People Don’t want Government Involved

townhall.com ^ | April 1, 2005 | Jan M. LaRue

[antonia]

townhall.com
Judging Terri
Jan M. LaRue
April 1, 2005

>snip<

One of the most puzzling aspects of this distressing ordeal has been the repeated mantra, "People just don't want government involved in 'end-of-life' decisions. It should be left to the family.">snip<

How could anyone miss the pervasive presence of government that Michael Schiavo set in motion against Terri?>snip<

The Florida Legislature, like every other state legislature, has enacted laws that regulate end-of-life issues. >snip<

Florida's definition of spouse allowed an adulterous Michael Schiavo to express Terri's "wishes." >snip<

The issue under Florida law is whether Terri ever expressed a statement that she would not want to live if she were in a condition that left her dependent upon a feeding tube. Under Florida law, that has to be established by clear and convincing evidence. >snip<

The "evidence" (the 'hearsay' statement by Terri's adulterous husband') that Judge Greer found clear and convincing is what Congress intended the federal district court to review de novo under "Terri's law." That did not happen.>snip<

Michael Schiavo brought the government into the situation when he went into Greer's court and sought an order to remove Terri's feeding tube even though she was not dying and was not on any extraordinary life-sustaining measures such as a ventilator. >snip<

Then there's the "affront" the no-government crowd expressed when Governor Bush intervened and when Congress and President Bush intervened to provide the same type of federal review of Greer's death warrant that federal law provides to condemned criminals.>snip<

Then there's the matter of all the police officers at Terri's hospice who enforced Michael's every wish and searched Terri's friends and family before they could see her. >snip<

Greer's last order regarding removing Terri's feeding tube on March 18, 2005. It states: "Ordered and Adjudged that absent a stay from the appellate courts, the guardian, Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa Schiavo, at 1:00 p.m. on Friday, March 18, 2005.">snip<

Notice first that Greer did not simply grant Michael Schiavo the discretion to remove nutrition and hydration from Terri. Greer ORDERED him to do it. Second, the order goes beyond removal of the feeding tube and includes food and hydration by natural means.Greer exceeded his authority under Florida law. By ordering Michael to have the tube removed, Greer eliminated the exercise of discretion by the guardian and exercised it himself. Greer eliminated any exercise of discretion by Michael to change his mind. In fact, if he did change his mind, Schiavo would have had to file a motion asking Greer to rescind his order.>snip<

For the first time in our history, our government has allowed an agent of government to order a disabled person, guilty of no crime, and not terminally ill, to be put to death by dehydration and starvation, which would never be imposed on a convicted murderer because of the Supreme Court's "evolving standards of decency."

How does the "government stay-out" crowd find satisfaction in this?

Janet M. LaRue is Chief Counsel and Legal Studies Director for Concerned Women for America.

[general_re]

It seems likely to me that they were simply unable to pass a bill that mandated relief - it seems clear from the legislative record that Levin et al were prepared to obstruct a bill that mandated relief. And so they shot out a bill with no mandatory relief, when they reasonably should have known the buzzsaw waiting for it. I find no angels on either side of the aisle - the Republicans could have objected more vociferously than they did, could have fought harder for statutory relief by making it clear that anything else was rolling the dice with this woman's life, but they didn't do any of that. They just hung this POS out there on a wing and a prayer, and ran into a judge who followed established procedure for relief, the results of which were eminently predictable.

[CobaltBlue]

All of Congress are fools, but only the judge is wise? Make that judges.

Well, you're right in sync with the rest of the country. Law is what judges say, not what legislatures write. That's what they believe.

I have news for you. The so-called "law" about the standards for a TRO is actually equity. It was invented by judges back in England in order to temper the harshness of courts of law.

They had the power to enjoin the legal process in certain circumstances, but they were reluctant to do so unless they were pretty sure that they were doing the right thing. So they came up with a subjective sliding scale -- the more grave the potential harm, the more compelling the reason to grant the TRO, and the less weight is placed on the need to show the likelihood that the movant would prevail.

Judge-made law for the benefit of the litigants, mercy to temper the harshness of law.

In fact, the Federal Code gives judges the power to grant a TRO in order to prevent irreparable injury without even notice to the other side, if the irreparable injury would be grave enough.

We have no idea whatsoever whether Terri would have prevailed in a trial de novo, but now it's moot. The right to a new trial died when she died.

So much for mercy. So much for equity. So much for even following the law.

[Cobra64]

I think he was referring to DOE, HHS, HUD, DOT, and 17 other Federal departments.

[general_re]

C'mon, Whittemore didn't pull "substantial likelihood of prevailing on the merits" out of his hat here. You would prefer he invented some new standard on the fly, another Terri Schiavo special to match Congress? And this somehow doesn't constitute judge-made law?

And while we're on the subject of the wisdom of legislators here, I've been over it and over it, but I just can't find the part of Article I that makes probate matters subject to congressional jurisdiction. Perhaps I've got a misprinted copy here or something - maybe you can point it out to me.

[CobaltBlue]

The threshold for injunction is lower when the risk of harm is greater. As I said, it's a sliding scale.

How can he decide that she can't prevail on the merits before the complaint is filed? They never actually did file a complaint, you know. Just a motion for injunction.

Which, admittedly, was not stellar. I did not hear the arguments, so I have no idea what was said. But I have no doubt that they argued that if the judge didn't order the tube put back in she would die before the merits were presented. And she did.

[UnbelievingScumOnTheOtherSide]

Still the courts and none of the public should have been involved in this decision.

You will agree that just anybody deciding to off anybody at anytime would usually be murder and subject to the state intervening to stop it if possible and to punish the perpetrator. But everyone dies eventually and at some point life passes beyond the ability and therefore the need of the government to prolong it. Since government is delegated and charged by default to use its power to protect the lives of citizens by threat of sanctions, it is the decision of the government when and to whom to relinquish that delegated power.

It is therefore not the decision of the individuals involved until the government decides to grant that power back to them. The criteria for returning that power is set by law, which means the legislature. The courts are charged to determine when those criteria have been met. But if the court had the sole determination then there is no guarantee that those criteria will be faithfully applied. Therefore all trials and records of trials are open to the public who can form opininions whether the law has been applied fairly. If members of the public think not, they return to petition the elected branches, the legislature and executive, to reign in the courts. This process means that the decision of when the decision becomes a personal one belongs to all the people who are the government.

If this form of government offends you, there are plenty of governments where all decisions will be made for you and plenty of backwoods "Deliverance" type places beyond the reach of government where anarchy reigns and all decisions are purely personal.

[UnbelievingScumOnTheOtherSide]

With time having run out the Republicans took what they could get. The court came out one way by abusing its discretion against existing law. A majority, but not a sufficient majority to get past procedural hurdles, wanted to correct the court. So there was no choice but to pass a swiss cheese bill and hope it influenced the courts, which it did not. The executive has been the obsequious boot-licker of the courts for so long (since sometime between Andrew Jackson telling the court to stick in 1832 and Dred Scot in 1857 at least) that 90% of the people think it's supposed to be.

[partridge thatcher]

Plus, this article talks about 'adultery.' How long was he doing this? The year she got sick? Before? After? How many years after? Regardless of whether the husband was committing adultery, he was her lawful husband and the law states he has final authority.

In February, Florida's Department of Children and Families presented Judge Greer with a 34-page document listing charges of neglect, abuse, and exploitation of Terri by her husband, with a request for 60 days to fully investigate the charges. Judge Greer, soon to remove Terri's feeding tube for the third time, rejected the 60-day extension. (The media have ignored these charges.)

When a jury awarded brain-disabled Terri Schindler-Schiavo over $1 million in a medical malpractice suit against her two physicians in 1992, it did so believing the money would be used to pay for the brain-injured woman's long-term care and rehabilitation.

But instead of the therapy he promised he'd provide for Terri, her estranged husband, Michael Schiavo, 41, who is also her legal guardian, used most of the money to pay attorneys to arrange his wife's death -and he did this with full court approval.

The money awarded Terri was placed in a trust fund and a judge approved all expenditures - from pedicures to attorney bills. The latter has skyrocketed over the years, as Terri's parents, Robert and Mary Schindler, battled their son-in-law in the Florida courts over their daughter's right to live. By June 2001, the trust fund money had dwindled to $350,000. Today, just $40,000 to $50,000 remains.

Terri's spouse Michael Schiavo, presents even more dubious complications. He has a girlfriend, and has fathered two children with her. He clearly wants to marry again. And a living Terri stands in the way.

Michael Schiavo, who says he loves and continues to be devoted to Terri, has provided no therapy or rehabilitation for his wife (the legal one) since 1993. Her death is being brought about by the failure to meet ordinary standards of care.

In 1997 when Michael announced he was 'engaged', the court should have immediately conducted a guardianship hearing and transfered Terri to State guardianship. Because of this failure, we are in the present situation.

LIFE AND DEATH TUG OF WAR
Terri's money used to pay for starvation death.
Once well-provided for, disabled woman now dependent on taxpayers

[general_re]

I'm sure we've established that you disagree with the decision. That is not, in and of itself, evidence of either procedural failure or discretionary abuse.

[general_re]

The court came out one way by abusing its discretion against existing law.

I disagree - if the court has discretion to decide one way, they surely have discretion to decide the other way, else it's not "discretion" at all. Nevertheless, IMO, congresscritters simply did what they always do - pose for the cameras and punt to the courts, attempting to absolve themselves of any responsibility for effective action in the process.

[CobaltBlue]

I am sure that you don't believe that we have the best legal system that we possibly could have, nor that we can't do anything to make it better.

Dred Scott was decided according to established procedure, but that didn't make it right. Good men didn't throw up their hands and say that there was nothing they could do about it, either.

[general_re]

It is entirely possible for the system to function exactly as designed, and still produce an undesirable result. Do you win every case you try? Probably not, but your failure to garner the desired result is not itself indicative that the system is in need of serious fixing. Half the people who walk into a courtroom in this country are going to be unhappy with the result, but that does not mean that the system is seriously broken.

I think we'll have to accept that the law will never be perfect, that there will always be edge cases which find cracks in the system. That being basically inevitable, it would, it seems to me, behoove us to ask whether some particular attempt to perfect the system further does more harm than good. The very same probate and guardianship procedures that may have failed Terri Schiavo daily serve thousands upon thousands of others in a satisfactory manner. I submit that the price of even significantly reducing the chances of this ever happening again are higher than most will be willing to bear, for one simple reason - she's an absolute edge case. She is not reflective of all, most, or even many families in this position, and before we start rebuilding the law based on her particulars, perhaps we ought start asking ourselves what the impact will be on all those people the law is serving reasonably well.

Lawyers, as I seem to recall, have a pithy little saying about building laws based on the edge cases - "bad cases make bad laws". You can change the law to insure that no case like Terri Schiavo will never, ever happen again, but those changes will not be free, and someone will bear the costs. Are those costs really worth the benefits they bring? I don't know. I tend to doubt it, but I've noticed a certain allergy to even asking that question around here lately.

[goldstategop]

The Left are such hypocrites. The government WAS involved in murdering in Terri Schiavo. It was not as people think, a private, family decision. Who is a judge but a government agent? And the extraordinary lengths to which Judge Greer went to make sure the families involved could not settle this matter for themselves reveals that the concept of "limited government" means nothing to judges. When I hear people say they don't want government involved, boy they don't know the full facts of what really happened here - or don't care to.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[CobaltBlue]

I hope you're not arguing that there's no reason to try to figure out what went wrong, and see if it can be fixed.

I don't have any preconceived notions as to what that would be, or how to go about doing it, but I think it's a good time to talk about it.

Congress went to a lot of trouble to pass the law that gave her family the right to a trial de novo, but she did not get one. Why not?

David Boies said that he thought the courts were exalting form over substance. I thought he raised a very good point.

[general_re]

I hope you're not arguing that there's no reason to try to figure out what went wrong, and see if it can be fixed.

No, but I am saying that calls to torch the system are premature, and that's essentially where much of this hullaballoo is heading. I don't doubt for a moment that the problem, such as it is, is eminently fixable, but the next question is, are the proposed cures worse than the disease? What is the cost of fixing the problem, and who will bear it?

The law is a very utilitarian affair, in the end. It produces reasonable amounts of good for the most possible people. It does not produce perfect good for all people, and it's a waste of time to try. "Le mieux est l'ennemi du bien," as our friend Voltaire reminds us.

David Boies said that he thought the courts were exalting form over substance. I thought he raised a very good point.

The law is not itself "justice". The law is how we find justice. It is, really, the best, most practical means of finding justice. If I may, it seems to me that you could sum up Boies by saying that laws, procedures, practices, rules, standards, et cetera, are all well and good, so long as they do not interfere with the desired result. No. The alternative to law is not justice, the alternative to law is anarchy, and anarchy only produces justice accidentally.

[CobaltBlue]

I think your analysis of Boies' argument is unfair.

A majority of both houses of Congress passed an extraordinary law to give a woman a second chance at having her constitutional rights vindicated.

There was no pressing reason to kill her immediately. Nobody's rights were being trampled on but hers, and that was supposed to be looked at with fresh eyes.

Why not allow the legal process to work?

When the Supreme Court ruled that Georgia had no right to seize the land of the Cherokee Indians, President Jackson said, "they've made their ruling, now let them enforce it."

Here we have a similar situation. Congress passes a law, and the judges say, "they've passed their law, but she's in our power, not theirs."

Where is the separation of powers? Where are the checks and balances?

[general_re]

I think your analysis of Boies' argument is unfair.

Is it? Substance is, all too often, in the eye of the beholder. Tell me, then, what is the material difference between his argument and, say, Blackmun's argument in Roe? Harry certainly didn't let form stand in the way of his idea of substance. If we take the opposite tack, and exalt substance over form, what prevents the law from being nothing more than a naked power struggle, to see who can impose their idea of substance on another? What, if anything, does law mean when we denigrate form in favor of substance? Are we not simply reducing law to someone's whims about what constitutes "substance", where judges' decisions hinge on whether they had eggs or pancakes for breakfast?

There was no pressing reason to kill her immediately.

What is this "immediately" to which you refer? More like ten years. Ten years it took to work its way up and down the courts. Ten years the Florida legislature had to revise their laws on guardianship. Ten years the Congress had to throw their Hail Mary pass. And they sat on their hands for ten years, until the very last minute, when the clock was finally wound too far down to produce an effective remedy in the form of expanded federal jurisdiction with mandatory relief. No problem - pose for the cameras, punt to the courts, and let them take the fall for ten years of inaction.

Sorry, I see no "immediately" here. I see ten years, which was finally spiked by the bunglers in DC, who had a clear and unobstructed path to the end zone with the clock running out, but still managed to drop the ball on the one yard line.

Here we have a similar situation. Congress passes a law, and the judges say, "they've passed their law, but she's in our power, not theirs."

Where is the separation of powers? Where are the checks and balances?

What good is power if Congress cannot or will not wield it? Again, they could have avoided even the possibility of a dice-roll by mandating relief, but they did not. "Something bad will happen" is not enough to gain injunctive relief. "We need more time to gather new evidence" is not enough to gain injunctive relief. These things are all eminently foreseeable, and I have my doubts as to whether or not they were really taken by surprise that Whittemore and the 11'th didn't rush in to imagine some new parsing of the bill where "may" means "shall", particularly when the legislative record clearly records that Congress considered mandatory relief but rejected it. But they didn't see it coming. Right. Well, *I* saw it coming. Maybe I should be majority leader.

[CobaltBlue]

"Something bad will happen" actually is sufficient to get injunctive relief.

I've gotten injunctive relief when I had an affidavit saying that debtors were going to remove property from the jurisdiction, or a child from the jurisdiction, on that basis alone.

Just a simple allegation that "my client has a right to this relief, and if you don't give me the injunction my client will be screwed" has always been enough for me.

No, I think the judge just didn't want to be in the hot seat, and punted.

[general_re]

As long as injunctive relief is discretionary, it will always be something of a crapshoot. Now, you're telling me that it's okay for Congress to roll the dice, because most of the time, you'll win. Well, that may very well be true, but I'm telling you that they had the power and the opportunity to completely eliminate any chance that the feeding tube would not be replaced, and they failed. They chose to gamble with a woman's life, and she paid the price when the dice came up snake-eyes. And even if those dice were somehow loaded, the simple, inescapable, irrefutable fact is that they didn't have to play at all.