Tuesday, March 22, 2005

Tubular Belles

It’s been a while since I had a nice fat rant.  I’ve had a good day back to work today, with long complicated telephone calls during which I got to make people miserable, and I got some entertaining packages in the mail, and even worked a few hours by a window with a nice view of rainy San Fran.... I should be a happy man.  Yet I grouse.  And why?  Hypocrisy, that same old hypocrisy that has always bothered me.  This time, it’s re-arising as our nation’s second-greatest deliberative body has been adjusting the doings of federal court as Terry Schiavo’s case wends its unique way through the system.

For those wise enough to have avoided mention of this matter, Terri has been hospitalized since 1990, unable to speak, eat or drink.  Doctors say she’s in a persistent vegetative state.  (Florida.  ba-ding.) Her husband says she would not have wanted to live like this, and wants to pull her feeding tube.  State courts have upheld his right to do this, but her parents and a hard-core group of religious conservatives oppose the action and have sought to protect her life at all costs. 

This has most recently resulted in the U.S. House of Representatives passing emergency legislation on her behalf, giving federal courts jurisdiction over her case.  In a stunning blow in defense of the judicial process, the local federal District court judge denied Terri’s parents the right to have her tubes re-inserted, claiming that they failed to demonstrate sufficient likelihood of prevailing on the merits of the case.  The parents are now considering appealing their way up to the Supreme Court.

Now, the zealous regressionists (I think calling them “conservatives” is a misnomer) have been arguing for a very long time about the sanctity of life, and have been unstinting in their vituperation toward “activist judges” who have, as they see it, unilaterally expanded civil liberties to include the right to choose to terminate a pregnancy.  This demographic ("regressionists," not “activist judges") has provided key political support to the current administration, in both the executive and legislative branches.  This case, therefore, has polarized the politicos just as it polarized the zealots who are using it as a stepping-stone to anti-abortion legislation. 

According to Reuters, as disseminated on Yahoo news, “Tony Perkins, president of the conservative Christian Family Research Council, said the furor over Schiavo was the direct result of years of campaigning against abortion. ‘It comes from the pro-life momentum generated in this country over the past 10 years and the culture of life we have established that looks inside the womb and also inside the nursing home and the hospice and realizes these are real human beings with rights,’ he said.”

That article also claims that some Christian conservatives, including James Dobson who heads the influential Focus on the Family organization, also argue against the notion of a “right to die,” even in cases when an individual clearly states his own wish not to prolong life. “I don’t believe in a right to die. I think that God is in control of our destiny,” Dobson said recently.

There’s a lot I could say about these matters, but I want to limit myself to a few particularly offensive hypocrisies I’m noticing:

First: During the recent federal elections there was a fair amount of talk about the danger of judicial activism - making law from the bench.  Judges (who are often considered unaccountable to their constituencies) should not create new laws, or novel interpretations of existing laws; they should just let lawmakers make laws, and interpret those laws as precedent dictates. 

One aspect of jurisprudence that the federal courts take very seriously is jurisdiction - whether a matter can be heard in a given court, regardless of the merits of the case.  Some cases just don’t belong in federal court - the Constitution makes the limits of this jurisdiction very clear.  It is a legal truism that the parties can confer personal jurisdiction by acquiescence (even if the court doesn’t have the authority to make someone appear and respond to a lawsuit, if that person agrees to do so, they are bound by the court’s ruling).  However, even if the parties agree, even if they stipulate on the record (and remind me not to play that record anymore), they cannot confer subject matter jurisdiction on a court that lacks the authority to hear the case.  It’s one of the many ways that the judicial power is moderated and controlled.  You can’t take just any case to just any court.  Some courts have jurisdiction and some don’t.  You have to go to a court that has jurisdiction over your controversy.  It’s not rocket science, people.  In fact, most people go to law school because they can’t do rocket science.  Or brain surgery.  Which this case concerns, so we’re still over our heads here. 

Terry Shiavo’s case falls outside of traditional federal jurisdiction.  Local courts, following local law passed by local legislators as interpreted by local judges, are entitled to deference when they decide non-federal cases.  But not, apparently, when the bible-clutching antihumanists don’t like that court’s decision.  Federalism (the limitation of federal power over the states) seems to be a relevant consideration only when state power is in the service of religious orthodoxy or powerful commercial interests, such as when states try to impose the 10 commandments or the word “god” in the pledge of allegiance on people, for example.  (This is worthy of a whole rant on its own, actually.) When, however, federalism is relied upon to defend the rights of individuals against religious or commercial interests, it seems that Congress - consisting of 435 representatives, only 23 of whom are elected by Floridians - feels comfortable stepping in and redrawing 200-year-old jurisdictional lines.  “No, we think this case should have federal jurisdiction.  We have not changed the laws that govern it; we are not extending this jurisdiction to any other case, and we aren’t claiming that the State court lacks jurisdiction.  We just don’t like how it’s been handled so we’ll take over from here.”

This is a form of judicial activism unknown to the “liberals” who are usually the ones tarred with this epithet: here, the very anti-choice activists who lambast the pro-abortion crowd are literally changing the rules so that a new judge can decide their favorite case, perhaps more in line with their own philosophy.  Changing federal rules on a case-by-case basis so that you can manufacture the verdict you like, is activism at its most extreme and oppressive.  Next time you hear the zealots complaining about activist judges, please consider whether these are the people who buttonholed congressmen into changing the structure of federal jurisdiction so that one woman could have a tube stuck into her stomach.  If anything the other side does equals this in activism, I’d like to hear about it. 

Second: they want to stick a tube into this woman’s stomach.  James Dobson is saying, in support of this effort, “I think that god is in control of our destiny.” Is that so, James?  Did God make Terri’s brain stop working?  Is it your place, then, to prolong her life?  If it’s all in god’s hands, such as they are, then take the Christian Science angle and don’t interfere with god’s plan by jamming tubes in people’s stomachs.  If life should not be artifically terminated, neither should it be artificially prolonged.  God will take care of Terri, and all of us, without our interfering and meddling.  If you want to argue that God made it possible to save her life and therefore it should be done, well, God makes a lot of things possible but that doesn’t mean they’re all good ideas.  God makes genocide possible; let’s not do it.  God makes it possible to save a mother’s life in some cases, by destroying an embryo; should we ignore that capacity when we have opportunity to employ it? 

In the end, I think the Shiavo case is another of that long line of cases in which bad facts make for bad law. What is more insidious, though, is how anemic and ill-conceived philosophies can create mutually incompatible results, so that the same legal issue produces widely disparate consequences.  Let local authorities deal with local issues, whether you like how they handle them or not.  Don’t put God in control of some things, and deny God’s authority over others.  If you want to convince me of your position, it had better be consistent.  Some people don’t put much stock in consistency, but they are mushy people and I don’t like spending time with them.  I will respect your opinion much more, even if I don’t share it, when it actually stands up to analysis.  If all you’ve got is passion, you should get more involved in team sports and leave legal issues for those who actually care about them.

That is all.  I’m going home now to do yoga and stretch this grouse right the hell out.  Wish me luck and keep your jurisdiction warm and dry.

Well said.  I particularly like it at the end where you said that people need to be consistent with their arguments and rationale behind them.  That is one of my biggest pet peeves.

i don’t do rocket science or legal jargon - i read novels for a living, remember - but it seems to me that the case is about more than jurisdictional matters.

but here’s the thing that bothers me, and which no jurisdictional argument can really touch : the judge has decided it is legal to starve this woman to death.  they aren’t cutting off life-support to a brain-dead individual here.  terri schiavo is cognitively disabled but otherwise alive.  she has to be fed.  and now, even if she were to sit up and say “i want a happy meal,” it would be illegal to give it to her.  (mind - one could argue that it should be illegal to give anyone a happy meal.  make it a cucumber.  if terri schiavo ate it, she would be in contempt of court.) this decision is not a “mercy killing.” it is not “putting terri schiavo out of her misery.” it is starving a mentally disabled woman to death.  pedophiles and serial killers who are condemned to death are given an injection that works in 3 minutes ; terri schiavo’s death sentence could take 15 days.  where is the mercy in this killing?

and before we go down the all-too-familiar road of blaming zealous christian conservatives for difficult social issues, i’d like to point you to this site : http://www.aish.com/societyWork/sciencenature/Should_Terri_Schiavo_Live_or_Die$.asp

finally, as to letting local authorities deal with local issues.  judge greer has consistently refused the validity of terri schiavo’s advocates.  he has refused to consider her parents’ request for a change of guardianship.  they appealed his decision, and the case moved into a different court’s jurisdiction.  i would suggest the issue of the rights of cognitively disabled people is far more than local.  thank god there are people, worldwide, fighting zealously for terri schiavo’s life, but take god out of the equation if you like.  it’s not right for one person to decide to starve another to death. 

aristotle said law is reason without passion.  in this case, what stands for law has neither passion nor reason, and its blindness has nothing to do with justice.

Ruzmari, your medical facts are wrong.  Terri is far more than mentally disabled; she meets the medical definition of “vegetative state.” The idea that she can sing and dance and do a broadway number is, to be frank, conservative propaganda. I’ve read enough medical opinions on the subject of her actual condition to convince me of this.

And your arguments about justice and passion are heartfelt, but misplaced. Dan is correct: the federal government subverted the principles of the constitution for a political agenda.  Bush signed into law a bill that names the parents. It’s so sickening that I can barely begin to think about it.

Are there no political parties left that promote individual and states’ rights?

Just kill her already! She has no cerebral cortex. Large portions of her brain are gone, replaced with CSF. She is no longer capable of consciousness.

I would prefer it if she were given a lethal injection, but that probably isn’t going to happen.

Starving her to death would seem to be cruel, but given her lack of consciousness, she won’t suffer at all in the traditional sense of “suffering”. You could bludgeon her to death and it won’t make a difference.

I think Dan’s issue (and certainly mine in this situation) isn’t about whether Terri deserves to live, but that the hypocrites driving this latest phase of the case are the same people who balk when a Federal court overrules a state law that they like (a law against sodomy, for instance). These people claim that the Federal court should stay out of their business, until a situation arises that the state/local courts consistently make a decision not in the hypocrite’s favor. Then they are screaming for the Federal government to intervene.

Romy, I too am troubled by the fact that Terri’s death is being brought about by starvation, not by removing life-sustaining machines. This is different than when my father had to force the hospital to remove my grandmother’s intubation tube after her second massive stroke. This is denying something that every person on this earth must have to survive. I don’t like it at all, but it’s not my decision to make. I believe that if Michael Schiavo is making the wrong decision, he will get his judgement. It is my responsibility to pray for mercy for Terri, wisdom for her guardian and the courts, and comfort for her parents. I feel compassion for her mother and father—they want so much for their daughter to be alive again, and they are deluding themselves in the process.

I too have to say that I do not trust a Federal Government that picks and choosen when it will follow the laws that We The People have already laid out for it to follow.  I am also extraordinarily skeptical of this current Administration due to our recent experience with it.  They will lie, cheat and steal to further their own power base.  I do not believe that they are motivated by any religious or even ethical beliefs whatsoever.  Their actions have shown me clearly that they are power mongers who are only motivated by gaining more political power.  They are willing to destroy every check and balance that this country has in place to further that goal.  They will manipulate any and all situations, including this one.
There’s no question here that this particular case if filled with troubling ethical and emotional issues.  This is also a situation that comes up in hospitals on a regular basis.  Not every family member is pleased with the decisions that are made by the guardians of the incapacitated individual.  Sadly I believe that even if this woman had left written, signed, witnessed and notarized directions telling her husband that he was the only one to make decisions and that she did not want to be in any kind of vegitative state this Federal Government would STILL be doing exactly what they are doing.  Because this is just another form of campaigning for them.
Sorry Dan, I ranted in your comments.

Everyone else was so much more eloquent than my original comment, but I just wanted to say I enjoyed reading them.  Very valid points.  The idea that any lawmaker decided that parents have more say than a spouse gets my blood boiling.  Everyone needs their own living will, or at least mine’s resting in various blog comment servers.

see what i miss when i don’t read you for a day or two…

beautifully put Dan.  in a similar vein, when a federal judge ruled several weeks ago against California’s ban on same-sex marriage, the zealous regressionists (as you call them—i LOVE that description!) were quick to paint the judge as yet another San Francisco activist judge.  it wasn’t until a few days later that i read that this particular judge was himself a member of the Grand Ol’ Party, was appointed by a GOP governor (Wilson) and is a Catholic.  funny how the zealous regressionists choose to ignore all that when it didn’t suit their needs.