April 12, 2010

Michael Barone on Obamacare and the Supreme Court

I want to highlight two passages from an excellent column by Michael Barone.
The retirement of Justice John Paul Stevens means that in coming months we'll have another hearing on a Supreme Court nominee. But it's not likely to be the sort of hearing we got used to in the two decades after Edward Kennedy declared war on Robert Bork in 1987.

Nomination fights in those years centered on the issue of abortion. Many Republicans hoped and most Democrats feared that Republican nominees would vote to overturn Roe v. Wade. Democrats launched ferocious and often unfair attacks on nominees like Bork, Clarence Thomas and Samuel Alito. Republicans defended them warily, but refrained from launching similar attacks on Democratic nominees Ruth Bader Ginsberg and Stephen Breyer.
Barone is one of the few major columnists to accurately report the history of judicial nominations, unlike Marc Ambinder and Tom Goldstein for example. Barone also writes:
Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. "How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?" asks former New York Lt. Gov. Betsy McCaughey in the Wall Street Journal. "Either your body is protected from government interference or it's not."

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn't set standards for doctors to administer lethal drugs to terminally ill patients under Oregon's death with dignity act. So does the Constitution empower the feds to regulate nonlethal drugs in contravention of other state laws?

Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor -- but some Democrats probably wish that he had quit a year ago when they had more Senate votes and fewer unpopular policies.
It will be interesting to see if the GOP pursues this angle.

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