Roberts, Alito, Thomas, Scalia... Eventually, they'll be known as the RATS.

As we learned in the Alito hearings, the namecalling and posturing isn't gaining any traction with Middle-America. The RATS thing is cute, but it turns off the moderates you need to be targeting in '06. If this is what Progressive campaign advisors such as yourself are advising candidates to spout, it's gonna be a long year for Dems.

As we learned in the Alito hearings, the namecalling and posturing isn't gaining any traction with Middle-America.

Care to clarify? I didn't hear any name-calling in the Alito hearings. All I heard were some tough questions directed at a guy who refused to admit his true views on things. Sadly, this is par for the course, as conservatives act as though it is entirely unreasonable to dare ask tough questions of a guy who is up for a lifetime appointment to the Supreme Court. Guess we should just bow down and bask in the glory of King George's eternal wisdom, eh?

I am in no way an Alito supporter nor am I a current supporter of GWB (although I will say I voted for him in 2000). The Alito hearings were a joke. Dems had over two months to prepare for the hearings and came up with NOTHING. All that happened was Senators gave speeches and Biden put on a hat. Oh. And Kennedy couldn't distinguish satire from reality.

Eight weeks of preparation and that's all they could come up with. And now we get the RATS line. Very well done, Progressives. You've tried the hard left tack. How about coming back to the center now.

My question is, how does the Court square this ruling with the Raich medical marijuana case that they flubbed (IMHO) last year? Any ideas? Not that I'm against this ruling; quite the opposite. But I am surprised by it.

Justice Thomas was also surprised by it - he wrote a separate dissent mostly pointing out this obvious hypocrisy. He also dissented from Raich on federalist grounds, so I don't know if he was just using this dissent as a platform, or if he really disagrees with the majority.

Here's the full opinion: http://a257.g.akamaitech.net/7/257/2422/17jan20061050/www.supremecourtus.gov/opinions/05pdf/04-623.pdf

Jennifer,
The issue in Raich was the limit of Congress's commerce clause authority- a constitutional question. The issue in the death with dignity act case is entirely different: a question of statutory interpretation, as Jack B. points out by noting that Congress can amend that statute. The only Justice who confusingly conflates the two fundamentally different issues is Thomas in his separate, lone dissent (He also joined Scalia's dissent with C.J. Roberts.) Of course, Justice Thomas doesn't make sense the vast majority of the time.

If the Democrats are dumb enough to run Hillary Clinton for President, the acronym will get a lot longer -- probably six or seven letters.

Funny you should mention HRC. I was giving some thought to throwing down the $60 next week to hear her speak. Turns out, however, that I'm gonna need every last penny of that to pay some scalper for the privilege of seeing Jeff Tweedy in February. Rats.

Eight weeks of preparation and that's all they could come up with. And now we get the RATS line. Very well done, Progressives. You've tried the hard left tack.

Wait, wait, wait. The reason they didn't come with anything to attack is not because they ran from the moderate point--it's because they embraced it! There were tons of areas where Alito could have been attacked on "progressive" grounds, and the Dems on the committee ran screaming from those. Biden, I agree, is a pathetic joke. But you can't simultaneously claim that the Dems were too easy on Alito and that they took the progressive tack.

If this is what Progressive campaign advisors such as yourself are advising candidates to spout...

No, this is what a guy with a middling sense-of-humor posts on a blog when he's trying to be funny before the first cup of coffee. Oh well, guess it wasn't.

Guess I'll let Bill McDonald do the one-liners from now on.

Just a reminder of why Sen. Wyden voted for Justice Roberts:

He repeated his view that Roberts would look favorably on the state's arguments defending Oregon's physician-assisted-suicide law. The Supreme Court will hear oral arguments Wednesday on the Bush administration's attempt to ban doctors from using federally regulated drugs to assist suicides.

http://159.54.226.83/apps/pbcs.dll/article?AID=/20050929/NEWS/509290369/1001

Ron Wyden, R-Oregon.

Yeah. I was probably too harsh as well. So my apologies.

Seriously though, I'm pulling for Dems in 2006. I just hope you can get a message out there that resonates the middle while still staying true to your ideals.

"The only Justice who confusingly conflates the two fundamentally different issues is Thomas in his separate, lone dissent..."

No fan of Thomas' writing myself, I think this is a bit of a mischaracterization. The parties in this case abandoned their constitutional challenge in light of Raich, as Thomas points out on og. 62, n.2 of his dissent. Earlier in this litigation however, the constitutional challenge was on the table. Thomas' dissent is essentially a second dig at the Raich majority, against whom he dissented previously. In that earlier dissent Thomas raised the issue of state soverignty over welfare issues such as medicine. While I agree that the majority opinion is discussing statutory interpretation about executive enforcement powers, they are borrowing from language that would have felt very at home in Thomas' Raich dissent.

Just a reminder of why Sen. Wyden voted for Justice Roberts

I'm sure he's spending most of his time now trying to figure the best way to spin a "yes" vote for Scalito.

Hells yeah!!!

I for one am surprised and quite pleased.

I have supported this from the beginning. I have seen it applied. I continue to approve. I donate to support it. It is but another option applied. If you object, do not avail yourself of the option. It is not required.

Oh, yeah... Ashcroft.

Lest we all forget: John Ashcroft was appointed Attorney General of the United States on the strength of his having lost a re-election bid as a United States Senator to a dead man.

Remember, the people of the state Missouri turned him out for his opponent, who had died in an airplane crash six weeks before the election. The "Show Me" state voted for a dead man rather than return John Ashcroft to the U.S. Senate.

Didn't anybody think this was a clue?

What I find surprising is how few people (including people in the legal establishment) understand the endpoints of the basic disagreement between the majority and the dissenters.

If we're not going to enforce the nondelegation doctrine, the RATS say, any delegation to the Executive (implied or otherwise) gives any Executive officer with jurisdiction (here, the AG) the authority to interpret the statute in a manner that commands judicial deference.

Meanwhile, the majority hides the iron fist of its argument in a velvet glove. They have been very reluctant to state it clearly. But behind the majority's argument is the idea that interpretation is a legislative function which may be exercised only according to the terms of the Administrative Procedures Act and only "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority."

You'll recognize that quote from United States v. Mead, repeated it today's case. When Justice Souter wrote it back in 2001, all the hacks in the academy went "boo hoo hoo, now administrative law is so complicated and muddled" (crying all the way to the publisher, no doubt). There's nothing complicated about it. Either you believe the Executive has some mystical inherent power to have the final word on any delegation, or you believe that Congress can customize the scope of its delegations.

None of this would matter if we could somehow enforce the nondelegation doctrine. We could sleep easy letting the Executive interpret as they please if that were the case. But that is not the world we live in. So we get either the majority's velvet glove check or the neo-monarchical fiat of the RATS' king. And even in the latter, my guess is that some of the RATS believe deep down that only the abuses of a king will restore nondelegation, which is why they push this line.

The key qoute today was from our own Republican - Gordon Smith.

"This case has run the full length of the American legal process, and the issue is now settled law. Regardless of my personal position on assisted suicide, Oregon’s law has been tested at every branch of our government and the judgment of Oregon’s voters has been affirmed. I accept the Supreme Court’s decision and Congress should do the same."

Learn more at www.compassionandchoices.org

Godfry: fairness dictates you remind the reader the "dead man's" (aka Gov. Mel Carnahan) wife "Jean Carnahan" agreed to serve in her husband's stead in advance of election day. The acting governor agreed to appoint her to replace her husband in October 2000. click here for the CNN weblink or read the text below.

Jack--

My guest this week is Eli Stutsman, the attorney for a physician and a pharmicist in Gonzalez v. oregon.

We discuss the decision, including the dissent, the medical marijuana "precedent", the impact nationally, the possible Congressional response, etc.

He is a first-rate appellate lawyer and a terrific guest.

Outlook Portland with Nick Fish, KWBP, 6:30 am on January 22.

Cheers.

Nick

Podcast?