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We can only hope that as both sides of the political spectrum grapple with President Bush’s nomination of Harriet E. Miers to the Supreme Court, a few sober souls will lend their voices to express substantive, critical concerns. Questions that should be addressed include potential problems with judicial independence and conflict of interest. Miers now serves as White House counsel; she first served in the Bush White House as staff secretary, a job requiring her to review many of the documents that came to the Oval Office. Then, she served as deputy White House chief of staff for policy. In total, she has served in the current administration for nearly six years. If cases related to the Iraq War-such as those involving the torture of military prisoners-come before the high court, Miers should recuse herself. That would leave the court with eight justices and the specter of judicial gridlock. But before debating the dynamics of a court with Miers as a member, senators should work to divine some sense of her judicial philosophy. Since Miers has never been a judge, the public record offers next to nothing. The one paper trail that could yield a few gems of information may exist in the documents Miers authored as White House counsel or in her other roles. But with lightning speed last week, President Bush waved-you guessed it-the red flag of executive privilege. In an uncanny display of Catch-22 reasoning, Bush cautioned that a battle over the documents would interfere with “crisp” decision-making in the White House and distract from consideration of Miers’ qualifications. The problem is, of course, that without the documents there can be no credible consideration of the nominee’s qualifications. Not long ago we urged in these pages the release of documents related to then-nominee John G. Roberts Jr.’s tenure as deputy solicitor general from 1989 to 1993. [NLJ, Sept. 12]. We now urge that, in the interests of a full, responsible review of the current nominee, the president waive executive privilege and release documents requested by the Senate Judiciary Committee. The committee, of course, could help this process by exercising realistic restraint in its requests. There is a price to pay for nominating a close political ally to the Supreme Court. It’s time for the president to pay up. Schmederalism In its first major case of the new term, the U.S. Supreme Court, led by newly sworn-in Chief Justice John G. Roberts Jr., heard oral arguments last week in a challenge to Oregon’s assisted suicide law. The challenge stems from a 2001 decision by former Attorney General John Ashcroft to sanction doctors who help people die. The government reasoned that hastening a person’s death is an improper use of drugs and a violation of the federal Controlled Substances Act. The Oregon attorney general’s office took the position that the will of Oregon voters, who have twice endorsed assisted suicide in statewide referendums, should determine whether the terminally ill can seek a doctor’s assistance to alleviate their suffering. In an earlier case arising from Washington state, the high court in 1997 said unanimously that there is no constitutional right to doctor-assisted suicide, clearing the way for the states to experiment. Interestingly, Justice Sandra Day O’Connor, who is serving only until a new justice-perhaps Bush nominee Harriet E. Miers-is installed, asked U.S. Solicitor General Paul Clement whether federal drug laws also prevent doctors from assisting in state-sponsored executions. Though both sides faced tough questioning, there was no clear indication of which way the justices would rule. We urge the court in Gonzales v. Oregon to find that the federal government has overstepped its authority here. Difficult matters of ethics and conscience, where reasonable people disagree and have good reasons to do so without running roughshod over the Constitution, should not be dictated by the U.S. Attorney General’s office, but should be left to the democratic process. It’s not a matter of old or new federalism, liberalism or conservatism, but what’s right for a democracy.

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