Sitetest,
I agree with much of what you wrote concerning the problems in judicial temperament.
Although I do agree that either President or Governor Bush should intervene in the Schiavo case, I think that the grounds for doing so should be very narrow: that a citizen's life is being deprived under extraordinary circumstances where there is considerable question about her medical condition and desires. All of the other cases cited to, such as Elian Gonzales for instance, do not have the same urgency as this case, because there was not literal, immediate life or death at stake. Our whole system recognizes that death is "different", which is why there is such an extraordinary set of appeals and reviews in death penalty cases, and why there is an executive override of the legal process in death penalty cases through the pardon. I think that on the narrow facts of clearly disputed "right to die"/right to live cases, the results of getting it wrong are so severe that an executive override is needed in favor of life (but not in the other direction, just as the Governor cannot order the execution of someone sentenced to a prison term).
To establish that precedent, and to save Terri Schiavo's life, would require a chief executive, preferably the state Governor, to take executive action that would lead to a confrontation with the judiciary in this case.
The precedent I would want to see established by Jeb Bush (or failing him, the President, on Federal rights grounds) would be narrow, and pertain to cases like this. Of course having done that, the precedent WOULD be set for other executive overrides, but I think that this sort of thing will only be acceptable to the People in general if it is limited practically to the facts of this case: a person who cannot communicate, whose wishes are not clearly stated, and over whom there is great family dissension.
You want to press farther, and use this case to establish what I'll call the "Andrew Jackson Principle" of Executive override of the Judiciary on the Executive's own initiative. I do not favor such a move except on the narrow facts of life or death.
You wrote a thoughtful piece, and therefore deserve a thoughtful response.
The problem in the Terry Schiavo case, like abortion, is that an innocent life is snuffed out. Under THOSE circumstances, I am willing to see extraordinary executive powers asserted to preserve life. As in a criminal pardon, the Legislature speaks, the Judiciary speaks, but the Executive can, for whatever reason, choose to override all of that process with clemency. As a Catholic who believes in the sanctity of life, fears the execution of the innocent, and accepts the Church's teaching that the death penalty is not truly necessary in an advanced, modern state, if I were the Governor of a state, equipped with the pardon power, I would very likely execute it to commute nearly all death sentences that came before me to life in prison without parole. I would not do this by subterfuge. The death penalty is a serious moral issue for me, and as an obedient Catholic, the electorate deserves to know that, when empowered with the discretion of the Executive in death penalty cases, I am going to use that discretion to preserve life in practically every case. My moral beliefs trump the law, obviously, because we are only under the law of man for a short time, but we are answerable to God for all eternity for what we do under the laws of man. Given my convictions on the death penalty, there would not be much of a defense were I to stand before my creator and try to argue that I was "Just following orders" when I already knew clearly that those orders needed to be superseded by the Divine Law.
For those very reasons, assuming I had any political appeal at all to anyone, I would be very unlikely to ever be elected Governor in a death penalty state, even as a Republican, because I would make it plain beforehand that I oppose the death penalty on moral grounds - because life is sacred - and that if you entrust me with the power to commute sentences, I will do so in death penalty cases as a matter of moral principle.
Executives are entrusted with vast discretionary powers, but not unlimited. This is my problem with your suggestion that the Schiavo case be used to make a GENERAL stand against judicial overreach by establishing an Executive Override, to go along with a Legislative Override. Taking the unique power of executive discretion in a life-and-death case and extending it as a general rule strikes me as a dangerous precedent.
The problem is that the Executive already has enormous power. If the President or a Governor starts to defy the Courts, asserting equal power to interpret the Constitution, there are only two real checks on that: impeachment and the ballot box. Impeachment is almost as hard as getting a constitutional amendment through Congress. The ballot box comes infrequently, and there are some overrides of Judical policies that might be very popular indeed, though wrong. The example that comes to mind is Andrew Jackson's use of Presidential override to accomplish the genocidal Cherokee Trail of Tears against court orders upholding the treaties.
Anyway, you still end up with the problem of abuse of discretion, which is where we stand with the Judiciary as it is. At least with the judges, there are many levels and jurisdictions, and judges can often be pitted against judges. Even on the Supreme Court, there are nine, and you need five. With the Executive, all roads lead to Rome, so to speak, and executive override is vested in the man with the greatest political interest to override EVERY opinion he disagrees with.
Much like the courts abused the hell out of the Commerce Clause, once they discovered its power in the 1930s, an Executive who felt he had the override power would routinely use it every time something crucial and political was at stake.
The same problem, more or less, occurs with Legislative Override, although the legislature, being more diffuse, is less prone to the sort of consistent imperial overreach in the service of a singular political goal as the Executive.
And really, giving the Congress or the President such an override as a precedent which could be (and therefore WOULD be) used routinely doesn't really SOLVE the problem of imperial overreach by the government. RIGHT NOW we're concentrating on the Judiciary, because since Griswold v. Connecticut - a popular case of Judicial Override of the legislature that most people AGREED (and agree with) (Query: should the state legislature be able to make the use of birth control by married couples the equivalent of shooting up with heroin: illegal, and punishable by fines or prison? Most people don't think so, but the legislatures passed those laws against birth control. Most people think the Court acted rightly. Another case: query: should the legislature be able to make it ILLEGAL for the Catholics to operate their own schools? At the turn of the last century, many strongly Protestant states did so by very popular statutes, which were summarily overridden by the Supreme Court on First Amendment grounds) - and Roe v. Wade, we've entered an age of imperial judicial power blatantly legislating from the bench. Bush v. Gore was another classic case.
The Judiciary took a long time to get up this head of steam. Now, no doubt, it needs to be reigned in.
But how?
The Executive Override option, generally proposed here, offers the prospect of the nightmare of a headstrong Executive using it as aggressively as the Courts have, but without the procedural delays or requirements of collegiality.
Really, you're just shoving discretionary power into a different branch.
Take the Schiavo case. Were I the Governor, I would indeed save her life. But the identical argument of the preservation of innocent life leads directly to the assertion of state, or federal power were I President, to forcibly close all abortion clinics and protect all babies facing abortion. I desire to see the Supreme Court overturn Roe v. Wade not by saying that the death of innocent babies is a matter for democracy to decide: it is NOT! But rather, by declaring that equal protection and due process categorically forbid all abortion, as a constitutional principle, except to save the life of the mother. I don't believe that democracy has the power to empower the state to kill the innocent EVER, and were I the Chief Executive with the precedent of Executive Override, I would use force to stop abortion on constitutional principle. I would be completely deaf to the democratic arguments too. Democracy, the People, have no right nor power to determine the deaths of other innocent people. By my interpretation of the Constitution, there is no right to murder. Murder is a violation of the 14th Amendment. Therefore, abortion is not something that the democracy, the People, the courts or the Legislature have any power to vote on, any more than people have the right to conduct a "Lottery" every year to see who will be stoned.
That's the problem with any override. Of the three branches of government to possess, the Judiciary is the least dangerous, because it has no enforcement power, and CAN be ignored in extremis. Obviously I think that life or death, as in Terri's case, is "in extremis" and that the court should be ignored, but I want to limit any executive or legislative override to the facts of this sort of case.
The more general principle, it seems to me, doesn't solve the problem, but just moves the power of imperiousness to actors more capable of more ruthless exploitation of it than judges.
Executives should be able to pardon people, and to stop anybody from being killed in their jurisdictions. But their override powers shouldn't go past that, methinks. Clearly I distinguish between life and everything else as the distinction between the sacred and the mundane. Just as clearly, the distinction I make would only limit an executive for as long as some like-minded person was in office.
When I spin out the way that such powers would be used in general, I return to the view that, in the end, the Judiciary really does need to be the final arbiter of conflicts. The Executive with the power of override would rapidly become more dangerous than the Judiciary ever has been. The Legislature would be a little better, but not much. "We overrule the Court on..." Where is the limitation on that?
In the end, since we do need an arbiter, and the Courts are the least dangerous option, I think that the issue has to be to get as many judges as possible who have thought through the issue, and who accept the principle of judicial self-restraint to some theory. Strict Constructionism is not the most pro-life position around (it would, effectively, return abortion to the democracy, and then we'd have Massachusetts allowing abortion on demand until birth), but it's better than the current liberal agenda legislated from the bench "whatever it takes" approach. Clearly my preference would be a two tiered "Life is sacred" natural law approach, in which matters of life and death would receive greater scrutiny, with strict constructionism for everything else. This, I believe, accords most with God's law, and is likely to be the safest belief system.
But that is too nuanced, and frankly too religious for our political system to bear.
Get strict constructionists on the judiciary, and you've got the best shot of self-limiting judges (when they are in the majority), and conservatives restraining liberals (when they are more evenly balanced).
The problem with a general principle of Executive Override is also that there is no particular principle by which the Executive cannot ALSO override the Legislature. Etc.
Anyway, in the particular Schiavo case, the best solution would be for some Federal Judge to step forward now and grant an injunction to install the tube. If he won't, Jeb Bush should act. If he won't, the President should act. And the narrow principle the executive or judicial intervention should that we are dealing with a life-or-death matter requiring immediate intervention. Death is different. We all know that. We can narrow the use of authority, therefore, to death cases because of the peculiar issues surrounding death. I don't think that blending life-and-death issues with mundane power issues is wise. Life is sacred. Money, power and property are not.
Dear Vicomte13,
I appreciate your response.
I don't mean to suggest that the executive should enjoy supremacy, either. I'd prefer more balance between the three branches. I'm almost as worried about a runaway executive as a runaway judiciary.
I'm a little less afraid of a runaway executive because ultimately, we have elections. The executive can be thrown out on his bum. We also have the 22nd Amendment. We can wait out the executive.
But a bad judiciary is like herpes. It never goes away. These pricks are appointed for life. And like cockroaches, there are so damned many of them, we could never keep track of all the ones who'd need to be impeached. If we started impeaching all the judges who should be impeached, the House and Senate would be tied up with impeachments and trials for the rest of the 21st century.
Especially, since the SUPREME COURT told the Senate how it may conduct impeachment trials, forbidding the Senate to use rules that permitted the Senate to conduct its regular business while simultaneously working on impeachment trials.
But there are checks and balances that each can use on th executive. Should the executive try to execute policies that believed by the judiciary to be unconstitutional or against actual law, well, guess what? Congress has the power of the purse.
Let the judiciary make its case in such a way as to persuade that third branch - the legislature, to cut off the funds of the executive. Then, the judiciary gets a say, but it must persuade, not self-righteously demand. It must cooperatate, not send thunderbolts down from its self-worshipping idolatorous Mt. Olympus.
If the president's crimes are egregious enough, and the Supreme Court can make its case elegantly enough, the Congress may even be persuaded to impeach the bastard.
If the executive and the legislature both err, the people can replace them. Let the judiciary make their case to perusade the PEOPLE (gee, what a strange idea in a self-governing society), and ask THEIR JUDGMENT upon the political branches.
But the judiciary will be much more persuasive if it ACTUALLY STICKS TO WHAT'S WRITTEN IN THE CONSTITUTION AND THE LAWS.
There was a thread around here with a conversation with Justice Scalia, and he talks about "original intent," or interpreting the Constitution and the law by what they actually say, and by what was meant by the words when they were written. He says that no one in the judiciary even pretends that that's what they're doing anymore. He says that what the judges are doing now is substituting their personal judgment for that of the people through their elected representatives, and through the Constitution.
And currently, no one stops them. There is no balance at all. We are all wards of the court. Especially the American nazgul of the Supremely Ridiculous Court.
Folks say, well, you can impeach 'em! Unfortunately, the experience of the United States is that the tool of impeachment is almost never used against judges. It's a nice theory, but in practice, it hasn't worked.
We've had 43 presidents. Two have been impeached (although acquitted in the Senate), and one pretty much resigned because he knew he was getting impeached. That's not quite 7% of presidents. On the other hand, out of the literally thousands and thousands of federal judges we have had over the past 220 years of the Constitution, precisely 13 have been impeached. That works out to a significant digit two or three places to the right of the decimal point.
As statistically rare as impeachment is against presidents, it's almost unheard of against judges.
Folks say, well, Congress can alter their jurisdiction! Well, in this case, Congress, with the agreement of the President, DID alter jurisdiction. And the courts, all the way up to the nazguls of the Satanic Court, ignored the Congress and the President.
These corrupted kings of men BROKE THE LAW. But who will arrest them? No one. The executives in this case are all hat, no cattle. And besides, who would try them?
The judges no longer believe that they have to pay attention to the words of the Constitution. Neither the Republicans nor the Democrats. There are SEVEN of 12 Republican-appointed judges on the 11th Circuit Court of Appeals, yet, even though we know for sure that one Democrat-appointed judge voted not to murder Terri, even with SEVEN Republican judges, Terri could not gain a majority of that court. That means that at a MAXIMUM, only four of the seven Republicans voted against judicial supremacy, and likely fewer than that.
At the level of the Supreme Nitwits, fully SIX OF NINE were appointed by Republicans. Only two really give a damn about the Constitution. With Justice Rehnquist, it's just a matter that he is predisposed to take the conservative side of many issues. Of the other six, THREE APPOINTED BY REPUBLICANS, they care more about international law and smelling good enough in the presence of all their international jet-set power elites from the tyrannies of Europe, Africa, Asia, and South America to really care about our Constitution.
And the problem is much worse than my words suggest, as there are literally thousands of these vermin, uh, judges, across the country, demanding complete obeisance to their unconstitutional and immoral rule.
The fact is, an overzealous executive can be more readily controlled, through the power of the purse, and through the electoral process. If Congress does not control an out-of-control executive, the people can punish the ones who refused in the next election.
If the executive and the legislature stray too far from where the people are, they can be dealt political defeat. Ask Bill Clinton, Tip O'Neill and friends from 1994.
But, because impeachment is nearly a dead letter, and the judiciary is willing to ignore Article III alterations of jurisdiction, there are no real controls at all over the judiciary.
Thus, the nine mortal men doomed to die, the Supreme Nazguls, are our mortal masters.
May they suffer the same fate as the Witchking and his minions.
sitetest