by Matt Barr

This probably doesn't mean anything

Speaking at an American Constitution Society "Supreme Court Preview" Wednesday (video linked here), Ted Olson discussed Gonzalez v. Oregon, the "death with dignity" case the Court will consider this coming term. He read the question presented directly from a filed brief in the case, touched on the issues raised and then made it a point to say "I'm not expressing a view one way or the other." You're not? So you're the nominee!

Sure, it's easy to believe that the forum was meant for a "preview" of important cases before the Court in OT2005, and not a stump. But Walter Dellinger, former advisor to President Clinton on constitutional issues and head of the Office of Legal Counsel and Assistant Attorney General, was there, and said this:

The other thing worth noting though is the extent to which the Court's federalism jurisprudence ... is basically red states' rights. Red states get states rights deference and acts of Congress are struck down. When blue states do things, they're upheld. The Court upholds the act of Congress.

By that I mean it's usually when Alabama comes into court with an Eleventh Amendment objection, Alabama, Louisiana, Mississippi, are states which win these cases when they're resisting progressive acts of Congress. When a liberal state like California or Oregon undertakes to do something that Congress sets aside, like medical marijuana, there goes the state's rights -- there's not a lot of deference. In fact ... there was a half victory in the Michigan affirmative action cases, but I thought that counsel for Michigan -- I suggested in moot court in jest -- might have begun the argument, "May it please the Court, I'd like the Court to take judicial notice of the fact that Michigan, like Alabama, is a state. And that some deference is due to states' judgments about education."

I just note that as a point to note for the future when we come upon the issue of physician assisted suicide in Oregon. Whether the Attorney General can override the medical judgment made by the medical community of a state, and whether we will have a blue state getting states' rights deference for once in a mile.

I know for a fact Dellinger isn't being considered for the Supreme Court. Do you know for a fact Olson isn't, when he takes pains in a forum to note that he's not taking a position on a case that the guy next to him took a position on half an hour before?

Olson quote can be found at 1:02:00 and Dellinger excerpt begins at 0:28:44 of the video.

Just something to chew on as you wait till Monday or Tuesday (speculation goes).

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