Will Terri Schiavo die at the hands of an "activist judge"?
We’ve been hearing a lot this past year about activist judges. At first I was puzzled by the term. I first heard it applied to the judges on the Massachusetts Supreme Judicial Court after they ruled that denying gay couples access to marriage went against the state constitution.
Shortly after that, I heard the Republicans in Congress along with President Bush, call the judges “activist judges”. Now, with the ruling by federal district judge James Whittemore to not re-insert the feeding tube for Terri Schiavo, I suppose Judge Whittemore will also be labeled an “activist judge”. I’ve come to conclude that an “activist judge” is a judge who doesn’t rule in favor of the majority of legislators, in this case, conservative legislators.
Perhaps it is time for a new term. Let’s call it “congressional activism” as Slate writer Dahlia Lithwick has done.
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 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.
Until now.
One thing that seems difficult for people to understand is that Terri, by all medical accounts, has not been conscious for a very long time. Brain scans indicate that the entire area of the brain responsible for cognitive thinking has been destroyed. If you view a healthy brain and compare it to Terri’s brain, you will actually see a huge black mass in the center of her brain that used to be healthy brain tissue. It is now dead. The experts agree that she has no knowledge of her existence at this time. That isn’t life and it’s no way to live an existence.
I can understand the heart wrenching ordeal her family is going through, but there is a time to think of Terri and her wishes. There is a time to let go.
I would choose to remember Terri in the light of this photo of her, a photo of a vivacious woman, full of life. She deserves better than political pandering. She is more than an opportunity for politicians to push their political agenda to try to show people just how much they value life.
My message to them is this. If you value life so much, then you must pass legislation to abolish the death penalty. If you value the life of a one week old fetus, then surely a man on death row qualifies as life. After all, I can talk to him. He can think. He is self aware. Is a fetus? They will never be able to understand this argument. Instead, this is what we have in this country at this time - this is the environment:
Frist, who has asserted special credibility “as a physician,” claimed that “neurologists who have examined her insist today that she is not in a persistent vegetative state”—neglecting to mention that neurologists who testified in court concluded the opposite. On the Senate floor, Frist claimed to have “been in a situation such as this many, many times,” when in fact he had never made such an evaluation. On the basis of the family videos, he challenged the assessment made by doctors who had examined Schiavo in person.
When it’s your turn to face an end-of-life decision, here’s the kind of scrutiny you’ll get. Two neurologists and a judge won’t be enough, according to Frist: Congress will “go and collect more information, have neurologists come in.” A second judge will be empowered to “make new findings of fact.” DeLay wants to deprive judges of discretion because “when you affirmatively give the judge the discretion not to put the tube back in, they won’t.” Everyone has to be involved. “For one person in one state court to make this decision is too heavy,” says DeLay. “It does take all of us to think this through.”
And here’s the culture you’ll get. Schiavo’s parents have filed a motion to divorce her from her husband. Protesters at the hospice have suggested that the husband should be starved and the judge should be beaten. On the Senate floor, Frist has challenged the husband’s right to make the decision because he has “a girlfriend.” What about the judge’s confidence in the husband’s account of Schiavo’s stated wishes? Unless Schiavo “had specifically written instructions in her hand and with her signature,” scoffs DeLay, “I don’t care what her husband says.” This from an out-of-state congressman who got his legal training in campaign-finance creativity and his medical training in pest control. (source)
At what point do our civil liberties get acknowledged? If the federal government can intrude into extremely private family matters such as this, do legal documents or even the power of marriage mean anything anymore? If I have a power or attorney, or a living will, what’s to say at this point that they can’t be overturned? There are many families out there who are going through these issues. I would hate to think that I would have to be kept alive, no matter what the quality of my life was, just because some legislators took that decision away from me and told me, “You WILL live, no matter what.”
This legislation, the “Palm Sunday Compromise”, creates a dangerous precedent for all of us who want to live free lives without government intrusion. Hopefully, the Supreme Court will rule it unconstitutional.
Yesterday, Judge Whittemore refused to order the reinsertion of Terri’s feeding tube. The decision is being appealed. There’s no happy ending here, for anyone.
David Gibbs III, the parents’ attorney, argued at a Monday hearing in front of Judge Whittemore that forcing Terri Schiavo to starve would be “a mortal sin” under her Roman Catholic beliefs and urged quick action: “Terri may die as I speak.”
But George Felos, an attorney for Michael Schiavo, argued that keeping the woman alive also violated her rights and noted that the case has been aired thoroughly in state courts.
“Yes, life is sacred,” Mr. Felos said, contending that restarting artificial feedings would be against Schiavo’s wishes. “So is liberty, particularly in this country.”
Michael Schiavo said he was outraged that lawmakers and the president intervened in a private matter. “When Terri’s wishes are carried out, it will be her wish. She will be at peace. She will be with the Lord,” he said on CNN’s “Larry King Live” late Monday. (source)
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"Then you address the right wing Republicans that believe life is sacred. Oh how you make me wish I were a right wing Republican. They get all the credit for doing the noble thing!"
Carol, I really don't see making Terri's situation a complete political act for personal gain a "noble thing". The majority of Republicans in Congress who pushed through the Terri Schiavo Act did so under the guise of doing "the noble thing". Bunk. I don't believe that for one second. They did this for political gain to convince the far right wing of their party that they are indeed (or at least look) "pro life".
They did this. They are the majority, remember. They can (and are) pushing through any damn piece of legislation they want. The Republicans own this.
"Life is sacred, I know I am surely thankful for mine and I would hope you feel the same about yours. If people cannot distinguish the common sense difference between saving the innocent life of a disabled person as opposed to taking the life of someone that has chose by their own doing to take the life of another, than yes, we should abolish the death penalty. Lord knows if it saves one innocent life than it would be worth it."
So, YOUR life is sacred, or TERRI's life is sacred, but not ALL life is sacred? That's a very dangerous way to look at life. Who decides who's life is sacred? You? Me? For years people who killed gay and lesbian citizens were given extremely light sentences or given no sentence at all because the judge somehow thought that the victims "deserved" what they got. He decided that their life was somehow worth less than someone else's life. Today, I see more and more of these people getting harsher sentences for these kinds of deeds. So apparently, the value of a persons life can be measure by the public opinion at the time?
If you value ALL life as being sacred, a person's intentions should have little to do with it. If you value Terri's life, you must also value that person's life who is on death row - the person WE (society) are about to put to DEATH. Otherwise, your argument means nothing.
It saddens me to hear so many make this a "Republican thing". I think it is a huge jump by many to assume only Republicans feel that Terri's life is one worth saving. It certainly is an inaccurate assumption at best.
However, in other aspects Mary you are correct in your directives. In a loving Christian marriage a husband would be expected to make decisions for his wife. Loving decisions. Where you missed the boat in your assesment is that those who valued their marriage to that degree would not have taken a common law wife and had children with that woman while his wife lay in the hospital. A true man that valued his marriage would have to make a choice. You cannot have it both ways and stand on the same principal. I would never suggest that Mr. Shiavo did not have the right to move on. But to move on, means to let go. If you choose your marriage then be faithful to that marriage.
Also, a true man, that loved his wife so dearly would never allow her family that she loved to suffer at his hands.
Then you address the right wing Republicans that believe life is sacred. Oh how you make me wish I were a right wing Republican. They get all the credit for doing the noble thing! Your giving Democrat's a bad name. Life is sacred, I know I am surely thankful for mine and I would hope you feel the same about yours. If people cannot distinguish the common sense difference between saving the innocent life of a disabled person as opposed to taking the life of someone that has chose by their own doing to take the life of another, than yes, we should abolish the death penalty. Lord knows if it saves one innocent life than it would be worth it.
I cannot imagine that would happen though. Because the same people using that ridiculous analogy are the ones that question why we should be paying for care of patients on life support.
Sooner or later they would wake up and wonder why we were paying to care for murders serving life sentences. Somewhere along the way we have lost sight of where love and compassion for others should come above all else. Yes, I think today I must admit I need to reconsider and become what you and so many others refer to the "Right Wing Republicans" they seem to be the only ones "getting it". Proverbs 29:7 says, "The righteous care about justice for the poor, but the wicked have no such concern".
Justice has not been given in this case. It isnt about how much time is spent in "due process" before a judge. It is about true justice for Terri Shiavo. For any of you that have had a relative ready to die with a terminal illness you know full well that once their door is opened to leave, they most always part peacefully. I, as a family member, tearfully watched this happen. Terri is holding on, fighting for life, nothing about that tells me she was just lying there waiting to be let go.
I pray that within her we can all be reminded that miracles do happen. I have seen true love and compassion from many because of this case. I have also witnessed things and opinions that make my heart bleed for the future of this Country. In the end I believe Terri will leave quite the legacy behind her.
Michaelschiavo is a poor excuse fora husband,if he cared so much about terri why after only a month after terri's illness did he start seeing her best friend and now haschildren with her,the only people to hear terri say that she didnt want to be kept alive like this was her husband and her best friend who now has children with terri's husband,her friends she grew up with and her family has stated that terri never talked about dieing,she was to busy living,and if they would give terri a chance maybe she could live again,her husband didnt take his wedding vows seriously so why should we take him at his word,we would not let an animal die the way terri is being forced to die,even a killer that is put to death is treated better,talking about a death sentence,terri is getting one and she did nothing wrong,all we can do now is pray for terri and her family.
Good blog entry. I used to live in the town where this whole drama is being played out. This exact sort of thing happened before a couple years ago, only brother Jeb Bush, passed a law to put her feeding tube back in after courts ruled it should be removed.
Years later, here we go again, on a national level.
How much time and money has been spent on this poor woman? Couldn't the courts, congressmen and everyone else involved out their time and energy into something more productive?
Activist judged indeed.
Activist Politians - thats what this is all about.
and wasting tax payers money...
A couple of years ago, I published excerpts from a 1960 issue of Life magazine on my blog in which Richard Nixon used the term "social activist judges" in reference to the Civil Rights Movement.
History is repeating.
Two comments:
1) what happened to right-wing Republicans' concerns regarding the inviolable institution of marriage, about which they love to preach? In that institution, a husband has the legal right to make medical decisions on behalf of his wife.
2) if right-wing Republicans believe that life is sacred, then let's do away with the death penalty.