Tristero on Schiavo--Limited engagement

Tristero has returned temporarily to address the dire political implications of last night's legislation:

Well, it happened.

On March 21, 2005 12:44 am, the extremists in charge of the US Government showed the world that when they don't like a law or a legally valid court decision - ANY law, ANY court decision, for ANY reason, no matter how carefully adjudicated - they are prepared to rip it up. There is a word for this.

The word is fascism.

Some people ask why Terri Schiavo matters in the grand scheme of things. Why should we care about the fate of one oblivious individual and her squabbling relatives?

Because behind the Republican veneer of crass political opportunism lurks a much more sinister agenda. The Republicans aren't just pandering to evangelicals this time. Their real objective is to crush the authority of the judicial branch.

I don't care what you think about feeding tubes or Michael Schiavo's private life. If you support the actions of the federal government in the Schiavo case, you are undermining a fundamental principle of our democracy: the separation of powers.

Comments

[Dennis Perrin]

Nice work, Lindsay. Here's my take.

[Tom Perkins]

Lindsay, you could possibly be more vapid if you put a lot of effort into it. I refer to your writing, "Their real objective is to crush the authority of the judicial branch."

Please.

The judicial branch IS reviewing it. The Congress merely specifically authorized that the FEDERAL judiciary take the role of ensuring due process and equal protection, as it is empowered and required to do by the 14th amandment. There is no endangerment of the separation of powers, unless you intend to say the states should be permitted under the separation of powers to kill people without, among other things, having to obey their own laws to do it.

A Clinton appointee to the federal bench will hear the case.

Yours, TDP, ml, msl, & pfpp

[markg]

The real test will come when/if the federal courts reach the same result as the state courts, as I predict they will.

[Scott Lemieux]

Except, Tom, that the courts *aleady had* this power. This case has already been to the federal courts, who have already found that there is no federal issue (which, of course there isn't--how did the Florida courts violate due process?) This legislation is just intended to supplant the decision of a state court interpretation of state law with no basis whatsoever.

[Brendan]

Does anyone know of a day count for aprox. when Terri will die from the tube being removed?

[Tom Perkins]

The courts failed to require that Mr. Schaivo file annual gaurdianship plans, these are required by state law. Failure to do so, in conjunction with his numerous conflicts of interest, make Mr. Schaivo self evidently not an appropriate gaurdian for Terri. In doing so for many years and in agreeing with a minority of the neuropathology experts having looked at the evidence, the judge has himself established evidence of his own incompetence and probable bias against Terri's presumptive desire to live and in favor of her husband's wishes for her to die, something the intent of Florida law is to make impossible. Also, you confuse "having the power" with having passed the legislation, something the federal courts did not have until this morning. Part of the 14th amendment reads, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Which Congress quite constitutionally just did.

Yours, TDP, ml, msl, & pfpp

[andrew]

Okay, so it goes back to the courts. They review it and ... it's a win-win for the Republicans.

If the courts overturn the previous decisions, the Republicans have successfully stepped in to save Terri. Good thing they didn't trust those judges when they decided it wasn't a federal issue....

If the federal courts uphold the previous decisions, which is likely, then it's further evidence that those activist judges must be stopped. A Clinton appointee will hear it? Even better....

This is very much about undermining the judiciary.

[andrew]

Okay, so it goes back to the courts. They review it and ... it's a win-win for the Republicans.

If the courts overturn the previous decisions, the Republicans have successfully stepped in to save Terri. Good thing they didn't trust those judges when they decided it wasn't a federal issue....

If the federal courts uphold the previous decisions, which is likely, then it's further evidence that those activist judges must be stopped. A Clinton appointee will hear it? Even better....

This is very much about undermining the judiciary. It's not about Terri Schiavo or the constitution or the sanctity of life. It's political theatre, with a political aim.

[Donny]

Tom Perkins, are you suggesting that every person who in a persistent vegetative state and who cannot survive independent of artificial supports is presumed to have a federal due process claim that must be fully litigated in federal court as a precondition to removing said supports? Or is Terri Schiavo a special case? If so, why? What makes her different from those people who have died and those who will die as a result of then Gov. G.W. Bush's signing of the Texas Futile Care Law?

[Mark Olson]

Before you go too far painting this as a idealogical takeover by a fascist GOP, you might point out that the vote this morning was 203-58, which indicates that it had bi-partisan support. And further that the bill only asks the federal courts to re-examine the case.

[Matthew]

Tom, your understanding of constitutional law is almost as bad as your understanding of the actual facts in this case. In particula, you fail to recognize that in this case the court was essentially being asked to act as Mrs. Schiavo's guardian and was charged with determining, based on the evidence available, whether or not she would have wanted to be kept on life-prolonging care. Mr. Schiavo's guardianship is irrelevant. As for your intial criticism of Lindsay's post, let me ask you this: what kind of effect do you think it will have on the judiciary if it is understood that Congress may step in at any time and selectively vacate a court decision whenever the majority disagrees with the outcome?

[Lindsay Beyerstein]

What can I say? Some Democrats are suckers.

[razor]

Ideological takeover by a fascist GOP? Ditto.

"only aks the federal courts to re-examine the case."
It's only a little bill of attainder. It's only a little gutting of federalism by overriding the state court- a one time only deal just like Gore v. Bush. One time only one after the other whenever it suits the demands of the Republican hacks in charge. It's only a little violation of separation of powers. "Conservative." And I am Mother Theresa.

Tom Perkins knows the truth about what should have been found. Time to scrap the existing judidical system. We got Tom on the sidelines who knows how things really work. Who divines. Who decrees.

Fascism is the word.

The good news is this is one of the great idiot detector episodes of all time. We have the luxury of people thinking for themselves, and oh my goodness.

[Tom Perkins]

Only when there is evidence that state law is not being obeyed by state agents to the detriment of the person in the supposed PVS. If you could show the required plans were filed with the Clerk of Court and adjudicated as required by Judge Greer, then this issue would largely go away.

Unlike this Tristero person's hysterical kibbitzing, there is nothing in this law which impairs the action of a living will or DNR (unless relevant state laws are not followed by the agents of the state in the execution of such documents).

Yours, TDP, ml, msl, & pfpp

[Tom Perkins]

It would be a bill of attainder if it involved criminal punishment. This doesn't.

^Yours, TDP, ml, msl, & pfpp

[j swift]

"What can I say? Some Democrats are suckers."

Two options here, they voted for it to insure that the Republicans would make fools of themselves;

or

some Democrats rolled over on their backs, whined and pissed themselves.

not sure which

[j swift]

Hey Tom,

Why after 15 years of litigation and a court order in place to remove her feeding tube would or should the courts require filing of guardianship plans?

[Salvius]

A third option: The Democrats who voted for it did so because they recognized that it would be an expansion of their own power as Federal legislators.

[razor]

Let's take a poll!

Say a court has found - after full and fair adversarial hearing - that you do not want to be sustained in a vegetative state. Year's later, your wishes, as found by that same judicial process that decides to execute people, but, this time, with more rigor, are honored. Tom Delay and buddies decide it is time for a new law to reverse your wishes, or, to void the finding.

Is this punishment? Is this torture? Is this exploitation? Is this clueless forcing of one's will on others with the use of Federal State power.

I say, yes.

Others, having divine prerogatives, say, no.

Let's take a poll.

[tristero]

"Unlike this Tristero person's hysterical kibbitzing, there is nothing in this law which impairs the action of a living will or DNR (unless relevant state laws are not followed by the agents of the state in the execution of such documents)."

I never addressed the details of the law passed last night. I may be hysterically kibbitizing - a useful mode of discourse, I've found - but there is only one thing and one thing only that I spoke to:

The right wing extremists who run this country gained last night the power to overturn any and all legal decisions they disagree with. They have subverted the operation of the United States government so that they can, in fact, change any legal decision the want, without limit.

That is fascism.

Do you really think this the last time DeLay and Bush will decide they know better than the law what is "good for the country?" You do? Hey, there's a groovy bridge I'd like to sell you. Cheap. I take Paypal.

No, my friend. Bush and his cronies think America requires the rule of good men - men like themselves, of course, men not afraid to order torture in the name of democracy - rather than law. Because, you know, those activist judges, they'd be legalizing man on dog if we don't watch out.

BTW, if you check my blog, you'll learn that I've spent a good deal of time arguing that the Bush administration was NOT fascist. But that's changed and what happened yesterday is Exhibit A of what changed and changed my mind. We are in a new era which is absolutely unprecedented. It is the start of a genuinely fascist American politics.

*Don't make the mistake of thinking humor is a sign of disrespect for Schiavo, her husband, or her other relatives. This is a horrible tragedy. I've been worrying over this issue since I was 10, when my father, a physician, first posed this wrenching dilemma. It haunts me. No, I respect Schiavo. But if I was introduced to two creatures, one a giant termite and the other Tom Delay, I think I'd only be able to tell them apart by their smell.

[Daryl McCullough]

I like to think of modern conservatism as a kinder, gentler, fascism. No death camps, no state sponsored racism.

[Tom Perkins]

Tristero spewed: "The right wing extremists who run this country gained last night the power to overturn any and all legal decisions they disagree with. They have subverted the operation of the United States government so that they can, in fact, change any legal decision the want, without limit.

That is fascism."

No, on Nov. 2nd., 2004, they gained a strong legislative majority and can pass any legislation that any majority could. There is no part of the constitution which contradicts the passage of this bill, and to my knowledge, once they become aware of a delinquency on the part of a state governemnt or officer of one that impedes the equal protection of the laws to a person in the jurisdiction of that state, the 14th amendment not merely empowers the Congress, but requires them to pass legislation to ameliorate the situation.

There is no facism to it.

And the next time DeLay and Bush decide to pass a law and it's within the scope of the Constitution for them to do it, if I agree with it, I'll support them wholeheartedly. I support this bill. If as alleged, the gaurdianship plans were not filed, then both Mr. Schaivo and the Judge have been delinquent and Terri has been effectively denied due process and the equal protection of the law.

Tell me how, once they are made aware of it, the 14th amendment does not permit if not (as I think) require the Congress to pass such a law? What other portion of the Constitution, the 14th amendment notwithstanding, forbids the passage of this law? Do you dispute that the supremacy clause renders the decision of state level political organs null and void if they conflict with the constitution? Just to rub it in, how does this law conflict with the Constitution again?

Yours, TDP, ml, msl, & pfpp

[mds]

If as alleged, the gaurdianship plans were not filed, then both Mr. Schaivo and the Judge have been delinquent and Terri has been effectively denied due process and the equal protection of the law.

Brilliant! How could this have been missed in hearing after hearing, in appeals all the way up to the Florida Supreme Court? If only Tom had been there to point this out to the special guardian appointed by Jeb Bush. Perhaps he could have done something.

And thank God for the United States Congress, acting entirely Constitutionally, to pass a law explicitly naming particular individuals, that entirely nullifies all of the findings of the Florida state courts (note the plural). Now, suddenly, the United States Supreme Court can say, "We refused to hear an appeal, so clearly we did not think there was a valid Fourteenth Amendment argument. However, today, there must be! Thanks, Congress!"

[tristero]

The always-never-less-than-very-intelligent Tom Perkins declamed in a loud, confident voice, saying with great eloquence: "Tell me how, once they are made aware of it, the 14th amendment does not permit if not (as I think) require the Congress to pass such a law? What other portion of the Constitution, the 14th amendment notwithstanding, forbids the passage of this law? Do you dispute that the supremacy clause renders the decision of state level political organs null and void if they conflict with the constitution? Just to rub it in, how does this law conflict with the Constitution again?"

How the hell should I know? I couldn't care less.

My attitude bother you? It shouldn't. We don't live forever, Tom, even with feeding tubes inserted (which incidentally I've experienced far more times than you want to know about, recently just three weeks ago) and I've got better things to do. I can't be bothered retaining the details of their conclusions but Reps Frank and Nadler, two experts, discussed this in detail last night during the debate on C-SPAN.

Nadler's on towards the end, by the way. Feel free to argue the niecties of constitutional interpretation with them and if you win, please let us know. Their bottom line was that this was an unprecedented power grab. Knowing Bush and DeLay's history, I saw no reason to question them about that conclusion.

[Tom Perkins]

rads, I am unaware the Florida Supreme Court made any determination other the unconstitutionality of the law the legislature passed to enable the governor to appoint a new gaurdian. I am likewise unaware of the issue being raised in any other jurisdiction. What questions courts aren't asked, they can't answer--unless you want them making up rulings based on something other than the law and facts of the case?

Yours, TDP, ml, msl & pfpp