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

[mds]

Oh, and for all you lefties who glory in these activist judges, I urge you to remember your history. It was Thomas Jefferson himself who first successfully pushed a cooperative Congress to pass a law completely nullifying Marbury vs. Madison, so disgusted was he with judicial activism. And Madison's views in Federalist paper 47 are clearly in favor of the judiciary being subordinate to the legislative branch!

Well, this might be true in Mr. Perkins' intellectually dishonest fairyland. Unfortunately for the Founders' repose, this is not actually the case.

Again, if the Florida court findings violated the Constitutional rights of Terry Schiavo, then the supremacy clause already permitted the federal courts to intervene. They refused. The Constitutional grounds have already been decided. Now Congress pulls out of its backside the power to tell the entire legal system "Wrong. Start from scratch in a federal court." But any distaste for this precedent (and it is a precedent by its mere existence) must be overreaction, right?

[Thad]

And the next time DeLay and Bush decide to pass a law

It would be nice if they were even vaguely familiar with the facts at hand.

"She talks and she laughs and she expresses likes and discomforts," [DeLay] said Sunday evening. "It won't take a miracle to help Terri Schiavo. It will only take the medical care and therapy that patients require."

Rank ignorance or shameless mendacity, Tom? Take yer pick.

[Matthew]

Oh, Tom, you keep banging this drum: 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.

Let me quote from the Second District's decision on the appeal:

In this case, it is beyond any question that the trial court obtained lawful jurisdiction over the subject matter of this guardianship and the person of Mrs. Schiavo at the inception of the guardianship in 1990. Thus, it is doubtful that the Schindlers' most recent motion for relief from judgment contains even a facially sufficient claim.
In their brief, the Schindlers first argue that the judgment is void because the trial court, and not a guardian, made the decision as to what Mrs. Schiavo would elect to do in light of her persistent vegetative state. Despite the well-established law authorizing this process as a method to fulfill the patient's right of privacy under the Florida Constitution, the Schindlers argue that this process provides insufficient due process and violates Mrs. Schiavo's right to privacy. The right of the trial judge to make this decision for Mrs. Schiavo, relying on clear and convincing evidence of the decision that she herself would have made, is a matter that the Schindlers raised in the first appeal. This court expressly rejected these arguments several years ago. See Schiavo I, 780 So.2d at 179. Thus, these arguments are not only issues that would not render a judgment void, but they are also issues that have long been resolved in this case.
The Schindlers also argue that the judgment is void because Mrs. Schiavo was denied a full and fair opportunity to defend her rights in this case. As we have explained in the past, this is not a case where the trial court validated the guardian's decision for the ward without a full and independent inquiry. Instead, both Mr. Schiavo and the Schindlers were allowed to present evidence to the trial court as if each were her guardian. Id. The trial court then made its decision pursuant to law and based upon a heightened standard of proof. That decision has been subject to appeals and postjudgment scrutiny of all varieties, and it remains a valid judgment pursuant to the laws and the constitution of this state. Not only has Mrs. Schiavo's case been given due process, but few, if any, similar cases have ever been afforded this heightened level of process.

[Tom Perkins]

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

Then you not only have no basis for your charge that the passage of this law represents a move towards facism, you are claiming you don't even want to know what a move towards facism would look like. I'll tell you, certain portions of the Patriot Act represent moves towards totalitarianism, however, those portions seem unlikely to survive the process of judicial review. As long as they fall, that's good enough.

Now for reasons all its own, it may well be that the SCOTUS will declare this law to be unconstitutional--I'm still at a loss as to why they found the execution of persons under 18 to be categorically unconstitutional unless they simply substituted personal preferences for sound jurisprudence--but the reasoning which can be shown to validate this law constitutionally is clear. There is no facism in it.

Reps. Frank and Nadler seem to have very poor records with regard to the 2nd Amendment and (re McCain-Feingold) the 1st Amendment, so I think their ability to reason and read the Constitution at the same time is open to question.

And of course you've said you don't really care.

Yours, TDP, ml, msl, & pfpp

[tristero]

"It won't take a miracle to help Terri Schiavo. It will only take the medical care and therapy that patients require."

I have no idea what this means. Schiavo head is filled with fluid: she has no cerebral cortex, it disintegrated a long time ago. What kind of outcome is DeLay expecting to result from medical care and therapy?

More evidence that is is fascism, which is characterized by emotional appeals that are entirely empty.

[Thad]

What kind of outcome is DeLay expecting

A distraction from his own rampant ethics abuses, I believe. Seems to be working, too.

[razor]

The significance of Tom Perkins is that of a tool, eager to do the bidding required.

Only an insane person will argue a case, with tiny factual issues like this one, litigated for years, requires Federal legislative intervention to get to the truth. When it is abduction by flying saucer people this type of isanity is one thing, when it is led by the Speaker of the House/crook Delay, it is something else.

Fasicism. Tom Perkins. Slavery needed its Toms. Fascism needs its Toms. Don't misunderstand the evidence. The evidence of fascism is Tom Perkins. Can't have one without the other.

[The Heretik]

Oy. Got a letter to Bush here on this that may reflect on how this will end up, at least for Bush.

. . . ba, ba, ba, ba, bad . . . . bad to the bone . . . .

[tristero]

Thad, you're right, it did distract, but it's more than a mere distraction. It's a sea change.

[Scott Lemieux]

Tom--since there was absolutely no violation of the 14th Amendment--as federal courts have repeadtedly found--there is no "enforcement" of equal protection rights in the legislation. Moreover, you're also omitting the fact that this legislation affects *only one case,* which is obviously unconstitutional. An enforcement of rights has to be general, and has to apply to all similarly situated inviduals. To argue that a selective vacating of a case is an enforcement of equal protection is utterly Orwellian.

mds--Jefferson *never* attacked Marshall's excercise of judicial review, or the general concept. He was opposed to the dicta in the case that said Marbury was entitled to the commission, but he never said the court was wrong to strike Section 13 of the Judiciary Act. Speaking of Orwellian, your claim that a selective empowering of federal courts is in opposition to "judicial activism" may outdo even Tom...

[tristero]

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

Then you not only have no basis for your charge that the passage of this law represents a move towards facism, you are claiming you don't even want to know what a move towards facism would look like.

I most certainly do have a basis for my charge. I simply relied on two experts who concluded the law and the process were unprecedented and unconstitutional. You disagree? Take it up with them and if they change their minds, let me know and I'll change mine. There's nothing inherently wrong with an appeal to authority to bolster a case. You got a problem at the level you're talking about? Talk to them.

As for knowing what a move toward fascism would look like, let me think...

Near absolute control of two of three branches of government.
Moves to consolidate control over the legislature by denying minority objections (nuclear option, etc.)
Gerrymandering of districts.
Increasing goverment control and creation of the media.
Increasing censorship of non-government media.
Relentless appeals to patriotism and fear.
Identification of the country's people with a holy mission.
Increasing intimidation of intellectuals and academics.
Widespread use of, and justification, of cruel and unusual punishments, ie torture.

Tom, I think I know what "a move to fascism" looks like. Any one of these is a "move to fascism." Or if you wanna quibble, any two are a "move to fascism."

[Cue right wing nut response generator: Initiate search for Clinton counter-examples immediately. ]

The problem is I haven't even begun to list all the moves towards fascism our country has endured under Bush, DeLay and their Whole Sick Crew. The problem is we are no longer "moving towards fascism." We've arrived.

[Thad]

but it's more than a mere distraction. It's a sea change.

Oh, I agree, absolutely.

[Robert M. Jeffers]

This case as devolved into endless bickering by those who lost about why they should have won. This law is intended only to create a new power for the Federal courts, that of hearing appeals de novo from state courts, without any Federal issue involved, essentially making the state courts subservient in any matter to the decisions of the Federal courts.

That's how this can be said to undermine the judicial system. It's not judicial Armageddon, but it is as poor a law as can be imagined. The only saving grace is that the Federal court is obviously not too interested in this, since no TRO was issued today, and the hearing was adjourned without a decision being reached.

Poor law is still correctable by good judges.

[mds]

mds--Jefferson *never* attacked Marshall's excercise of judicial review, or the general concept.

Er, yes, Mr. Lemieux, I know that. My little revisionist history diatribe was followed by this:

Well, this might be true in Mr. Perkins' intellectually dishonest fairyland. Unfortunately for the Founders' repose, this is not actually the case.

This sort of thing runs through my head whenever the tiresome "judicial activism" argument looms at the horizon. Alas, I didn't use sarcasm tags on the first paragraph. My apologies. :-)

[Mathias]

I think the political hysteria behind all of this is really overblown and is covering up the more interesting questions we should be asking ourselves about this case.

[razor]

Gosh Mathias

what are those interesting questions?

Nothing to do with separation of powers I bet.

Nothing to do with the judicial power.

[Tom Perkins]

Tristero, about your laundry list:

"Near absolute control of two of three branches of government."
The left gets what it deserves here. Your views are not held by the majority, so you are a minority. Keep going the way you are going and become deservedly irrelevant.

"Moves to consolidate control over the legislature by denying minority objections (nuclear option, etc.)
Gerrymandering of districts."
The so called nuclear option is perfectly constitutional, it also the same thing Democratic Senator Bird himself supported earlier in his carreer as Democratic domination of the legislature first, glacially, began to slip--and the Gerrymandering of districts is absolutely nothing the Democrats haven't done in equal measure when they were in power. Goose. Gander. Now it's the Republicans turn, they earned it by beating the shit out of the Democrats in spite of the gerrymandering the Democrat's did.

"Increasing goverment control and creation of the media."
Neither Bush nor the Congress control the media. In fact, the only areas where the governemnt has much authority is the airwaves which are public property by statute, and these laws were promulgated largely under Democratic administrations past. And as for Democratic administrations past, where was the outcry over the Clinton adminstration "producing" media? To the extent you feel unfairly hoist by your own petards, I hope the cannons blow your movement to bits.

"Increasing censorship of non-government media."
Name it. Unless you mean McCain-Feingold, which was quite bipartisan, so where's either the improvement in the situation to be found with the Democrats, or, where's the particular blame for the Republican's (and many Republican think of McCain as a RINO at at that)--especially in light of this:

http://www.opinionjournal.com/diary/?id=110006449

How, exactly, does this article misquote or misrepresent Sean Treglia? Talk about creating media.

The government must not apply McCain-Feingold to blogs. Surely, as a strong supporter of the 1st Amendment, you agree?

"Relentless appeals to patriotism and fear."
I have never heard the President appeal to fear, and do not know why patriotism is a worse thing now than at any other randomly selected time in history.

"Identification of the country's people with a holy mission."
Name when this was done. Be specific.

"Increasing intimidation of intellectuals and academics."
If you refer to the movement afoot to apply the principles of affirmative action to remedy the effective exclusion of conservatives from the faculty and administration of educational instituions, then I'll play the world's smallest violin just for you. If you refer to the well deserved calumny heaped on the likes of CU's Churchill--you're silly.

"Widespread use of, and justification, of cruel and unusual punishments, ie torture."
I make no apologies for what little actual torture and prisoner abuse has gone on, but then neither does the administration--they are putting people in Leavenworth over it. You make no points conflating making people uncomfortable (what was actually authorized) with torture.

"Initiate search for Clinton counter-examples immediately." And the ease with which such counter-examples are found fails how, exactly, to make the point that there is no help for your concerns to be found in leftism and the Democratic party?

Now about the topic of the blog...

I've just seen a scan of her head over at DU. She has about 80% of her cerebral cortex. It's not merely not gone, it's by and large mostly there. I do not claim she is well, I do not claim she will improve substantively with further care how faithfully administered.

I claim that given the evident conflicts of interest shown by Mr. Schaivo, he self-evidently not an appropriate gaurdian of Terri.

I claim that if the law of Florida has not been followed by Judge Greer, he is also not in a position to make any judgements concerning Terri.

I claim that the State of Florida owes it to every citizen of Florida including Terri for the laws of the state to be faithfully executed by its judiciary--if this has not happened, then it is a denial of due process and the equal protection of the laws. Federal intervention is authorized by the plain wording of the 14th amendment, and federal judicial apparatus is compelled to do so by the passage of the recent legislation.

Robert M. Jeffers wrote: "This law is intended only to create a new power for the Federal courts, that of hearing appeals de novo from state courts, without any Federal issue involved, essentially making the state courts subservient in any matter to the decisions of the Federal courts."

If that were true--and it isn't--then it is high time that the ludicrously restrictive notions of "standing" were exploded. For example, any citizen of the United States falling under a jurisdiciton should be able to file suit before the federal judiciary to try the question of whether or not a given statute or court decision made by that jurisdiction is constitutional--without the current requirement that they be under threat of prosecution for violation of that statue. It would be a great blow struck for freedom.

But then it isn't what this bill does or is intended to do.

Scott Lemieux, please show the courts have in fact tried the question of whether Judge Greer has as required compelled Mr. Schaivo to follow Florida law as regards the gaurdianship plans referred to in Chapter 744 of the Florida statutes. Put the issue to rest and show Mr. Schaivo and Judge Greer have in fact followed the law. If they haven't, explain why that isn't obstruction and a violation of the equal protection of the law which Terri should be afforded.

"Since there was absolutely no violation of the 14th Amendment," assertion is not evidence. Either the reports exist or they don't, so find them or concede the point.

Thad wrote: "Fasicism. Tom Perkins. Slavery needed its Toms. Fascism needs its Toms. Don't misunderstand the evidence. The evidence of fascism is Tom Perkins. Can't have one without the other."

On the contrary, there never has been a modern totalitarian state actiual or attempted which did not have some form of Progressivism, of Leftism, at its core--the Shining Path, Maoism, the Khmer Rouge, Red Vietnam, North Korea, even the Third Reich was cradle-to-grave socialist as long as you were blond and pink--and if you think racism was unique to the Nazis, I suppose you are unaware the Soviets referred to the armament versions they shipped to the Third World as their "monkey models."

What you cannot have Facism without, Thad, is the Left and its perversions of the Western Enlightenment.

Yours, TDP, ml, msl, & pfpp

[razor]

Gosh Tom

Don't blame thad for what I typed.

I have three questions for you, related.

How long have you been a god, able to divine and decree what other mortals cannot?

How long have you been insane?

How long has the "left" been talking in your head?

Just wondering. I suspect it all happened about the same time. Maybe Halliburton can use you.

[kiwidani]

Hello from a kiwi in New Zealand - former US resident and not certain how much longer I will be allowed to remain a US citizen - with a message from the rest of the world: What the hell are you up to over there?

Granted I have only recently begun to review the situation, but my initial take on it is that Terri is not likely to improve regardless of how long she lives. Will this not reflect badly on those mobilising the population and legislature to 'save' the poor thing and get her 'the therapy she needs'? Does your voting population not have a memory sufficient to result in backlash for spurious activities like this?

Won't the mother be interviewed years from now with nothing to say but that she feels better for having a daughter-doll and will it not be recognised that people were misled? Is there no longer such a thing as accountability, because that surely means all hope is lost...

Curious From Abroad

[Tom Perkins]

Thad I apologize, razor was the idiot who thinks facism and conservatism have something in common, you're a different idiot.

And razor:
"How long have you been a god, able to divine and decree what other mortals cannot?"

Like how Terri's brain is gone and replaced by liquid, except for the 80% or so that's still there?

"How long have you been insane?"
Never yet. How long ago did you realize you had no counter argument?

"How long has the "left" been talking in your head?"
Oh, it doesn't. There's these things called books, newspapers, blogs, websites, oh! And libraries! They (and the paltry arguments made by that viewpoint's adherents) told me what I need to know about the Left.

I think I've been an informed, conservative leaning libertarian since about a month after I was able to read, and an instinctual one before that.

Yours, TDP, ml, msl, & pfpp

[jpe]

No doubt about your observation that this is war on the judiciary. I had a day off, and spent wayyyyy too much time on the internet (when one has a paper to write, what else does one do?), and the psycho-creepy "Terri bloggers" have linked this up with a vendetta against the judiciary.

Oh, and there's apparently a conspiracy in the eeeeevil FL "guardianship industry". No, really.

Someone pointed me to this site, which, suspiciously enough was registered in November 2004, and no human contacts are listed. Looks mighty suspicious to me.

[jpe]

This is a comment from one of the fucking nutters at a "terri blog":

Did you hear Michael Savage today? He said the most beautiful profound thing about Terri. He said, "Do you think Terri is Jesus, sent here to tell us all something?"

Jesus waits all this time, and what does he tell us? "mmmmpp".

[Thad]

Thad I apologize, razor was the idiot who thinks facism and conservatism have something in common, you're a different idiot.

Says the man who claims this:

Like how Terri's brain is gone and replaced by liquid, except for the 80% or so that's still there?

You know, I see a lot of initials after your name. I don't know what they stand for, or who you think you're impressing, exactly, but what I don't see is an M.D. or a Ph.D., let alone a Ph.D. in neuroscience. So I'm to take your word over that of PZ Meyers? You clearly can't read a CAT scan for shit, so how about you drink a nice hot steaming cup of shut the fuck up before you embarrass yourself any further?

[razor]

"that viewpoint"

Hell, describe that viewpoint Tom. The one that can be traced to all those blogs and libraries and magazines and bathroom wall writings. The Left. The left. The lefties.

Insane. Godlike powers. Unable to see his use of The Left as a political noun diagnoses him as suffering a false, cartoon, psychologically needy, view of the world. What fascists need to keep their power. She-ple.

The point is this: you are incapable of rational discourse. You just repeat what has been spun by your masters with total disregard for its truth. You are not a serious person. No one who was a conservative would so blithely substitute their judgment for that of the courts of Florida, with weasel rationalizations that no one who understands the judicial process would ever fall for. And while there is little point in saying so, not saying so aids and abets. If you were a decent person, you would be ashamed of yourself.

[stand_up_philosopher]

Tom Perkins, at 1:59 you wrote: "The husband's wishes for her to die." The point is that the court ruled that TS would not want the tube kept in. It's entirely possible MS would prefer the tube be kept in, but that he is acting against his wishes in respect of her wishes. And it's also possible -- in fact I would say probable -- that she wished such a thing not because she was afraid there would be a self "in there" that was suffering, but because she loved her husband and wanted him to be able to grieve properly and get on with his life. Like the parents apparently did when they introduced him to other women (if that is true, as I have heard asserted at: http://www.washingtonmonthly.com/archives/individual/2005_03/005897.php#525695). Or at least, let me say, that I love my wife enough to have a living will that forbids tubes, should it be clear my brain was gone and not coming back.