least one core misconception – the illusion that most of the government’s power resides in the president. Those who view the president as the daddy of the country or the person “running the country” need remedial study in American government. 

Power in the United States is peacefully given through the consent of the governed and then divided and separated among many leaders. The president is simply one of many holding that power.

Imagine all the power to run a nation condensed into a cube of energy. Throughout the sweep of time, monarchs, chieftains, and despots have jealously monopolized that powerful cube. The fates and fortunes of those governed rose or fell based on the whim of the cube-holder. Corrupt leaders grasping the full complement of power could rob their countrymen of everything, including their lives.

Our founding fathers were avid students of history and, having just escaped the snare of a jealous king, were keen to frame a system of governance that would confound the ability of any one person to bring down a nation. 

Common bedside reading for the likes of James Madison and Alexander Hamilton was the work of French philosopher Baron de Montesquieu. Building on the division of powers in ancient Rome, Montesquieu noted that spreading power over many people limited the likelihood of wide-spread corruption or incompetence. 

Thus, the Constitution, through the principles of separation of powers and federalism, takes that cube of energy and divides it at least nine different ways. The first three cuts occur left to right – the branches of government. These executive, legislative, and judicial slices split authority that, in most nations, had been housed in a single ruler.

The next division is top to bottom, three more slices of Neapolitan ice cream-inspired division. These federal, state and local layers distribute government power among officeholders in Washington, state capitols, and city halls.

After the slicing and dicing, power is divided among literally thousands of different people. No single person in that array – not even the president – can widely affect the power held by others.

Because executive branch leaders hold sway individually, presidents, governors, and mayors are more noticeable than legislators and judges. That’s why people tend to focus more on them and it leads many to conclude that the character, competence, or credibility of a president matters more than for other leaders. It doesn’t. 

If you hated the last president and blame most of our nation’s problems on him, you’re wrong. And if you detest the current president and attribute most of our difficulties to him, you’re equally wrong.

I know this perspective will clash in the minds of many. Our brain is much like our musical ear, which prefers Pachelbel’s “Canon in D” to an overtired toddler’s piano rendition of “Chopsticks.” When we hold a strong belief, information from those who challenge that belief seems incorrect. Which is why cognitive dissonance is more than just choice “B” on your psych mid-term.

So don’t take my word for this. Read the Declaration of Independence, the Constitution, and the Federalist Papers. These are the owner’s manuals for our republic.

The occupant of the White House might lead the news every night and be the easiest person to argue about, but that doesn’t make him the center of government power. Many presidents expected to run things only to discover that other officeholders also had their hands on the tiller of our ship of state.

President Truman groused, “I sit here all day trying to persuade people to do the things they ought to have sense enough to do without my persuading them. That’s all the powers of the President amount to.”

From township trustee to the commander in chief – every government role is consequential. By design, the power to govern America is less like a single guide star and more like the bright constellations glowing in a clear night sky. And understanding that will help you fully appreciate our galaxy of government.  

Mark R. Weaver is a crisis communications consultant and a partner at the Columbus law firm Isaac Wiles. His new book is “A Wordsmith’s Work.” Twitter: @MarkRWeaver.