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March 26, 2005

When victory is everything

I've spent a lot of time reading the left wing press about Terri Schiavo. They're ecstatic.

Perhaps "ecstatic" is too strong a word, but then, perhaps not. They're gloating. They're thrilled. They're exulting in the failure of the Republicans to save Terri's life and they're salivating over the prospect of this harming the GOP in the next election.

On that last point, they're probably wrong. Regardless of how polls show the American public feels about this issue, Democratic candidates will find it very difficult to take political advantage. What are they going to do? Campaign on the slogan, "My opponent tried to keep Terri alive, I would have helped kill her"? But never mind that.

I've tried to imagine how I'd act in their shoes, and the easiest way is to change the circumstances a little. Suppose there did exist clear and convincing evidence of Terri's wishes. Suppose she had left a living will, duly witnessed and notarized, explicitly stating that she would want nutrition and hydration withdrawn if she suffered a brain injury from which recovery was unlikely. And suppose the other circumstances remained the same: her husband was attempting to withhold food and water, her parents were fighting to keep her fed and watered, and the judicial branch unanimously sided with the husband while the legislative and executive branches unanimously sided with the parents.

In those circumstances, I'd support the courts and oppose the involvement of Congress and the governor. But I don't think I'd act as the starve-Terri crowd has acted. I don't think I'd exult in victory, and I don't think I'd be dancing on Terri's soon-to-be-occupied grave. I think the behavior of those who are doing so is repugnant.

And I think I know why they're acting this way. They've lost sight of everything but victory. They've suffered defeat after defeat after defeat, and they've reached the point where they'll cheer a win, no matter how unseemly such open exhuberation is. To them, any defeat of the Republicans is worthy of celebration... even if what you're celebrating is the end of an innocent life.

March 26, 2005 in Current Affairs | Permalink

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Comments

I don't know whom you define as "left wing press," but I don't see any ecstasy on the left or the right--just a kind of appalled fascination at the willingness of the far right to go to any lengths to impose its views on everyone else.

To these people the courts don't count, the law itself doesn't count, personal privacy doesn't count, and the unity of the Republican Party counts least of all. Instead we're getting talk-show hosts calling on the president to order the seizure of Terri Schiavo and to kill anyone who tries to stop such a seizure.

This is not a victory for anyone; if American democracy can't live under the rule of law, the alternatives are anarchy or tyranny. Under neither regime can anyone expect personal liberty or security. I just hope this is a momentary lapse, like the Elian Gonzalez hysteria, and that Americans will take steps to ensure such lapses don't happen again.

Posted by: Crawford Kilian | Mar 26, 2005 2:21:39 PM

I don't know whom you define as "left wing press," but I don't see any ecstasy on the left or the right

Perhaps I used the term "press" too liberally, but I'm referring to left-wing blogs and message boards.

To these people the courts don't count, the law itself doesn't count, personal privacy doesn't count, and the unity of the Republican Party counts least of all.

The law counts. The law says that Terri's wishes must be proven by clear and convincing evidence. They haven't been.

The courts count... but checks and balances apply, and in this case the two other branches of government disagree. Too often the courts go unchecked, making themselves supreme over the other branches.

"Personal privacy?" In what way is a husband's decision to kill his wife private?

And party unity should count for exactly bupkus when making policy decisions.

Posted by: Voice of Reason | Mar 26, 2005 3:58:21 PM

Well then say blogs and message boards you dumb bastard.

Posted by: Voice of Raisins | Mar 27, 2005 12:40:24 AM

Once again you make sweeping generalizations about what liberals believe based on "something you read on the internet somewhere." Maybe you could show us the courtesy of actually quoting or linking to the offending statements?

Posted by: Hobospider | Mar 29, 2005 12:08:47 AM

The 'elation' is that the rule of law has actually been upheld over a determined republican attack on the only branch of government that isn't currently drunk with power.

The 'elation' is somewhat similar to when the Bush administration's claims of near absolute power over "illegal combatants" - you may not like the fact that a number of guilty people will benefit, but you like that the rule of law and the constitution wasn't pissed on.

Posted by: evilweasel | Apr 1, 2005 11:46:45 AM

Yes, yes, the judiciary is not drunk with power. Judges are very careful to rule according to law, regardless of their personal feelings, and strictly adhere to the written code, ever mindful of their duty to adjudicate, not legislate. Then they go home and relax under the twin suns of the planet Zoomax, which is where these particular judges happen to live. Here on Earth, you'd be hard-pressed to find a branch of the government that's more power-drunk than the judiciary.

For example, contrary to the repeated claims of the ignorant that the law passed by Congress flouted the Constitution, the Constitution explicitly gives Congress the power to determine the jurisdiction of the federal courts. And then Judge Whittemore decided to shit all over that power by refusing to grant what any idiot could see was a reasonable TRO. Undoubtedly his feelings were hurt by having a bunch of mean ol' Congressmen tell him what to do, and he acted accordingly.

Posted by: Voice of Reason | Apr 1, 2005 9:53:07 PM

Are you currently exposing yourself to any real debate? It seems that you may be lacking some context in making your arguments. Shouting into a vacuum is the best way to lose any edge you may have once had.

Posted by: Lemmon Hackett | Apr 1, 2005 11:57:55 PM

For example, contrary to the repeated claims of the ignorant that the law passed by Congress flouted the Constitution, the Constitution explicitly gives Congress the power to determine the jurisdiction of the federal courts.
Of course ti does, and if Congress had passed the original, broad law there would have been no constitutional problem with it. The problem is that the narrowness of the bill, granting specific legal rights to Terri's parents that no one else in the same situation possess, that makes the bill run afoul of the Equal Protection clause, which I believe is held to be implicit in the 5th against the Federal government.


And then Judge Whittemore decided to shit all over that power by refusing to grant what any idiot could see was a reasonable TRO.

If that's so, why is it that 10 out of 12 appeals justices, who have actual training on what the requirements for a TRO are, disagreed? The decision was a simple one - her parents needed to prove they would probably win the case, and there was virtually no chance they would. That's a requirement for a TRO, had the judge issued one, he'd be doing what you so hate - subtituting what he wants for what the law says.

It's sad that you seem to claim every decision of the judiciary you don't like must be because judges are stupid, corrupt, power-hungry, whatever. Is it too much to ask that you have some deference to the opinions of people who do this for a living? A lot of these "judges are stupid" arguments have the same basis as a lot of ID proponents - a refusal to admit there are people in any subject who understand things more than you do. ID people cannot accept that biologists could know more than what the world "seems like" to them. You, and a large chunk of the Right, just cannot accept that judges know what the're talking about if they disagree with you. The arrogance of your position - that every single one of the numerous judges who ruled against Terri's parents were wrong, and you, an observer who has less training in the law and has spent less time going over the facts, are right, is just mind-boggling.

Posted by: evilweasel | Apr 2, 2005 11:21:17 AM

And then Judge Whittemore decided to shit all over that power by refusing to grant what any idiot could see was a reasonable TRO.

If that's so, why is it that 10 out of 12 appeals justices, who have actual training on what the requirements for a TRO are, disagreed?

Ah, it's our old friend Argument by Appeal to Authority again. The judges saith it is so, judges are infallible, therefore it is so. Sorry, not buying it.

The decision was a simple one - her parents needed to prove they would probably win the case, and there was virtually no chance they would. That's a requirement for a TRO, had the judge issued one, he'd be doing what you so hate - subtituting what he wants for what the law says.

No, they didn't need to prove that they "probably" would win the case. The requirements for a TRO are:

  1. Substantial likelihood of success on the merits.
  2. Irreparable harm to moving party if TRO not granted.
  3. Harm to the nonmoving party if the TRO is granted less than the harm to the moving party if the TRO is not granted.
  4. TRO not contrary to public interest.

Let's dispense with the fourth one, since nobody has argued that a compelling public interest would have been harmed by keeping Terri alive.

Clearly numbers two and three are satisfied. The Schindlers would (and indeed did) suffer the death of their daughter absent the TRO, and you don't get much more irreparable than death. And Schiavo? Worst case scenario, the wife he wanted to kill would have remained alive a few more days. Hard to see the irreparability in that. But what about the first requirement -- substantial probability of success on the merits?

What does "substantial" mean? Well, as it happens, the degree of substance required depends on requirements 2 and 3. While "irreparable harm" is required, there's irreparable, and then there's irreparable. A number of things the law considers to be irreparable harm can in fact be repaired at least somewhat through monetary or other damages. The more serious the harm suffered by the moving party, the less the burden of proof required to satisfy the likelihood of success on the merits. If I'm asking for a TRO to prevent my house from being burned down, I don't need to show as much of a likelihood of success than if I'm asking for a TRO to prevent my toe being stubbed. To back this up, I cite a distinguished jurist:

The first of the four prerequisites to temporary injunctive relief is generally the most important. The necessary level or degree of possibility of success on the merits will vary according to the court's assessment of the other factors.

The quote is from His Honor James D. Whittemore, in Schindler et al v. Schiavo et al. In a case such as this, with the harms so clearly in one direction, denial of the TRO is equivalent to summary judgment for the nonmoving party. The standard of proof for such judgment is very high, and wasn't met.

Judge Whittemore was bound by statute to conduct a de novo review. Not only did he not do so, he disregarded his duty to issue such orders as necessary to preserve the status quo long enough to conduct such a review.

It's sad that you seem to claim every decision of the judiciary you don't like must be because judges are stupid, corrupt, power-hungry, whatever.

It's sadder that you feel the need to invent positions for me when my actual position is too strong to argue against.

Is it too much to ask that you have some deference to the opinions of people who do this for a living?

We're not talking in the abstract here. This is a specific case, with specific facts, of which I am specifically aware. I am a lot less willing than you to delegate my judgement to others.

The arrogance of your position - that every single one of the numerous judges who ruled against Terri's parents were wrong, and you, an observer who has less training in the law and has spent less time going over the facts, are right, is just mind-boggling.

I plead guilty to arrogance. So, say, what do you think of the two dissenters on the en banc Eleventh Circuit? Do they lack training in the law? Did they neglect to go over the facts? Were they simply arrogant to believe their colleagues erred? Did they view their colleagues as stupid, corrupt, and power-hungry? Or does there in fact exist a valid argument that Judge Whittemore erred in refusing to grant the TRO? And if the latter, since when do we allow majority rule to decide what's right?

Posted by: Voice of Reason | Apr 3, 2005 4:03:14 PM

Posted by: Juan Schoch | Apr 13, 2005 12:39:08 AM

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