Who Can Really Say?

Terri Schiavo in Overtime

I was tempted to call this post Sudden Death Overtime, but that would have been in bad taste. And when even Protein Wisdom seems to be showing some taste when it comes to the Terri Schiavo case, I figure it's the blogospheric thing to do.

I want to put forward what I think is the essential emotional basis for what at this point must be quintuple overtime in the Schiavo case. LaShawn Barber, in describing her own feelings, says it well:

I’ve been trying to suppress this feeling, but I can’t stand the thought of Terri Schiavo lying in that bed slowly dying, while people who love her can only watch. THIS IS NOT RIGHT!!! Her mother is watching her child die.

I don't mean to pick on Barber here -- I chose the quote because it seemed representative of the reason why so many conservatives are upset over the case. But if that's the way they feel, what would they have done differently? Florida law, and I assume the law in most if not every State, puts the spouse in the position of acting as guardian. Not the parents mind you -- the spouse. Is that law wrong in this case for any specific reason, or always wrong in each case? Is it unconstitutional? If so, on what basis?

If the law isn't wrong on that point then what else is wrong with this case? Is it that the judge made a bad or wrong decision in finding by clear and convincing evidence that Terri Schiavo did not want to be sustained on life support? That has been appealed and heard and appealed and heard, and lost. If one can't endure losing a court case, is the answer to do away with all courts? If not, then what?

What about the starvation aspect here. I've heard some say artificial feeding and hydration are not "life support". But is artificial respiration life support only because suffocation occurs in minutes? And again, is Florida law at least wrong if not unconstitutional because it specifically acknowledges that feeding and hydration are life support?

And if there's an answer to any of my questions that solves this problem in your mind, then what are you going to do about Florida law and the other 49 states that more or less would have allowed the same result, assuming the same facts? I understand the emotional grievance here at least -- what I don't understand is the real world solution.

On another front, half of my senatorial representation, Rick Santorum, is furious that the Schindlers were denied a preliminary injunction by the Federal District Court after round-the-clock legislating by Congress this weekend:

U.S. District Judge James Whittemore has defied Congress by not staying Terri Schiavo's starvation execution for the time it takes him to hold a full hearing on her case, a leading Republican senator said Tuesday.

"You have judicial tyranny here," Santorum told WABC Radio in New York. "Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress."

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo," the Pennsylvania Republican explained. "That means he has to hold a new trial. That's what the statute said."

"What he's saying is, 'I don't have to hold a new trial because I've already determined that her rights have been protected,'" Santorum said.

"That's nice for him to say that. But that's not what Congress told him to do," he added. "Judges should obey the law. And this judge - in my mind - simply ignored the law."

I don't know which is worse -- is Santorum really as dumb as a rock or is that just his day job? Seriously, the problem here is that the law passed this weekend didn't require the District Court to issue a preliminary injunction. Indeed, it only, but specifically, said the Court "may" issue an injunction. Federal rules relating to preliminary injunctions are well known -- well they're well known to lawyers, judges, law clerks, and law students (eventually), and perhaps should be taught to Senators. The reason why an injunction wasn't issued here is because the Schindlers had no substantive legal arguments left to, well, argue. See a good discussion of the point at Volokh in this post by Orin Kerr. And check out the comments too.

But beyond that I'll say this. There are lot's of good reasons why folks might think that our courts are screwed up in one way or the other. I have rarely heard a social conservative like Santorum, even when the facts and the law are on their side (which isn't the case here), make the best or even a good case for it. And when the facts and/or the law are against them, examining their arguments is downright brutal.

I was going to add one last bit -- I saw a blog post the other day (or maybe even this morning) that lined up the Federal Judges who, in the last 24 or so hours, have ruled against the Schindlers request for an injunction. But I can't find it -- if and when I do, I'll add it as an update here. The point of post was another pet peeve of mine -- lot's of the politically oriented love to point out that "Reagan appointed that judge" who just ruled "conservatively", or Clinton appointed the judge that just ruled in a "liberal" way. The poster child for this, of course, if Bush v. Gore. But the breakdown of who appointed the judges who, in Santorum's mind are DEFYING CONGRESS are, um . . . full of GOP appointees. Not exactly a full meal mind you, but it's still food for thought on that meme.

And since I can't find that bit, I'll end with this one -- read this Tech Central Station essay today on the Schiavo case. For the one Liberal Democrat who reads this blog, take heart -- this won't help the GOP in the long term, and can only hurt it.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at March 23, 2005 08:10 PM