Death With Dignity - Relief & Concern

This week the Supreme Court turned aside the old Ashcroft challenge to Oregon's voters' initiative to allow doctors to prescribe lethal doses of medication to their patients who want to keep their options open for controlling their own deaths. I wrote with some concern about this in October when Miers was Bush's nominee to replace O'Connor. As I hoped at that time, Kennedy sided with Oregon which eliminated any temptation to defer the decision until O'Connor's replacement, since a 6-3 decision would not be affected by a change of one justice.

My relief of course stems from the decision, my concern from Roberts' siding with the dissenting opinion in this case.

Aside from my gross lack of legal qualifications, I could never be on the SCOTUS. I would always want to rule in favor of the most aggrieved party, precedent or Constitution be damned. I understand the importance of moving cautiously when precedent IS being set, but the Court does have an important function in setting boundaries based on common decency as well. I heard Breyer explain it very well one evening when describing what the job of the court really is. The legislative branch is charged with defining the particulars of law, and the Supreme Court must only set the parameters within which those laws should operate. If public opinion has overwhelmingly moved to find certain restrictions or lack thereof repugnant, then it is not outside the purview of the Court to limit what lawmakers can do, but they are still obliged to find some Constitutional basis for it.

Personally I find it repugnant that some folks believe that other suffering people should not be given a dignified manner of ending their own life - in ANY state. I may or may not be in the majority, but I'm certainly not in the overwhelming majority in that regard. The SCOTUS cannot properly mandate that states create Death with Dignity provisions, though the current court can see that Ashcroft was overreaching in claiming that the Oregon law violated Federal drug laws. If Congress writes a more specific law outlawing doctor assisted suicide, however, we may be forced to take a step back from compassion. I must remind myself though, that in the long arc we as a society have been moving toward compassion more than away from it, and with an engaged citizenry I must believe that such a general trend will continue in the long run.

Anticipating the Firestorm

The emails have not yet started to flood in. I'm sure the advocacy groups are currently working overtime collecting the data on Samuel Alito's judicial decisions so that they can make their case to their constituents to oppose or support his nomination to the Supreme Court. MoveOn was quick on the trigger, though, and have already launched their campaign to collect a quarter million signatures in 48 hours in opposition to Alito's elevation to the Supreme Court.

Really though, the firestorm I am anticipating is not the predictable one which will be waged in public among the various interest groups and their constituents, but the more subtle one which will take place in the Senate Judiciary Committee and if approved there on the floor of the Senate. I figure it is time to dredge up last May's Memorandum of Understanding on Judicial Nominations which was brokered in the famous compromise of 14 to avoid the rancor of the nuclear option. The agreement is only binding upon the 7 Republicans and 7 Democrats who signed it, and is not as broad as some would have us believe. Specifically the Democrats agreed:

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

A frequent misreading of this document is that since the earlier section of the document exempted the use of the filibuster by the signatories against non-Supreme nominees Janice Rogers Brown, William Pryor, and Priscilla Owen, that there is an implicit acknowledgement that their nominations do not constitute extraordinary circumstances. Such a reading would equally imply that the Republican signatories were acknowledging that William Myers and Henry Saad did exemplify extraordinary circumstances which the Democrats would have a right to filibuster. No, Part I of the compromise, was just that - a compromise to avoid the protraction of debate on the then current set of judicial nominees, so that business could proceed and the threat of the "nuclear option" could be deferred at the least.

Nuclear Option: dispensing with the Senate rule that 60% of the Senate is required to stop discussion (invoke cloture) and force a vote on a nominee.

It does mean that any of the (Democratic) signatories who do take part in a filibuster are on the hook to defend their perception of a candidate's nomination as an extraordinary circumstance, as any of the (Republican) signatories would be on the hook to claim otherwise before ceding to any Republican attempt to invoke the nuclear option. These Senators actually know each other well enough to have a pretty good idea if the others are being disingenuous, but I really think the Democrats have the upper hand here. If one or several make a sincere case that a nomination is extraordinary - and note that the memorandum does not exclude ideological considerations - then any of these more moderate Republican signatories will be hard pressed to cry foul. Further, the weakened Presidency and embattled Republican party has already spent its political capital for this kind of fight. Now it's true that the Republicans, if they are otherwise united, only need to peel off two or three of their signatory fellows to reverse the cloture rule, but it's an even more risky game for them given the higher likelihood that they will become the minority party in 2006 or 2008.

Alito may not be the firebreather that Bork was, nor the lightweight that Miers was perceived to be, but he has a long record which won't play well among civil libertarians, consumer advocates, or the suburban social moderates. Roberts and Alito may not be that different, but Roberts record was shorter and afforded him better play under questioning. His confirmation without any recorded cloture vote - a voice vote I'm guessing - with only 22 Nays in the final tally also establishes that the Democrats are playing nice, so far.

My sense is that the fight is upon us, and with the weakening of public support for Bush and the GOP, right now I'm betting against his confirmation. He may not even get out of committee if Specter decides that it's time to stand up to the right wing of his party.

Death With Dignity Before the Court

Chief Justice Roberts was immediately thrust into presiding over a highly controversial case today. The ability of doctors in Oregon to legally prescribe lethal doses of medication to terminally ill patients is being challenged by the U.S. Attorney General's office. In his very last day in office, Attorney General Ashcroft drew my ire by ruling that under the Controlled Substances Act, doctors' licenses to prescribe drugs could be revoked if they prescribed lethal doses for terminally ill patients meeting the qualifications of Oregon's Assisted Suicide Law, approved twice by Oregon voters, most recently by a wide margin.

The case is controversial, but it boggles my mind why it should be. Common decency and compassion dictate that patients enduring great pain, or facing terminal conditions should be able to obtain prescriptions making it possible for them to painlessly hasten their own passing. Assuming that we get past the current push toward theocracy in our country, one can easily imagine a day when people of the future will look back on this case as we currently look back on the Dred Scott decision. They (hopefully) will shake their heads in amazement and ask "You mean back then you could only get those prescriptions in Oregon?!"

Early indications are that Roberts is leaning toward ruling for the Attorney General's office. Supreme Court scholar, Jan Crawford Greenberg was quoted tonight on PBS' Newshour:

Chief Justice Roberts asked lawyers on both sides of this issue very aggressive questions; he saved most of his aggressive questions for the lawyer for the state of Oregon who was defending Oregon's law.

Souter, O'Connor, and Ginsberg were clearly more aggressive in questioning DOJ lawyer Paul Clement. But O'Connor may not get to rule in this case if her replacement is confirmed before a decision has been written, and previous precedent has been that such decisions are deferred in cases where the retiring justice would render a deciding vote.

Onlookers are split in reading how the court is likely to rule on this one, with Greenberg calling it too close to say, death with dignity activists Compassion & Choices writing "the Court is unlikely to uphold the Ashcroft Directive", and SCOTUSblog seeming to lean toward believing the feds will prevail. The calculus is that Souter, Ginsberg, and O'Connor will likely be joined by Stevens and/or Breyer, while Kennedy is more likely to join Thomas, Scalia, and Roberts in upholding the Attorney General's strictures against these prescriptions. Precedent would then hold the decision up until Miers joined the court, where immediately we would have a test of whether Bush has succeeded in tilting the court toward a ruling for the religious right. Perhaps Thomas or one of the conservatives could surprise us by allowing states' rights considerations to trump their cultural conservatism.

Compassion & Choices provides a full set of links at their summary page which goes on to say

The Justices appear reluctant to read the Controlled Substances so broadly. Several Justices repeatedly asked how Congress had empowered the Attorney General to preempt Oregon's law. With no sufficient answer, it seems clear the Attorney General exceeded his authority.

While I appreciate concerns for abuse of any death with dignity law, the Oregon law has multiple safeguards, and the history of its application bears out that it has not been abused, with those taking advantage of its provisions being exactly the sort of cases for whom it was designed. Concerns that it might be applied disproportionately among the poor or those whose primary motivation is to not be a burden on their families have not been borne out. It has also provided great comfort to many who know they have the means to choose for themselves when enough is enough.

In my view, concern for the patient should trump all other considerations in determining medical care. When the patient cannot be made comfortable and is expected to die within six months, it strikes me as the height of audacity and hypocrisy for anyone else to shake their finger at the sufferer and tell them they have no right to hasten their own death. If an animal is suffering we consider it an act of kindness to put them out of their misery. How much clearer it is in the case of a human being who can cogently express their desire to hasten their death, to allow them a dignified and painless method of doing so.

Doctors opposing this law point to their oath "to do no harm." If they cannot save the patient or alleviate their suffering, then they ARE doing harm by denying the patient a painless way out.

Another View of Roberts

Having written "I'd rather have a Supreme Court Justice of sound temperament with whom I disagree, than one who might be more likely to make a ruling or two that I'd be happier with, but who has shown clear unsound judgment in matters of law" in commenting on John Roberts nomination to the Supreme Court, doesn't mean I won't also look at other views on the matter. Paul Loeb's article points out:

Challenging [Roberts] draws a line and invites our fellow citizens to stand up in other ways to this immensely destructive presidency.

How has a seemingly nice man like Roberts supported a politics of contempt for the voice of anyone but the wealthy and powerful? In a time when the Bush administration acts as if granted the divine right of kings, it’s troubling that Roberts defended Cheney’s right to refuse to name the corporate participants in his secret energy policy meeting. He advised Jeb Bush on the 2000 election, and denied being a member of the ultra-conservative Federalist Society, then turned up on the Society’s Washington steering committee. He’s argued that the Voting Rights Act can only be violated by intentional discrimination, saying laws that incidentally discriminate are ok. Most damning, Roberts just ruled that if this administration wishes to exempt someone from the Geneva Convention and international law, they have the absolute right to do so. The belief that a president can do whatever he chooses links this nomination, the Downing Street Memo and Plamegate in a common matrix of unaccountable power.

Roberts is also disturbingly loyal to dubious corporate interests, or at least to principles that allow these interests to run roughshod over ordinary citizens and communities. He argued that private individuals could not sue the federal government for violations of environmental regulations like the removal of mountaintops by West Virginia mining companies. He supported the rights of developers to ignore the Endangered Species Act. He denied the rights of workers injured over time as part of their jobs, supported criminal contempt fines to force the end of a strike, and helped a major car manufacturer avoid a recall of dangerous seatbelts.

I still hold to the premise that a Democratic filibuster of Roberts would be bad politics. In spite of the foregoing, we could do a lot worse, and Roberts willingness to assist a gay rights group with pro bono work shows at least that he is not the inflexible ideologue that Clarence Thomas is. Democrats, indeed all Senators, on the Judiciary Committee, and if (when) passed to the full Senate should ask the tough questions. After reasonable discussion however, I simply don't see, given what we know so far, a reasonable argument against voting for cloture (filibustering), at least among the signatories to the compromise. That doesn't mean that any Senator uncomfortable with this choice should not feel free to vote no when the final vote comes up. I also stand by my belief that advocacy groups should save their money for future fights. There will be plenty of those.

Conserving Energy for Important Battles

I hadn't really planned to write about the Roberts nomination to the Supreme Court once I found out a bit about the nominee. I think David Remer sums it up pretty well. But I find my friends asking for my spin, and have gotten several emails about it, the most disappointing coming from MoveOn.org, who are clearly trying to organize to block the nomination. Sure the Senate should do their due diligence on the nominee, but it's pretty clear any objection to Roberts would fall outside the scope of the "comity compromise", so it seems a waste of effort to spend energy to block this nominee. Most telling for me, though, is the radio interviews I've heard with liberal legal professionals who know Roberts personally and can vouch for his decency. I'd rather have a Supreme Court Justice of sound temperament with whom I disagree, than one who might be more likely to make a ruling or two that I'd be happier with, but who has shown clear unsound judgment in matters of law in the past, especially given the lifetime nature of these appointments. That's why I'm much happier with Roberts than Gonzales, even if it does increase slightly the fragility of Roe v. Wade for instance. There will undoubtedly be some 5-4 decisions going in what I consider the wrong direction due to Roberts' appointment, but I'd rather save our energy for a principled fight against a potential fire breather on the court.

Let's hope that Stevens, Ginsburg, Breyer, Kennedy, and Souter hold out until we get a moderate with some intellect in the White House.