Bigger than Miers

The Miers nomination has stirred up a hornet's nest in the right side of the Blogosphere, but I fear that another situation may stir up an even bigger howl from Right to Lifers. I suspect that Miers will be approved, and with her strong evangelical Christian background, she might well vote as the Right to Life movement would wish, on this matter, however she will not have a vote, since it was heard just as she was nominated. It is even possible that Alberto Gonzales, who many conservatives fear Bush might nominate, had he been nominated and confirmed to the USSC by now, and if he had not been forced to recuse himself, might have voted as the Right to Life movemeent would wish, since he is maintaining what John Ashcroft started (in fact he is the Gonzales in Gonzales v. Oregon). But I fear that Robert's vote may really disappoint the Right to Life movement.

As an editorial in OpinionJournal indicated The John Roberts era began this week at the Supreme Court, and one of the first cases on the docket stands to tell us a good deal about the new Chief Justice's view on federal power. On Wednesday the Court heard oral arguments in Gonzales v. Oregon, in which the Justice Department is challenging Oregon's so-called assisted-suicide law, using the federal Controlled Substances Act as a club. The Oregon case will be an early test of whether the Roberts Court will continue and extend William Rehnquist's legacy of restoring meaning and force to the notion that our system of government is one of limited and enumerated powers. For at bottom, the Oregon case turns on whether the Attorney General can, by an act of administrative fiat, nullify the expressed will of a majority of voters of one of the 50 United States.

Most conservatives were outraged by a few men on the USSC "legislating from the bench" and creating a right to abortion. We felt that the matter should be left to the states to decide. At the time of Roe, some states allowed abortion, and others did not, and some allowed it under certain circumstatces. But a few men on the Supreme Court decided to overrule all of those state laws, and defined the law for the entire country. What Roberts is faced with is very similar. An Attorney General, opposed to something happening in Oregon, did not go the Congress to ask for a law prohibiting it. He came up with his own interpretation (a job of the Judiciary) of a Federal Law to achieve a result he personally thought was right. Roberts will be faced with doing exactly what he pledged not to do, legislating from the bench, to back what the AG did, or agreeing with Oregon, pleasing states-rights Republicans, but outraging the Right to Life people.

What concerns me most is will this decision increase the dissention in the right side of the Blogosphere started by the appointment of Miers, and if it does, how do we bring everyone back together in time for the 2006 elections.

The case dates from 2001, when then-Attorney General John Ashcroft asserted the authority under the Controlled Substances Act to bar doctors from prescribing the lethal dose of barbiturates that, under the Oregon law, terminally-ill patients are allowed to use to end their own lives. It's clear the Controlled Substances Act gives the federal government the power to regulate, bar or restrict drug availability, up to a point. The question in Gonzales is whether the AG can use that power to accomplish a quite different public-policy goal--the neutering of Oregon's assisted-suicide law--simply by asserting that taking drugs to end one's life is not a "legitimate medical purpose" for a barbiturate. That law, we should add, was twice endorsed by Oregon voters in statewide referendums.

In other words, this is a states' rights case, but with an ironic twist. States' rights has generally been considered a "conservative" issue. But in this case, as in the Raich medical marijuana case the Court decided in June, the rights in question are a state's desire to pursue what are generally regarded as liberal social policies. So some on the left have suddenly discovered, after years of promoting unlimited national power, that federalism has its uses after all. Meanwhile, some social conservatives are ignoring their federalism principles in order to enforce from Washington a policy outcome that they favor (preventing the legalization of assisted suicide).

But federalism is not a left-right issue, or at least it shouldn't be. It's a question of freedom and good governance. The last time assisted suicide came before the Supreme Court, in 1997, there was no such conflict. In Washington v. Glucksberg, the plaintiff sued seeking Supreme Court recognition of a Constitutional right to assisted suicide, and the Court ruled unanimously that no such right existed. At the end of the decision, Chief Justice Rehnquist wrote: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."

Rehnquist was right. End of Life matters should not be decided either by Judicial or Executive fiat. They should be widely debated, and should be decided in the legislature, state and federal, and/or by referrendums, as was the case in Oregon. Those that do not like what happened in Oregon should either try to change the Oregonian's minds, or to persuade the Congress to act.

This addendum, set off from the body of the decision, evokes one of the many criticisms of Roe v. Wade--that it substituted the opinion of a handful of jurists for what would have been a contentious, but in the end healthier, open and democratic debate over where to draw the line on the legality of abortion. It also imposed a uniform legal standard where none was evidently necessary. A finding for the Attorney General in the Oregon case would repeat that mistake on the question of assisted suicide. We have never been proponents of physician-assisted suicide as a matter of public policy, but as Rehnquist noted in Glucksberg, that's a question that should be settled democratically, not by judicial or regulatory diktat.

Regardless of what you may think of regarding end-of-life issues, remember we all were very happy when GWB named someone who said that he would not legislate from the bench, and that it was the Legislature's job to make the laws. Did you really mean that, or did you mean you wanted someone to legislate from the bench, but just make the laws you like?

Also regardless of whether Miers is confirmed or not, and regardless of what Roberts decides on the Oregon Right to Die matter, we definitely need to pull the right side of the Blogosphere back together, in time for the 2006 elections, and particularly in time for the 2008 elections. Whether you like Roberts or Miers, I guarantee you you will not like nominations Hillary would make.

Also there is a very good chance that GWB will get at least one more USSC opening in the next three years, and maybe two or three. What can we do to give the Senate Republicans a backbone, so that they will be willing to fight for the sort of nominees you had hoped that Bush would have made this time?

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