Saturday, March 26, 2005

COUPLE MORE SCHIAVO THOUGHTS
I can't get behind this. As I've documented, a lot of the reaction calling the Palm Sunday Compromise an affront to the rule of law and seaparation of powers was grandstanding. But if either Gov. or Pres. Bush were to intervene in this way, it would truly be an affront to the rule of law. I think it would be very hard for any social conservative to be elected again -- the charges of "theocracy" would have some teeth to them.

Jeb and Gerorge Bush were elected governor and president, not king. They have no more right to take custody of Terri Schiavo than any of us. In other words, if it's the right thing for them to do to intervene in this way, then it's right thing for us to put together a mob of our own and forcefully take custody. And I'm not sure it is.

--

One more hypothetical -- imagine that in every gubernatorial and presidential election in which they ran, Michael Schiavo had cast two votes, including a vote for the Bush brothers on Terri Schiavo's behalf, since they had had some conversations in the past in which Terri had expressed admiration for the Bush family, and he was sure that she would want to vote for them. Let's say news of this broke out around mid-November, 2000.

Do you think Michael Schiavo would be portrayed as a loving husband dutifully carrying out the wishes of his wife? Would we be so quick to wave off the second family he had started? Would it never be referred to as "adultery" without scare quotes? Would a series of judicial decisions upholding this double voting be held in regard, rather than an example of political corruption? Would a congressional action establishing federal jurisdiction over this matter be called an affront to states' rights, federalism, the separation of powers, and the rule of law?

I kind of don't think so.

And this would be over a single vote in a hotly contested election. But when it's this woman's very life, we pretend it's all OK.

Friday, March 25, 2005

THE SADNESS
Amy Welborn has a good post about the sadness of the Schiavo debate.

What I find most sad, besides the simple fact of a woman starving to death, is the deep poltical polarization that this case has made manifest. It seems a lot of people would rather see an innocent woman die than be on the same side as Tom DeLay.

There's the consistency "gotcha" games that are driving me mad. Dahlia Lithwick, who I took down below, followed that up with another article, on a theme I'd seen around the 'Net a few times saying that conservatives are inconsistent for wanting to re-insert the tube, since they favor the "sanctity of marriage." (I should not here that Slate also posted a wonderful article in favor of the feeding tube here.)

First, nobody would support a "she was asking for it" defense of spousal abuse. Second, it's dismissively these writers wave off the second family Michael Schindler has started in the meantime. If the only witness in a capital case was the accused's spouse, and that spouse had since started living with somebody else, that would be relevant, wouldn't it? Would it be "judgemental" to note, and check against this conflict of interest?

Second, so what? Implicit in any accusation of inconsistency is the assumption that the argument is being made in bad faith, and there's some alterior motive in play. But I fail to see what possible alterior motive there could be for keeping Terri Schiavo alive. It's not going to result in a billion dollar contract for Halliburton. Really, who is it that stands to benefit from keeping Schiavo alive?

I can sort of understand why some people might feel this way about abortion, because there are some (though certainly not most) pro-lifers whose opposition from abortion stems from a misogynist view of women rather than an abiding respect for unborn life. But in this case?

If it's the sanctity of marriage, rather than keeping Schiavo alive that you have a problem with, then we can debate that. If you think the Schiavo case illustrates that the emphasis on the importance of marriage is inappropriate, we can discuss that. I'll disagree, but not as much as I'll disagree with you starving a woman to make a political point.

It's just sad. And I know it seems I'm pointing fingers here, but I acknowledge that actions by people like DeLay have led to this rift. But I can't imagine hating one's political opposition so much that you'd want to let an innocent woman starve to stick it to her.

And I don't know how to fix it. But we better figure it out soon.

Monday, March 21, 2005

IT'S TAKEDOWN TIME
Dahlia Lithwick has a "legal analysis" of the Terri Schiavo law that might as well just say "I don't like pro-lifers." We're going to give it the whole treatment, since it contains many of the fallacious arguments out there.

Whether Terri Schiavo will live or die in the coming days has come down to this: Can federal district judge James Whittemore set aside virtually every bedrock constitutional principle on which this nation was founded, just so members of the United States Congress may constitutionalize the nowhere-to-be-found legal principle that a "culture of life" is a good thing?


This paragraph alone ought to disqulify Lithwick. "Virtually every bedrock constitutional principle?" Please... And while the phrase "culture of life" doesn't appear in the Constituion, "life" is prominently included in the Fifth Amendment as well as the Fourteenth amendment, and the Declaration of Independence, for that matter.

So, already we have two errors that are almost photo negatives of each other. First Lithwick asserts something as universal that is not, then she asserts the absence of the something that is present.


This morning's decision by Congress and President Bush—to authorize new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo, based on new and illusory federal constitutional claims—is not about law. It is congressional activism, plain and simple; legislative overreaching and hubris taken to absurd extremes.

Let's be clear: The piece of legislation passed late last night, the so-called "Palm Sunday Compromise," has nothing whatever to do with the rule of law. The rule of law in this country holds that this is a federalist system—in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.


All right, then I should expect this piece to be a dispassionate legal analysis free of biases and appeals to emotion...


And what is the overwhelming constitutional value that supersedes each of these centuries-old legal notions? Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. Republicans acknowledged this weekend that their views on "the sanctity of life" trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, "We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that's what we're doing."

This congressional authority to simply override years of state court fact-finding brings with it other superpowers, including the power of gratuitous name-calling: Members of Congress unable to pronounce Schiavo's name just last week are denouncing her husband as an adulterer and common law bigamist who withheld proper medical care from her. I wonder what they'd say about my parenting—or yours—if they decided to make a federal case out of every domestic-custody dispute currently resolved in state court proceedings.


Ok, so ad hominmem claims about one's adversaries are also out of bounds. Got it. Of course this begs the question of what the ability of members of Congress to pronounce a name have to do with the legal facts of this case, but we'll give a pass.


Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks. His colleagues are similarly self-appointed neurological experts. Years of painstaking litigation, assessment, and evaluation by state courts are dismissed by Tom DeLay as the activist doings of a "little judge sitting in a state district court in Florida." Only the most extraordinary levels of congressional hubris could allow a group of elected citizens to substitute their personal medical, legal, and ethical judgments for those of the doctors, judges, and guardians who have been intimately involved with this heartbreakingly sad case for years.

You can just tell that Lithwick's heart is breaking at this opportunity to take shots at DeLay, Frist, and everyones else who supports a culture of life.

Also, at least the members of Congress are accountable to the people they represent, unlike the doctors, judges, and guardians Lithwick says we should defer to.


And shouldn't we worry—just a bit—when in the name of a "culture of life" Congress enacts legislation that singles out just one Florida family for special legal standing? Frist calls this "a unique bill" that "should not serve as a precedent for future legislation." Yet Schiavo is just one of up to 35,000 people in this country in a persistent vegetative state as the result of trauma, drug overdose, or other medical complications. Remember what happened to Élián Gonzáles when the federal government decided to embroil itself—just this once—in a custody dispute? Why does Terri Schiavo alone warrant the legislative intercession of these self-appointed crusaders? (Not because this is a "great political issue" that would appeal to the base and defeat a Florida Democrat, according to a one-page memo distributed to Republican senators last week.) The last time Florida had to contend with a good-for-one-ride-only legal intervention of this sort was in Bush v. Gore.


The memo was admittedly a poor move, but what does that have to do with cold, legal analysis? Isn't bringing it up just an appeal to people's emotions to get the to dislike those opposed to removing the tube?


Take a peek into any chat room (or this Fray in 15 minutes) and you will find hundreds of individuals who personally know that Terri Schiavo is—despite voluminous testimony by her doctors and her guardians ad litem and the findings of multiple judges—capable of laughter and responsiveness and a full recovery. How do they know these things? The same way their elected representatives do: They watched a video clip. And because anyone who disagrees with the video is a murderer and torturer, the state court judge in this case requires constant police protection: The standard-bearers of the "culture of life" keep threatening to kill him.


The hyperlinks didn't transfer, but if you go to the original you can see that Lithwick sprinkles her piece with hyperlinks to support the assertions in her piece, except she doesn't do so with this one.

But even if it's true, what does it have to do with the legal analysis of this action? That's right, it doesn't -- it's just an attempt to get the reader to think poorly of those who want to keep feeding Ms. Schiavo.

And wasn't Lithwick just pooh-pohing us bringing up Michael Schiavo's adultery (sorry, but that's the clearest word for a married man sleeping with another woman)? Why are these "death threats" admissable but Mr. Schiavo's obvious conflict of interest not?


The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.




This is not a slippery-slope case, where it's a short hop from "executing" those in persistent vegetative conditions to killing anyone with a disability. This is a case in which an established right-to-refuse-treatment claim, litigated for years up and down through the appeals courts, is being thwarted by parents with no custodial claim to their child. By stepping in merely to sow doubt as to whom Terri Schiavo's proper custodian might be, rather than creating some new constitutional right to a "culture of life," Congress has simply called the existing legal regime into doubt without establishing a new one. This new law offers no clarity about what the new federal claims might be. It just forum-shops for a more tractable judge.

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that what you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life," is not a decision to be taken over a weekend.


So, first, the law is to narrow, then it's too broad? Lithwick first chastises Congress for not creating a new right, and limiting it to one person, and then she accuses them of rashly grafting "culture of life" into the Constitution.

As I said below, lecturing social conservatives about federalism and states's rights isn't going to be very convincing after Roe vs. Wade.

The entire piece relies on the reader sharing Lithwick's visceral allergy to the term "culture of life." It's in scare quotes six times. As I've noted elesewhere, scare quotes have never convinced anyone of anything. Their inclusion is a good sign that the writer is engaging in choir preaching rather than actual persuasion.

In short, it's meant to divide rather than unite.

Friday, March 18, 2005

"GOVERNMENT INTERFERENCE"
One of the barbs that's often thrown at the pro-life movement that drives me bonkers is that we're not true conservatives because we want the governement to interfer on life issues. Andrew Sullivan has a fairly typical example:

So it is now the federal government's role to micro-manage baseball and to prevent a single Florida woman who is trapped in a living hell from dying with dignity. We're getting to the point when conservatism has become a political philosophy that believes that government - at the most distant level - has the right to intervene in almost anything to achieve the right solution. Today's conservatism is becoming yesterday's liberalism.

Speaking, for myself, I'm much more concerned with being an authentic witness for life than I am to secular conservatism. To the degree that I align myself with the conservative movement, it is only because the conservative movement stands with me in protecting life. If favoring the governent preventing starving people to death, and preventing 3000 killings of the unborn each year makes me a big government liberal, I can live with that.

Second, in the Schiavo case, who is enforcing the removal of the feeding tube? Oh, that's right the government. Who forced Terri Schiavo's parents to leave her dying daughter's bedside? Yeah, the government. Without all these lawsuits Schiavo could be cared for by her parents. But no, a judge says she must die, so her feeding tube is removed.

This "small governemnt" drives me up the wall. What it pretty much translates to is that social conservatives have to bend over and take it will their opponents use every government tool at their disposal to meet their goals. Judges redefining marraige? Can't pass an amendment upholding the traditional definition of marriage; that would be a government reach. Millions being killed by abortion? Can't pass a partial birth abortion ban; that's not part of Congress's powers.

Tell you what, you can have "small, limited government." True conservatism is about preserving institutions that have served us well. If government has to get bigger to defend the unborn, to keep inconvenient people from being starved to death, and the keep marriage meaning the same thing it's always meant, then maybe government has to get bigger.

As Peggy Noonan points out, Republicans, conservative, the people we voted into office because they support our moral values, are in charge. If they can't use that power to save a woman's life, but instead choose to use it to revamp Social Security, ship more "detainees" to other countries where they can be tortured, or launch preemptive wars, then maybe we don't need to send them back again.

If being a conservative means I have to sit idly by while others reshape the culture and literally kill people, then I don't want to be a conservative.

Wednesday, March 09, 2005

RE: THIS DISCUSSION
Let me get this straight...

Catholics must ignore all other issues in order to vote for "pro-life" Republicans. Anyone who doesn't is motivated by a desire to saw baby's skulls in half, and should seriously consider his worthiness for communion. They should shut up about things like Abu Ghraib, preemptive wars, slashes to medicaid, and capital punishment since the alternative is a party that celebrates sucking babies' brains out. After all, Catholic teaching doesn't perscribe specific policies on these issues, so Catholics should ignore them.

But these Republicans need not sacrifice in order to advance the pro-life agenda. If it will be polticially costly to nominate a truly pro-life justice, then we should understand if they do not. And we sholdn't expect a right to life amendment. The press is hostile after all. There's only so much you can do. They can parade pro-choice politicians in prime time during the convention, and save their pro-life rhetoric for the afternoon when nobody's watching. The abortion rate can continue to rise while their in power. But we shouldn't expect more from them.

Let me repeat -- I am not suggesting the current Democratic Party as a viable alternative for Catholics. I am saying that Catholics who've had to swallow a lot of crap to vote Republican because of the abortion issue should expect the same level of commitment from those elected. And when we ask for it, we deserve better than to be called sympathizers for baby killers.

Monday, March 07, 2005

THE TENSION
Refelcting on my post below, it ocurred to me that a reasonable reading of the Gospel would argue that my responsibility to the retiring senior citizen in Washington ought to be as binding as my responsibility to my daughter. "Who is my neighbor?", etc. (Whether the state ought to enforce this reponsonsibility, while not enforcing that unborn children should not be killed is another matter...)

But it occurs to me that this is what the culture war is about. If we want to make these reponsibilities equal by raising our concern for others, that's good. But I see us going the opposite way, making our family relationships less special, less honored, and that's not a good thing.

And so we have the scourge of abortion, where we say that a mother has no particular responsibility to her unborn child. We introduce same sex marriage, which asserts that all loving relationships are equal, and that committed procreative realtionships should not be held in particular honor. We shuttle kids to day care and nannies, telling ourselves that it doesn't matter to kids that their parents aren't their primary caregivers.

These are bad things, but I guess I'd like some help in how the Gospel says family relationships should be due a particualr honor. Jesus told the man not to bury his father before following Him.

One answer is the sacraments. My relationship to my wife is sacramental through marriage. My relationship to my daughter and sister(who is my goddaughter) is sacramental through the promises I made at their Baptisms, as (going the other way) is my relationship to my parents and godparents. Thus, these relationships are due a particualr honor.

I'm sure I'm missing something, since I don't think Jesus would approve of this losening of family ties.
OK, ONE POST
James Lileks notes how those opposed to Social Security reform are drawing a moral equivalency between taking care of one's children and supporting everyone's retirement.

And this is why I'm not a liberal.

Because the people making this argument are the same folks who would say that any restriction on abortion are terrible because people have the right to determine for themselves wheter or not to make the commitment neccesary to raise a child.

Now they're saying that nobody can opt out of this welfare responsibility. In fact, the decline in the number of children justifies this.

Am I wrong that there's something a bit anti-family here?

Sunday, March 06, 2005

I HAVE A GOOD REASON FOR NOT POSTING!!!
We're waiting on the birth of our second daughter. You can find out the latest here.