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....