October 19, 2005
Miers
Understands States' Rights
By Froma
Harrop
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.
Copyright
2005 Creators Syndicate
