Schiavo: They said it better.

John Cole:

When Terri Schiavo is finally allowed to slip past her cruel fate and move on to a better place, she will not be the only one to have died this month. At another gravesite, this marker should be erected:

Barry Goldwater's Conservatism in America

1964-2005

John Derbyshire (!):

Watching Hannity & Colmes Tuesday night I found myself nursing a devout hope that if I ever enter a persistent vegetative state, Sean Hannity is nowhere in the neighborhood.

And Orin Kerr patiently explains to Hugh Hewitt that the statements of one or more legislators is not a substitute for the words of the statute itself:

The problem with having courts follow the statements of individual lawmakers and commentators is that their views are not subject to the constitutional lawmaking processes. Being outside of the lawmaking processes, these individualized expressions of intent cannot provide a sound standard for interpreting statutory commands. Legislation is usually the product of compromise, and different legislators and commentators have different goals, hopes, and aspirations. Following the expressed views of any one individual or faction would allow that person or group to bypass the Constitutional lawmaking process and get their version of what they hope or wish the law did enacted into law without being subject to the Constitution's requirements. The Supreme Court expressly counseled against this in Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001):

We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal--even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes.

  A sensible approach, I think.

I do too.

Comments

[Andrew Reeves]

You know, Derbyshire is not that right wing ideologically speaking. The main things that he's written that are usually rather grating are that he doesn't particularly like blacks and gays. Which leads me to call him instead of paleo-con, neo-con, or what-not, he ought to be called a "dad at the dinner table-con."

It's really all about the delivery. If someone is articulate and pleasant, people are often willing to overlook other things. If, OTOH, someone comes out and says, "Yep, I'm a bigot," we generally don't know how to handle it and so often make the persons views themselves more extreme than they are.

[John Thullen]

Were I Dante, I would place Derbyshire and Cole in one of the rougher climates in Purgatory ... no .. I guess in one of the milder levels of hell. Mild punishments, compared to Oddyseus, but eternal nevertheless.

They made their choices long ago. It's too late.

You, Von, shall be led by Beatrice to Paradise.

[praktike]

"patiently explains"

heh. Isn't Hewitt some kind of lawyer?

[DaveL]

Good lord, I hope not. If Hewitt's a lawyer, then he is to professional competence in law as Frist is to professional competence in neurology (I was going to say "medicine," but I suppose Frist may be perfectly competetent at transplant surgery).

[praktike]

Well, at least he's got the stones to bring Kerr on his radio show. Maybe he'll let him get a word in edgewise.

[hilzoy]

Well, he beats Sean Hannity in this respect. I was listening to Hannity in my car (it seemed to me that today would be a good day to switch from NPR to right-wing talk shows, temporarily), and he was going on and on about the tyranny of unelected judges, and about how no one in this case was willing to listen to new evidence (cough previous hearing about new medical evidence, upheld on appeal through the Fl Supreme Court cough), and so on and so forth. Ugh.

[SomeCallMeTim]

I'm pretty sure Hewitt's a law professor.

[Anarch]

And Orin Kerr patiently explains to Hugh Hewitt that the statements of one or more legislators is not a substitute for the words of the statute itself...

Interestingly, that speaks rather strongly against your preferred method of Constitutional interpretation.

[Spin Doctor]

Frighteningly, Hewitt is a law professor in Southern California.

[von]

Interestingly, that speaks rather strongly against your preferred method of Constitutional interpretation.

Actually, it doesn't. Reading a document in context is not the same as trying to divine the authors intent(s).

[Brian]

Does Hewitt teach at Hollywood Upstairs Law School or something? Is he playing stupid (like Reynolds often does) or is he actually that stupid?

The Derb is more an Archie Bunkercon than a fundy or neocon.

[DaveL]

What Von said.

[Spin Doctor]

He actually teaches at Chapman University, a little known law school in Orange County who struggled to get ABA accreditation. Chapman Law School's claim to fame is that it is "the only school of law in Orange County on a university campus". With that kind of impressive credential, how is it possible to ignore Mr. Hewitt when he opines on the law?

[Tad Brennan]

Weird serendipity--Frist happened to open up the chest of one of the best generals in Iraq right now. That's David Petraeus, PhD, trained by Princeton's Woodie Woo school, a really smart guy and a very humane one, who should have been allowed to run the occupation from the start. As soon as the Iraqi army collapsed, Petraeus was instantly meeting with tribal leaders, handing out cash to get hygiene and public works projects going. Things would have gone different if he'd been in charge.

Anyhow, from an NYT profile of him, I remember that he got shot in the chest in a stateside training exercise--something potentially fatal, though I forget details. He was rushed to the ER, where Frist happened to be on rotation.

So--at least on one occasion, Frist opened somebody up, worked inside their thorax, and the patient lived to tell about it.

And incidentally, has anyone else thought that the reason these people botched the reconstruction of Iraq is because they fundamentally hate government anyhow? The reconstruction of Germany and Japan--now that was led by people who had crafted the New Deal, who had seen how government could be a force for good. But with the current gang of criminals, all they can see is profit from privatization, and government as the problem.

[Francis]

von, we democrats look forward to persuading you that the party of less-intrusive govt and better financial policy is ours.

As SH has passionately argued, the Ds are not a party of angels; we have many elected idiots who apparently do not understand basic principles of market economics or the difficulty that many small businesses have in staying afloat.

but since modern american politics seems to be nothing more than an exercise in choosing the lesser of two evils, I profoundly believe that the combination of pork-barrel politics and theocratic influences which appears to be the modern R party is far more dangerous to the health of our nation than anything the Ds have to offer.

i suspect you'll take some persuading.

cheers

Francis

[John Thullen]

Tad Brennan, comment more often, please!

[M. Scott Eiland]

And Orin Kerr patiently explains to Hugh Hewitt that the statements of one or more legislators is not a substitute for the words of the statute itself

As Andrew McCarthy points out, that's precisely what the majority on the three judge 11th Circuit panel *did* do, by citing Senator Levin's comments in justifying its opinion. It's hard to see why one side should be able to point to legislative history in justifying its decisions, while the other can not.

I've been watching this whole affair with a good deal of uneasiness, but the purpose of the law in the context of the events in this case--and particularly in the context of the events of the last two weeks--could hardly be clearer. Congress clearly intended that a trial de novo be held in the case, and replacing the tube is the only way that could be possible in the real world. I wasn't pleased when the Republicans in Congress tried the subpoena gambit to stretch matters out, but in the absence of a finding that this law was unconstitutional, the district court judge should have followed its intent and reinserted the tube--his failure to do so is as much of an abuse of his powers as Congress was guilty of with the subpoena attempt.

[Spin Doctor]

M. Scott, if that was the case, why didn't Congress simply incorporate language within their bill requiring the reinsertion of the feeding tube pending the de novo review?

[liberal japonicus]

Do you (or anyone else) have a link to that decision? The one that I can find is here, but that can't be the right one because there's no reference to Levin. Thanks

[M. Scott Eiland]

M. Scott, if that was the case, why didn't Congress simply incorporate language within their bill requiring the reinsertion of the feeding tube pending the de novo review?

Truthfully? They either:

1) assumed that their purpose for passing the law was so obvious that it shouldn't be necessary to spell out what would be a required step in carrying out that purpose. As the old saying goes "the law does not require futile acts," and trying to hold a trial de novo when its subject was already dead would be as futile an act as could be imagined (and indeed would not take place at all due to mootness), or;

2) As often is the case with hastily drafted laws, someone screwed up and left out the appropriate language. It happens.

[M. Scott Eiland]

Do you (or anyone else) have a link to that decision? The one that I can find is here, but that can't be the right one because there's no reference to Levin. Thanks

That's the link to the full 11th Circuit's denial of an en banc hearing.

[M. Scott Eiland]

Here's a link to the text of the three judge panel's opinion, though the formatting is lousy.

[Catsy]

IANAL, but it seems to me that given the degree to which Congress was overstepping its bounds and intruding upon the separation of powers, the 11th Circuit chose to take as narrow and literal a reading of this questionable legislation as was possible--essentially saying, "fine, since you're intent on fscking with the Constitution, we'll give you precisely what you literally asked for, and not one iota more." While essentially ensuring that their prior decision, which is in their view the correct legal decision into which Congress chose to stick their clumsy fingers, stands.

[DaveL]

I'm not sure whether McCarthy is intentionally misstating what the 11th Circuit panel held or just being willfully dumb, but if you read the relevant passage in context, what the court said was that the statute didn't change existing standards for entering preliminary injunctive relief because it didn't contain any language that purported to do so. Then, anticipating the "but we all know what Congress meant" argument that Hewitt is howling at the moon about, they went on to say "and look, here in the legislative history is something that squarely says that we're not supposed to read in something that isn't there." They didn't use legislative history to change the plain meaning of the statute, they used it to confirm that they were supposed to follow its plain meaning instead of using the extraordinary nature of Congress's intervention to justify reading the statute to mean something it doesn't say.

[hilzoy]

I am not so sure about Congress' intent. At any rate, I do not rule out the idea that their intent was to pass a law that would not hold water, in order to seem to be doing something without actually doing so. That this is a serious possibility (imho) just shows what a mistake it is to look at what Congress supposedly meant to say, as opposed to what it did say.

[Katherine]

You don't get de novo anything, let alone a TRO, if you don't state a non-frivolous legal claim. And they didn't. It's as simple as that.

This is first-semester-of-law school stuff. Either the majority was in such a hurry and so blinded by ideology that they forgot to check on the statutory language (they don't lack for lawyers on their staffs), or the Schindlers' attorneys are in way over their heads, or someone high up in the party was playing a very cynical game.

All these losses by all these different courts, all being portrayed as judicial usurpations. How perfectly does it set up the filibuster fight for the GOP? What chance do John McCain and Chuck Hagel stand in a 2008 primary if they don't vote the party line on the nuclear option? And non-presidential candidates can have their own reasons to worry--chairmanships, primary opponents, that sort of thing.

Reid should have been up there arguing that they were blatantly abusing power, that they didn't believe in checks and balances, that they were bullying their way into private matters that were none of their business...they did end up proving our argument all on their own, and the Senate Dems' deal may have prevented a worse bill from passing. And Reid and Durbin were both out of the country. Even so, I think they screwed this one up.

As for Levin's comment, a specific explanation about the meaning of a specific change of a specific statutory provision, which is immediately agreed to by the leader of the other party, is going to carry more weight then some random Congressman's speech about choosing life. And one is supported by the plain text of the statute, and one simply isn't.

[DaveL]

And by the way, that "de novo" language keeps confusing people. Some legislators probably did have it in mind that there would be a new trial of the factual issues, but that makes absolutely no sense whatsoever under the statute they passed. The statute says the parents get a new shot at any federal issues they can come up with. But the whole ugly mess was decided under Florida law. There are no federal laws governing guardianships, end-of-life decisions, and the like. So to the extent that the DeLay and Santorum and Frist thought that they were mandating a do-over, they were delusional, because all they purported to do was open the courthouse door for the parents to have another shot at federal claims that just don't exist. Either they knew that and were being incredibly cynical, or both houses of Congress are led by people who have almost no understanding of how federalism works. I don't know which is worse.

[CaseyL]

Oh, that decision is interesting to read. Lots of backhanded slaps for everyone.

First, there's a wry bit about how the court "indulges the presumption" that acts of Congress are constitutional. That's hardly a given - but it is a pet peeve among conservatives angry that Courts don't always indulge such presumptions. I wonder if the Court was launching a little pre-emptive ideological strike here.

Then, the Court directly addresses the lack of specific wording in the law: "Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay. There is this enlightening exchange in the legislative history concerning the Senate bill that was enacted" - with quotes from Levin and Frist to clarify matters.

The decision also notes that one necessary criterion for granting the TRO is missing: that bit about the likelihood of ultimate success in the overall suit. That strikes me as an easy call, since the Schindlers had failed in every Court they filed suit in. And failed again (after the 11th Circuit's decision) when the SCOTUS refused to take the case.

[Macallan]

Saying it better

Much better.

[rilkefan]

I always find spc67 worth reading, but I don't understand how this:

"I believe Governor Bush, the House and Senate and the President all acted as their consciences required. To believe differently is to genuinely believe that they are dark and evil people. If you choose to beleive that? I have no interest in talking with you."

is consistent with their earlier actions in this area.

[Frank]

No one stepped up to answer my question in the other thread, so I'm asking again.

Since no one else has raised this I must: Doesn't the Texas Futile Care law give hospitals a strong financial incentive to find that patients who will never be able to pay, will also never recover?

Does anyone have information about how the bill proposes to prevent hospitals from seeking to protect their financial interests?

[Katherine]

I don't actually know if I buy this, but, I'm not the only one this has occurred to:

"Based on what Schiavo's parents have been saying this week, it appears the legislation's fine print was never shared with them by Bill Frist or anybody else for that matter. Early Monday morning, after President Bush signed the Schiavo bill, Bob Schindler was positively beaming in front of the television cameras. He said he walked into his daughter's hospice room and told her, "We had to wake the President up to save your life."

Did Bill Frist and Tom Delay ever call the Schindler family and say, "not so fast?" Apparently not. In their latest court filing, the Schinder family still clings to the misleading notion offered by lawmakers last weekend that their bill required Schiavo's feeding tube to be immediately reinserted. Quote, "If Congress meant to give the federal courts the power to let her die..." says the Schindler's filing, then passing the law "would be little more than a cruel hoax." Read it again... The Schindlers argue: "If Congress meant to give the federal courts the power..." The fact is, that's exactly what Congress did. And a "cruel hoax" on Terry Schiavo's family is exactly the right description. As one of my doctor contacts observed, "This has always been about politics, not about helping Terri Schiavo or her parents."

I don't know I think they could have easily been reckless and careless rather than deliberately deceptive, just as I think they could have been inexcusably reckless and careless with the facts rather than deliberately deceptive. And even if this is true of Frist I don't think it is necessarily true of most of the supporters of this bill. I would be shocked if Senator Sam Brownback didn't think he was saving Terri Schiavo. The same is actually true of Santorum--who I otherwise find loathesome, but certainly seems like a true believer.

[bob mcmanus]

Jeez, Katherine, you still think they are idiots. Not one of the lawyers or legislators caught this little boo-boo.

Whatever gets you thru the night, I guess. I take pills to get what little sleep I can.

[M. Scott Eiland]

Personally, I think it would have been very wrong--even if somehow constitutionally permissible--for Judge Ito to have issued a directed verdict of guilt to the jury in the OJ Simpson murder trial. That doesn't mean that the jury was any less idiotic and disrespectful of the proceedings to come back with the verdict they did in the manner which they did. IMO, the same reasoning can be directed at the federal judges in this case. They knew exactly what Congress intended, and chose to sidestep it by treating this as just another case, which it clearly wasn't, given the extraordinary circumstances that brought it before them. It was within their power to so act--as issuing a subpoena to a brain-damaged patient was for Congress--but it was disrepectful in the extreme to a co-equal branch of government.

[M. Scott Eiland]

Jeez, Katherine, you still think they are idiots. Not one of the lawyers or legislators caught this little boo-boo.

If lawyers and legislators *didn't* make so many mistakes, we'd need a lot less of them.

[Francis]

From Tacitus: "who is either being starved to death against her will or is being released from a dungeon in as cruel a way as possible"

plain false in two respects: she'll die of dehydration long before starvation & it's not cruel if the hospice provides proper end of life care. (google nuland dying schiavo, for example.)

more bluntly -- payback's a bitch, ain't it? the worst faction of the republican party decided to create yet another media circus, and this time there's blowback. so all of a sudden the moderate righties are getting media fatigue. the downpour you're hearing is the crocodile tears being shed by those of us who have watched the republicans make utter fools of themselves. next time, try exercising some of your famous party discipline.

the moderate in me wants to extend an olive branch to swing voters and gently remind them that theocratic rule is anti-american. the partisan hopes that the utterly disgusting speeches made by bugman and frist become a part of the democratic party campaign push. You hatched these monsters; now CHOKE on them.

[rilkefan]

If the bill wasn't phrased the right way, why is it too late to fix it, given that Mrs. Schaivo is still "alive"?

[Anarch]

but it was disrepectful in the extreme to a co-equal branch of government.

Whereas being instructed to consider the case de novo after eight years of litigation was a token of Congress' respect?

[bob mcmanus]

"From Tacitus: "who is either being starved to death against her will or is being released from a dungeon in as cruel a way as possible""

Ya know, I haven't seen a main page update on Tacitus since "Breach of Faith" on March 10. The diaries are current, but I see no new posts. I am wondering if I have been banned in a very interesting new application of technology.

[Katherine]

It sure isn't constitutionally permissible for judges to issue directed verdicts of guilt...I don't totally get the analogy. The law said what it said. (The thing I linked to above, whose conclusions about Frist's motivations I would expect most Republicans to strongly disagree with and I'm not convinced of, also has a fairly useful analysis of the statutory text.) Levin and Frist's exchange is just the icing on the cake.

Bob--remember how concerned Brownback was over "erotoxins"?

I don't think they're idiots. I think many of them have a nearly unlimited capacity to believe what they want to believe. And that, as Kevin Drum said, "At this point, both the culture wars and their newfound brand of institutional arrogance are so ingrained in the Republican party's DNA that I suspect this stuff is strategized on a practically unconscious level."

Also, it's not necessarily less scary that the leaders of Congress believe everything that the Family Research Council tells them than that the leaders of Congress are heartless cynics.

[Katherine]

"If the bill wasn't phrased the right way, why is it too late to fix it, given that Mrs. Schaivo is still "alive"?"

Wouldn't play well in the suburbs. And I doubt the Democrats will go along with it a second time.

[M. Scott Eiland]

Ya know, I haven't seen a main page update on Tacitus since "Breach of Faith" on March 10. The diaries are current, but I see no new posts. I am wondering if I have been banned in a very interesting new application of technology.

Not unless he banned me at the same time, Bob. :-) I think that he's just preoccupied.

[M. Scott Eiland]

Whereas being instructed to consider the case de novo after eight years of litigation was a token of Congress' respect?

That's not an unreasonable observation--but it doesn't necessarily excuse the federal court's actions.

[DaveL]

M. Scott, what should the courts have done? If they'd shown respect for Congress rather than the law Congress passed, what would their opinion have said? And if they had made the stretch that the 11th Circuit dissenters suggested and relied on the All Writs Act, how would you feel a year or two from now when the courts got finished reaching the obvious conclusion that there's no viable federal substantive claim and we went through this whole ugly charade all over again?

[dmbeaster]

Brennan:

...all they can see is profit from privatization, and government as the problem.

Or even worse, government as a profit opportunity, and government policy as devices to structure such profit opportunities for friends.
____

Eiland:

Congress clearly intended that a trial de novo be held in the case, and replacing the tube is the only way that could be possible in the real world.

Uh, no they didn't what you claim. They authorized a trial de novo, which means that the case starts at square one, but the choice of wording left it entirely to the judge to decide whether or not to issue a TRO and/or preliminary injunction. Courts are constantly denying TRO's that have the effect of mooting controversies. That's the way the law works, and the smart guys writing the statute knew that.

If the authors of the statute wanted to require the result you claim, very simple language could have been added that would have guaranteed that result. For example, they could have legislated a new standard for issuance of injunctions in right-to-die cases so that injunctions must be granted pre-trial. They could have passed a law federalizing what the Florida legislature tried unsuccessfully to do -- make it illegal to grant relief in right to die cases unless there is a written living will, and invoke retroactive application. There are many many other choices in how to draft the statute. They instead chose a tepid procedural statute that created no substantive rights for Schiavo.

Heck, Bush could advocate a constitutional amendment reversing Curzon thereby eliminating the right to die concept. Just like he could be advocating a constitutional amendment banning abortion, if he really cared about the issue.

Bush and crew are dumping the Schiavo advocates cold by falsely pretending that they "have done all that they can." No, they read the poll numbers, and cynically gave up while pretending not to. Blaming the judges for doing their job properly is more of that cynicism.

[Francis]

Katherine, as to legislative motive, here's my speculation:

One group wanted to keep Terri alive. It would be a huge win for their constituents and a thumb in the eye for those "activist" florida judges trying to kill her.

One group wanted to get a bill, any bill, passed, in response to constituent pressure.

One group was actually concerned about precedent and constitutional law and tried to pass a bill that was not grossly unconstitutional.

One group, recognizing that this was just pure theater, orchestrated language to create what they thought would be the best possible political outcome.

And plenty of these guys are just idiots. Given the speed with which this got rammed through the legislature, it's entirely possible that no one considered that the fed courts would deny the TRO, thereby ending this charade sooner rather than later.

evidence supporting this post -- 0.

p.s. my earlier post citing Tacitus was in response to Macallan's earlier post quoting a diary posted by spc67 there.

[liberal japonicus]

Thanks for the decision link, scott, and thanks to mac as well for spc67's piece. I was struck by this point

All I can see now is an unfortunate woman, unable to communicate her wishes, who is either being starved to death against her will or is being released from a dungeon in as cruel a way as possible. If we are to sanction this, then let us kill Terri quickly. What we are watching now is an abomination. (emphasis mine)

I agree with the point, but I don't know how we could come to a societal consensus about this. There seems to be a line between respirator/heart-lung machine and feeding tube for people.

I have to disagree with Katherine, I think that Reid and Durbin handled this correctly, given the situation. It would have been more satisfying to have them invoke separation of powers, but the time pressure would have them being accused of merely playing out a line until TS is dead. Perhaps this could be viewed as cynicism on their part, but the Republicans certainly can't say 'why didn't you fight us on this?' The talking points that were apparently distributed to Republicans anticipated setting up the dems for the fall.

I would agree with the cynical reading of a bill crafted to make the maximum statement and the minimum effect, and I can't imagine that this legislation wasn't gone over multiple times with a fine tooth comb. It would be interesting to know what contacts there were between the Schindler legal team and those drafting the legislation, but I'm afraid if there were contacts, that info will never surface.

[JerryN]

M. Scott Eiland - as regards to:

As Andrew McCarthy points out, that's precisely what the majority on the three judge 11th Circuit panel *did* do, by citing Senator Levin's comments in justifying its opinion.

the justices referred to a direct query from the floor and subsequent dialog that was directly on point regarding the language of the bill that was voted on. The salient ponts were not Levin's but Frist's - it's clear that to avoid the plain unconstitutionality of directing a result, the language of the bill was altered to avoid crafting a bill of attainder.

In some way, this is the most offensive part of the whole circus. The advocates for the Schindlers had to know that they couldn't craft a bill that would assure their intended result. They were counting on either (1) intimidating the Federal Court or worse (2) being able to just put on a show to mollify some part of the base. Neither option reflects well on those involved.

[liberal japonicus]

frank
Since no one else has raised this I must: Doesn't the Texas Futile Care law give hospitals a strong financial incentive to find that patients who will never be able to pay, will also never recover?

I think there are two protections, but both are not built into the system. The first is obviously the threat of a lawsuit, but the second is the fact that hospitals can take unpaid bills and declare them as charity in order to maintain taxfree status. Here's a Detroit Free Press article about one lawsuit in a set that is being orchestrated Richard Scruggs.

I agree that this is something that should be discussed. Sorry I don't have more info to offer.

[von]

As Andrew McCarthy points out, that's precisely what the majority on the three judge 11th Circuit panel *did* do, by citing Senator Levin's comments in justifying its opinion.

M. Scott --

I think that diversion by the 11th Circuit in the legislative history was inappropriate and wrongheaded. Still:

It wasn't the primary argument. IIRC, it was a response to an argument like that made by HH -- i.e., even if we look at the intent, you're still wrong.

Unlike HH, it at least reflected a germane exchange on the floor of the Senate regarding the specific provision at issue.

[hilzoy]

M. Scott: "it was disrepectful in the extreme to a co-equal branch of government." (About the court's not issuing a TRO.) -- I think this is quite wrong, on two counts.

First, the courts have found that Terri Schiavo would not have wanted to be kept alive on a feeding tube. To have inserted one at this point is not to have done something trivial to ensure the possibility of rehearing a new case; it's to go against what the courts have found to be her wishes, and to subject her to surgery against her will. It is, imho, entirely appropriate for the courts to abide by their usual rule in this case, namely: requiring a substantial likelihood that the case in question will succeed.

Second, in this case Congress was acting with total disrespect for the judicial system. They did not like the result in this case, so they ordered a one-time no-precedent exception to the usual jurisdictional rules. There is very little reason to think that the case would succeed in federal court, given both the existence of related cases (e.g. Cruzan) that uphold the right of states to use the standard used by Florida in such cases, the extensive litigation that this case has already had, and the fact that there are not very many federal issues involved. (And Congress does not, afaik, have it in its power to make something a federal issue that the Constitution does not.)

This means that members of Congress were either very badly informed, or they were acting under political pressure without thinking about the likely consequences of their actions, or they were trying not to secure a victory in court but to force the reinsertion of the feeding tube for however long it took the case to lose this round, or they were trying to bully the courts into compliance. In no case does their action deserve "respect" that goes beyond careful adherence to the law they wrote, especially since (see above) the "respect" you urge involves imposing surgery on someone against what the courts have found to be her will. But if the third or fourth option is true, there is a special reason for the courts not to go along. If the third option is true, the Congress is trying to use the Courts to produce a result not supported by law. And if the fourth is true, it is trying to get its way by bullying. When bullies count on the decency of others to get their way, it is (imho) no part of decency to help them succeed.

[SomeCallMeTim]

Second, in this case Congress was acting with total disrespect for the judicial system.

This, I suspect, controls more than anything else. It's not clear that there is a separation of powers issue here, but it's damn close. Absent anything else, I think the federal courts were going to brush back Congress on this one no matter what. All the other issues/arguments might be useful toward that end, but it is hard to imagine a judge who would not find this episode shocking and respond in kind.

[Katherine]

The disrespect for the judiciary would doom the law in the end, but the courts are being very nice about putting that aside for now.

Believe me, extraordinary rendition sure as f*ck defeats the intent of the anti-torture statute, the Convention Against Torture, and FARRA. That's not enough; I have to show that it disobeys the text. Respect for your coequal branches doesn't mean "obey Tom DeLay's and Bill Frist's wishes". It really doesn't.

The law says they get a de novo trial of a federal claim. They have not managed to come up with a single non-frivolous federal claim. "De novo" aren't magic words that mean you don't actually need a cause of action, and they haven't come up with anything remotely plausible. The federal judges are actually being quite forbearing & restrained on account of the circumstances.

Their lawyers are also in way, way over their heads. They're way too close to it. Accusing state judges of murder in hearings & writing about the miraculous evet Friday when Theresa Schiavo told you she wanted to live does not win you crediibility points with federal judges. Nor does their free exercise claim (incapacitated, non-practicing Catholics should be forced to follow the orders of the pope, more or less), which if it succeeded would be a clear violation of the establishment clause. I doubt there's a credible federal claim they could make, but if there is, these guys are not going to find it.

The Schindler family has been served very poorly by their ostensible allies. Rather than Bill Frist playing doctor, Tom DeLay playing savior, and the U.S. Department of Justice making a completely inappropriate intervention in a family dispute to basically drop hints to the Schindlers' lawyers, someone in Washington should have put them in touch with a good constitutional lawyer who'd be willing to work on this pro bono as an advisor. There's not a lack of devoutly religious, conservative folks who would qualify.

One final observation, from Amanda Marcotte

I have also noticed that two values that BushCo likes to fling around are "life" and "freedom", but I have also noticed that the two are opposite values in their rhetoric. You can have freedom or life, but not both. They are pretty consistent in this viewpoint, and if they evoke freedom, you can be sure they are covering up for someone's death, and if they evoke "life", you can be sure they are trying to take away your freedoms.

[rilkefan]

The kind of thing I was referring to above in my reply to spc67 (though note that Frist of course gets to change his mind):

In Transplant, a book he wrote in 1989 about his career as a surgeon, Frist suggested changing the legal definition of "brain dead" to include anencephalic babies, which are born with a brain stem so they can breathe but are unable to see, hear or feel.

In the book, Frist noted that such a change would clear the legal hurdles to harvesting the organs of anencephalic babies for transplants. With approximately 3,000 of them born in the United States each year, that would be "enough to solve our demand many times over," Frist wrote.

From the Orlando Sentinel (LATimes password works) via TPM.

[Anarch]

I was planning on a lengthier exegesis here but real life has intervened, so I'll have to make do with a couple of lines:

Actually, it doesn't. Reading a document in context is not the same as trying to divine the authors intent(s).

This presumes that "context" is somehow extricable from "intent" (and, less often, that "intent" is extricable from "context"), which is a presumption I would hesitate to make; at some point you're going to have to reduce to "what did people think this thing meant?", which is tantamount to a divination of intent. Your distinction here may turn on the definition of intent -- distinguishing between the mental state of an individual as versus the gestalt state of a society -- but I'm not convinced that that's as bright a line as I think you're claiming.

[Crock Pot]

Sorry but this is going to be a small thread jack.

Where are you guys primarily going to get your news? I see several links which, of course, indicate news sources or opinion pieces on the internet, but I was wondering if any of you get your information from TV news? I ask because when I watch the news on TV all I see is sensationalism and/or an attempt to outrage the viewer interspersed with some minimial actual information about what is going on.

[Katherine]

You're right, Anarch, but you won't succeed.

Frist could easily say that this was passed in the context of trying to save Schiavo's life.

They pretty up what's basically totally illegitimate, atextual, original intent argument by saying it formed a "shared understanding" of "terms of art" that forms part of the "original meaning" of the constitution. They can't actually define 90% of the terms of art though--basically, they take the law at the time, impute an intent that it would be constitutional for the indefinite future, and try to bind us to it forever and ever. In the name of "democratic legitimacy" they argue that we are bound by every blind prejudice in the minds of a ratifying "supermajority" that was actually a tiny minority of people who should've been able to vote--even when this contradicts any fair reading of the constitutional text.

I mean really. Thomas Jefferson wrote the words:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Thomas Jefferson owned slaves. According to Scalia and von's logic, this is clear proof that either the meaning of the word "men" does not include black people, or "equal", "unalienable", "rights", "liberty", and "pursuit of happiness" do not exclude slavery. It's a transparently ridiculous argument. The only one of those things that Jefferson possibly could have believed was that blacks weren't people, and if he believed that, then it's an empirically false application of the word "men," not part of "it's fixed meaning" and it could not legitimately bind on future generations. He certainly didn't believe that slaves had liberty and the pursuit of happiness, and he knew what unalienable meant.

No, the meaning of those words was not far different in Jefferson's day than in ours. "Unalienable" isn't a term of art meaning "alienable if you're black"; "liberty" isn't a term of art meaning "liberty to do what your master says!"Jefferson knew what his words meant. He just failed to live up to them. The same is true of many constitutional provisions.

You'll never convince them of this, though. Trust me.

[Anarch]

Where are you guys primarily going to get your news?

Go? I get my news right here! :D

[Crock Pot]

Well I don't blame you Anarch. I've gotten more indepth information in 10 minutes here than in weeks at CNN.

[Crock Pot]

Well I don't blame you Anarch. I've gotten more indepth information in 10 minutes here than in weeks at CNN.

[Francis]

Crockpot: NPR / public radio (after morning edition is done) / online versions of LA and NY Times and WaPost

[Katherine]

If you're following a particular story, Google News is great. Though if the AP picks something up they list it 50 separate times.

[Crock Pot]

Thanks guys.

Sorry for the double post.

[CaseyL]

My TV is gathering dust and I've told comcast to cancel my account: obviously, I'm not getting news and information from TV. The few times lately I've turned on CNN, I can't take more than 45 seconds before I gag and have to turn it off.

To quote a character from The Final Reflection: "News channel? I thought that was indoctrination programming for children."

Where do I get news? NPR, on-line newspapers, on-line blogs.

[ral]

Katherine,

No, the meaning of those words was not far different in Jefferson's day than in ours. "Unalienable" isn't a term of art meaning "alienable if you're black"; "liberty" isn't a term of art meaning "liberty to do what your master says!"Jefferson knew what his words meant. He just failed to live up to them.

Thank you, thank you, thank you! The truth could not be stated more clearly.

Crock Pot: Where are you guys primarily going to get your news?

One good source, though one has to view it with a somewhat skeptical eye/ear, is Democracy Now!, Amy Goodman's news show.

It's decidedly lefty, but often has interviews with first hand witnesses, people who actually go to Iraq for example, and report their experiences. Today's show featured Naomi Klein, who just returned from Italy where she interviewed Giuliana Sgrena.

[bob mcmanus]

Where do I get news? My Yahoo Home Page customized, about 20 categories (Top,Nation,Politics,Sports,etc) of ten headlines/links each...mostly AP and Reuters I guess.
Follow those links to an article with linklists on the left and below, related articles in main and foreign newspapers, pages of op-eds, previous ten related articles, in-depth reference links.

Krgyzstan

I don't know if that will work without my password, which I am not giving out. But the page has links to Krgyzstan Embassy, pages of maps, CIA Factbook, NY Times, etc.

This my home page, and instead of hitting refresh my bloglines for new postings, I hit "back" so I am constantly renewing it.

[bob mcmanus]

Other stuff on My Yahoo Home Page:

...Weather for my three local cities, with a search box for others
...Last night Texas lottery results
...major Stock indexes, currency exchange, quotes for three companies of interest
...sports scoreboard, with real-time results, one click away from real-time boxscores
...weekend movie box office
...calculator
...maps from typed in addresses
...reference search box,dictionary,shakespeare,rogets,etc
...news articles on my three companies("Cisco feasts on Aching Ayaya")
...primetime listings for thirty cable channels
...and new postings to the dogpark group...building three dogparks in a near city in the next few years...am on the committee

Doesn't everyone have a page like this? :)

[John Thullen]

Where do I get my news?

First, I form an opinion on a subject. Then I comment on the Internet.

Then I check various media outlets, print or broadcast,
to confirm one of two things, usually both: that I'm right and they are biased.

No, I don't do that.

[felixrayman]

Regarding news sources, here's one I found the other day:

Watching America

It has articles from foreign newspapers translated into English. It seems to be fairly interesting, so far.

Other than that...

Kramer: The alternative media, Jerry. That's where you hear the truth.
-Seinfeld

[hilzoy]

I get my news from the NYT, WaPo, LATimes and BBC first (plus several smaller sources for more specific issues); blogs; and (crucially) the links provided by blogs and the primary sources referenced by the papers. If the web had done nothing other than making GAO reports available online, it would have earned my undying gratitude.

[Crock Pot]

Thanks a lot everyone. Seems no-one really watches TV for news anymore. At least, the blog-o-philes here don't.

Do you think that says something about the people that like blogs (or the people that post here specifically) or does it say more about the quality of TV news?

PS: I think John may be onto something.

[hilzoy]

Crockpot: actually, on reflection I forgot the NewsHour and NPR.

[Jesurgislac]

Seems no-one really watches TV for news anymore. At least, the blog-o-philes here don't.

In the UK, there's usually a five minute spot at the end of the national news broadcast for local news. (Local in this instance meaning regional, generally.) If there's something specific about my region that I want to know about, I'll sometimes switch on in time to catch that.

[Frank]

Hey, this blog is linked from AOL BLOGZONE...maybe the sleeping giant is coming alive after all?

Nice little compilation here.

http://news.channel.aol.com/blogs

[ronnie]

Ironic that the very same day majority passed Medicade cuts, of $10 billion, they come back to administer "Terri's Law", legislation? The Medicade program that pays Terri Shiavo's nursing home care bills totaling $80K annually?
Why is compassionate conservatism, for states rights when their agenda is supported, against states rights when their decision differs with conservative agenda?

[Frank]

Liberal Japonicus- Thanks. I don't think either of the protections you mention amount to much though. 1 The indigent clients who most need protection are unlikely to have anyone prepared to sue on their behalf. 2 My guess is that hospitals don't have any shortage of charity cases as it is.

Note that since the Bush administration intends to make it more difficult to sue care providers and has cut medicare spending, he is encouraging bad behaviour on the part of hospitals.

[Charleycarp]

Sitting in an airport listening to CNN waiting for a plane, I'm struck by just how accurate the comments above are. Calling the coverage tripe is an insult to tripe.

With regard to lawsuits, I get my news from PACER. Can't beat the horse's mouth.

I should propoably look at that other thread, but I'm really still not sure why Gibbs didn't assert the parents' state claims under supplemental jurisdiction. Even if the federal counts are dismissed, the court would have the option of keeping the state claims -- and while the district judge might not like it, I bet you could get some takers at the 11th Circuit.

Anyone think this completely impossible?

[Pam Hawkins]

I am a Republican, and I am traumatized by what I'm seeing our government doing in the Schiavo case. I've been watching MSNBC and I agree with Dan Abrams: Terri wouldn't like what's being done in her name with what remains of her dignity and life.

Let the woman die. It was her desire. Every court so far has thoroughly examined every charge, piece of evidence, and allegation to the contrary. All have found for her husband.

For those of you who trust in God, then do it. Trust that God will allow only what is right in this case. Did you really think we can overrule His will?

No, but the Schindler's lawyers are making a bundle. It seems Mike Schiavo, the money-grubbing "murderer," has spent all but $40,000 of the $1 million settlement he was awarded in the lawsuit against Terri's doctors for not giving her better treatment. How? Well, $700,000 went directly to care for Terri, and $300,000 went to legal fees. And he's the villian?

President Bush, Gov. Bush, Republicans, and so-called "right to lifers" (what life?)should get out of this and let her husband carry out her wishes.

[dmbeaster]

Charleycarp:

Good point about supplemental jurisdiction, and it makes you wonder why they were not added on no matter how weak they may have been. I think that the answer is that the statute only gave jurisdiction and de novo status for federal law or US constitutional claims. Although state law claims could have been added on, res judicata would have automatically ended them. Maybe that is why they were not added. Also, I think federal law pretty much requires dismissal of supplemental claims if the federal questions are all removed -- I think recent decisions have terminated much discretion on this point, although I am not sure.

that the statute in question only conferred the de novo jurisdiction for federal and constitutional claims.

[Rudolph Frazier]

Greeting: HERE IT IS EASTER. LET US TRY TO LOVE OUR BROTHER AND SISTER. OUR GOVERNMENT DO MORE FOR THE POOR AND SENIOR CITIZENS. THIS SITUATION HAVE GOTTON LOT OF ATTENTION. MORE NEWS EVER. ONE FAMILY QUARRELING. DEATH IS NOT A SIN. WE ALL WILL DIE SO0NER OR LATER. IT'S THE HUMAN WAY. I PRAY FOR ALL INVOLVED IN WANT TO PUT THE FEELING TUBLE BACK. The husband rights and doctors progress notes should have ended this earlier then now. 15 years suffering long enough. Let pray one for enough now.

GOD BLESSIN
RUDOLPH FRAZIER
ARK/NLR

[Anarch]

Calling the coverage tripe is an insult to tripe.

FTR, there are actually a couple of Chinese dim sum dishes using tripe that I quite like. Wish I knew what the heck they were called, though

[Sissy]

I belive this is a tough situation. Let us all remember that there is always a beginining and an end. The chapter of life as we know it has long been gone for a lot of people, including Terri Schrivio. We must all look now look at her courage and inspiratinion as a way to know that we must all face death one day or another. Although I do not agree with the turn of events in this matter, I have learned that there is dinginty in dying and death will not leave us without memory of A LIFE THAT SHOULD HAVE BEEN. My heart cries out to all the family and those who loved Terri, but i must include that I, too, would not want to be in this sititiutation, on either side! My children are my life, and I would not want them to ever leave me, but at the same time, I know my children would not want to lie in a bed for the rest of their lives. And I will ask of them not to let me lie in misery. It's a hard call on all sides, because it is a LIFE, but what is life?

[ARCHANGEL]

Death Lovers. All who hate God love death. Ultimately, this is what the argument is all about. Who determines when one dies or does not. It is instinctive for man to desire to remain in the life he knows. Even when dying, until the will becomes too weak to power the body to live, the instinct says 'fight to live'.

Man has been given the ability to prolong life. The longer one lives, the more chance one has of repenting and receiving eternal life. The choice has never been that of mankind to choose when to die. There are laws against suicide, because man knows in his conscience that death is not within his province to give or take.

The LORD, He is God and there is no other. You have taken of the fruit of the tree of knowledge of good and evil; now you believe you have the right to choose when you die, but you are not God. God alone is sovereign and you would do well to recall it.

[Lori]

God did not stick a tube in someone stomach to feed them. God gave them a mouth ... to feed themselfs. While man has the ability to heal and prolong life.... they have the ablity for death and destruction also. You can not use the arguement that GOD gave us the ability to save lives in this way and thus it is alright. If that's the logic then .... God gave us the technology to destroy lifes.... see HIROSHIMA !!! I really do not believe GOD had any of this planned and is probably shaking his head right now wishing his MAN had not gained so much intelligence. As we as mere mortals take on the role of GOD himself in deciding how lives and who dies we must ask ourselves.... who shall we pray to ?

[CharleyCarp]

DM:

Agreed that the 'de novo' review is arguably only for the federal claims, but pleading the state claims under supp juris is really the only way to get them in -- and this is how you could really get a chance to argue about the intent of Congress. Maybe they'd even have gotten a TRO while they argue about the question. (From the 11th maybe). Surely it beats frivolous-on-their-face constitutional claims.

This really was the mistake in drafting the statute. That it didn't include actual substantive changes in law was intentional -- in the time available, they couldn't get a bill through mandating feeding tubes absent a writing or unanimous consent. They could easily, though, have added a clause that applied the same standards of review for whatever claims might be brought before the federal court, including those under supplemental jurisdiction.

That they didn't, although the proponents of the legislation clearly wanted de novo review of the state law issues here, seems to me to be a mistake, not a grand Machievellian scheme to take the courts down. And I'd like to think they made this mistake because, deep down, these conservatives believe that liberals are right about the expansive nature of substantive due process. They just can't believe that its constitutional to let the poor woman die. Now if they'd been actually listening to what conservatives have been saying about the constitution for the last 50 years, they'd have been better able to see what was going to happen sending the Schindlers into court armed only with the 14th Amendment.

[Larkin G. Mead]

To allow a viable human being to literally starve to death is of the most evil acts visited upon this once civilized society.

The liberals and particularly the "pro-choice" advocates, think nothing of killing a fetus in the womb, so is it any wonder that they would not allow the killing of a viable human being to die a slow, torturous death? Since when does the reduced mental and physical capacity of another human being justify a court ordered death sentence? Should they have pulled the plug on Christopher Reeves?

When one considers the moronic mentality of the liberals, it would not surprise me at all to hear that they (liberals) were waiting for "Super-Man" to rise out of his wheel chair and become whole again.

Contrary to what many people in this country believes,
God does His work through human-kind, but it appears that Satan is having his way in the case of Terri Schiavo. God have mercy on all of us.

[rilkefan]

Larkin, you may not be aware of the state of medical research, but there's a lot of great stuff going on with stem cells - a doctor at Harvard has a therapy which regrows the lost insulin-producing cells of diabetics, and a researcher in CA can reportedly return limb function to rats with severed spines.

And you may be unaware that Christopher Reeves made incredible progress in regaining the use of his extremities. He did in some ways rise from his wheelchair. People would say "miraculous", except that nobody really believes in miracles anymore. Dr. Frist said of Reeves's efforts, We shouldn't give patients false hope. Well, I have hope that people like Reeves will be cured one day. But Mrs. Schaivo is beyond human help.

Perhaps you should consider the possibility that this too is God's will.

[rita]

This imbroglio seems to fit nicely with the Republican agenda. After Schiavo's death they can use it as forceful evidence that they need more than ever to change the nature of the federal bench. Karl Rove must be extremely gratified at the thought of having all of Bush's nominees pushed through overnight.

[rita]

This imbroglio seems to fit nicely with the Republican agenda. After Schiavo's death they can use it as proof positive that we need to change the character of the federal bench. Karl Rove must be extremely gratified at the thought of having all of Bush's nominees confirmed almost overnight.

[Roman]

Rita's prediction needs comes true. That's the silver lining for this very dark cloud When the judiciary is more focused on following petty rules, procedures, and liberal predispositions than doing what's right, it needs a thorough, top-to-bottom housecleaning. This case makes this all the more evident, although more insightful conservatives have known this for years.
It's such a mess, not even a resolved W can fix it over the course of his 2nd term but it can be changed over the course of a decade or 2. Conservatives just need resolve, and to smoke libs election after election.

[Gromit]

Roman: When the judiciary is more focused on following petty rules, procedures, and liberal predispositions than doing what's right...

Gah...

[hilzoy]

Roman: what you call petty rules and procedures, I call following the law. If you can find some evidence that the judges have not followed the law in this case -- meaning, that they have made up laws that don't exist, failed to follow specified procedures, etc. -- let us know. If not -- if they have followed the laws as written -- then what you're recommending is activist judges imposing their will on us. It would be much better, if you disagree with the laws, to address your complaints to the legislatures who wrote and passed them.

[felixrayman]

When one considers the moronic mentality of the liberals

Could you please read the posting rules before commenting here further? Thank you.

[miles coleman]

If Terry is suppose to go to heaven,why would "right to lifers" want to keep her here on earth?Why not release her from her prison?

[dianne in kansas]

I watched C-Span this morning. Comments from callers addressed as follows:"those psuedo-christian republicans" "those hypocrits" "those Bible thumpers". I am a mother, a grandmother, a Methodist, a republican and a Christian. I have this to say to those of you who spit your hatred towards me and other Christians and mothers and grandmothers this morning. This is not Republican vs Democrat. This is not Christian vs. Jew or any other organized religion. This is the Devil vs. God. God has fought these kinds of battles before. He has always won and he will win this battle too. As the boyscouts say, Be Prepared.

[Bsheri]

Could it be that the entire raising of the ordinary to this level has bigger meaning than this case? I submit that it is the beginning of an internal American war for Democracy Principles (legislative process) Vs Dictatorship Principles (Judicial process. The tone of modern liberalism is now completely anti democracy on the same basis as such principles are always persued - that is, the belief that the (any) electorate is too ignorant / stupid (Re Inferior)relative to themselves or others similarly self anoited to be entrusted with the conduct of the country. This Neu Supermacism is why they seek to discredit the democratic process (wrong count, cheating, blah blah) and why they refer to the opposition as unworthy and inferior(Red Necks, Trailer trash, ad infintum. What you have is Bush attempting to bring back the power of democracy (diminish activist judiciary)in America as well as the Middle East and elsewhere. I look to Dean and the DNC to seek a suitable Charismatic Leader uber alles to oppose rebuilding democracy in America much as they oppose spreading it in the rest of the world - they don't beleive in it.

[Catsy]

Wow. Someone break out the troll spray, lately we seem to be having an influx of people who've abdicated their thinking processes in favor of the easier route of carte blanche demonization.

[liberal japonicus]

Very unique way of violating Godwin's law which also supports my 10:43 about the appropriate course of action.

[hilzoy]

Dianne in Kansas: if you can find a place on this site in which any of us spits hatred at Christians, mothers, and grandmothers, please let me know. It would violate the posting rules, and be completely wrong to boot. If not, however, please do not make assumptions about the people here. We do not share a common ideology; only a commitment to civil discourse.

To everyone else: our traffic got way, way heavier during the last week, so lots of new people unfamiliar with the posting rules. (And some of them equally unfamiliar with orthography.)

[rilkefan]

"And some of them equally unfamiliar with orthography."

Were those serious comments? They seemed _too_ misspelled.