Editorial: Miers Understands States' Rights

By Froma Harrop, The Providence Journal, Oct. 19, 2005

Editorial

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. Now 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. 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's resume is hardly a thin one.

Froma Harrop is a Journal editorial writer and syndicated columnist. She may be reached by e-mail at: fharrop@projo.com.

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