September 15, 2005

The case the Senators don't want to talk about.

You know one Supreme Court case the Senators aren't grilling Roberts about? Despite all the talk about the Commerce Clause at the hearing, none of them wants to bring up Gonzales v. Raich, the medical marijuana case. Wouldn't you think the Democrats would want to champion the rights of the powerless, suffering cancer patient, oppressed by the government, with whom the heartless Supreme Court Justices could not empathize? (And I'm putting the question that way because that is the attitude many of the Democratic Senators are taking, such as yesterday when Dianne Feinstein mourned over all the victims of gun violence the Supreme Court didn't care about when it struck down the Gun-Free School Zones Act in Lopez.)

Angel Raich lost her case because the Court interpreted the Commerce Clause as broad enough to support the Controlled Substances Act, with its comprehensive ban on marijuana, which reaches even homegrown, home-consumed marijuana, even when it is used for medicinal purposes by severely ill persons according to a state regulatory program, a program adopted as the result of a democratic vote by the people of a state. If the Court was wrong, it was wrong because it found that Congress had too much power. The Senators don't want to push Roberts to say that they lack power. They only want to hear that the power is there for them to do everything they want and that their judgment about what is best is better than any court's judgment. Of course, the power to change the result in Raich lies entirely in their hands. The Senators are the source of the law that oppresses the powerless, suffering cancer patient. Why don't they amend it and add an exception?

Too bad John Roberts can't give back what he has to sit there and take. I would love to hear him grill them about the federal laws that demonstrate their lack of empathy for the oppressed.

21 comments:

Gerry said...

I like the ending concept of talking about what we would like to see, although we know it will never happen.

I would love to see a day of questioning of the nominee by the sitting members of the Supreme Court.

It would be fascinating to see what they would want to highlight, or attempt to trip up, the nominees over. It would be illuminating to see which Justices, if any, come across as overtly political. It would give an interesting early read on how a nominee would fit into the dynamics; who would be antagonistic, who would be (for lack of a better word) seductive, and who would be dismissive.

Too Many Jims said...

I think the reason that Raich is tough to tackle is that "liberals" like the "rule" (i.e. Congress has very broad power under the Commerce clause) but dislike the "result" (i.e. "comprehensive ban on marijuana, which reaches even homegrown, home-consumed marijuana, even when it is used for medicinal purposes by severely ill persons according to a state regulatory program"). On the other hand, "conservatives" or more particularly "social conservatives" are uncomfortable with the "rule" (presumably because they realize there may be a day when they are not in control) but are comfortable with the rule. This is not to suggest that all "social conservatives" want to deny marijuana to the severely ill (though some may), rather I think they may say that it is better to deny it to all then to leave it to the states to monitor compliance with the "severely ill" standard.

I think Dems avoid talking about it because they risk looking like they support drug use. Conversely, I think Reps avoid talking about it because they risk looking like they support the nanny state.

I completely agree that it would be good to amend the Act to provide one or more exceptions. The difficulty is that it would most likely take a coalition of (most) Democrats and some subset of Republicans.

Simon said...

They're not exactly jumping up and down about Kelo v. New London, either - hopefully praying that no-one wil notice WHICH five justices decided that case, which has descended into instant infamy having been decried by BOTH sides. It remains a case wrongly-decided by the very Judtices the Democrats on the committee are trying to lionize, and opposed by the very Justices that the Democrats are asking Roberts not to be.

Eddie said...

As much as the Dems would like medicinal marijuana for ANY purpose, they know this would make their party look bad.

Ryan said...

Gerry -

What a splendid idea. That would be infinitely preferable to what's going on now.

ziemer said...

if it were not for the unpopularity of the kelo decision, simon, i suppose we would once again have been treated to the spectacle of senator biden holding up a copy of "takings" by richard epstein, and demanding to know why anyone who accepts anything in the book should be considered for the court.

John A said...

Alphecca noted that in response to a 2nd Amendment question Roberts, while not stating his position on it, implied that the Commerce Clause would not apply if you bought in the state of manufacture.

This in turn implies he might have voted against using it in the Raich case.

bill said...

The total lack of intellectual horsepower on the part of the 'best and brightest' the Democrat party has is truly striking. When taken off their written scripts they just flounce in the sun. I actually expected more. It's as if they have taken the measure of Roberts and decided to cede the field.

The whole notion of the need for medical marijuana is specious, there are perscription drugs which provide the exact same substance for the sick.

The whole hearing has been stunning in it's vacancy of substance.

csh said...

Actually, Raich and Kelo both got pretty good discussion yesterday by a couple of Senators. Roberts did bring up (at least in Kelo) the names of those judges who voted for it, the suggestion of course being that it was the "left leaning" judges.

In Raich, Roberts talked at length about the fact that the ruling was really over the issue of congressional powers and not really about the subject (marijuana).

In case of Kelo, Roberts stuck very close to explaining the reasons for the decision and the limitations that the court imposed on their decision (definitions of public good, etc). However, he did not give any indication of how he would vote even though the senator (it might have been Biden) pushed.

I have to admit I am very impressed by this guy. He seems to have been able to put Senators on both sides of the isle at ease even when he refuses to answer their questions. Another great thing he has done is continually put the responsibility for making law and making law correctly back on the senate floor.

That makes it a little tough for them to argue too much since he basically blames them when a law is poorly crafted.

Crimsonsplat said...

You know what's really sick about it? I was just looking through some budget votes when I found that it took $1.1 Billion to run the House (salary and expenses--security and buildings are in another fund). That's $2.5 million for each of the 432 representatives.

It took $785 million for the 100 senators. Thats 78.5 million each -- over thirty-one times as much.

Source: http://www.vote-smart.org/issue_keyvote_detail.php?vote_id=3596

Are we getting our money's worth?

Simon said...

The total lack of intellectual horsepower on the part of the 'best and brightest' the Democrat party has is truly striking.

I take offense at that - even as a Republican - on behalf of my Democratic bretheren. These men - and Sen. Feinstein - are in no serious way "the 'best and brightest' [that] the Democrat party has [to offer]". There are about 25-30 far better and far brighter Democrats in the Senate, just for starters. As I said a few days ago, if Joe Biden is a "serious contender" for the Democratic nomination, then the Dems are in way, way worse trouble than I think they are.

Freeman Hunt said...

Re Crimsonplat's comment: Oh my but that's a lot!

Bill said...

Um. Crimsonsplat, $785 million divided by 100 Senators is $7.85 million per Senator, only three times as much. While that is still a lot, it is not as much as you claimed.

Too Many Jims said...

Indeed the "intellectual horsepower" of Senate Democrats on the committee has not been overwhelming. At the same time, have the Republicans on the committee (particularly Coburn and Sessions) been more impressive?


Crimsonsplat,

Sssshhhhh!! Given the budget discipline in this Congress, the House will demand a more equal per capita amount of resources.

FOD said...

Jim wrote ...On the other hand, "conservatives" or more particularly "social conservatives" are uncomfortable with the "rule" (presumably because they realize there may be a day when they are not in control)..."

I would respectfully disagree. The reason that conservatives are uncomfortable with the rule is that it is another weakening in the principle of enumerated powers. Although you'd be hard pressed to drawn the conclusion from the work the Republicans currently in Congress (and down the mall) the idea of limited powers of government is the essence of the conservative worldview.

Too Many Jims said...

Fod,

As to "conservatives" I would completely agree. With regard to "social conservatives" I am not so sure.

Crimsonsplat said...

Bill:
re: $785 mil /100 = 78.5, er... 7.85 mil....

/blonde moment/
"Math is hard!"
/blonde moment/

Decimals are the enemy.

I knew I needed more sleep, but my boss just won't allow it at work. (I plead a late night out watching Roger Clemens pitch).

mizerock said...

"The total lack of intellectual horsepower on the part of the 'best and brightest' the Democrat party has is truly striking."

"Intellectual horsepower" is not what wins you elections these days, for either party.

Clearly.

Stand out, and you will be hammered down. Again, that applies to both parties.

Quadraginta said...

I would love to hear him grill them about the federal laws that demonstrate their lack of empathy for the oppressed.

Well, you know that is supposed to be the job of the Fourth Estate. You're right that it would significantly elevate the quality of discourse, and that fact alone illustrates how the unholy alliance between Big Media and one political party as disserved the Republic.

Indeed, this comment...

The total lack of intellectual horsepower on the part of the 'best and brightest' the Democrat party has is truly striking.

...suggests it has equally disserved the Democratic Party, by allowing their leadership to grow soft and their intellect to rot. By failing in its job of helping clear out the deadwood at the top, so that truly competent young Democrats can rise, Big Media has unwittingly help atherosclerosize the Democratic Party. The irony would be hilarious if it weren't sad for the country.

M. Simon said...

As long as folks buy into "drugs cause addiction" the drug war will continue.

If drug taking was seen as a response to pain (a novel idea to be sure) the drug war would be over in a very short time.

Is your pain legal?

Heroin

Sirkowski said...

Light a big one up!