Skattershooting and Terri Schiavo (3/31/05)

Skattershooting while wondering whatever happened to Hugh Downs:

  And now from the category that I should probably just shut up (And the following is a little boring compared to the normal Skattershooting) ........

    The Terri Schiavo media coverage drove me insane, but you couldn't help be fascinated by it all. But of all the yelling and screaming that was going on, everyone had a hard time grasping the issue at hand. If I understand it correctly, Florida law states that a person can have a feeding tube removed if it is proven that (1) that person is in a constant vegetative state, (2) that the person would not want to live in that condition, and (3) proof of the person's intention need not be in writing.  I'm a little surprised that Florida law is that way, but so be it. But what many people don't understand is that there was an actual trial in the Schiavo case before a judge where all three of those elements were established. Once a judge made those findings, he ordered the feeding tube removed. This gave rise to a variety of appeals, none of which overturned the trial judge's decision. The appeals did not concern themselves with whether the "right" decision was made, but, simply put, to make sure that all the rules were followed. 

    Most of us believe that is the way our legal system should work. Let's have a trial where factual determinations are made and then have the appeals, not for trying the case all over again, but to insure that procedural and evidentiary rules were properly followed and applied. 

    All Republicans believed this until the Schiavo case made news.

    Let me poke a little fun at the Republicans for a moment: They really lost their collective minds in this Schiavo case. For years they have pounded their chests in favor of "State's Rights" and against "Activist Judges".  The passage of the law a couple of weeks ago by Congress (S.B. 653), that allowed federal review of the Schiavo legal case, was shameful in several respects. Whether it be the sanctimonious Tom DeLay (his political days are numbered, by the way) or the baffling Bill Frist (who diagnosed Schiavo from afar as not being in a "constant vegetative state"), it was enough for me to be embarrassed for them.

    "State's Rights" is a theory based upon a very simple constitutional interpretation: If the Constitution doesn't give a particular power to the Federal Government then the State's should be able to handle the issue in any way they see fit. For example, most Republicans dodged the Gay Marriage issue by saying that since the Constitution is silent on the issue, the States should be free to outlaw it if they so desire.  Florida, in the Schiavo case, has a set of laws dictating under what circumstances life support can be pulled from a patient. Obviously, the Constitution is silent on the issue. Under the State's Rights policy, each state should be able to set up its own laws on this matter. If the State of Texas wants to pass a law that requires a signed written declaration of a person's wishes regarding life support, it should be free to do it. If Florida allows those wishes to be based upon the testimony of others, so be it. But for some crazy reason, the Republicans took off on a tangent of "let Florida law be damned" and passed a law allowing a federal court to review the case. Delay actually filed a brief in the Supreme Court later that week saying it was his intention that the federal district court completely review the issue from scratch (called "de novo").  State's Rights no longer meant a thing.  It was baffling.

    The other crazy part of the Republican rant these past few weeks is that on "activist judges". For some reason, they were pissed the federal district court, the 11th Circuit Court of Appeals, and the Supreme Court refused to get involved in the issue even after Congress passed the emergency legislation allowing them to do so.  (The predictably deferred to the Florida state courts and Florida law). DeLay went nuts and, at a press conference in Houston, blamed ``an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president.''
Huh? What?  An activist judge does just the opposite of what the federal judiciary did in the Schiavo case - That is, an activist judge would decide a case based upon his personal convictions regardless of what the law says. In the Schiavo case, an activist federal judge would say "I think all life is precious and should never be ended, therefore, I'm going to interpret the federal constitution in such a way that will allow the feeding tube to be reinserted."  This is exactly the type of attitude the Republicans have abhorred. You cannot hear a Republican running for office that doesn't utter the worn out phrase: "Judges should follow the law and not make law". That's exactly what they got in Florida. But when it did not satisfy their desired results (i.e. put the feeding tube back in), they went bonkers.

    The Schiavo case was gut wrenching. I hated seeing her picture. I hated the thought of her starving to death. I felt for her parents. I felt for every American that thought it was the wrong thing to remove the feeding tube. But Congressional interaction was simply wrong.

    And for the record, please pull my feeding tube if it is the only thing keeping me alive. 

    (And if it wasn't for the Pope's death, we would still be hearing about Terri Schiavo).

Barry Green served as District Attorney for Wise and Jack Counties from 1993 through 2000. He is now a partner in the Decatur law firm of Smith & Green, P.C. and is Board Certified in Criminal Law.

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