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Jewish World Review Oct. 20, 2005 / 17 Tishrei, 5766 Miers understands states' rights By Froma Harrop
http://www.JewishWorldReview.com |
Heavens. Imagine someone who served on the Dallas City Council
becoming a Supreme Court justice. How small-time. How very much not
big-time-Washington, where the power levers belong.
Who does Harriet Miers think she is, anyway? There she was on
the city council, defusing racial tensions over a redistricting plan. She
got up in front of an angry crowd and apologized to a black county
commissioner who had been detained and subject to a racial slur by the
arresting officer. Then, she chaired the scandal-plagued Texas Lottery
Commission.
All very nice. But what about the D.C. Circuit, the federal
appeals court where future Supremes make their names by building up federal
power? Miers was nowhere to be seen.
There was a time when conservatives might have regarded local
government as a good training ground for the Supreme Court. That was back
when they believed in and respected small government. The justices must
often decide whether a power resides at the state or federal level.
But that was then. Now that conservatives control the White
House and Congress, they have a big federal bat to swing. And the states
have become a real inconvenience. Movement conservatives are finally getting
rid of Sandra Day O'Connor, whose principled stances on the division of
power stood in the way of their social agenda. The last thing they want is
another justice who takes states' rights seriously.
Formerly a state legislator in Arizona, O'Connor was the court's
most stalwart defender of federalism — the idea that state governments are
closer to the people than the pharaohs in Washington and therefore can
better serve them. It believes in limited federal power.
"Miers looks like a woman who has a worldview that's not too far
from Justice O'Connor," says Marci Hamilton, a professor at the Cardozo
School of Law at Yeshiva University and a former Supreme Court clerk to
O'Connor. "You get into the Beltway, and it's very easy to become someone
who only sees the national picture."
Many conservatives consider Antonin Scalia the model justice. He
supports the doctrine of states' rights — except when it doesn't produce
the desired results.
In 2000, Scalia joined the majority in throwing out a federal
law that let rape victims sue their attackers in federal court. "A Victory
for States' Rights," the headlines read.
The law's supporters had argued that violence against women is
bad for the nation's economy and thus interferes with interstate commerce.
The court held that such crimes are clearly a state matter. Congress was
making a statute to cover something that was neither interstate nor
commerce.
Fine, but then comes Gonzales v. Raich, the medical marijuana
case from California. Here, Scalia is arguing that a patient who grows
marijuana plants in his own backyard for his own medical use — in
accordance with state law — is somehow engaged in interstate commerce.
"Where necessary to make a regulation of interstate commerce
effective," Scalia wrote in a cloud of double-speak, "Congress may regulate
even those intrastate activities that do not themselves substantially affect
interstate commerce."
Now, listen to O'Connor. She didn't like the California law,
either. But the case was not about the virtues of medical marijuana — it
was whether a state has the right to allow it. She scolded the majority for
stifling "an express choice by some states, concerned for the lives and
liberties of their people, to regulate medical marijuana differently."
States' rights are not just for conservatives. And it's
beginning to dawn on liberals that Washington is now suppressing the states'
ability to promote progressive policies.
In the Terri Schiavo case, for example, Congress passed a
federal law to overturn three state court decisions that offended
"right-to-life" groups. The Supreme Court is now considering whether the
Bush administration may punish doctors who help terminally ill patients die
under Oregon's Death With Dignity Act.
"The religious right does not care about federalism," notes law
professor Hamilton.
If confirmed, Miers would be the only Supreme Court justice with
significant experience in state or local government. Chances are good that
she regards small government as something more than a road bump in the path
of the Washington elite. Questions may remain about her jurisprudence, but
Harriet Miers' resume is hardly a thin one.
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© 2005 Creators Syndicate |
Arnold Ahlert | |||||||||||
