my pissant two cents

Tuesday, March 22, 2005

citizen terri

just when you think congressional republicans could get no more venal, cynical and contemptible, they find a new low to reach.

it wasn't enough that they changed the ethics rules so house minority leader tom de lay (r-tx) would not have to give up his position in the event of a criminal indictment for excessively shady, if not entirely illegal, campaign finances. it wasn't enough that they ram-rodded a bankruptcy law through congress that protects rich debtors and credit card companies, but puts everyone else on the chopping block. and don't get me started on the alaskan national wildlife refuge....

no, those were peanuts. now they are taking extraordinary measures, calling an extraordinary session, to force a hollow shell of a woman to live. not content to let state courts interpret the law and ensure that all appropriate measures are taken, the republican congress forced through a law that applies only to her, and does nothing more than command a federal court to review her case.

poor terri schiavo. she has been in a "persistent vegetative state" since 1990, when a heart attack caused her to suffer irreparable brain damage. her husband, scott schiavo, has been working for these 15 years to finally end the artificial life support that has kept her alive in only the most primitive sense of the word. her parents and siblings have fought to keep her alive, while mr. schiavo has sought to end her non-life, citing her desire to avoid such indignity.

last friday, after years of legal wrangling, medical analysis and ethical rumination, a florida judge ordered that ms. schiavo's feeding tube be removed, so that she may die. that should have been the last word on the matter.

but no. the g.o.p., according to a memo published by, thought the schiavo case "a great political issue" that would "excite" the christian fundamentalists who make up the president's base (the unfathomably rich notwithstanding). so they went into action, and the separation of powers be damned.

the law they passed, and which the president signed into law at 1:11 a.m. monday (cutting short a vacation-- which he wouldn't do a few years back when the intelligence community warned of imminent, catastrophic danger from muslim fundamentalists), is so colossally stupid and cynical that no one believes it has a chance of success. leave alone, for the moment, that the congress has no authority to tell the courts how they must decide cases. and this law comes very close to doing so, since it clearly expresses hostility to friday's florida decision and all but directs the federal court how to rule. rather than being so blatant, it directs a federal court to hear the case, which florida courts have been doing since clinton's first administration. it applies only to the schiavo case, and provides an avenue to judicial review only to schiavo's parents.

strike one came this morning. the federal judge who heard the parents' argument yesterday ruled that there is no violation of terri schiavo's rights in the order that resulted in her feeding tube being removed. district judge james whittemore found that "theresa schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts."

the case will be appealed to the 11th circuit, with a result that will be almost moot, as either side is likely to appeal from that result. then it goes to the supreme court. there, things get worse for the parents. there is precedent that states a patient may refuse extraordinary life-saving measures (cruzan v. missouri dept. of health, 1990), and another that states that final judicial decisions should not be disturbed (plaut v. spendthrift farm, 1995).

this may be of little consequence, since the five conservative justices have shown little respect for stare decisis when it interferes with their political ends. there is, however, a bit of a bump in the road, since justice scalia wrote the plaut opinion, and chief justice rehnquist affirmed the cruzan decision in a later opinion.

but let us not forget how little the right demands of its leaders by way of intellectual integrity. after all, rehnquist and scalia were two of the five justices who made fredo the president. despite their alleged love of federalism and states' rights, they dove right into bush v. gore to take the analysis of florida law right out of the hands of florida's judges.

for that matter, take the dolt-in-chief. he rushed back to d.c. from his crawford, texas, ranch to sign "terri's law," so that she would remain all-but-dead. but just six short years ago, as governor of texas, he signed a law that made the patient's guardian and doctors the final arbiters of the life-support decision, provided there was evidence that further medical treatment would be futile. the law also permits the hospital to withdraw life support against the family's wishes, if the patient is too poor to pay for further treatment at another facility....

ironically, last week, a 6-month old infant in houston was removed from life support-- over his mother's protestations-- because a doctor said it was pointless to go further. the legal basis? bush's 1999 "advance directives act."

and on a further irony/hypocrisy note, those tort-reforming, medicare-throttling republicans are pushing for life for a woman whose sole means of paying for her life-sustaining machinery come from medicare and-- get this-- the medical malpractice lawsuit spawned by the treatment that led to her sorry state.

lest you think that there is nowhere for the g.o.p. to go but up, remember that there is a midterm election next year.

nadirs unimaginable are just over the horizon.

Wednesday, March 02, 2005

killing in the name of...

well, we should definitely pat ourselves on the back. the united states no longer advocates killing children.

noble stand, huh?

the supreme court ruled 4-3 in the case roper v. simmons that it is cruel and unusual punishment to execute those convicted of crimes committed before their 18th birthdays. this is good, and it augurs well for a notion that killing people who kill people to show that killing people is bad is not such a smart thing to do.

justice anthony kennedy wrote the opinion for the majority, stating that the changing social climate makes it improper to impose the death penalty on those who may not have the maturity to appreciate the consequences of their actions. in so stating, kennedy acknowledge that only 20 states allowed such executions.

this follows a 2002 decision that outlawed executing the mentally retarded, which overturned a 1989 decision that said such state-sanctioned killing was both hunky and dory.

this gives one hope. the same court ruled just 17 months ago in lawrence and garner v. texas, finding unconstitutional laws that banned consensual sodomy between adults, overturning the ill-conceived 1986 decision bowers v. hardwick, which upheld such bans. it seems that at least some members of the court are willing to rethink atavistic ruling for the sake of enlightenment.

however-- and there's always a however when the word "enlightenment" is attached to the supreme court-- the minority is not going gently into that good night.

the anti-enlightenment justice "tweedledee" scalia wrote in dissent, joined by chief justice "tweedledum" rehnquist and justice "tweedledumber" thomas, that "the Court thus proclaims itself the sole arbiter of our nation's moral standards -- and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures."

well, hell. nevermind, for the moment, that in the aforementioned garner decision allowing adults to make their own moral choices regarding what they do with their naughty bits, torquemada scalia worked himself into a froth because the majority of the court refused to make itself the arbiter of the nation's morals.

and also forget that the four in the minority who support state's killing children also oppose women's right to choose because, in their estimation, it kills children. it only proves the adage that conservatives' concern for the sanctity of human life begins at conception and ends at birth.

scalia seems to get his bloomers bunched up because he doesn't like the idea of looking to other nations for guidance on how to comport with evolving standards of human decency. i'll not dwell on the american egotism and exceptionalism that this declaration of hubris entails. rather, i will point out to the justice that it does not require looking to other nations. the simmons ruling was informed, to some extent, by u.s. law.

article iv, clause 2 of the u.s. constitution states: "...all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

part iii, article 6, section 5 of the international covenant on civil and political rights, signed by the united states, says: "sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women."

granted, the u.s. has yet to ratify the covenant, but that is a fine-line distinction, which the justice likes to so freely draw when it fits his needs. the u.s. signed the treaty, therefore it was made. the treaty should hold some persuasive water, if not bear its full effect. the separation of powers doctrine requires ratification, but the fact that treaty was signed nigh on 30 years ago should have some level of meaning. i would not expect justice scalia to agree, since it does not suit his needs.....

there is no reason to believe that the supremes will ever find the death penalty itself unconstitutional. our history is too firmly entrenched in vengeance and bloodlust for that to happen. but there is reason to hope that the people themselves may someday find a shadow of compassion in their hearts, that they will see that sometimes innocent people are condemned to die (see the film "the exonerated," with wonderful performances by aidan quinn, delroy lindo, susan sarandon and others, for true stories of police and prosecutorial misconduct that allows such things to happen). they will see that in a nation that allows any innocent to perish at the hands of the state, no one is truly free.

i'm not exactly optimistic on this front, but i have hope.