Thursday, April 07, 2005

As I Was Saying

Herewith, a few responses (in italics) to Tlaloc, who offered thoughtful but utterly unpersuasive comments on my previous post "A Few Thoughts On Terri Schiavo" (March 30):

Tlaloc: I don't think you get to call it a "humble" opinion when you go ont [sic] to refer to the judges involved as morons.

That depends on how vacuous and worse one considers the judges' rulings to have been. As I said: I think Judge Greer deserves all the opprobrium he gets, I see little reason under the law to criticize the rulings of the higher Florida judges, and the federal judge who essentially ignored the law calling for a de novo review of Mrs. Schiavo's federal rights also is worthy of little respect.

Tlaloc: The potential conflict of interest is irrelevent since the court was being asked to make the decision rather than the guardian making it on his own. In effect for this one decision the court was the guardian.

It was the testimony of Mr. Schiavo and a couple of his relatives, years after the fact, that allowed Greer to make his finding of fact with respect to Mrs. Schiavo's wishes. For Greer to have ignored the conflict of interest and the testimony of other witnesses is inexcusable.

Tlaloc: Actually the Judge was remarkably insightful by refusing to allow a grotesque abuse of congressional power to be rewarded. The federal courts had no place in the matter. They said so repeatedly. When congress passed an incredibly badly thought out law to give the federal courts power over the case the Judge basically said "No, we still aren't touching it." As I've said before, thank god one branch of government is still actually doing it's job.

The federal courts have no place in the enforcement of federal law? Excuse me? Congress has the explicit power under the constitution to determine the jurisdiction of the federal courts, and the argument that Congress had no power to direct the federal courts to conduct a de novo review of Mrs. Schiavo's federal rights is preposterous.

Tlaloc: Jewish tradition is completely irrelevent.

Tlaloc certainly correct about the irrelevance of Jewish tradition in terms of the legal issues involved. But anyone reading my post ought to recognize easily that I had shifted from a legal/analytic argument to a normative (or moral) one.

Tlaloc: At a FACTUAL level everyone is dying, she was on life support according to Florida state law (which does include feeding tubes as life support), she did get therapy during the first three years at least.

Oh, please. "Everyone is dying." So: The government has the power to starve anyone who might or might not have made some ambiguous statement about not being kept on life support? Huh? Tlaloc may be correct about a feeding tube being defined as "life support" (I am not an attorney); but that riases more questions than it answers. Mrs. Schiavo apparently had never been given a swallowing test. Suppose she had passed one, and then was fed by hand: Would the spoon qualify as "life support?" What, precisely, is the analytic difference between a feeding tube and a spoon? Yes, she did get therapy for a few years, but not thereafter, despite Mr. Schiavo's testimony during the malpractice suit that the monetary damages payment would be used for her care. So much for the sanctity of marriage and for the reliability of Mr. Schiavo's statements with respect to his wife's wishes. All together now: Judge Greer is a moron.

Tlaloc: Now that's ironic given that republicans broke every promise they've ever made inorder [sic] to pander to their social conservative base. Bigger government, violating states rights, ignoring the "sanctity of marriage," and so on...

No doubt about it: Pandering is ubiquitous in politics; but I do not believe that to have been the driving force behind the efforts in Congress to direct the federal courts to conduct a de novo review of Schiavo's federal rights. (They were joined, after all, by a significant number of Democrats.) Bigger government? The Americans With Disabilities Act may be (well, is) unconstitutional; but it is the law, and for the death-with-dignity crowd to scream "States' Rights!" when Republicans invoke it is the height of hypocrisy. In any event, this is not "bigger government"; it is an attempt to prevent the states from violating an individual's federal rights. And that is why the "States' Rights!" argument is so facile; "State's Rights!" was the term used in the 1960s to denigrate civil rights legislation; does Tlaloc want to argue that states have the "right" to enforce Jim Crow? I rather doubt it. The implicit argument that a state has the "right" to starve a severely disabled individual to death is just appalling. And to apply a "sanctity of marriage" argument to the unique (or, perhaps not so unique) circumstances of the Schiavo case is, to be blunt, a joke. As I understand the facts, Mr. Schiavo never remembered the (apparently) offhand statements of his wife until years had passed. I will not take further space here with the sordid details of Mr. Schiavo's behavior.

Tlaloc: The Justice system proved itself to work rather well, it was congress, the president and the govenor of Florida who showed they were politicized and corrupt. The Judges consistently ruled according to the Law. Your disapproval and recourse to Jewish canon not withstanding that is their job.

Well, I guess we will have to agree to disagree. The judges' job is to enforce the law, and when they fail to do so other branches of government have every right and power to do so. After all, the courts are not supreme over the other branches, notwithstanding the apparent views of many. Mrs. Schiavo had rights under federal law that were not upheld, on the flimsy premise that her husband knew her wishes. At a more fundamental level, let us not mince words about the fundamental reality of the Schiavo case: A severely disabled woman was starved to death on the say-so of a husband with obvious conflicts of interest, and in the context of countervailing testimony from others without such conflicts. This is what the law demanded? Please....

4 comments:

Jay D. Homnick said...

Fabulous, Doc. Glad you were not too BZ to post.

Wow, great stuff. Do I have your permission to refer to you as my "colleague" (although in my heart I know that you're in a league all your own)?

Tlaloc said...

"That depends on how vacuous and worse one considers the judges' rulings to have been. As I said: I think Judge Greer deserves all the opprobrium he gets, I see little reason under the law to criticize the rulings of the higher Florida judges, and the federal judge who essentially ignored the law calling for a de novo review of Mrs. Schiavo's federal rights also is worthy of little respect."

I still don't see how your comments get to be "humble." It seems anytime you set yourself up as an expert superior to other experts you are engaging in a little pride.


"It was the testimony of Mr. Schiavo and a couple of his relatives, years after the fact, that allowed Greer to make his finding of fact with respect to Mrs. Schiavo's wishes. For Greer to have ignored the conflict of interest and the testimony of other witnesses is inexcusable."

Don't be ludicrous. All parties had conflicts of interest. SHould he have permitted no testimony at all? Or do you conveniently ignore the Paren't conflicts? These matters are resolved by weighing the individual testimonies including by state appointed experts.


"The federal courts have no place in the enforcement of federal law? Excuse me?"

The federal courts have no place in the adjudication of STATE law which is what this matter was.


"Congress has the explicit power under the constitution to determine the jurisdiction of the federal courts, and the argument that Congress had no power to direct the federal courts to conduct a de novo review of Mrs. Schiavo's federal rights is preposterous."

For congress to however on a whim change the jurisdiction of federal vs state courts retroactively and for only one case is a hideous abuse of such power. Congressional fiat was not meant as a tool of pique.


"Oh, please. "Everyone is dying." So: The government has the power to starve anyone who might or might not have made some ambiguous statement about not being kept on life support?"

Anyone who wants to refuse food has that right. Whether they were already in imminent danger of death doesn't matter.


"Tlaloc may be correct about a feeding tube being defined as "life support" (I am not an attorney);"

Go to the abstract-appeal site and they quote the florida statute in question.


"What, precisely, is the analytic difference between a feeding tube and a spoon?"

The difference comes in as to whether the spoon is in the person's hand, or in a care providor's hand. In the case of a patient who cannot use the spoon themselves it is indeed life support albeit a rather low tech version.


"Yes, she did get therapy for a few years, but not thereafter, despite Mr. Schiavo's testimony during the malpractice suit that the monetary damages payment would be used for her care."

Care? What do you call the nursing home? Why waste money on therapy for someone the doctor's conclude will always be a vegetable?


"So much for the sanctity of marriage and for the reliability of Mr. Schiavo's statements with respect to his wife's wishes."

Funny, despite a vicious smear campaign and offers of substantial money to just walk away the husband stood by his wife and saw to it that what he thought she wanted was carried out. That's pretty impressive really.


"All together now: Judge Greer is a moron"

Even when you get the facts wrong?


"Well, I guess we will have to agree to disagree. The judges' job is to enforce the law, and when they fail to do so other branches of government have every right and power to do so."

Your problem comes from your assumption, in the face of all facts to the contrary, that the judges did not enforce the law.


"After all, the courts are not supreme over the other branches, notwithstanding the apparent views of many."

The courts did not impose on congress, congress imposed on the courts.


"Mrs. Schiavo had rights under federal law that were not upheld, on the flimsy premise that her husband knew her wishes."

A) what federal right did she have that was not upheld? The supreme court has already found in favor of people who wish to cease life support...
B) the husband was not the only witness to her wishes.
C) you are hardly in a place to know how flimsy or ironclad such a premise is given that you've admitted you are not a lawyer, nor were you in the courts for that decade, nor have you managed to get the facts straight.


"At a more fundamental level, let us not mince words about the fundamental reality of the Schiavo case: A severely disabled woman was starved to death on the say-so of a husband with obvious conflicts of interest, and in the context of countervailing testimony from others without such conflicts. This is what the law demanded? Please...."

Who exactly didn't have a conflict of interest? If you believe that parents testifying to keep the shell of their child alive might not be compromised I suggest you return to college for a pasic psych class.

A severely disabled woman was dehydrated to death because after a great many years of court proceeding the courts involved unanimously supported the conclusion that she did not want to live in such a state.

That's it in a nutshell after we dispense with the factual inaccuracies, the smears, and the people who consider themselves instant law and neurology experts.

Hunter Baker said...

Dr. Zycher, you're personal compass appears to be operating extraordinarily well and I don't just say that because I've never disagreed with a word you've said!

Hunter Baker said...

I should also add that I think we've given the rain god far too much attention.