Best of the Web Today - March 23, 2005
By JAMES TARANTO
Judicial Passive-Aggression
Terri Schiavo's chances of averting death narrowed considerably in the wee hours of this morning, as a three-judge panel of the 11th U.S. Circuit Court of Appeals, by a 2-1 vote, upheld a trial court's refusal to issue an injunction ordering the resumption of her feeding and hydration. Schiavo's parents filed an appeal with the full 11th Circuit, which the court rejected. A Supreme Court petition is a certainty, but it's a near certainty that the high court will decline to review the case. The Florida Legislature is also considering legislation that would save Mrs. Schiavo, but one suspects that the Florida courts would find a way to invalidate it, as they did the last time lawmakers in Tallahassee intervened.
Whatever else one may say about the 11th Circuit's ruling in Schiavo v. Schiavo (link in PDF), it is not a work of judicial activism. Quite the opposite, it is a caricature of judicial restraint. The court bent over backward to construe the statute, and its duty in hearing the appeal, as narrowly as possible in an effort to frustrate Congress's intent. Call it judicial passive-aggression.
"While the district court conducted de novo review of plaintiffs†claims, we review the district courtâ€s denial of temporary injunctive relief only for an abuse of discretion," the court writes (pages 3-4), explaining its conception of its role in the case. "This scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion that is clearly unreasonable or incorrect."
What about the argument that Congress clearly intended to save Terri Schiavo's life? The court shoots this down elegantly, by citing (pages 5-6) an exchange on the Senate floor between Sens. Bill Frist and Carl Levin. It turns out that an early version of the bill, introduced by Florida freshman Sen. Mel Martinez, had contained language saying that the court "shall" issue a stay ordering the resumption of the feeding tube.
Levin asks Frist if the removal of this provision would leave open the possibility that a judge could issue a stay, and Frist allows as how it would, but "I would assume . . . the Federal court would grant a stay . . . because Mrs. Schiavo would need to be alive in order for the court to make its determination." As they say, when you assume, you make a ass out of you and the law.
If you think we're going too far by calling this a caricature of judicial restraint, check out the bit of pedantry that is footnote 1 (bottom of page 2; citation omitted):
Our dissenting colleague says that â€the denial of Plaintiffs†request for an injunction frustrates Congressâ€s intent, which is to maintain the status quo.†The status quo is that Mrs. Schiavo is not receiving nutrition and hydration. The plaintiffs do not want the status quo maintained. They want this Court or the district court to issue an injunction affirmatively requiring the respondents to change the status quo by bringing about the surgical procedure necessary to reinsert the feeding tube into Mrs. Schiavo.
We suppose the dissenting judge could have been more precise and said "the status quo ante Friday," but come on. He quite clearly says he believes Congress's intent "is to maintain the status quo by keeping Theresa Schiavo alive" (page 11; emphasis ours). The majority acts as if this were a case about a tube rather than a human being.
The best explanation for the federal courts' actions probably lies not in the usual categories of "liberal" vs. "conservative" or even "activism" vs. "restraint." After all, Judge Charles Wilson, the dissenter, is a Clinton appointee, while Edward Carnes, who was in the majority, was nominated by President Bush's father. (The other two judges who ruled against saving Schiavo, Frank Hull and James Whittemore, are both Clinton appointees.)
Rather, this seems to have been an assertion of judicial supremacy over the legislature. Judge Whittemore limited his inquiry to the Florida court process, and the appellate majority ratified that approach. There is much to be said for respecting the process. But there's also much to be said for respecting life, and for respecting democracy, in the form of laws duly enacted by our elected representatives.
Rickey Ray Rector vs. Terri Schiavo
Many commentators on the Terri Schiavo case have raised the issue of the death penalty by way of accusing the other side of inconsistency. For the most part, we think the accusation is bunk, on both sides. Supporters of capital punishment want to kill killers on the ground that they're guilty, while supporters of euthanasia want to kill (or hasten the death of) people whose lives are, in their view, so diminished as to be not worth living. These criteria are entirely different, so there is no inconsistency in favoring one while opposing the other.
But then we got to thinking of Rickey Ray Rector, whom the state of Arkansas executed in 1992 for the murder of a policeman 11 years earlier. Rector became something of a cause célèbre at the time of his execution because he was mentally retarded, and Gov. Bill Clinton's returning from the campaign trail to execute him seemed to many liberals (and some conservatives, like Paul Greenberg) to be an act of political opportunism. As "longtime journalist and iconoclast" Harley Sorensen put it in a 2002 column:
Bill Clinton was resolved in 1992 not to face a "soft on crime" rap, so--although he had it within his power to grant executive clemency--he stood by and did nothing while an idiot was deliberately put to death in his state.
Clinton's success as a politician was not lost on other Democratic hopefuls, nor on Democratic voters, so they followed his lead in abandoning all liberal principles in favor of expediency.
The usual argument against executing retarded killers is that their limited mental capacity mitigates their guilt. But this didn't apply in the case of Rector, who was brain-damaged, not congenitally retarded. After murdering his victim, Rector turned his gun on himself in an unsuccessful suicide attempt.
Even so, it's a perfectly defensible position that Clinton should have shown mercy to Rector on account of the latter's pitiful condition. But there does seem to be an inconsistency in arguing that Rector's brain damage made his execution worse than that of a killer with a normal IQ, while Schiavo's makes her life not worth saving.
How to Make Bad Law
"Hard cases make bad law" is a cliché we've frequently heard in reference to the Terri Schiavo case, but it's actually inapt. This aphorism refers to cases in which the application of the law would produce an outcome that seems unfair, so judges (or legislators), in order to create a good result, carve out exceptions that end up muddling the law and creating problems in other cases.
In this case, the Florida courts resisted that temptation. Instead they rigidly applied a good law--the one treating an incapacitated person's spouse as his presumptive guardian--and produced what many regard as a bad outcome. Congress also resisted the temptation. Contrary to the wishes of some Republican lawmakers, it passed a law that applies only to Mrs. Schiavo.
But the Associated Press reports that Rep. Joel Sheltrown, a Michigan legislator, wants to create a generally applicable law based on the Schiavo case. Sheltrown "is working on legislation that would prohibit a spouse having an affair from denying food, fluids or medical treatment to a wife or husband who cannot make such decisions":
"While people, in happier times, may trust their spouses to make future medical decisions for them, situations change," Sheltrown said in a statement. "In a situation where an incapacitated patient lives at the mercy of an adulterous spouse, it is in the patient's interest to make a presumption in favor of life."
You might think we'd favor such a law, given our Monday item in which we made an issue of Michael Schiavo's adultery. And it's probably a good idea for the law to take some account of a spouse's unfaithfulness in such cases. But the specifics of the Schiavo case are extreme. We have only Mr. Schiavo's word that Mrs. Schiavo would want to die under these circumstances. This is not the case of a lonely man succumbing to temptation; he is engaged to marry another woman. And Mrs. Schiavo's parents--who, unlike her husband, cannot replace her with someone else--want to keep her alive.
Life is messy, and there probably are cases in which an adulterous spouse is still the best person to make a life-or-death situation. If Sheltrown succeeds in imposing a blanket rule, it will indeed be an example of hard cases making bad law.
Thou Shalt Sit Down!
Howard Dean is at it again. The Tennessean reports the Democratic National Committee chairman appeared at Vanderbilt University last night, where "he said that as the party moves forward it needs to show those who live south of the Mason-Dixon Line that it respects them and the values they hold." But he proceeded to show precisely the opposite:
The party allowed its opponents too often to define debates and control issues, such as faith and family values, Dean said.
''We need to talk about values and not be afraid of them,'' he said, going on to make two biblical references.
In the first he said Jesus' directive to ''love thy neighbor'' didn't mean one could choose which ones to love. He then remarked that Republicans never brought up the scriptural verse saying it is easier for a camel to pass through the eye of a needle than for a rich man to enter heaven.
''We should never let anybody tell us we don't respect faith,'' he said.
We're glad to hear Dean thinks George Soros is going to hell. On a more serious note, though, he isn't showing Christian conservatives that he respects their values; he is, in effect, accusing them of hypocrisy--of not being good Christians. If Dean thinks this is a way of winning their votes--as opposed to firing up the liberal base--he is fooling himself.
Also, it would be interesting to hear Dean's explanation for his apparent change of heart about the meaning of "love thy neighbor." Recall his January encounter with Iowa voter Dale Ungerer. As the Boston Globe reported at the time:
Ungerer called on the Democrats to heed the biblical maxim of "love thy neighbor," adding: "Please tone down the garbage, the mean-mouthing, of tearing down your neighbor, and being so pompous."
Dean, who listened quietly, immediately replied, "George Bush is not my neighbor." When Ungerer tried to interrupt, the former governor shouted: "You sit down! You had your say, and now I'm going to have my say."
Josh Howard's Last Stand
"The final CBS News executive asked to resign for his role in the network's discredited report on President Bush's military service reached a settlement with CBS and quit Tuesday," the Associated Press reports. Details of erstwhile executive producer Josh Howard's settlement were not disclosed and presumably are secret, but presumably CBS paid him a pretty penny to go away.
It's doubtless a smart business decision, keeping the network out of court, where embarrassing facts about the phony "60 Minutes" report Howard helped produce would come out. But it's not in keeping with the journalistic spirit of seeking and revealing the truth.
Taking Down Names
The author of the Middlebury Campus article on Rudy Giuliani, which we cited Monday, is Ben Gore. The link didn't include the byline, but it now does.
What Would We Do Without Documents?
"Document: Bin Laden Evaded U.S. Forces"--headline, Associated Press, March 22
What Would Courts Do With Experts?
"Court: No Expert Needed to Show Harm of Eating Illegal Drugs"--headline, Associated Press, March 22
Powell Never Managed Anything Like This
"Rice Porridge Ritual Predicted Major Quake in Japan"--headline, Agence France-Presse, March 21
They're Called 'Stars'
"Light Spotted From Beyond Solar System"--headline, Associated Press, March 22
Who Says Hollywood Isn't Antireligion?
"Church to Play Next 'Spider-Man' Villain"--headline, FoxNews.com, March 22
Current Events
The New York Times reports on CNN president Jonathan Klein's efforts to make his network competitive with Fox News Channel:
He has also sought to take a page from the playbook of local television news and encourage some reporters to put more of their personalities in their reports. It is not insignificant that he is being advised in this effort by Joel Cheatwood, a former news executive in Miami and Chicago who is well known for using loud sound effects to amplify crime stories and for the failed effort to make Jerry Springer a commentator in Chicago in the late 1990's.
In a segment last Wednesday on the program "Paula Zahn Now," for example, Rick Sanchez, a former local news anchor who worked for Mr. Cheatwood in Miami and who joined CNN last year, strapped on a device known as a shock belt--worn around the waist, it can deliver 50,000 volts of electricity to a person's body--and then gave a simple command: "Do it."
Moments later, Mr. Sanchez moaned audibly, crumpled to the floor, and, still panting after being helped to his feet, reported: "It hurts. It's painful. But no one's dead."
Mr. Sanchez was attempting to show first-hand how a device like the shock belt might have prevented the courthouse rampage in Atlanta in which a judge and three others were killed by a rape suspect.
The morning after his program was broadcast, Mr. Klein was euphoric.
Seems as though CNN is taking the term "shock value" too literally. |
