Tuesday, March 22

Activist Legislators, or, The Separation of Powers Run Amok

By Dahlia Lithwick - Senior editor at Slate for Law and Jurisprudential Reporting

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. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.

And what is the overwhelming constitutional value that supersedes each of these centuries-old legal notions? Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. Republicans acknowledged this weekend that their views on "the sanctity of life" trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, "We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that's what we're doing."

This congressional authority to simply override years of state court fact-finding brings with it other superpowers, including the power of gratuitous name-calling: Members of Congress unable to pronounce Schiavo's name just last week are denouncing her husband as an adulterer and common law bigamist who withheld proper medical care from her. I wonder what they'd say about my parenting—or yours—if they decided to make a federal case out of every domestic-custody dispute currently resolved in state court proceedings.

Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks. His colleagues are similarly self-appointed neurological experts. Years of painstaking litigation, assessment, and evaluation by state courts are dismissed by Tom DeLay as the activist doings of a "little judge sitting in a state district court in Florida." Only the most extraordinary levels of congressional hubris could allow a group of elected citizens to substitute their personal medical, legal, and ethical judgments for those of the doctors, judges, and guardians who have been intimately involved with this heartbreakingly sad case for years.

And shouldn't we worry—just a bit—when in the name of a "culture of life" Congress enacts legislation that singles out just one Florida family for special legal standing? Frist calls this "a unique bill" that "should not serve as a precedent for future legislation." Yet Schiavo is just one of up to 35,000 people in this country in a persistent vegetative state as the result of trauma, drug overdose, or other medical complications. Remember what happened to Élián Gonzáles when the federal government decided to embroil itself—just this once—in a custody dispute? Why does Terri Schiavo alone warrant the legislative intercession of these self-appointed crusaders? (Not because this is a "great political issue" that would appeal to the base and defeat a Florida Democrat, according to a one-page memo distributed to Republican senators last week.) The last time Florida had to contend with a good-for-one-ride-only legal intervention of this sort was in Bush v. Gore.

Take a peek into any chat room (or this Fray in 15 minutes) and you will find hundreds of individuals who personally know that Terri Schiavo is—despite voluminous testimony by her doctors and her guardians ad litem and the findings of multiple judges—capable of laughter and responsiveness and a full recovery. How do they know these things? The same way their elected representatives do: They watched a video clip. And because anyone who disagrees with the video is a murderer and torturer, the state court judge in this case requires constant police protection: The standard-bearers of the "culture of life" keep threatening to kill him.

The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.

This is not a slippery-slope case, where it's a short hop from "executing" those in persistent vegetative conditions to killing anyone with a disability. This is a case in which an established right-to-refuse-treatment claim, litigated for years up and down through the appeals courts, is being thwarted by parents with no custodial claim to their child. By stepping in merely to sow doubt as to whom Terri Schiavo's proper custodian might be, rather than creating some new constitutional right to a "culture of life," Congress has simply called the existing legal regime into doubt without establishing a new one. This new law offers no clarity about what the new federal claims might be. It just forum-shops for a more tractable judge.

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that what you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life," is not a decision to be taken over a weekend.

Dahlia Lithwick is a Slate senior editor.

Conservatives class over Shavio Case, NYTIMES

"This is a clash between the social conservatives and the process conservatives, and I would count myself a process conservative," said David Davenport of the Hoover Institute, a conservative research organization. "When a case like this has been heard by 19 judges in six courts and it's been appealed to the Supreme Court three times, the process has worked - even if it hasn't given the result that the social conservatives want. For Congress to step in really is a violation of federalism."

"My party is demonstrating that they are for states' rights unless they don't like what states are doing," said Representative Christopher Shays of Connecticut, one of five House Republicans who voted against the bill. "This couldn't be a more classic case of a state responsibility."

"This Republican Party of Lincoln has become a party of theocracy," Mr. Shays said. "There are going to be repercussions from this vote. There are a number of people who feel that the government is getting involved in their personal lives in a way that scares them."

The Republican Party has long associated itself with limiting the power of the federal government over the states, though this is not the only time that party leaders have veered from that position. Most famously, in 2000, it persuaded the Supreme Court to overturn a Florida court ruling ordering a recount of the vote in the presidential election between Al Gore and George Bush.

But now the Schiavo case is illustrating splinters in the conservative movement that Mr. Bush managed to bridge in his last campaign, and the challenges Mr. Bush and Republicans face in trying to govern over the next two years, even though they control Congress as well as the White House.

Schiavo Recovery Impossible, Experts Say
Mon Mar 21, 2005 01:05 PM ET

WASHINGTON (Reuters) - Terri Schiavo, at the center of an emotional and political storm over whether she should be allowed to die, will almost certainly never recover from her unconscious condition, neurologists agree.

She is in a permanent vegetative state, and no one has ever come back from such a condition, according to the American Academy of Neurology.

"Approximately 10,000 to 25,000 adults and 6,000 to 10,000 children in the United States are diagnosed as being in the persistent vegetative state," the Multi-Society Task Force on Persistent Vegetative State says in its 1995 guidelines on the condition, the latest available.

"Survival beyond 10 years is unusual. The chance for survival of greater than 15 years is approximately 1 in 15,000 to 1 in 75,000," it adds.

While most neurologists agree that recovery is almost impossible, the decision on whether and how long to keep such a patient alive is usually left to the individual doctor and the patient's guardian.

Schiavo has been in the condition, which is far more severe than a coma, since she had a heart attack in 1990 that deprived her brain of oxygen. Under the medical definition, that became a permanent state after a month.

Her husband and legal guardian, Michael Schiavo, has fought to allow her to die and courts have supported him.

The tube was removed on Friday after Florida courts rejected numerous last-ditch legal attempts by the parents, Bob and Mary Schindler, to keep their daughter alive. But early in the hours of Monday morning President Bush signed a bill allowing federal courts to again intervene in the matter.

The Schindlers believe their daughter responds to them and her condition could improve with treatment. Tennessee Sen. Bill Frist, a surgeon and Senate majority leader, has viewed videotapes and agrees.

But Dr. Ronald Cranford, a neurologist and bioethicist at the University of Minnesota Medical School, said reflexes can fool non-specialists.

"To the families and loved ones, and to inexperienced health care professionals, PVS patients often look fairly 'normal,"' Cranford said in a statement.

"Their eyes are open and moving about during the periods of wakefulness that alternate with periods of sleep; there may be spontaneous movements of the arms and legs, and at times these patients appear to smile, grimace, laugh, utter guttural sounds, groan and moan, and manifest other facial expressions and sounds that appear to reflect cognitive functions and emotions, especially in the eyes of the family."

Such patients can even squeeze a hand in response to a caress, Swedish Covenant Hospital in Chicago says in guidance posted on its Internet Web site.

"Sadly, these actions often appear meaningful to hopeful families but are all automatic reflexes -- not movements with a purpose," it reads.

"There are no confirmed reports of anyone fully recovering from a permanent vegetative state lasting more than three months."

This is because in such patients, the cerebral cortex has been destroyed, said Dr. Lawrence Schneiderman, a physician and bioethicist at the University of California, San Diego.

"Four to six minutes of anoxia, lack of oxygen, destroys that completely," Schneiderman wrote in comments posted on the Internet at http://seeingthedifference.berkeley.edu/schneiderman.html.

"The rest of your brain, particularly the brain stem, can survive for fifteen or twenty minutes without oxygen," added Schneiderman, who signed a friend of the court brief in July of last year supporting Michael Schiavo.

"What happens is that that part of the brain, the cerebral cortex, which is us, our personality, who we are, how we think -- our capacity to experience, see, hear, think, emote -- that may be permanently destroyed."

Experts say Terri Schiavo would experience no discomfort if allowed to die, as the part of her brain that experiences pain is unlikely to be functioning.

from the Washington Post---

Republicans acknowledged that the intervention was a departure from their usual support for states' rights. But they said their views about the sanctity life trumped their views about federalism.

An unsigned one-page memo, distributed to Republican senators, said the debate over Schiavo would appeal to the party's base, or core, supporters. The memo singled out Sen. Bill Nelson (D-Fla.), who is up for reelection next year and is potentially vulnerable in a state President Bush won last year.

"This is an important moral issue and the pro-life base will be excited that the Senate is debating this important issue," said the memo, which was reported by ABC News and later given to The Washington Post. "This is a great political issue, because Senator Nelson of Florida has already refused to become a cosponsor and this is a tough issue for Democrats."


The Bush administration and the current Congressional leadership like to wax eloquent about states' rights. But they dropped those principles in their rush to stampede over the Florida courts and Legislature. The new law doesn't miss a chance to trample on the state's autonomy and dignity. There are a variety of technical legal doctrines the federal courts use to show deference to state courts, like "abstention" and "exhaustion of remedies." The new law decrees that in Ms. Schiavo's case, these well-established doctrines simply will not apply.

Republicans have traditionally championed respect for the delicate balance the founders created. But in the Schiavo case, and in the battle to stop the Democratic filibusters of judicial nominations, President Bush and his Congressional allies have begun to enunciate a new principle: the rules of government are worth respecting only if they produce the result we want. It may be a formula for short-term political success, but it is no way to preserve and protect a great republic.


Douglas W. Kmiec, a conservative law professor at Pepperdine University, said the legislation had left him anguished.

"I would be naturally inclined to Terri Schiavo's part in this enterprise," Professor Kmiec said. "This is, however, a benignly intended but tragically mistaken law. It contravenes almost every principle known to constitutional jurisprudence."

A Congressional call for a do-over by legislators unhappy with the result in a single case could, however, raise issues under the Constitution's equal protection clause.

"It is a basic principle of our legal system," said Laurence H. Tribe, a law professor at Harvard, "that no legislature may intervene in the most personal and intimate choices that individuals and families make except pursuant to neutral and general laws, laws that draw lines capable of justification in principled terms."

The lawsuit Ms. Schiavo's parents filed early yesterday made five arguments, and legal scholars said they found them largely unpersuasive.



or as Scott Rosenberg of Salon puts it in an editorial---

So to hell with the courts, to hell with the evidence, and to hell with the careful determination of Terri Schiavo's wishes that the courts have made. Bush and his supporters aren't happy with the outcome, so they're going to federalize the case! The president himself -- who has, through international crises thick and thin, been unable to rouse himself from those long, long vacations at his Texas ranch, even when hundreds of thousands were killed by the Indian Ocean tsunami -- will fly back to Washington to sign the bill! Sanctity of life? The hypocrisy would be ludicrous if the case weren't so heart-rending. We will turn our backs on the myriad deaths in Sudan, we will pay any price in casualties to root out phantom weapons of mass destruction, we will execute the mentally retarded without lifting a pardoning executive finger -- but heaven forbid the courts from concluding that one poor woman whose brain shut down many years ago would have preferred her relatives let her die in peace. No, that cannot stand; we must bend or break our system of government to stop it.

Or William Saletan, Slate's Chief Political Correspondant:

...once people like you, me, and Tom DeLay start second-guessing the judges, doctors, and families who know a case firsthand, it never ends. The "culture of life" becomes a regime of ham-fisted political reinvestigation that does for ethics what medieval barbers did for health.

If Congress makes such decisions, here's the kind of judgment you'll get. At a press conference Saturday, one Republican congressman said his colleagues were intervening in the case "so that this young woman can continue to make her parents as happy as she has"—as though that were the purpose of her existence. DeLay accused Democrats of starving Schiavo to death. He called it "medical terrorism." One day DeLay said she'd die slowly of starvation; the next, he said Congress had to move fast because she'd die quickly of dehydration. 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.

...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.