Ashcroft v. Raich may redefine the boundaries of the federal government's definition of "interstate commerce." Drug Enforcement Agency agents confiscated and destroyed cannabis plants in the California home of Diane Monson in 2002 under the guidelines of the Federal Controlled Substances Act. But, under the California Compassionate Use Act of 1996 - a state law - Monson was allowed to have the plants for medical use. Does the Federal Government have the right to ban medical marijuana use and acts associated with the growing of marijuana for medical purposes under the Commerce Clause of the United States Constitution?
I'm hoping the answer will be "no." But so are the Exilists, who are the subject of Rosen's article. That's one reason it is important to distinguish between "activist judges" and "extremist judges."
The reason to oppose judges like Janice Rogers Brown, William Meyers and William Pryor, is because they are ideologues and extremists. As the New York Times opined after the 2002 election,
Despite President Bush's campaign promise to "unite, not divide," many of his judicial nominees have done the reverse. They favor taking away the right to abortion, striking down reasonable environmental regulations and turning back the clock on race. (One pending nominee at one point criticized the Supreme Court's ruling that Bob Jones University should lose its tax-exempt status for discriminating against black students.) With the Senate in Republican control, the administration is likely to choose even more troubling nominees.
Senate Democrats should also make it clear that they will not accept extremist nominees. They must draw a line in the sand and say that those whose politics cross it will not be confirmed.
Democrats in the Senate no longer control the Judiciary Committee, which has until now been screening out the worst nominees, and cannot win party-line votes. But they should reach out to moderate Republican senators and build a mainstream coalition. And when a judicial nominee is unacceptable, they should not be afraid to mount a filibuster, which Republicans would need 60 votes to overcome.
Rumors have been swirling around Washington that there could be one or more Supreme Court vacancies in the next few months, making the stakes as high as can be. With the White House representing the far right in the nominating process, it remains up to the Senate — even in its new configuration — to represent the rest of the country.
All of which is another reason to oppose Bill Frist and the nuclear option and to preserve the filibuster.
Update: Rosen says Law Professor Cass Sunstein is about to publish a book on the Exile movement called "Fundamentally Wrong." I'm willing to learn, but an op-ed written by Sunstein days after the November, 2002 election on the topic failed to impress me. . In fact, I agreed with Instapundit more than him. The op-ed was clearly a forerunner to the new book - the archived New York Times page on which it was published describes the subject as "conservative courts likely to strike down laws that have bipartisan support" and "activists seeking to limit power of Congress and states."
