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The Schiavo Divide

Reynolds:

[…] I don’t think that America is in danger of being taken over by religious Zealots, constituting an American Taliban and bent on establishing theocracy. I think that […] the people that Mickey Kaus is calling “pro-tubists” are well-meaning, sincere, and possessed of an earnest desire to do good. I don’t think that they’re nascent Mullah Omars, and I think that calling them that just makes the problem worse. This is a tragedy, and it’s become a circus. Name-calling just makes you one of the clowns.

But I do think that process, and the Constitution, matter. Trampling the Constitution in an earnest desire to do good in high-profile cases has been a hallmark of a certain sort of liberalism, and it’s the sort of thing that I thought conservatives eschewed. If I were in charge of making the decision, I might well put the tube back and turn Terri Schiavo over to her family. But I’m not, and the Florida courts are, and they seem to have done a conscientious job. Maybe they came to the right decision, and maybe they didn’t. But respecting their role in the system, and not rushing to overturn all the rules because we don’t like the outcome, seems to me to be part of being a member of civilized society rather than a mob. As I say, I thought conservatives knew this.

John Cole:

Where [Glenn] is wrong is misdiagnosing the pernicious threat posed by the fringe elements within the Conservative Christian movement- the Randall Terry’s, the people flooding the airwaves calling Michael Schiavo a terrible husband, the people allowing their ten year old children to be arrested outside terri Schiavo’s hospice, the people who think they own the Republican Congress and can get them to ‘trample the Constitution’ at will- they are a threat and they do want a theocracy.

What more proof do you need than the fact that the bill passed Congress and they had enough power to drag Bush back to the White House to sign it. This is a problem, and there is going to be violence when Terri Schiavo dies.

Personally, I fall somewhere between these two positions:  Glenn is right that there is absolutely no danger that a coalition of religious zealots will gain control of the country and impose on the rest of us a Judeo-Christian theocracy; but John’s worry should not be taken lightly—namely, that though born of desperation, the pugnacious and inflamatory rhetoric coming from the most public faces of the “Save Terri” crowd will have a chilling effect on the Republican political agenda, and could cause many of the less socially conservative members of the Republican coalition to rethink their allegiances.

Ironically, the social fallout from the Schiavo case is likely to affect the Republican party most adversely in the one area that truly matters:  the President’s ability to push through conservative judges. Adding to that irony is that the very kinds of judges many of us would like to see seated are judges who are, from the perspective of legal temperament, just like Judge George Greer—men and women who respect the judicial process, and who are capable of putting aside their personal religious convictions in the service of reading and interpreting the law objectively and fairly.

I could be wrong, but I suspect that this last week of media coverage—which has foregrounded the religiosity of the protesters—will make it easier for Democrats to filibuster Bush’s judicial nominees by tethering them, in the public’s mind, to the kind of religiously-inspired activism so evident in the religious right (and capped by the President’s decision to rush back to sign emergency legislation).  That is, many Americans, I think, will look more suspiciously upon the President’s nominees, and they are likely to be less upset with the Democrats’ (totally unjustified) attempts to keep Bush’s choices from receiving an up or down vote.  Which means that the Republicans will almost certainly have to go nuclear, should they wish to get the judges through—and the Dems will be able to tie what is a simple parliamentary change to the very kind of “activism” the Republicans have labored to pin (rightly, in my estimation) on the Democrats.

I’ve noted before that I believe that most of the politicians involved in that emergency legislation were acting out of conviction and not political expediency; and to be fair, the legislation was supported by members of both parties.  But the fact remains that the public face of the legislation was Republican, and I suspect that the majority of Americans are uncomfortable watching the government insert itself so publically into what is, at base, a private family custody dispute that has been duly litigated.

****

Additional thoughts here and here.

100 Replies to “The Schiavo Divide”

  1. Karl says:

    I agree with almost every word of that.  The sole exception is holding up Judge Greer as the example of judges to be desired.  I believe Judge Greer followed the law, but there is one key point in this case where he may have dropped the ball entirely.

    Clear and convincing evidence of Terri’s intent was required to permit withdrawal the g-tube.  Judge Greer found the testimony of Michael, his brother and sister-in-law to be clear and convincing. 

    However, Judge Greer never addressed the conflict between Michael’s basic claim that Terri did not want to live like this, and Michael’s actions for six to eight years, not merely letting Terri persist in a PVS, but seeking all sorts of treatment, including flying her to California to have electrodes stuck in her brain to try to restart it.  In fact, Judge Greer dismissed this as being harly worthy of comment, suggesting that the parents could not complain about this because it kept Terri alive for that period, as the parents had wanted.  There seems to have been no recognition by Judge Greer that Michael’s own actions raised serious questions because—even assuming testimony of Michael, his brother and sister-in-law to be true—Michael is supposedly the person who knew her best, yet acted contrary to what he claimed were her wishes for years.

    Appellate courts are extremely reluctant to overturn a trial judge’s findings of fact, particularly assessments of witness credibility, as none of the other judges actually heard the witnesses testify.  Thus, the fact that many other courts/judges looked at this case is much less relevant to this point than if Judge Greer had made an error of law.  Moreover, those same factors leave some doubt in my mind as to whether Judge Greer was wrong on that key point. 

    Unfortunately, for the reasons stated, I also have some doubt that the proof of Terri’s intent was clear and convincing.  So I don’t know that I would hold him up as an example of the sort of judge anyone should be actively seeking to put on the federal bench.

  2. Jeff Goldstein says:

    Funny, Karl. Your comment came in just as I was updating the post on the Greer point to included the qualifier, “from the perspective of legal temperament.”

    There are all sorts of questions about the evidenciary findings—and I would like to see a PET scan—but I think Greer interpreted the evidence and made his decision in good faith, and this is precisely the kinds of things we ask judges to do all the time.

  3. Bruce says:

    I really don’t see any difference between this case and a late term abortion. If it is legal to kill the unborn that will definitely go on living if no intervention occurs, why stop there?

    Why not kill the insane, the mentally ill, the unwanted, the inconvenient?

  4. Matt says:

    Having experienced the joy of living through the Randall Terry sponsored “Summer of Mercy” in Wichita in 1991, I almost passed out when I saw that he was their spokesman. This is a guy that believes wearing a condom or taking the pill is murder. He’s a complete psycho. And probably the worst possible choice the Schindlers could have made.

  5. Alpha Baboon says:

    Well if I had to align myself I’d lean heavily toward the Reynold’s side… but I really dont think that this whole Schiavo business is going to be remembered as all that big of a deal.. and certainly not result in huge changes in the current way that this type of case is addressed by our legal system.

    I mean it’s a big deal in the media right now.. a media hungry for some story to sell ad space and advertising minutes on.. and every politico and their brother has punched their ticket on this issue.. (and I dont believe that most is sincere concern.. call me a pessimist.) But you know where it’s not a big deal ? On the street.. At least not on my streets.. During the presidential elections we were at each other’s throats.. Everyone had an opinion.. everyone took a side. But there’s no visible dabate that I see day to day.. no argueing.. If I bring up the topic, the most common response is that its sad.. some seem not to know much about it at all.

    I think that this will be a big issue for the next few days.. How apropos that it’s come at Easter.. but once Terry’s body has expired and the braying from both sides has died down, it will be forgotten and we the masses will be herded on to the next crises de jour.

    -Baboon Savant

  6. auburnite says:

    I may be wrong, but I don’t think this will have a long-term “chilling effect” toward Republicans, mainly because we Americans have notoriously short memories.

    As I said, I may be wrong:  we’ll just have to wait and see.

  7. JWebb says:

    Couched in those terms, one realizes Ward Churchill is in his 232nd trimester.

  8. JWebb says:

    Sorry, should have been:

    “I really don’t see any difference between this case and a late term abortion.”

    Couched in those terms, one realizes Ward Churchill is in his 232nd trimester.

  9. “Glenn is right that there is absolutely no danger that a cabal of religious zealots will gain control of the country and impose on the rest of us a Judeo-Christian theocracy…”

    And this is something that none of us wants to see.  However, what we on the so-called Christian Right would like to see is a return to a Judeo-Christian democracy.

    There are those who worry about the constitution being trampled by a throng of Bible-thumpers.

    But is it not the constitution which enables The People with rights to LIFE, liberty and the pursuit of happiness?  Hopefully without labeling them Jesus freaks, Holy Rollers and Right Wing Wackos.

  10. gail says:

    When you put it in those terms, JWebb, it almost makes me reconsider my position on really, really late-term abortions.

  11. RC says:

    RWC,

    No the constitution does not such thing.  The Declaration of Indepence points out that humans are endowed by their creator with those rights.  The constitution is the enabling document for the Federal government which arguably has NO business in this decision as it should be made by the closest relative of a person whose personality and everything which made her who she was has been dead for about 15 years.  Said person being the spouse.

  12. Bruce says:

    as it should be made by the closest relative of a person

    If someone gets married, I can see that their spouse is now considered the closest living relative. But if that spouse starts living with another woman and has a couple of kids with that woman shouldn’t the concept of closest living relative revert back to Mom and Dad if they are still alive?

    I don’t blame Mr. Schiavo for moving on with his life. I don’t expect him to go on being the loving husband when his wife is a vegetable. But then again, neither do I think he has the right to starve her to death either.

    I guess if I was in a coma, and my spouse was given a million dollars for my care, and a huge chunk of it was spent on lawyers fees instead of medical care, I’d be pissed off. And I’d prefer my parents take over as trustees.

  13. john pike says:

    I DO think that this may have a more long-lasting and negative effect for Republicans (my party, no less).

    I am one of those “Libertarian-Conservative” republicans who doesn’t like the Left, likes a strong military, and adults at the helm of our country.  I for years have ignored the Religious Right because they seemed to be harmless enough, my democraticd friends’ protests notwithstanding.

    For the first time ever I am looking at my party in a way that I have never done so…and am equal parts disappointed, confused, angry and nauseous. 

    I do know that it will be difficult to win my political arguments so smugly

  14. Xrlq says:

    There are all sorts of questions about the evidenciary findings—and I would like to see a PET scan—but I think Greer interpreted the evidence and made his decision in good faith, and this is precisely the kinds of things we ask judges to do all the time.

    Good faith?  That’s it?  I’d hate to think the bar is that low.  I have little doubt that almost all judges rule in good faith, but good faith or no, “Judge” Greer has exhibited horrible judgement in this case.  By finding Michael’s testimony “clear and convincing” while ignoring all the conflicting testimony from her family members, her friends and two nurses who listened to Michael himself say they’d never had any such conversations in the early 1990s (to say nothing of “when is that bitch going to die?”), he was almost as responsible for creating this mess as Michael Schiavo and his Kevorkianesque lawyer are.  And then there’s the question of whether she’s PVS at all, which could easily be determined by an MRI or PET scan, but the hack judge won’t even order that.  Frankly, I’m at a loss over how “Judge” Greer could have possibly handled this matter any worse than he did, even if he were acting in bad faith, and his sole objective was to screw the pooch for pooch screwing’s sake.

    Thanks to “Judge” Greer, an innocent woman is dying at the hands of an abusive husband whose word he chose to believe over hers or those best suited to speak for her.  To the ghost of Greer’s last victim, Helene Ball McGee, I’m sure this all seems like deja vu all over again.  If this is the kind of judge the Republicans are going to have a harder time getting confirmed to life tenure on our federal courts, good.

  15. Jeff Goldstein says:

    I stopped reading the second I saw the scare quotes around Judge.

  16. Xrlq says:

    Each his own.

  17. Beto Ochoa says:

    What will the press stuff down our throats after this poor woman is on to the next realm? What outrage will they invent? What crisis will they scaremonger? What hate will they trot out to sell their wares and get their pound of flesh? Harpies and Vultures. Oh and how we buy their product and drag ourselves down. Pathetic.

  18. ed says:

    Hmmm.

    1. I think I’d like to see a complete reinvestigation and a new ruling, even if the end result is the SAME exact ruling as the current one.  If for no other reason than because it’s allowed by the new legislation and it would defuse a potentially very bad situation.

    2. I think that any concept or idea of bi-partisanship on judicial nominations has just completely run out the door.  No chance in hell that anybody on the Right is going to give an inch.  If the GOP doesn’t fight like rabid badgers, then there’ll be plenty of conservatives willing to replace them with politicians who will fight.

    3. There’s some speculation that the GOP is now going to buy off the moderates by allowing federal funding for embryonic stem cell research.  The thinking, supposedly, is that their recent efforts on Terri’s behalf has bought them some wiggle room. 

    Considering what an utter failure their efforts have been, I suspect that wiggle room is largely an illusion.  Expect some serious backlash if the GOP tries anything with federal funding of embryonic stem cell research.

    4. Does the timing of all complete disaster strike anyone else as an extremely bad idea?  From the reports Terri Schivao isn’t going to last much longer so she’ll very likely die very soon.

    Is deliberately starving a helpless disabled Catholic woman on Easter Sunday as bad an idea as it gets?  Or is there actually something worse than that?

    5. If any photos of Terri are taken at the time of death, then expect things to get even worse.  Assuming that people are telling the truth, which does match other accounts of dehydration and starvation, then any images would definitely set off a firestorm.

    Agree or disagree, this is going to be a pivotal moment and not just for the GOP either.  This will end up acting like a catalyst that will, over the course of the next year, reaffirm or shatter existing political and ideological bonds.  My money is on the latter.  I expect realignments to follow starting in about six months.

  19. Jeff Goldstein says:

    Well, I certainly won’t be voting for the Dems either way.

  20. John Cole says:

    Clearly you are wrong, Jeff.  The simple truth is I (and you) am a bad Republican and I hate Christians.  Look here, where I state that Hal Turner is frightening.

    Only in the comments did I find out that I was insinuating that all religious people and all Rpeublicans are like Hal Turner. 

    I guess they use the same glasses to read ‘into’ the Constitution. 

    PLUS, I AM LESS THOUGHTFUL AND LESS INTELLIGENT THAN JOSH MARSHALL.

    I just thought I would do that in all caps like the emails I have been getting telling me I hate the baby Jesus.  I would try run-on sentences, but my fingers instinctively refuse.

    I wonder if I am going to turn into salt tomorrow morning when I go to Church.  Hope not.

  21. Xrlq says:

    I think I’d like to see a complete reinvestigation and a new ruling, even if the end result is the SAME exact ruling as the current one.  If for no other reason than because it’s allowed by the new legislation and it would defuse a potentially very bad situation.

    Another reason for a de novo trial is that Michael Schiavo’s hot shot lawyer would be matched by the hot shot lawyers the Schindlers have now, rather than the poor man’s attorney they had to apparently had to rely on in the original trial.

  22. John Cole says:

    A new trial wasn’t called for in the legislation.  Go read Ann Althouse.

  23. BumperStickerist says:

    To make Xrlq’s point without using scare quotes –

    Terri’s interests do not appear to be represented at the start of this whole deal.

    That a judge can make accurate rulings that proceed from a bad start is not in question. 

    That a woman is being starved to death as a result is a sin – which isn’t illegal, just immoral.

    _________________________________________

    One of the dogs that hasn’t barked yet is the ‘Free Mumia’ crowd. All they’re looking for is a de novo review of the evidence.  And they’re doing so in order to save a life.  Rage Against the Machine could give a concert – Ed Asner and Mike Farrell could hit the talk show circuit.  It’d help if Mumia offered to starve himself during the time, but that’s up to him.  “From the Shrunken Belly of the Beast” would be a good second book.

    Anyway – Terri’s going to be dead soon enough.

    Michael’s subsequent actions will be telling, in some way.  Much as buyer’s remorse has swept through the parts of the Blogosphere – John Cole and Michele Catalano being two examples currently hoisted up by Left-of-Center types – perhaps some remorseful “Oh, it looks like Michael did have Terri die for the money” regret will show up on either’s blog.

    Which won’t matter.

    Because a feeding tube is the equivalent of a heart-lung machine.

    And Terri’s brain was a bone-encased water balloon.

    Maybe.

    The legal record would indicate as such.

    Oh well.

  24. Xrlq says:

    I already read Althouse’s explanation, which I found it a bit less credible than this one.

  25. ericjorg says:

    Please take a deep breath.  Inhale, exhale. Perhaps the three or four of you ( or thousands) who are so caught in the vortex of this issue will pass out, but there are lots of people who have strong feeling but will proceed.  There will be no gains or losses for either political party, partisans will feel let down, and the world will go on.  It is serious, it is important, but the yelling at each other will not resolve it or heal it. Take some time, think, resolve, and form logical arguments, not on an incomplete record, but on what you value.  Then argue to persuade. not to demean.  The courts have failed to give a new hearing, and that is enough for reform.

    May the Easter Bunny make you happy.

  26. Jeff Goldstein says:

    Don’t know where you stand on the death penalty, Xrlq, but I can tell you that Jeralyn Merritt at TalkLeft would be proud to make these arguments for you.

    Now we’re actually talking about how Michael Schiavo had the more expensive attorneys?  Jesus.  How do you propose we level the playing field?  And please, let’s not stick to just this one case. Because clearly your concern extends to every other potential case in which some discrepancy arises over the relative professional talents of the competiting advocates / litigators.

    And to be clear: all I am saying is that in lieu of some metaphysical Truth, we must rely on a system that we believe best approximates truth—a man-made legal system peopled with conscientious professionals checked by a series of appeals processes on both the state and federal level.

    As I’ve said elsewhere, were Terri my kid, I would have rushed her room with a bottle of Gatorade and some applesauce and made the police guarding her shoot me to prevent me from feeding her.  So yes, I understand and sympathize with the Schindlers.  But I just don’t see a grand judicial conspiracy here.  And several judges have denied the request for a de novo hearing.  I suspect they have reasons OTHER than they JUST LOVE DEATH.

  27. josil says:

    the rule of law does not mean the rule of judges.

    if the legislative branch of government and the executive branch decide on a course of action, the judicial branch can only overturn that action if you assume that the judiciary is stands over the other two branches. i can’t see any part of the Constitution which specifies that relation.

  28. Jeff,

    Just as those that support a true de novo review have reasons other than THE HOLY LORD JEEBUS told them to over a bowl of Fruity-O’s

  29. Xrlq says:

    Don’t know where you stand on the death penalty, Xrlq, but I can tell you that Jeralyn Merritt at TalkLeft would be proud to make these arguments for you.

    That’s pretty lame coming from a guy who objects to scare quotes to describe judges of questionable competence.  I’m sure Merritt would be delighted to make a similar argument for me if I had the good sense to murder somebody, but if I were incapacitated and starving to death because an incompetent judge decided that was what I wanted and ignored the ample evidence to the contrary (e.g., this thread)?  I doubt it, but if she is consistent on this issue, good for her.

    No one said that any of the judges “just love death.” Facts are almost never re-visited de novo, that’s why all the pro-Schiavo rhetoric about “19 courts” having all agreed with Michael Schiavo is bunk.  Appeals don’t work that way.  But it was clear that the purpose of last week’s statute was to revisit the facts de novo, and the courts basically treated it as though it merely called for a new round of appeals.  Althouse is right on a superficial level – they did technically comply with the text of the statute – but so is Hoy – they also played dumb regarding its obvious intent.

  30. John Cole says:

    if the legislative branch of government and the executive branch decide on a course of action, the judicial branch can only overturn that action if you assume that the judiciary is stands over the other two branches. i can’t see any part of the Constitution which specifies that relation.

    And round and round goes the Merry-Go-Round.

    Out of curiosity, who made the laws the judges are adhering to in this case?  If you say “The Florida legislature,” why, then, you are RIGHT!

    If you are saying we should have laws, and adhere to them except when we don’t like them, and then we can let the executive branch change them at will, I would argue that has been tried before.

    IN every third world cesspool dictatorship that ever existed.

  31. Eh, the “adhere except when we don’t like them” argument is weak since it can be applied with equal force against courts that intentionally ignore laws passed by legislatures.

    Which is kind of the point.

  32. Xrlq says:

    Out of curiosity, who made the laws the judges are adhering to in this case?  If you say “The Florida legislature,” why, then, you are RIGHT!

    Out of curiosity, who made the law which, had it not been struck down by the Florida Supreme Court on dubious constitutional grounds, would have kept Terri alive?  If you say, “The Florida Legislature,” why, then, you are RIGHT!

    If you are saying we should have laws, and adhere to them except when we don’t like them, and then we can let the executive branch change them at will, I would argue that has been tried before.

    No one is saying to ignore laws.  Dubious court decisions, maybe.  Making a regular practice of it would lead to some practical problems, but allowing courts to make up any laws they want doesn’t seem too hot, either.

    IN every third world cesspool dictatorship that ever existed.

    The saying “they have made their ruling, now let them enforce it” did not originate with any third world cesspool dictatorship.

  33. John Cole says:

    Christopher:

    When judges actively ignore the law or flat out make shit up, that is called judicial activism.

    When judges follow the law as written, that is called doing their job.  Personally, I am in favor of it.  That is what has happened here.

    What Josil is suggesting is that we have judges who follow the law most of the time, except when we don;t like the law. Which is another name for judicial activism.  Or, we have judges that follow the law all the time, but when we don’t like their ruling, we just have the Guv’na or the Presnit overrule them.  That is called a Banana Republic Starter Kit.

  34. Jeff Goldstein says:

    Just as those that support a true de novo review have reasons other than THE HOLY LORD JEEBUS told them to over a bowl of Fruity-O’s

    Uh, I don’t remember ever saying they were. In fact, one of the links I provided in an earlier post was to this.

    That’s pretty lame coming from a guy who objects to scare quotes to describe judges of questionable competence.  I’m sure Merritt would be delighted to make a similar argument for me if I had the good sense to murder somebody, but if I were incapacitated and starving to death because an incompetent judge decided that was what I wanted and ignored the ample evidence to the contrary (e.g., this thread)?  I doubt it, but if she is consistent on this issue, good for her.

    I don’t follow you.  What’s lame, exactly? I was referring specifically to your argument that Terri wasn’t adequately represented because her parents’ lawyer made less money than Michael Schiavo’s—as the next sentence in my comment made clear—and that anti-death penalty defense attorneys like Jeralyn Merritt make the same argument to appellate courts on behalf of death penalty defendants.  Therefore, I would hope you’d be willing to cede the same point in death penalty cases.

    Beyond that, I keep seeing things about like this:  “the law which, had it not been struck down by the Florida Supreme Court on dubious constitutional grounds” etc., etc.  When are you willing to believe the courts are capable of interpreting the Constitution?  Is it just in this case that they are unable to do so?

  35. john says:

    As John Cole points out, the far right slapped on some blinders and went all Malcom X “by any means neccesary” in their effort to keep Terri alive.

    Still, anti-religious sentiment is everywhere in this case.  Look no farther than the last weeks postings at Mr Cole’s site for some examples.  I know pin the tail on the Christer is a fun game and all, but what about this case motivates the hostility?  As for Professor Reynolds, didn’t he play with the idea of voting for our Lord and Saviour, John Kerry, because he was going to make superman fly again?  Too many loaded questions and too much sarcasm. Yet I post instead of hitting delete.

  36. Tom v G says:

    When are you willing to believe the courts are capable of interpreting the Constitution?  Is it just in this case?

    Nice question; as I believe it will be the overriding lesson/concern of this national tragedy. Both those that I love to have agree with me – and those that rarely do – are showing a little of their more of the frayed edges of their egocentric.

    As my “protest”, I’ve been listening to oldies on my car radio all week.

  37. John Cole says:

    Are Fruity O’s the same thing as Fruit Loops?

    Personally, I am Cap’n Crunch man myself, except when I eat it too fast and tear up the roof my mouth.

  38. Tom v G says:

    Are typo corrections allowed?

    are showing a little more of the frayed edges of their egocentric thought process.

    [is there a “grammar checqUe” on this venue?]

  39. Xrlq says:

    I don’t follow you.  What’s lame, exactly? I was referring specifically to your argument that Terri wasn’t adequately represented because her parents’ lawyer made less money than Michael Schiavo’s—as the next sentence in my comment made clear—and that anti-death penalty defense attorneys like Jeralyn Merritt make the same argument to appellate courts on behalf of death penalty defendants.  Therefore, I would hope you’d be willing to cede the same point in death penalty cases.

    Fair enough.  I thought you were arguing something more along the lines of “Jeralyn Merritt agrees with you about X, therefore, you must be wrong.” As to death penalty cases, or any other criminal ones, I’m not sure how that would arise.  Some defense attorneys make a lot more money than others, of course, but I don’t know any who make less than the prosecutors they face off with.  Even if they did, prosecutors have an obligation to share potentially exculpatory information with the defense, while civil lawyers have no such obligations to their opposing counsels.  So I don’t know that the analogy really holds up, but to extent it does, of course I don’t want some guy executed because he was represented by an underpaid (relative to the prosecutor) attorney who had little or no experience handling criminal cases, before a judge who also had very little experience handlding death penalty cases.

    Beyond that, I keep seeing things about like this:  “the law which, had it not been struck down by the Florida Supreme Court on dubious constitutional grounds” etc., etc.  When are you willing to believe the courts are capable of interpreting the Constitution?  Is it just in this case that they are unable to do so?

    No, quite a few court cases are like that, unfortunately.  Do you even know the basis of the 2004 decision on the 2003 statute, or do you just assume it’s right because a court said so?

  40. Tom v G says:

    I know pin the tail on the Christer is a fun game and all, but what about this case motivates the hostility?

    Give a peek to this one page “Newseek” poll and pay some special attention to “non-Christian” response.  It just gets “curiouser and curiouser”…

  41. DudeSucker says:

    If you conclude that Michael Schiavo really loves Terri, and always has, then his actions all along, including the first several years, become entirely consistent.  At first, he was unable to come to grips with the reality that he would never have his wife back and he tried everything he could to get her back.  Eventually, reality set in for him and he has been trying ever since to see that her wish not to live on in this state be honored.  The tragedy in this situation is that reality has never set in for her parents.

  42. Diana says:

    FYI The complete text of the Guardian Ad Litem 2003 report is here.

  43. Jeff Goldstein says:

    Some defense attorneys make a lot more money than others, of course, but I don’t know any who make less than the prosecutors they face off with.

    Court appointed attorneys fit that description, and the prevalence of these attorneys in death penalty cases is is one of the most oft-cited critiques of the entire process.

    Do you even know the basis of the 2004 decision on the 2003 statute, or do you just assume it’s right because a court said so?

    Yes.  No.

  44. john says:

    My snotty and juvenile comment about professor Reynolds was inspired by this: http://instapundit.com/archives/022030.php

    which is generating a bit of a buzz about tolerance.  In it Donald Sensing is described, tongue-in-cheek I imagine, as someone who doesn’t sound like the american taliban.

    The only problem is Reynolds and Sensing are on the same page. They both believe it is time for Terri to go.  Once again I am way to dumb to understand what this all means, but after it passes through my filter I get this:  there are 3 types of Terri Schiavo supporters.  The fringe far right, the great unwashed Christian masses, and some secular types who oppose the removal of the feeding tube because of the ick factor of dying of starvation/dehydration.  Isn’t the idea of tolerance to go find someone you DISAGREE with and find some common ground?  Or is this whole thing a circle jerk to reaffirm what we already believe?

  45. I’m so glad to find out from John how easily everyone who questions the result in the Schiavo case can be sorted into neat stacks.

    I’ve found that real people who think about this case represent more of a vast spectrum of opinion rather than the easily attacked strawmen.

    And that’s why I found John Cole’s little rant to be almost offensive.

  46. Matt says:

    Will someone please just admit that this situation is not the end of of the world? Seriously, I understand the emotion on both sides, I wish they’d plug her back in and take a look at a few unanswered questions, but even if they don’t, the earth will continue to spin upon her axis, Jeff will continue to be obsessed with Gay Porn Cock and Oliver will still be fat. The Republicans will not cease to exist, nor will the Dems become the masters of the universe.

    /hysterical rant

    Sorry, I’m just so tired of the “I’m so superior” attitude from both sides. I just want to go back to the day when we could make fun of Twinkie boy.

  47. John Cole says:

    Robin-

    I have only made two stacks.  One stack for 95% of the population.  The second stack for the extremists like Randall Terry, Bo Gritz, Hal Turner, the Christian Identity thugs, the people letting their ten year old son get arrested over an issue he can not possibly understand, the people running around who have never met Michael Schiavo- calling him a thug, accusing him of abuse, calling him a murderer, claiming the judge is executing Terry, screaming about Judicial Activism because they can’t find an activist judge to reverse the decision, and people who really do want to put in place a theocratic state.

    Two stacks.  I know you, and would presume you are in the former.  If, by some bizarre chance, I am wrong, and you, yourself, identify with the second group- then we are at an impasse.  My remarks on this issue are bound to offend you.

  48. JWebb says:

    This afternoon, I watched Monty Python’s “Meaning of Life.” Then I read this thread.

    Woah.

  49. John, that’s not what I found at the post linked above.

    Who knows where I stack in your ordering. I happen to be ambivalent on the subject. 

    I also happen to not have an opinion on Terry Schiavo’s actual medical condition because unlike you I’ve seen that both sides of the dispute are misrepresenting the actual medical examinations.  And unlike you, I’m not going to cite to Feiger of all people as an expert on what the examinations reveal ( Do you have any idea how annoying the idea that you would cite to a discussion of Feiger in this subject is?  Do you even recall how Feiger became a celebrity lawyer? ) When Feiger claims that no neurologist has denied that TS is in PVS, he ignores Hammesfahr.  Now I happen to think that Hammesfahr is a quack, but he is a neurologist quack. 

    John, there are a lot of people with strong opinions on this case that just don’t fit into your little insulting categories.

  50. Richard Ames says:

    >>>” … I believe that most of the politicians involved in that emergency legislation were acting out of conviction and not political expediency …”<<<

    Good God man, you say that like it’s suppose to make us feel better. The intensity of their “conviction” is exactly what we should be worried about. I’m no limp wristed liberal, I consider myself conservative, but these folks are intolerant extremists. I thought libs were being melodramatic about the “rise of the Right” but that emergency legislation of last week made me sit down and start to think. I was stunned.

  51. Jeff,

    No you didn’t say that.  But you DID say:

    I suspect they have reasons OTHER than they JUST LOVE DEATH.

    As nobody in this thread is making that argument–it’s placement is either needless or needlessly inflammatory.

    If you make a BS generalization in one direction, ya get one comin’ back at ya.

  52. Yes, Richard, it is just so very extreme to give someone the right to go to Federal court for a review of a state court case …

    the mind boggles.

  53. ed says:

    Hmmm.

    Frankly I’m sure there are plenty of meaningful and informative posts, but I really can’t say that I care.

    Personally my issue with this is that doctors are *probably* sure that she can’t feel anything while is dying of starvation and thirst.

    I’ve been dealing with kidney failure for the past 3-4 years and I’ve gotten an enormous amount of personal experience with them.

    I don’t trust the opinions of a class of people who can’t remember to wash their f**king hands between patients.  Which, amusingly enough, is the primary cause of deadly hospital infections that result in the death of about 300,000 Americans every year.

    And considering I had a golfball size chunk of flesh carved from my left arm because Mr. Surgeon NumbNut was too damn stupid not to ensure the skin was sterile before sticking a needle in my arm.  A case of flesh-eating bacteria is no joy.

    So “probably”, as a level of proof by doctors, really doesn’t so it for me. 

    IMHO of course and no offense intended towards anybody.

  54. John,

    When judges actively ignore the law or flat out make shit up, that is called judicial activism.

    I am well aware of the concept (as he looks at his “Federalist Society Chapter President” Secret Decoder Ring).

    When judges follow the law as written, that is called doing their job.  Personally, I am in favor of it.  That is what has happened here.

    And here we disagree. I think Prof. Althouse is wrong. Her argument that there was no federal claim or right to review is incomplete (as it was directed moreso to TV coverage of the statute) and unconvincing.

    Althouse is reading the text wrong.

    Section I gives the Schindlers standing to bring a suit and the District Courts

    jurisdiction to hear, determine, and render judgment

    on such a suit. Section II says how to do it:

    In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

    Section I gets you into court, Section II tells the Court what standard to apply.  That standard is de novo.  The court didn’t apply it.  Any other reading of the text is tortured at best.

    Althouse’s argument centers on the contention that the Schindler’s had no federal claim to hear (though how the deprivation of life without due process is not a federal claim escapes me)–and hence that the DC was justified in denying relief and never getting to Section 2 of the statute–the part rejecting deference to the state court.

    But that begs the question. And that’s why she’s wrong and why the court did NOT follow the text.

  55. Jeff Goldstein says:

    Jeff,

    No you didn’t say that.  But you DID say:

    I suspect they have reasons OTHER than they JUST LOVE DEATH.

    As nobody in this thread is making that argument–it’s placement is either needless or needlessly inflammatory.

    If you make a BS generalization in one direction, ya get one comin’ back at ya.

    Okay, Christopher.  Then what IS the reason the Judges want Terri to die?  Is it idiocy?  Corruption?

    My point is, I can’t ascertain the motive (and by the way, if you look carefully through the comments above, you will find that there was an oblique suggestion by one commenter that Greer is kinda into the death sentencing of the disabled thing).  So what is it? 

    As to your above comment, you write: 

    Althouse’s argument centers on the contention that the Schindler’s had no federal claim to hear (though how the deprivation of life without due process is not a federal claim escapes me)–and hence that the DC was justified in denying relief and never getting to Section 2 of the statute–the part rejecting deference to the state court.

    But that begs the question.

    …to which I reply that it is you who is begging the question, in that you assert that after 15 years and numerous appeals, Terri Schiavo was denied due process.  And given that the courts have disagreed with that very contention, it seems to me that we are at an impasse, argumentatively speaking.

  56. bokonon42 says:

    It seems entirely misplaced to blame any of the judges for the way Ms. Schiavo is dying.  The law does not allow for judges to decide holistically, right?  The scope of their decision was limmited to determining her current state, and then determining how she hoped to be treated if she ever came to that state.

    Of course the doctors aren’t certain of her state.  They can’t be.  No one understands the human brain sufficiently to be certain.  Of course they couldn’t be sure of her wishes.  No one could be; not even her husband.  She may well have, and it seems entirely plausible that she would have, said she didn’t wish to live in a coma, or with catastrophic brain damage.  But I do not believe, and can think of no reason to believe, that she said, “You know, Michael, if I’m ever in a persistant vegetative state I want my g-tube pulled.”

    So, sure, the law has been followed.  Only in a flawlessly governed state does that mean perfect justice has been acheived.  Should all laws always be followed?  I don’t have it in me to be morally outraged when a kid busted for smoking pot isn’t fully prosecuted.  When cops let me off for speeding, I don’t accuse them of destroying the constitution.

    If Jeb Bush sent the national guard to storm the hospice and pull out what is left of Ms. Schiavo, I would be repulsed.  Though it totally blows, it is better that Ms. Schiavo die than that this become an actual constitutional crisis.  But I don’t see passing a one-time-only bill in the middle of the night as a threat to the Union.

    I don’t have it in me, yet, either, to spend any much time guessing what this will mean politically.

  57. BlackRedneck says:

    Xlrq:  “Good faith?  That’s it?  I’d hate to think the bar is that low.  I have little doubt that almost all judges rule in good faith, but good faith or no, “Judge” Greer has exhibited horrible judgement in this case.”

    I agree.  I would add that “Judge” Greer’s bad judgement started when he refused to appoint an independent representative for Terri.  He appointed himself and acted as both guardian ad litem and trier of fact.  How stupid is that.  Then, he based his ruling on testimony from a doctor that spent a whopping 45 minutes with Terri and who advocates Alzheimer patients be killed.  No agenda there.

    Ed:  “Is deliberately starving a helpless disabled Catholic woman on Easter Sunday as bad an idea as it gets?  Or is there actually something worse than that?”

    Yes, so true.  I thought it was just me.  Greer and Michael Schaivo got their 15 minutes of fame and it’s going to bite them.  They will both be remembered as the men who starved a brain-damaged woman to death over Easter week- the second holiest time of the Christian faith.  The only way it would be worse is if it happened over Christmas.

    “Agree or disagree, this is going to be a pivotal moment and not just for the GOP either.”

    It was a personal tipping point for me.  I’m an Independent and I joined the Republican party yesterday.  I made my first political donation and sent emails to Pres. Bush, DeLay and Frist to thank them for trying to help Terri.  As a Black person, I’m sure I’ll get a lot of patronizing lectures from my liberal friends.  But that’s okay, I intend to tell them that brain-damaged people are the new Negro and Pres. Bush got out of his bed in the middle of the night to sign Terri’s bill.  Works for me.

  58. bokonon42 says:

    On what basis do you suppose Mr. Greer hoped for the fame this mess has brought him?  Is there any basis to believe that Mr. Greer does not believe he followed, perfectly, the law?  It seems like the however-many appeals courts who’ve rubber stamped his decision would indicate widespread aproval, by his peers, of his work.  I don’t know of any basis to even believe he personally would prefer that Ms. Schiavo die.

  59. bokonon42 says:

    To be clear: You cannot blame judges for bad laws.  I’m not even sure you can blame the legislators, for this one.  Who could have guessed there would have been a guy willing to fight his mother-in-law and father-in-law, in court, for TEN YEARS to have their child dehydrated to death?  No matter what Ms. Schiavo’s wishes were, not matter how specifically, or pationately, or often she expressed them, who would do what Mr. Schiavo has done?  Believing that, in her present state, she was incapable of caring, knowing how pationately her parents cared, who would fight them, for ten year to have her dehydrated?

    I find Mr. Schiavo deeply bizarre.  All the evidence suggests it has nothing to do with money.  There’s no great reason to guess it’s for the fame.  I have no idea why he’s doing what he’s doing.

  60. Carol Herman says:

    Isn’t America wonderful?  We’ve got the Suprano’s on TV, and the Supreme-O’s in DC.

    As to Judge Greer, yeah.  RIIGHT Bring him on.  He denied a woman a court order.  SO the jerk she was married to stabbed her to death. 

    As to what judges do in courthouses, one should take a good, good look.  Because the Shindler’s aren’t defective people.  They had every right to think that if their daughter just received some care BENEFITS from the million-dollar (phony, but victorious) malpractice award money; she’d have had better days than just lying there, in a room without sunshine.

    And, how about her religion.  Sure, judge greer tied Michael’s guardianship (unchecked), to the Catholic Church’s wedding paper.  But really?  Since the Pope spoke specifically about not pulling this Catholic’s woman’s feeding tube … you would have thought that the secular government’s needs would have stopped.  And, personal faith would have intervened?  No?

    It didn’t.  But that doesn’t make it right.  RIIGHT

  61. Clyde says:

    There are just too many things in dispute in this case, from Terri’s actual condition and prognosis to what Terri’s wishes would have been.  There are too many things that Michael Schiavo hasn’t done and hasn’t allowed over the past decade or so (tests, therapy, etc.) for me to feel comfortable that he is actually acting in his wife’s interests and not solely in his own.  In the absence of certainty, we should err on the side of life, and we are not doing that.  Instead, we are watching as Terri Schiavo dies in a barbaric, cruel way.  No matter what you think about patients’ rights to refuse treatment, this just seems wrong.

    I was watching FNC yesterday and a couple of legal experts were in agreement that it was too bad that Judge Greer didn’t actually drive across town to visit Terri Schiavo in the hospice prior to the removal of the feeding tube, in order to see with his own eyes what her situation actually was.  I had to agree.

  62. susan says:

    Having just filled out my ‘die with dignity’ legal contract thingy, I am struck by my audacity to quickly choose ‘pull the plug’ because, while in the middle of answuering the questions, all I could think of was ‘I don’t want to burden anyone else’s life if faced with such circumstances’ since all I have heard coming from our culture is the notion that to live under such circumstances like Terri’s is worse than death yet my sub-conscious self is saying ‘I don’t know what I would feel if I were in Terri’s state’ perhaps I would be blissfully happy, content and that filling out this ‘die with dignity’ contract is really just a legal form of suicide.

    I think of women, when in the state of giving birth, how our bodies provide euphoric compensation to deal with the pain and likewise apparently when the body goes into starvation provides euphoric compensation to deal with the pain.  I light of these events, I then ask myself what compensation has happened to Terri to allow her to live as long as she has given her presumed ‘vegetative’ state.

    What bothers me most in my decision thus far is my capacity to simply accept so easily that which I do not understand based on the concept that our culture feels it is best served for everyone involved that I choose not to burden others with the expense or time it takes to care for me.

    I look at Terri’s parents and wish I had people who loved me as much as they love her by looking passed those circumstances which our society has deemed ‘I wouldn’t want to live that way’ burdensome.  I am 43 year old single person, my father has passed and my mother is diagnosed terminal (although she was diagnosed five years ago she is still alive and living independently as is her wish while showing no signs of ‘miserable’ suffering) so there is really none to care for me since, from what I hear and read, our many in our culture would find my life under such circumstances too burdensome to care for.

    I am troubled at how our culture’s inhumanity to man has creeped into our psychic so I have no choice but to sign a ‘die with dignity’ contract because I see that if I were faced with such circumstances many of my fellow man would rather pull the plug than to be burdened with my ‘damaged goods’.

    Seems the only people who do care are those whose ‘religious’ zeal gives them the courage to see past damage goods which motivates me to embrace their compassion as they represent to me the ultimate in human courage.  From this experience I find myself growing closer to God.

  63. gail says:

    JWebb is pithy. I like pithy.

  64. Paul Zrimsek says:

    I notice that John Cole’s list of the extremists in Stack #2 does not include the leaders of the Republican Party who were the target of the original rant at his own site. Is this a retraction?

    I’d share Jeff’s worry if I thought Republicans in general were as excitable as Cole. But they’re not.

  65. gail says:

    On a more serious note, Susan, I don’t believe for a moment that people who argue for the removal of the feeding tube in this particular situation are in the least degree inhumane or unfeeling, even though I have maintained the other position. The debate isn’t about who feels sorrier for whom or who would be kinder to the ill or the disabled. It’s really about what Terri’s intentions were and what the courts and the federal and state legislatures should be authorized to do about it in our system of government. It’s really important not to let your emotions on one side of a debate to cloud your understanding of the motivations of the people who take the other side. It is unfair and unkind to attribute bad motives to people because they disagree with you.

  66. Alpha Baboon says:

    Wow..This must be the meeting of the ”Not-so-Pithy” Protein Wisdom commentators.. I dig it ! Welcome my brothers ! (and sisters) Come on in..bloviate ! Where have you all been hiding ?

    Baboon Savant

    p.s. I havent seen it in the news, but does anyone know if Terri S. has sat up in bed and asked for a double tall latte, no foam and maybe a couple bagels heavy on the cream cheese yet ? I figure if there’s going to be some miracle to make a point, this is the morning for it..

  67. gail says:

    The miracle you better hope for, monkey man, is that when the Lord of Hosts rose from the tomb this morning to the music of the cithara and the timbrels and the angel choruses, he didn’t see his shadow. Otherwise it’s six more weeks of winter.

  68. Alpha Baboon says:

    You know Gail, for a practicing religious person you have a surprisingly good (and irreverent) sense of humor.. I wish more of your brethren shared that trait.. As I’ve said before.. I’m pretty sure that God has a great sense of humor and doesnt mind a little levity..

  69. The Lord Thy God says:

    ::burning bush appears::

    I AM THE LORD, THY GOD.

    I BRINGETH TWO MORE COMMANDMENTS FOR YOUR LIST;

    11. SHOWEST NO MORE THY ASS BY MAKING JOKES ABOUT THE DEAD OF BRAIN. THOSE OF MY FLOCK IN A PVS ARE MY CHILDREN TOO. TREAT THEM WITH RESPECT.

    12. LAYEST OFF THE JOKES ABOUT MY ONLY SON SEEING HIS SHADOW WHEN HE DOES RISETH. ‘ … six more weeks of winter..’ HA… HA… HA.. Thats a real knee slapper (not).. How would you liketh six more weeks of pouring rain, day and night ? Would you like that ? And no ark this time… I didnt think so… so watcheth they tongue heathen.

    THAT IS ALL FOR NOW.. I”M SURE I’LL BE BACK AS I THINK OF MORE..

    ::burning bush goes out::

  70. Max says:

    I think that your analysis is spot on. The dems are going to wield this incident like a truncheon.

    Imagine the questions..

    “Last year congress overrode its constitutional authority by attempting to impose an outcome in the Schaivo case. Would you endorse similar attempts to usurp judicial authority in light of perceived biblical mandates ?”

    nom: “ their actions were within constitutional..”

    “Is this view informed by your religous convictions ?”

    nom: “.. their actions were constitutional, the legislature sets the jurisdiction of the courts”

    “So the courts should do what the bible says or they can be overridden – do you advocate stoning then ?”

    _____________

    You know the drill.

    I think that I speak for most moderate conservatives when I say that our alignment with the christian right has caused nothing but trouble from the outset. These people aren’t republicans, they’re not even democratic in orientation. The christian right is comprised primarily of bigots and hysterics who resent popular democracy and YES THEY REALLY DO WANT TO IMPOSE THEOCRACY. I’ve dealt with these folks for years, good neighbors but not the sort of people that I regard as true Americans.

  71. Rick says:

    Max,

    Get a freaking grip.  You may know of some true extremists, but these Christers, and their forebears, voted Democratic for decades (FDR’s”coalition”), yet Church and state are farther apart than ever.

    Truly ironic turing word: “death.”

    Cordially…

  72. John Cole says:

    I notice that John Cole’s list of the extremists in Stack #2 does not include the leaders of the Republican Party who were the target of the original rant at his own site. Is this a retraction?

    I’d share Jeff’s worry if I thought Republicans in general were as excitable as Cole. But they’re not.

    It was an oversight, not a retraction.  As far as excitable, check out the DeLay piece in the LA Times.  Have fun locking arms with that scumbag as you tap-dance down the primrose path to destruction.

    Robin stated:

    I also happen to not have an opinion on Terry Schiavo’s actual medical condition because unlike you I’ve seen that both sides of the dispute are misrepresenting the actual medical examinations.  And unlike you, I’m not going to cite to Feiger of all people as an expert on what the examinations reveal ( Do you have any idea how annoying the idea that you would cite to a discussion of Feiger in this subject is?  Do you even recall how Feiger became a celebrity lawyer? ) When Feiger claims that no neurologist has denied that TS is in PVS, he ignores Hammesfahr.  Now I happen to think that Hammesfahr is a quack, but he is a neurologist quack.

    A.) You have no idea what I have and have not read.  I have read just about everything about the case- all the medical transcripts, court documents- everything publicly available, including the exhaustive Guardian Ad Litem report.  Try to tone down the dismissive arrogance and unchecked assumptions.

    B.) I never cited Fieger- I was citing Scarborough.  The post is right here– I never discussed Fieger, would not use him as a source.  He was included in the trancript when Scarborough was making his idiotic point, but I never cited Fieger.  I discusssed Scarborough and Scarborough’s assertion that Cheshire was a reliable expert.

    C.) Finally we agree on something.  Hammesfahr is a quack.

  73. Paul Zrimsek says:

    “Primrose path to destruction”, hey? Way to rebut that charge of excitability!

  74. John Cole says:

    Heh.  You just made me throw Warron zevon into the cd player.

  75. guinsPen says:

    mad max, indeed.

  76. gail says:

    Pardon my lack of cool, but what the fuck is a “Christer”? Sounds like something George Foreman sells on infomercials.

  77. The Lord Thy God says:

    Dang it Jeff ! I know all and see all and I know youre not laying on the couch with your trousers loosened, stuffed and near braindead because you overindulged yourself in the traditional Easter ham feast…And I can see youre not out at church singing hymms about my sons rising from the dead..and I know for a fact that Satchel isnt old enough to drag you around hiding eggs (heh. cute kid).. so how ‘bout one short post just to give us an alternative to this gloom and doom Shiavo stuff ? Take this as a friendly request and not a commandment or anything.. but you might want to consider Job before you answer…

  78. john says:

    Just a derogatory term.  Nothing cool about it. If you are into spittle and invective it rolls off the tongue easy.

  79. The Lord Thy God says:

    Not exactly Gail, but close..

    I have a 30 minute infomercial on The Shopping Channel where I offer The Christer for sale.

    The Christer is similar to the George Foreman Grill but rather than cooking steaks and chops, you put your personal sins in the cooker, close the lid and in just 5 – 10 minutes your sins have been burnt to ash and you are forgiven.. No more long lines at the confessional.. no more endless Hail Mary’s. The Christer represents the latest technological advancement and convenience in the area of saving ones soul. It comes with everything you need to wipe out the sins of 1 to 2 people.

    And best of all, its just 3 easy installments of

    $19.99 on your Mastercard or Visa!

    CALL NOW 1-800-SIN-BURN

    also available;

    The Family Size Christer.. designed for the sins of 1 to 8 people. Only 3 installments of $29.99

    ** Not available to residents of blue states

    Please allow 4 to 6 weeks for delivery

    ps Isnt that George Foreman Grill great? I use mine all the time..

  80. Bruce says:

    My feeling summarized:

    Democrats like to kill the unborn and helpless in quantities of 1,000,000+ per year.

    Republicans like to kill murderers, terrorists and some of their own patriot soldiers (who are doing incredibly worthy stuff) in quantities of 10,000 or less per year.

    I know which side I’m on. And I’m an atheist.

  81. Bruce says:

    But the fact remains that the public face of the legislation was Republican, and I suspect that the majority of Americans are uncomfortable watching the government insert itself so publically into what is, at base, a private family custody dispute that has been duly litigated.

    Maybe Jeb Bush or George Bush should just grant Terry clemency or a pardon.

    The Democrats are always trying to get mentally ill death row inmates a pardon.

    Look at the criminals Bill Clinton granted pardons to.

    Why not Terry?

  82. Cole writes: “Try to tone down the dismissive arrogance and unchecked assumptions.”

    My apologies for forgetting that those tools are solely licensed for your own use and that my use constituted a violation of your exclusive intellectual property in such John Cole Rhetorical Tools(tm)(pat. pend.).

  83. John Cole says:

    My apologies for forgetting that those tools are solely licensed for your own use and that my use constituted a violation of your exclusive intellectual property in such John Cole Rhetorical Tools(tm)(pat. pend.).

    Hehe.  I just don’t want them misused.  But back to the point of the issue- I never cited Fieger- he just happened to be the guest when Scarborough was babbling on, and I have read pretty far and wide on both sides of the issue.

    Happy Easter.

  84. Jeff,

    Then what IS the reason the Judges want Terri to die?  Is it idiocy? Corruption?

    I don’t think Greer wants her to die.  Why are you challenging points I am not making? I think his initial findings of fact re: Terri’s wishes, as they were based on hearsay is a product of simply bad judging. Judges are not gods.  They are men and can be wrong–sometimes amazingly wrong.  Call it incompetence if you will.

    …to which I reply that it is you who is begging the question, in that you assert that after 15 years and numerous appeals, Terri Schiavo was denied due process.

    Given the extreme deference given to triers of fact…I think it’s not surprising that subsequent courts have deferred to Greer’s findings.  But that’s beside the point. The statute said that any such claim shall be reviewed de novo, NOTWITHSTANDING any prior determination.  I mean, that’s what it said.

    If you want to argue that it said something different or that the court was able to engage in a de novo review in a scant 10 page opinion, be my guest. It’s an uphill battle though.

  85. Jeff Goldstein says:

    Where did I say judges were gods?  In fact, I think I argued quite the opposite—though my conclusion was that in lieu of having Gods pronouncing on truth, we have the best system available in place to approximate the truth.  Why are you challenging points I’m not making?

    Personally, I’m not qualified to judge whether or not Greer’s decision was “bad judging”—and I certainly don’t relish the thought that every case that goes through the courts will be open to the kind of judicial-review-by-public-opinion I’m seeing in this case.  Fact is, Greer’s decision has, and continues to be, upheld. 

    As I’ve said elsewhere, I PERSONALLY want to see a PET scan. But my personal wishes don’t really matter; and I defer, on legal matters, to those who are charged with making judicial decisions.

    Clearly Whittemore was within his right not to grant a de novo review, or else upon appeal, the 11th Circuit Court would have directed that he must do so.  I can’t explain Whittemore’s legal thinking on the matter, but I bet he can.

  86. Jeff,

    Greer’s decision is upheld not because it was right, but because of the standard employed in reviewing triers of fact.  That standard is extremely deferential (almost insurmountable).

    And you are simply incorrect in asserting that

    Clearly Whittemore was within his right not to grant a de novo review

    The text of the statute does not support such a contention.  In fact, the 11th Cir., in its upholding of the DC determined that Whittemore DID engage in a de novo review.  (and if he COULD explain his thinking–he didn’t do so in his ruling)

    I think the 11th Circuit is wrong, and I think the dissent in the 11th Cir. panel had the right of it in explaining (at least in part) why it was wrong.

    But deference to judges simply because they are judges is no more principled a position than is “judicial-review-by public-opinion.”

    Nobody is calling for the latter (I’d be happy with true de novo review)–but you do seem to be advocating the former.

  87. Jeff Goldstein says:

    No, I’m not advocating the former.  What I’m saying is, I am not an expert.  And so I defer to experts.

    That’s it. That’s the extent of my position.

  88. And mine is that “experts” disagree on both the sufficiency of Greer’s findings and the effects of the statute.  In light of that, better to have a full de novo review.  If, following such a review, the husband “wins”–then I have no argument.  but prior to that point, deferring to judges as “experts” is not persuasive.

    FULL DISCLOSURE–I’ve been an extern in District Court for a little under a year now.  Judges, while knowledgeable, are not infallible.  They look at the evidence, rec’v memos from their clerks (and externs) on the issues, consider them, and make judgments (sometimes in line with those recommendations, sometimes not).  Sometimes they are right, sometimes they are wrong. Their clerks (and externs) are generally fresh out of law school and do not have access to some otherwise inaccessible body of law making their decisions infallible.

    Point being that judges are not “experts” in the same sense that physicists are.  Their rulings are rarely arrived at by the same sort of immutable principles that the more technical fields are.

    Accordingly, granting such deference to them is misplaced, especially where so many questions exist re: the reliability of those rulings.

  89. Jeff Goldstein says:

    Yes, experts disagree. And judicial rulings involve more subjectivity than scientific conclusions.  Hardly breaking news.

    But in this, Greer’s ruling trumps—he being the presiding expert—and because this is not a matter of the wishes of the family v. death but is instead a matter of the wishes of the family v. the presumed (and ruled upon) wishes of Terri, then based on this ruling, Terri’s wishes are the ones being impinged upon.

  90. “For every expert, there is an equal and opposite expert.”

    “An expert is someone with a Powerpoint presentation, who happens to be 500 miles from home.”

  91. But in this, Greer’s ruling trumps—

    That was true until Congress mandated that a reviewing court give no deference to his findings.

    That’s the point.

  92. Jeff Goldstein says:

    Fine, whatever.  And yet somehow, here we are.  With no greater authority to appeal to.

  93. REVOLUCION!

    Or something…

  94. The problem for the Republicans isn’t being ‘taken over’ by religious zealots, it’s having those zealots do a MoveOn on the party, & handing 2008 to Hillary

  95. Sorry to burst your bubbles, folks, but this issue isn’t going to damage the Republican Party any more than Randall Terry and Operation Rescue damaged the Republicans on the abortion issue 10-15 years ago.

    Any more than their association with the NRA damaged the Republicans after Columbine.

    Any more than the “impeachment fiasco” damaged the Republicans in the 2000 elections.

    Any more than “no WMD found in Iraq” damaged the Republicans in the 2004 elections.

    If you want to know which way the political winds are blowing, don’t read the polls or watch the evening news.  Just watch the Democrat Party, especially those moderate Democrats from Red America who have to face re-election in 2006.

    In that regard, it is interesting to note that of the Congressional Democrats who were present to vote last weekend, roughly 50% of them supported the resolution.

    And note too that the rest of the Democrat bigwigs have been largely silent on the issue, or reduced to voicing transparently insincere concerns about State’s Rights and governmental interference in family affairs.

    Significantly, none of them have been photographed next to Michael Schiavo.

    This issue isn’t going away, either.  For good or bad, right or wrong, Terri Schiavo has become a martyr.  And martyrs never die.

  96. Jeff-

    Sorry bud- but you couldn’t be more wrong with your analysis.

    BTW- I sense a bit of Christophobia in you.

    At what juncture did the “religious right” damage the GOP?

    Answer- Never.

    It is the base.

    The religious right allegations are part and parcel of the paganistic liberal agenda.

    Shame America into being an atheistic- gay rights activist. (extreme example)

  97. Matt says:

    The existance of the religious right is the excuse used by libertarian leaning conservatives to not fully and completely covert to conservatism.

    Also, as a lawyer living in the Tampa Bay area and being right in the thick of this, a de novo review was very much warranted.  Michael Schiavo opposed said review for fear that Terri’s family would find expert’s who would testify that she had some degree of conciousness. 

    On a more cynical note, I’m glad Terri’s parents are dropping the appeals and have requested the people at the hospital to go home.  Ultimately, her parents (and brother) are undoubtedly good people.  You cannot make the same concrete assertion about Michael.

  98. Jeff Goldstein says:

    That’s right, HundredPercenter. You’ve got me pegged:  I’m secretly working to promote the paganistic liberal agenda.  Except for my disagreement with Michael Newdow.  And my being against gay marriage (on semantic grounds).

    My analysis was about perception; I noted how I believe that nearly everyone involved in the entire Schiavo case is acting on principle.  How this suggests “Christophobia,” I have no idea.  I could just as easily say that your willingness to see “Christophobia” in what is a rather unemotional examination of events—one that singled out as a potential problem the rhetoric of those like Terry and Mahoney, who are openly threatening Jeb Bush with political payback—smacks of anti-semitism.  And presumably that charge would be just as silly as yours.

  99. Salt Lick says:

    And I thought you were saying you hated those orange “gates” things in Central Park. This blog always confuses me.

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