This is one more example of why I can't just accept folks' blithe dismissals of my fears of creeping fascism here in the States (sorry, baa - I appreciate that you try).
I don't think it was a necessarily a good move on the judges part. He is correct that there is no way the parents are going to win, but if congress ordered a new trial, and such an order is legal, there is no use letting Terri Schiavo starve before the new trial takes place. Have the new trial and then find for the husband.
Let me provide an alternate series of explanations for the GOP interest in the Schiavo case:
1. Some believe the wrong thing is being done
2. Some believe they will reap political gain broadly.
3. Some believe that they will reap political benefit among a focused and active consitutuency.
As a matter of political calculus, #3 is clearly on the money, and I would not regard the ABC polls as decisive evidence against #2.
#1, of course, is a matter of conscience. It won't surprise anyone that I find this discussion highly sympathetic.
Creeping fascism? Those goddamn nazis, always trying to rescue the brain damaged!
I think that, like the effort to undermine the media, it's not so much a deliberate attempt to control facts and truth, as much as it is a 40-year habit of going nuclear on any opposition. I believe that the soldiers have no idea the kind of seeds they are sowing, and if the generals know, it is only a dim awareness that can be easily rationalized away.
When you are a tiny minority, as Birchers once were, you have no choice but to be a bomb-thrower. The problem is, now Republicans practically have a super-majority, and they're still acting like they're the IRA. So their bombs are bigger, more destructive, and leave deeper scorch-marks than ever before.
I can only come to the conclusion that there are two totally different mindsets among liberal activists and conservative activists. The first priority among liberal activists seems to be to use policy to affect change, broadly or otherwise. But conservative activists believe we're at war with one another, and their first priority is to obliterate the other side. Running the country takes a backseat to fighting the war.
baa, the fascism to which I refer hasn't anything to do with Schiavo, but with subversion of the Judicial branch.
There was a great bit on this on the Daily Show last night, in which Stephen Colbert explained that the judiciary having influence on Congress would undermine its separation and powers.
And this is the most delicious display of projection that I've seen all day:
Mr. DeLay complained that "the other side" had figured out how "to defeat the conservative movement," by waging personal attacks, linking with liberal organizations and persuading the national news media to report the story. He charged that "the whole syndicate" was "a huge nationwide concerted effort to destroy everything we believe in."
baa, did you read the court document at the link you provide? Douthat writes of the decision,
It bases the decision to cease feeding Schiavo on comments that she reportedly made in passing at a funeral, and to her husband after watching a TV movie.
Here's the full relevant passage.
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable htwre. However, the court notes that the tern "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Tem Schiavo made which do support the relief sought by her surrogate (Petitioner/Guadian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want to life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine." and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that ever happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations conceming her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
In the particular case, it's about as clear as it can be, absent a living will, what her wishes were. More generally, the courts have already examined this issue. If you read the interview linked a couple of posts down, you'll see that they've examined it at length.
Sorry for the weird typographical errors; copy and paste from pdf...
Apo: From where I stand, along way away, the creep is becoming a slide. The instrumentalisation of democratic institutions to clear the field for double-speak is characteristic of the totalitarian regimes of the 20th Century and it is happening to you guys.
Anyone ever read "Making History" by Stephen Fry?
On the face of it a silly fantasy. But I ve been thinking about that book alot since "the speech".
If you'd like to get really macabre about it (and of course I do), Terri Schiavo was a bulimic. If she was sufficiently distressed about her physical appearance as a young woman to force herself to vomit regularly, I have to believe she'd be flatly horrified both at her current condition and having her picture plastered all over every media outlet in the country.
Luckily, with no remaining cerebral cortex, she won't ever give a damn.
If this case is kept entirely apart from all other cases and does not become a precedent for Congressional action in similar cases in the future, then this is certainly not creeping fascism - it's just an exceptional case.
If this case becomes part of a wider campaign to weaken the separation of powers, then it's still not quite creeping fascism but it is a sign of a weakening committment to the principles of the Constitution. The unwillingness of people not on the right (by which I mean moderates as well as those more to the left) to call people out for what sure looks like a loss of faith in America's founding ideals never ceases to amaze me.
By the way, if you haven't seen it yet, Tim Burke has just put up a new post here.
The unwillingness of people not on the right (by which I mean moderates as well as those more to the left) to call people out for what sure looks like a loss of faith in America's founding ideals never ceases to amaze me.
Too correct. The parallels are so damn obvious that it is almost gauche to introduce them. Your democracy is stronger than the Weimar Republics, but for decades after the question was always aimed at the German people..."Where were you, when it could have been prevented?"
it's about as clear as it can be, absent a living will, what her wishes were
This is, as ogged correctly notes, the crux of the matter. Sciavo's wishes are the dominanting interest here.
I do not read the evidence as giving anything like a clear report on her wishes (I haven't read the follow-up in detail, however). My response is more "wow, what a scanty reed on which to base a decision of such magnitude." Especially given a) what appears to be conflict of interest in the case of her guardian, and b) the view that her parents don't think this is what she would have wanted. Were her legal guardian (Michael) claiming that she should live and her parents, based on the same set of evidence, claiming she should die, no one would be considering starving her, right? So it's not like the evidence is a slam dunk.
End of life issues rile people up. The exceptional legal and political measures being applied here aren't a patch on the archictecture of legal weirdness that has been generated by the death penalty. So while I'm sympathetic to all the left wing hard core federalists out there, I can't say I'm super-duper sympthatic.
O'Brien held up his left hand, its back towards Winston, with the thumb hidden and the four fingers extended.
'How many fingers am I holding up, Winston?'
'Four.'
'And if the party says that it is not four but five -- then how many?'
'Four.'
The word ended in a gasp of pain.
'You are a slow learner, Winston,' said O'Brien gently.
'How can I help it?' he blubbered. 'How can I help seeing what is in front of my eyes? Two and two are four.'
'Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.'
War is Peace. Ignorance is Strength. George W. Bush is a uniter, not a divider. Welcome to 1984+21.
- Badtux the Orwellian Penguin
I'm not sure what evidence isn't a slam dunk, baa. Every, but every, court has ruled that the husband is the legal guardian. Every doctor who has actually examined Mrs. Schiavo (as opposed to watching a 4-minute video culled from a four hour taping) has stated that she is permanently vegetative.
I'm no hard-core federalist, but after this case has already travelled the length and breadth of the American judicial system with the same result at every. single. stop, and then Congress calls itself to session to say, effectively, "No, the entire court system is incorrect so we will overrule it, but the precedent (like Bush v. Gore) applies only in this one case because we know it will bite us later otherwise..."
Well, you see where I'm headed.
The separation of powers issues seem more important here. (As for Schiavo, I thought about how many times I've expressed wishes about what I'd want done and I think the answer is "none." So her four or five times seems significant to me.)
I see apostropher's comment now--yeah. There might even have been a way for Congress to try to intervene tastefully, if you will; but the easy reach for "judicial tyranny!!" is the real point of the post.
re 13:
apostropher - i agree that Schiavo probably would be horrified that her image -- in her current state -- is being plastered all over newspapers and televisions screens and whatnot. not because as a young woman she seemed concerned about her appearance (her bulimia really is a side issue), but because implicit in the right to die is the right to preserve one's dignity and privacy to the end of life. to the extent that she did express a wish to terminate treatment in a persistent vegetative state, i think we can guess that she did care about her privacy, her dignity, and her right not to have people poke, prod and stare at her at her most helpless and vulnerable.
Strips up at GYWO about the Schiavo case.
Not trying to be argumentative here, but just philosophically pondering:
If Terri Schiavo's seat of consciousness is irretrievably gone (what with her higher brain having been replaced with CS fluid), how much weight do her wishes really carry any longer? At what point do the legal guardian's wishes take precedence?
left wing hard core federalists
Since when did the basic separation of powers become leftist? It's certainly left of monarchy (as it was in the 18th century), but in today's context it seems pretty middle-of-the-road to me.
But on the specifics of the case I still don't understand why this isn't a private family matter. Yes, I know that Michael Schiavo asked the court to determine from the evidence what Terri Schiavo's wishes were/would be, but - given the lack of legal documentation (like a living will) - how did this become a matter for the courts to decide in the first place?
>At what point do the legal guardian's wishes take precedence?
At no point. If we know she wanted to die, it should not matter that her guardian wants to keep her around. If we know she wanted to live and her guardian wants to kill her, screw him. It's the "we know" part that people are having trouble with.
Since when did the basic separation of powers become leftist?
I'm pretty sure baa intended his remark as an ironic tweak.
how did this become a matter for the courts to decide in the first place?
One part of the family sued the other.
I intended the question a little more broadly than that, baa. None of us can imagine how existence in a PVS would be experienced, or if it is experienced at all. Our judgment for what we would want done to us in that situation is entirely hypothetical. Your position may remain the same (and is totally defensible), but I wonder: given modern medicine's ability to keep organs functioning, is a legal guardian morally obligated to honor a wish to keep an empty vessel artificially animated for decades at a time if that wish was expressed some years earlier by the vessel when it was occupied and unable to foresee the permanence of the disability?
It seems that at some point, the very reason for having a legal guardian - to make such decisions - is being undermined. I understand that is an uncomfortable slope to be slipping along, but still...
So while I'm sympathetic to all the left wing hard core federalists out there
What the others said about separation of powers rather than federalism. But more importantly: if "states rights" is going to be the standard, I am entitled to insist that it be applied consistently even if I am not a states' rights proponent.
For posterity, I've collected a lot of the excerpts from the House debate on the bill.
They are completely, utterly, indescribably appalling.
apostropher:
is the "very reason" to have a legal guardian to make such decisions? it seems an equally or more important purpose to carry out and safeguard a person's wishes as expressed during one's life. if expressed.
Point taken, apostropher. It seems like the "strong" guardianship really would apply only when a) technology advances substantially, and b) the living will decision was "live." I suggest that all living wills come with a "unless 100 years have elapsed" proviso!
Katherine: Excellent post.
Mina: I suspect the specific statutory definition varies by state, and I'm certainly not a lawyer. However, my understanding of the concept is that the legal guardian exists to make care decisions for a minor or an incapacitated adult. Having watched a parent die from brain cancer that eventually shut down his heart and lungs, I can state confidently that extending life at all costs is not always the humane decision.
Especially given a) what appears to be conflict of interest in the case of her guardian
From the court's decision:
On Feburary 14, 1993, this amicable realtionship between the parties was severed. While testimony differs on what may or may not have been promised to whom and by whom, it is clear to this court that such severance was predicated upon money and the fact that Mr. Schiavo was unwilling to equally divide his loss of consortium award with Mr. and Mrs. Schindler. The parties have literally not spoken since that date. Regrettably, money overshadows this entire case and creates potential of conflict of interest for both sides. The Guardian Ad Litem noted that Mr. Schiavo's conflict of interest was that if Terri Schiavo died while he is still her husband, he would inherit her estate. The record before this court discloses that should Mr. and Mrs. Schindler prevail, their stated hope is that Mr. Schiavo would divorce their daughter, get on with his life, they would be appointed guardians of Terri Schiavo and become her heirs at law. They have even encouraged him to "get on with his life". Therefore, neither side is exempt from finger pointing as to possible conflicts of interest in this case.
That said, the decision indicates that Michael Schiavo was the petitioner. As I understand it, that means he was not sure of Terri's wishes and wanted the court to decide for him. I still don't understand how the court got that power. From reading the summary, I'm actually more in agreement with baa - it just doesn't seem clear enough (there were a lot of problems with most of the testimony).
I'm pretty sure baa intended his remark as an ironic tweak.
Yeah, I should have picked up on that.
Interesting to me is how the fundies are totally undercutting the sanctity of Marriage by slamming the husband.