Thursday, March 31, 2005
Real-life filibusters are another matter, however. They can be used for good or evil. In fact, segregationist Southern senators used filibusters to preserve the poll tax and block civil rights and anti-lynching legislation for generations. Among the real-life practitioners were the late Senators Strom Thurmond of South Carolina and Theodore Bilbo of Mississippi.
. . . .
In reality, the filibuster is simply and by definition the use of obstructionist tactics to delay legislative action. The legislation being blocked can be good, bad, or indifferent, depending on one's point of view. The historical reality is that the filibuster was the means by which the segregationist South blocked federal civil rights legislation for many decades after a majority favored it.

One practitioner was Sen. Theodore Bilbo of Mississippi, an avowed white supremacist. The real-life Sen. Bilbo was quite a contrast with the fictional Sen. Smith. In 1947, a few years after the movie, Sen. Bilbo found himself facing real charges of pocketing money intended for his campaign and intimidating black voters during his re-election campaign of the previous year. Bilbo wasn't sworn in, even though Southern colleagues launched a filibuster that threatened to paralyze the Senate until he was allowed to take his seat. Bilbo went back to Mississippi and died of cancer before the matter could be resolved.

Jefferson Smith's fictional 23-hour filibuster was actually eclipsed many years later in real life, when Sen. Strom Thurmond of South Carolina held the floor for 24 hours and 18 minutes – still the Senate record for a one-man filibuster. He finished the morning of Aug. 29, 1957. Thurmond, who was then a Democrat, was staging an attempt to block a weak civil-rights bill that even some other Southerners favored.

Filibusters continued to block serious civil rights legislation right up until 1964, when the Senate was finally able to muster the two-thirds majority that was then required to end debate. The last to filibuster against the landmark 1964 legislation was Sen. Robert Byrd of West Virginia, who spoke for 14 hours and 13 minutes, finishing the morning of June 10 – the 57th day of debate on the measure.

It is one of the ironies of US politics that the National Association for the Advancement of Colored People, which lobbied so long for the 1964 civil rights bill, is currently lobbying to save the filibuster. In a recent "action alert," the NAACP said that eliminating the filibuster would allow "right-wing extremists to be confirmed to lifetime appointments on the federal bench."

Misstating the Issue

The PFAW ad also misstates the issue. It features firefighter Ted Nonini saying that the movie Senator Smith was using the filibuster "so that the other point of view could be heard" and adding, "I also know that our democracy works best when both parties are speaking out and being heard." In fact, eliminating the filibuster would still allow all senators ample opportunity to speak and be heard. What's actually at stake is whether a minority of 40 senators will continue to have the power to block legislation favored by a majority -- particularly the confirmation of Bush's judicial nominees.
Wednesday, March 30, 2005
I haven't read the opinions yet, so I can't really comment on the merits. Although I would note the breakdown of the judges on the opinions in this 5-3 decision was a bit odd with Scalia joining Stevens, Ginsburg, Breyer, and Souter in the majority opinion, and O'Conner dissenting along with Thomas and Kennedy.
I don't think a better structure would solve all their problems, but it certainly would be helpful. As someone who knows very little about the organization and interworkings of the parties, I find it a bit shocking that the Democratic party seems so disorganized (according to Bradley).

As an aside, if Bradley would have been the Democrats' presidential nominee this year, I bet he would have won.
Tuesday, March 29, 2005
Via Instapundit, Roger Simon has a good commentary on the second interim Volcker report. Here is my take based on his commentary - including reasonable inferences from facts disclosed in the report: it is clear there was very significant corruption at the U.N.; it is clear that Kojo Annan is clearly guilty of wrongdoing; and it is clear that Kofi Annan is at best covering up for his son - more likely he was also involved in the wrongdoing at least to some extent.

The U.N. needs very significant reform, it needs a house cleaning of leadership, and even with that the U.N. still might not be saved. The first step is pretty clear though - Kofi Annan has to go. The U.N. will continue to be a joke so long as he is in charge.

Update: Via Powerline, Kofi Annan responded "hell no," today when asked if he would resign. That seems a bit defensive to me. As Powerline notes, this is good news for those who are neither Kofi nor U.N. fans -- they will just keep sinking to the bottom together.
Sunday, March 27, 2005
Thomas Sowell writes an editorial by that name in today's Washington Times. Too bad (for him) it is Sowell who is confused.

Sowell's first point is to dispute those who say Terri Schiavo's death is gentle, by looking at how non-vegetative people have been described when dying of starvation. But this misses the point - Terri Schiavo is in a PVS - she has no cognitive ability and doesn't have the ability to know she is starving (nor does she feel any effects from it).

Sowell asks if this is such a painless process why not videotape it. Perhaps because at least some people actually care about Terri Schiavo and do not want to destroy any more of her dignity? Perhaps because some people have minimal respect for other people? (One could just as easily make the absurd request that if starving to death is so painful, why doesn't Mr. Sowell starve himself to death and videotape it. I will refrain from saying any more - but this suggestion of videotaping her death is disgusting to say the least - and shows Mr. Sowell doesn't care about Terri Schiavo at all).

Mr. Sowell doesn't probably know this, but people who have actually taken the time to read about this case in detail (like myself) know that it is undisputed that Terri Schiavo was a very self-conscious person, who, according to her husband and his brother (Terri's brother-in-law) "would have been mortified" by being videotaped in her condition and having it shown publicly (and seen by so many).

And Mr. Sowell also didn't do his research on who testified as to Terri's wishes (something one can learn in about 2 minutes via google, or via lexis and a quick review of the reported appellate decisions). Terri's husband, Michael Schiavo, and both her brother-in-law and sister-in-law all testified that Terri Schiavo had made comments about not being kept alive in this type of a situation. Sure someone could argue that the other two are lying or misremembering to support their brother (although I can't think of any motivation for that), but you have to know that they testified first before you can argue that. (what a shocking suggestion - know the facts before taking a position on a case....)

Sowell writes:
This case is one where many people speak with certainty about very uncertain things -- and the certainties of one side contradict the certainties of the other.
True, but fortunately some of us (unlike Sowell) at least try to learn the facts that are available before spouting off.

Sowell then closes with this preposterous argument (that again shows he has no knowledge of the facts of the case):
Terri Schiavo is being killed because she is inconvenient to her husband and is inconvenient to those who do not want the idea of the sanctity of life strengthened and become an impediment to abortion. Nor do they want the supremacy of judges challenged, when judges are the liberals' last refuge.
Why would the husband go through all of this if he is only doing it to stop being "inconvenienced?" He could have walked away from this years ago and let the parents become Terri's guardian. So why didn't he? There are 3 possible responses (two that are clearly wrong). The Sowell's of the world assert one (or both) of these two possibilities: (1) the money from the malpractice suit; or (2) because Michael Schiavo is the one who caused the incident in 1990. Besides being absurd, both are factually wrong.

As to the first, the money is essentially all gone, so that can't be the continuing motivation. As to the second, people who argue this simply do not understand forensic medicine. 15 years after-the-fact there would be no evidence of anything. And frankly, there is no credible evidence that the husband had anything to do with this in the first place. (During the litigation there were similar unsubstantiated allegations of abuse, and those allegations were rejected by police investigators) This accusation is just a slanderous act of desperation by the pro-life ideologies most likely.

The third possibility - the only one with logical support that is not contradicted by the facts - is that Michael Schiavo is doing this because it is what he believes Terri wanted. Imagine that, someone who actually cares about Terri.

In short, besides being disgusting, Sowell's editorial is meritless and shows a shocking lack of knowledge of the facts. Apparently human dignity is not part of the pro-life agenda - at least not as exemplified by Sowell.
Great op-ed piece in today's Washington Times by Jay Ambrose, critiquing over-reliance on science as the only measure of truth. Ambrose uses an excellent reference to a Dickens' story that really pulls together the editorial (follow the link for that), and he uses that story to emphasize the following point:
I am not against science. I love it. Part of the grandeur of humans, it seems to me, is our conceptual consciousness. We have an understanding of things no other creatures on this planet can rival. We are the universe aware of itself, as others before me have also said. Becoming increasingly aware is one of our chief purposes in life, in my view. Science helps us get there. It is a major tool by which we enlarge our awareness.
But science is not competent in all things. It is extraordinarily powerful in describing physical reality -- how things work, how the universe gets from A to B -- and because of this capacity, science enables imitation, namely technology that transforms how we live, for good and bad. At the same time, it is obvious there are more ways of knowing than what is gleaned from science and that science itself has severe limitations. It is not just a little obvious, but as obvious as the pull of poetry, the uplift of drama, the sway of music in our lives, the call of beauty in a painting or a sunrise -- and the sense of the sacred so many of us experience in worshiping that which finally is a mystery but one that lends us meaning.
I bring all this up now for two reasons: The first is that in ways both subtle and blatant, science permeates our society and our psyches. Though there are far more questions it cannot answer than it can, and though is based on presuppositions not themselves scientific, it tends to chase the nonscientific from the landscape of the validly believable, reducing the marvels of this life and universe to quantifiable calculation.
If we give in to scientism -- the intellectually disreputable notion science is the only legitimate arbiter on any topic you can name -- we will have mistakenly cut ourselves off from the possibilities of wisdom, of spiritual wonder and life's fullness .
The other reason is this is Easter, preceded by Holy Week. For Christians, it can be a stretch of days in which they immerse themselves in a reality beyond the here and now, but a reality that informs the here and now. They lose themselves in the story of a man of miraculous goodness who suffered an agonizing death and rose from the dead. From Scripture readings, hymns, prayers, sermons and ritual, they take a revivified understanding of forgiveness, redemption and selfless love. There is sadness and then joy in their encounter, and often the sure knowledge of moral obligation as they rise themselves from the dead parts of their existence.
None of this is scientific, of course, which is different from saying none of this is true. I have friends who don't get the difference, and have read countless articles by those who dismiss such religious notions as harmful nonsense.
I would add to that excellent point, that not only is science not the end all and be all, but by definition science can only be interpreted by humans, and as such it is subject to human errors and misuse. The odds are that a hundred years from now scientists will look back at many of the things we believe to be scientific "truths" today and laugh at our foolishness in believing such absurd things.

That has always happened historically, and there is no logical reason to believe that we are the generation that finally figured it all out. Only hubris supports that belief.
KOFI ANNAN, the United Nations secretary-general, is said to be struggling with depression and considering his future. Colleagues have reported concerns about Annan ahead of an official report this week that will examine his son Kojo’s connection to the controversial Iraqi oil for food scheme.

Depending on the findings of the report, by a team led by the former US Federal Reserve chairman Paul Volcker, Annan may have to choose between the secretary-generalship and loyalty to his son.

American congressional critics of the UN are already pressing him to resign over the mismanagement of the oil for food programme, and even his supporters have been dismayed by the scandals on his watch, including the sexual abuse of children by UN peacekeepers in Congo.

One close observer at the UN said Annan’s moods were like a “sine curve” and that he appeared near the bottom of the trough.
. . . .

“Kofi Annan is going to find his position increasingly untenable,” said Nile Gardiner, an expert on the UN at the conservative Heritage Foundation. “There is a strong possibility he will resign voluntarily because of his declining credibility.”

We can only hope. Besides the scandals, how ineffective of a leader for the U.N. has Annan been? Since taking over as secretary-general in 1997, has the U.N. had any successes? It seems to me its role and importance in the world has just continued to fade. And with all the scandal it cannot even stand as a symbol in the international community. Seriously, why is there a U.N. anymore - what purpose does it serve? The next secretary-general needs to come up with an answer for that question - a question that Annan helped create.

Thomas Friedman thinks so. His support is two-fold:
By doing nothing to lower U.S. oil consumption, we are financing both sides in the war on terrorism and strengthening the worst governments in the world. That is, we are financing the U.S. military with our tax dollars and we are financing the jihadists - and the Saudi, Sudanese and Iranian mosques and charities that support them - through our gasoline purchases.
. . . .
Finally, by doing nothing to reduce U.S. oil consumption we are only hastening the climate change crisis, and the Bush officials who scoff at the science around this should hang their heads in shame. And it is only going to get worse the longer we do nothing. Wired magazine did an excellent piece in its April issue about hybrid cars, which get 40 to 50 miles to the gallon with very low emissions. One paragraph jumped out at me: "Right now, there are about 800 million cars in active use. By 2050, as cars become ubiquitous in China and India, it'll be 3.25 billion. That increase represents ... an almost unimaginable threat to our environment. Quadruple the cars means quadruple the carbon dioxide emissions - unless cleaner, less gas-hungry vehicles become the norm."
Are we supporting the jihadists and the mosques that support them through our oil purchases? Perhaps, they probably get some money from our oil purchases. But it also buys us something else (absent U.N. scandal ridden programs being in charge) - control and power. The U.S. only has power and control (and allies) in the Middle East arab states becuase we are the primary oil market. Through this power and control we are slowly changing the Middle East and pushing it toward democracy. So our high oil purchases are probably both good and bad - a push at best.

As far as the environment, I do not doubt that pollution from automobiles has effects, I don't think we really have any clue what those effects will be long-term (it could be worse than scientist/environmentalist claim, it could be much less of an effect than they claim - the "science" behind these studies is flimsy at best if for no other reason than we don't have data for more than a hundred years or so (a blink of the eye in terms of the planet's history) - this doesn't mean the environmentalist are wrong - it just means they really don't know if they are right or wrong). But that said, oil prices have gone up considerably due to market forces, yet Americans are still buying their SUVs. But other Americans are buying hybrids - by choice. I feel the market will slowly but surely push automakers to build more hybrids and more efficient vehicles generally. As far as China and India there is (realistically speaking) nothing the U.S. can do about that. But on a larger point, the vast majority of the world's pollution is caused (0r soon will be caused) by third-world countries I believe. So while it might be vogue to attack Americans for their inefficient cars - the real problem lies elsewhere in the world.

As far as a gas-tax, I am not personally against such a policy - but I do wonder if it would really be effective. Higher gas prices might make consumers buy more efficient cars. Or it might not change the buying habits of the above average income families, and it might force the lower income families to buy older, less efficient, cars, or keep their less-efficient cars longer in order to afford gas. It could actually increase pollution.

So in short, while I think there is much to doubt in Friedman's analysis - I don't see any downside to Bush being a bit more "geo-green." But as with many of their arguments, the environmentalists really need to think deeper about what other effects the policies they push will have. And whether they will be effective at all.
Saturday, March 26, 2005
Via Drudge, the Wall Street Journal is reporting that on Tuesday the Volcker Commission will issue an interim report that states:
[Kofi] Annan would be faulted for not paying attention to conflicts of interest involving his son, Kojo, who used his father's name and position for personal gains while with Cotecna.

At the same time, the panel is expected to conclude there is no evidence Annan rigged the U.N.'s procurement system or exerted undue influence over contractors or ever sought financial benefits, said the Journal, quoting people familiar with report's conclusions.

Kofi's supporters were quick to misuse this information to proclaim:
Annan's new chief-of-staff, Mark Malloch Brown, had earlier told reporters, "We believe on Tuesday the secretary-general will be exonerated of any wrongdoing, but like you we have to wait for the report." But he said Annan's son had admitted that "he misled his father."
When a less than independent investigation simply states they can't find evidence you comitted a crime, that is a far cry from being "exonerated." Especially when it is clear a close family member financially benefited from the scandal - it doesn't take an unreasonable leap in logic to infer possible knowledge on the part of both family members.

Will see what happens with the non-U.N. led investigations.
You are Neal Page (from Planes, Trains &
Automobiles)! Short-tempered and cut to the
chase, you like things done your way. But
you're also a devoted family man who lives up
to his responsibilities.

Which John Hughes Character Are You?
brought to you by Quizilla
In today's NYT, David Brooks argues that both the social conservative and the social liberal argument as to the Schiavo case are flawed and that is why it is such an agonizing debate. Specifically with respect to the social liberal argument, Brooks concludes:
The core belief that social liberals bring to cases like Ms. Schiavo's is that the quality of life is a fundamental human value. They don't emphasize the bright line between life and death; they describe a continuum between a fully lived life and a life that, by the sort of incapacity Terri Schiavo has suffered, is mere existence.
. . . .

The central weakness of the liberal case is that it is morally thin. Once you say that it is up to individuals or families to draw their own lines separating life from existence, and reasonable people will differ, then you are taking a fundamental issue out of the realm of morality and into the realm of relativism and mere taste.

You are saying, as liberals do say, that society should be neutral and allow people to make their own choices. You are saying, as liberals do say, that we should be tolerant and nonjudgmental toward people who make different choices.

What begins as an appealing notion - that life and death are joined by a continuum - becomes vapid mush, because we are all invited to punt when it comes time to do the hard job of standing up for common principles, arguing right and wrong, and judging those who make bad decisions.

You end up exactly where many liberals ended up this week, trying to shift arguments away from morality and on to process.
. . . .

Once moral argument is abandoned, there are no ethical checks, no universal standards, and everything is left to the convenience and sentiments of the individual survivors.
What I'm describing here is the clash of two serious but flawed arguments. The socially conservative argument has tremendous moral force, but doesn't accord with the reality we see when we walk through a hospice. The socially liberal argument is pragmatic, but lacks moral force.
I think that is just wrong. Brooks assumes what "morality" is, he makes a value judgment and from that value judgment concludes that the "socially liberal argument is pragmatic, but lacks moral force." But if you make another value choice, such as that free will is one of the highest moral values, then obviously Brooks's statement is wrong. So really what Brooks is saying is that the social liberal argument lacks his moral force.

Brooks's argument that the social liberal argument "becomes vapid mush, because we are all invited to punt when it comes time to do the hard job of standing up for common principles, arguing right and wrong, and judging those who make bad decisions," is also wrong. You can still judge under the social liberal system. You just have to realize that your judgment is based on your personal value system rather than some outside "truth." But that distinction doesn't preclude judgment. It just promotes wise and intelligent judgment really. It is when people are unwilling to test and challenge their own value system and at least consider that other's values are the better ones that the world runs into problems. I won't list here the obvious examples, but everyone knows what they are.

And the reason that the social liberals have shifted to process in this case has nothing to do with lack of moral force. It has to do with only one thing - there was a question as to what the individual's wishes were in this case. Thus, the determination had to be made by the process. If Terri Schiavo had a written living will that specifically set out this particular situation and stated unequivocally that she wanted to be starved to death in such a situation - would there be this debate? Not likely. Sure there would be the social conservatives who would refuse, even in that bright line situation, to allow Ms. Schiavo to exercise her free will by trying to impose their personal value system upon her. If the situation were reversed, however, and Terri Schiavo clearly stated she wanted to be kept alive in this situation the social liberals would yield - even if they personally would never choose that option and thought (note the judgment here) that it was a bad or wrong choice.

In short, the Schiavo situation simply highlights why social liberalism is superior to social conservatism.
Hundreds of thousands (and perhaps over a million - wow) turned out to protest the recently passed Chinese law that authorized the use of non-peaceful means (i.e., force) against Taiwan should Taiwan move to secede from China.
Vivian Wang, a 38-year-old restaurant worker, told the Associated Press news agency: "Taiwan is only a small island, so we must speak out really loud to make the world hear that we are a democracy facing an evil giant."
China is indeed an evil giant.
Friday, March 25, 2005
Great article from USA Today. Read the whole thing, here are a few choice quotes:

Those records show that Michael Schiavo and the Schindlers jointly supervised care for Terri after she collapsed. For the first 16 days and nights that she was hospitalized, Schiavo never left the hospital. Over the next few years, as she was moved from the hospital to a skilled nursing facility, to a nursing home, to Schiavo's home and finally back to a nursing home, Schiavo visited Terri daily.
. . . .

Once Terri was unable to help herself, Michael became a demanding advocate.

John Pecarek, a court-appointed guardian for Terri, described her husband as "a nursing home administrator's nightmare," adding, "I believe that the ward (Terri) gets care and attention from the staff of Sabal Palms (nursing home) as a result of Mr. Schiavo's advocacy and defending on her behalf."

Mary Schindler testified that, while her daughter was at one nursing home, her relationship with her son-in-law was "very good. We did everything together. Wherever he went, I went."

Schiavo and the Schindlers even sold pretzels and hot dogs on St. Pete Beach to raise money for Terri's care. But everything seemed to change on Valentine's Day 1993 in a nursing home near here.

In 1992, Schiavo had filed a medical malpractice lawsuit against two doctors who had been treating his wife before she was stricken. Late that year came a settlement: Schiavo received $300,000 for loss of consortium — his wife's companionship. Another $700,000 was ordered for Terri's care.

Mary Schindler later testified that Schiavo had promised money to his in-laws. They had helped him and Terri move from New Jersey to Pinellas County, let them live rent-free in their condominium and had given him other financial help.

"We all had financial problems" after Terri's crisis, she testified. "Michael, Bob. We all did. It was a very stressful time. It was a very financially difficult time. He used to say, 'Don't worry, Mom. If I ever get any money from the lawsuit, I'll help you and Dad.' "

By February 1993, Schiavo had the money from the lawsuit.

On Valentine's Day that year, he testified, he was in his wife's nursing home room studying. He wanted to become a nurse so he could care for his wife himself. He had taken Terri to California for experimental treatment. A doctor there had placed a stimulator inside Terri's brain and those of other people in vegetative states to try to stimulate still-living but dormant cells.

According to Schiavo's testimony, the Schindlers came into Terri's room in the nursing home, spoke to their daughter, then turned to him.

"The first words out of my father-in-law's mouth was how much money he was going to get," Schiavo said. "I was, 'What do you mean?' 'Well, you owe me money.' "

Schiavo said he told his in-laws that all the money had gone to his wife — a lie he said he told Bob Schindler "to shut him up because he was screaming."

Schiavo said his father-in-law called him "a few choice words," then stormed out of the room. Schiavo said he started to follow him, but his mother-in-law stepped in front of him, saying, "This is my daughter, our daughter, and we deserve some of this money."

Mary Schindler's account of that evening is far different. She testified that she and her husband found Schiavo studying. "We were talking about the money and about his money," she said. "That with his money and the money Terri got, now we could take her (for specialized care) or get some testing done. Do all this stuff. He said he was not going to do it."

She said he threw his book and a table against the wall and told them they would never see their daughter again.
. . . .
[A]ccording to additional court documents cited by The Miami Herald. In the documents, Pamela Campbell, then the Schindlers' lawyer, told the court that "we do not doubt that she's in a persistent vegetative state." Campbell could not be reached to confirm the statement.

At this point, however, the gulf between Schiavo and the Schindlers could not be bridged.

"On Feb. 14, 1993, this amicable relationship between the parties was severed," Greer wrote. "While the 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."

Daniel Grieco, the attorney who handled Michael Schiavo's malpractice case, says his client never promised money to Bob Schindler. He also said Schindler never understood that he wasn't entitled to money under Florida law.

Grieco says the money is at the root of the estrangement. "It was the precipitating factor," Grieco says. "That was the fracture. That was the basis of it."

Without the acrimony, Terri's life-or-death saga probably would not have become big news, says Steve Mintz, a history professor at the University of Houston who studies families.
. . . .

Today, the money from the lawsuit settlement is almost gone, Grieco, the attorney, says. Just $40,000 to $50,000 remained as of mid-March. The $700,000 in Terri's trust has paid for her care, lawyers, expert medical witnesses. Michael Schiavo's $300,000 share evaporated years ago, he says.

Views about life, death

Terri Schiavo left no instructions about her care. In such an instance, Florida law requires a judge to follow a person's last wishes, if they can be established.

In his order, Greer said he relied upon the testimony of five witnesses regarding Terri's views about right-to-die issues. Schiavo, his older brother Scott and Joan Schiavo, wife of another of Schiavo's brothers, all said Terri had said or indicated that she would not want to be kept alive if her brain stopped working. Mary Schindler and Diane Meyer, a childhood friend of Terri's, testified that she she would.

Scott Schiavo testified that after the 1988 funeral for his grandmother, who was briefly kept alive on artificial life support, a clutch of relatives sat around a luncheon table in Langhorne, Pa., talking about the way she had died. "And Terri made mention ... 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.' "

Joan Schiavo testified that she and Terri, whom she described as "my best friend and like a sister that I never had," had discussed artificial life support as many as 12 times. Joan Schiavo testified that she had a girlfriend who had decided to take her baby off life support, and that Terri indicated she would have done the same thing.

Mary Schindler's recollection of what her daughter wanted was different. She testified that Terri had commented on news coverage of the case of Karen Ann Quinlan, whose ventilator was turned off in 1976 after her parents went to the New Jersey Supreme Court. Schindler said her daughter told her this about Quinlan: "Just leave her alone. Leave her. If they take her off, she might die. Just leave her alone and she will die whenever."

Wow, how come I never read that before? Everyone assumes the husband is the bad guy here - what if it is really the parents who are the greedy money-grubbers? By the way, in 1976 Terri was 13 years old - hardly an adult at that time.

Update: The New York Times has a very similar story - but it does have additional information. It is also a very good read.

From the BBC.:
United Nations peacekeeping staff in Eritrea have rung up more than $500,000 of unpaid international calls.

The fraud was discovered last year when auditors noticed huge billing discrepancies in 2003, the UN said.

Schemes such as stealing pin codes and abusing a one-minute grace period before being charged for a connection accounted for the "irregularities".

The countries of those caught swindling their phone bills have been charged, but so far only $14,000 has been paid.

The UN Mission to Ethiopia and Eritrea (Unmee) said the process of unravelling the fraud was "painstaking and complex, involving the manual verification of 1.4m lines of computer billing data".

UN staff are affiliated to peacekeeping missions from their country's team at the UN headquarters in New York.

To avoid absorbing the cost itself, Unmee has forwarded $364,000 of confirmed bills to New York.

Since 2000, a 3,000-strong Unmee peacekeeping force has patrolled Eritrea's tense border with Ethiopia.

The two Horn of Africa countries fought a war between 1998 and 2000 that is thought to have killed more than 70,000 people.

My question, how the heck do 3000 people ring up half a million dollars in phone bills? I am betting 976 numbers were somehow involved....
According to CNN:
PINELLAS PARK, Florida (CNN) -- A Florida state judge will rule by noon Saturday on a motion filed by Terri Schiavo's parents, who contend that their brain-damaged daughter has expressed the wish to live.

"She managed to articulate the first two vowel sounds, first articulating AHHHHHHH and then virtually screaming WAAAAAAAA," the motion said.

The incident happened in the presence of Schiavo's sister, Suzanne Vitadamo, and an aunt, the motion said.

It is too bad no unbiased observers were around for this.... Of course, "Ahhhh Waaaa" could be an expression of the wish to die too - who knows what that means? (assuming it happened, which I feel pretty comfortable in believing is an incorrect assumption).

Update: I was probably wrong, well sort of. According to ABC:
Doctors who have examined her for the court case have said her previous utterances weren't speech, but were involuntary moans consistent with someone in a vegetative state. Greer, who had ordered the tube removed, ended a hearing later Friday; he was expected to announce a decision by noon Saturday.
So she probably did make the sounds, they just don't mean anything.
Via Matthew Yglesias, the New York Times has an article comparing the current housing boom to the boom of the late 90's. I think they are right. It is the greater fools theory all over again. People are buying housing on the assumption that prices will keep rising even though the fundamentals don't support that (like the P/E ratios didn't support for the Dot.coms).

The population is aging, and developers continue to build more and more homes. Increasingly more of these homes are being purchased by investors who do not rent them out at all, but just hold them for a profit. Last year 25% of home purchases were by investors (that is just shocking - so shocking I have trouble believing it). But regardless of the percentage, this has the effect of artificially increasing apparent demand as people who actually are buying homes to live in still have to buy. Supply may very well have already vastly out paced demand, and we just do not know it because of all the investors.

At some point something will happen - increasing mortgage rates perhaps or a drop in real demand that reveals a glut in housing (more likely both in combination) - and prices will stop increasing or slow considerably as developers cannot sell their new homes. Then all hell breaks loose. Investors panic and try to dump their houses for any profit they can. Developers who have to sell given their huge financial commitment to the project, will have to match or beat those prices to get sales just to maintain the cash flow their operations require. Likely at the same time higher rates put additional downward pressure on demand, and prevent some who want to buy from buying. As investors see that they cannot sell their real estate holdings in a short time period (which are obviously much less liquid than stocks) they will lower prices more and more just to move them so they don't get completely wiped out.

It could get really ugly - in some markets (Florida and California) it could cause an out and out local recession/depression. I don't know if anyone really knows what kind of effects such a scenario could have on the general economy. But it won't be good.
Great post by Professor Althouse. She discusses an interview by Ralph Nader where he points out in the Schiavo case Republicans are in the compassionate position, while Democrats have taken the harsh view. When it comes to occupational and workplace deaths, air pollution, medical malpractice etc., Republicans are (according to Nader) in the cruel position, and Democrats are the compassionate ones. Professor Althouse notes:
Nader asked Timbs and Norton a great question: Why aren't Republicans and Democrats consistently compassionate? Timbs and Norton filled the airspace with words but made no serious attempt to answer the question.
My question is, what is compassionate in these two scenarios? In the case of Schiavo is it compassionate to allow a person who (arguably) wanted to die in this circumstance to die? Or is it more compassionate to ignore that person's wishes to die in this circumstance in order to allow her parents to artificially keep her alive so that they feel better?

In the case of a work place deaths and occupational injuries is it more compassionate to do everything you can to prevent even one death or injury if it means hundreds more lose their jobs and go into poverty or worse? Or is it more compassionate to allow a few deaths or occupational injuries in order to allow businesses to thrive thus allowing more workers (and their families) to earn a living? Is it more compassionate to allow injured individuals in malpractice cases to recover millions in wind-fall judgments, the result of which is an increase in the cost of insurance that causes millions to be uninsured?

I think the answers to those questions are up to each person's individual value systems (and obviously based on how you frame the question).

But I think that regardless of the answer, you can be consistently committed to a system and process, and so long as that system is fair, in some sense at least, you are being compassionate. A worker may die, but if there is a system in place to financially compensate that workers family, while still obviously a tragedy, at least the financial loss can be restored to the family. (Can any system stop all workplace injuries and deaths? I doubt it.) In the Schiavo case someone is going to be unhappy with the outcome either way - but if the system that decides is fair, I think that is compassionate.

I think this feeds back in to Professor Althouse's question, I think one can only be consistently compassionate if they focus on the process rather than the outcome. If you start picking outcomes, you are going to run into a situation where regardless of your choice you can be considered to be on the non-compassionate side. The Schiavo case, I think, is one of those situations. Regardless of which end result you side with, the other side can say you are not being compassionate. You are either choosing against the parent's wishes, or you are choosing against Terri's right to die and her wishes (people can argue I am wrong about Terri's wishes - but there is no Schiavo case if there had not been an adjudication that she wanted to die, so I think I can assume that is correct for the purposes of this argument - which is not directly about the Schiavo case).

It is a no-win situation if you are trying to be outcome-compassionate. But if you are process "compassionate," then I think you can be consistently compassionate. Regardless, it is indeed a very good question (even if my answer was not).
Thursday, March 24, 2005
Josh Marshall writes:

Today, in newspapers and on websites across the country, headlines used words like 'broke', 'bankrupt' and 'bust' to describe what happens to Social Security when it starts running a deficit at some time in the middle of this century. Only weeks ago, President Bush was being forced to back off such misleading and deceptive language. And many Republicans were openly criticizing him for it. Now these are the words of choice in supposedly straight news reportage.

Supporters of Social Security really don't have the luxury of letting one lie or distortion go unchallenged or unanswered.

Huh, how is that a lie? Current projections state that in 2042 social security, having exhausted its "trust fund," (and likely having tanked our economy with it) will not be able to meet its obligations. Perhaps it will be able to afford 70%.

"Bankrupt" n : someone who has insufficient assets to cover their debts.

So by definition social security will be bankrupt - it won't have sufficient assets to meet all of its obligations (or debts).

Also, even democrats constantly refer to the "solvency" problem of social security. Well if social security is not in danger of going insolvent (i.e. bankrupt) how is there a solvency problem?

Who is lying?
According to Hugh Hewitt the judiciary has thwarted the will of the Congress by refusing to grant a stay in the Schiavo case.

And of course Hewitt starts this analysis by looking at the text of the bill itself, since that is the only document that can really demonstrate what the will of Congress was... Or wait. He writes an entire article based around the conclusion that the judiciary is failing to follow Congress' will, and never once mentions the text of the bill - not once?

What a joke. And a shame coming from a law professor (especially a conservative one).

So how does Mr. Hewitt come up with Congress' intent - legislative history perhaps? No. He just tells us what Congress intended based on what he wanted it to intend and some after the fact statements from one Congressman:
So Congress passed a statute that was intended to force a new trial on the merits of Terri's parents' concern that their daughter's wishes were not being honored. The president signed it. DeLay summarized the intent of Congress in his Sunday press conference: "We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. . . . Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."
Well that is all well and good - DeLay makes an assumption about what the judges will have to do to implement the bill. But as we all know - one Congressman cannot speak for Congress, so let's look at the bill's language itself (I know, shocking that we would do that....):
Section 1: The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
Section 2: Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
Section 3: After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
There are some other provisions that are not relevant. Section 3 discusses injunctive relief, but it is focused only on final injunctive relief. The plain language does not provide for preliminary injunctive relief or a TRO - in only provides for injunctive relief after a hearing on the merits. Such a hearing will be mooted now most likely when Terri passes away. And this provision does not mandate preliminary relief in order to have that full merits hearing (nothing in the bill does).

Section 1 simply provides jurisdiction for a suit, it does not suggest anything about the merits or actions the court should take. So we are left with Section 2.

The pertinent language in Section 2 simply states:
In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
There is nothing in that language that mandates or requires a preliminary stay or a TRO. All it does is instruct the court as to what type of review to conduct during the merits hearing (de novo) and not to preclude review based on certain doctrines - abstention or failure to exhaust state court remedies. So the bill states nothing about mandating a preliminary stay or a TRO. So the court is left to resort to the standard legal analysis of those issues - as Congress fully knew it would have to do absent specific instructions to the contrary. If Congress had wanted to mandate a stay or a TRO, it knew how to do it - and it chose not to (or more likely, the drafters of this bill just didn't take the time to understand the law (others might question their intelligence), but it is not up to judges to guess at what Congress really wanted to say in the bill - it has to follow the plain language so long as it is unambiguous).

And it is quite clear that Congress did not intend an automatic stay in the bill as it was passed. As the Eleventh Circuit stated:
There is no provision in Pub. L. No. 109-3 addressing whether or under what conditions the district court should grant temporary or preliminary relief in this case. There is no more reason in the text of the Act to read in any special rule about temporary or preliminary relief than there would be to read in a special rule about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) [*7] or summary judgment grounds. Not only that, but Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay. There is this enlightening exchange in the legislative history concerning the Senate bill that was enacted:
Mr. LEVIN. Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case.

Mr. FRIST. I would be pleased to help clarify this issue.

Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposed to that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may."

The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

Mr. LEVIN. In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader makes about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration.
151 Cong. Rec. S3099-100 (daily ed. Mar. 20, 2005) (colloquy between Sens. Levin & Frist).

This enlightening exchange does not contradict the plain meaning of Pub. L. No. 109-3, but instead reinforces it. Plainly, Congress knew how to change the law to favor these plaintiffs to the extent that it collectively wished to do so. That is what the changes it did make, including those to standing law, the Rooker-Feldman doctrine, and abstention, demonstrate. When Congress explicitly modifies some pre-existing rules of law applicable to a subject but says nothing about other rules of law, the only reasonable reading is that Congress meant no change in the rules it did not mention. The dissent characterizes the language of the Act as clear. It is on this point: the language of the Act clearly does not purport to change the law concerning issuance of temporary or preliminary relief. n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n5 Contrary to the dissent's assertion, we do not believe that the text of the Act limits or eliminates a court's power to grant temporary or preliminary relief. Exactly the contrary. Our position is that the Act, which does not mention that subject, and which was amended to remove a provision that would have changed the law, does not affect it at all. The district court applied settled law and so do we.
Ironically, if the courts would have read the bill to require a stay it would have been an act of judicial activism. What the courts did was to apply the law properly and objectively. There was no judicial activism here. And conservatives who suggest otherwise are just plain wrong and hypocritical and should be ashamed of themselves.

In an attempt to rationalize why the courts should have engaged in judicial activism, Hewitt attempts to compare the Schiavo bill to the Endangered Species Act (ESA) 16 USC sec. 1531, et seq. But even the case Hewitt cites requires a showing of merit: the petitioner must show "a reasonable likelihood that the defendant will commit a future violation of the Act." Loggerhead Turtle v. County Council, 92 F. Supp. 2d 1296, 1301-02 (M.D. Fla. 2000). And Loggerhead actually denied the preliminary injunction - so obviously its standard wasn't that broad. Id. at 1309.

It is also noteworthy that Loggerhead was distinguished by another case (on a standing issue) that pointed out that Loggerhead went outside the plain language of the statute (i.e., engaged in activism). See Cetacean Cmty v. President of the United States, 249 F. Supp. 2d 1206, 1210 (Dist. Hawaii 2003) (stating that Loggerhead was not convincing authority on the standing issue, after noting that "the plain language of [the ESA] does not authorize a whale, dolphin, or porpoise to sue under the ESA." Loggerhead had granted standing to a couple varieties of turtles...)

If Congress' true intent was as Hugh Hewitt claims, they should hire better lawyers to draft the next bill. Because the judges here got it correct, and it wasn't even a close call frankly. To see conservatives upset that the judiciary didn't engage in judicial activism is sad indeed. Or actually, as many of us have now learned - Republicans are no longer "conservatives," they are simply religious activists who have sold out their conservative values.

Hewitt also states this:
Tricked-up public opinion polls on the Schiavo case have allowed some commentators to pretend that Congress stumbled politically when it passed the law benefiting Terri's parents. Absurd. It was the right thing to do, and the focus on the facts of the case daily adds to the number of people who know that to be true.
Sure, tricked-up polls... And if Republicans' share Hewitt's view that the right thing to do is for Congress to create a specific law to allow a specific person's parents to trump that adult person's own wishes - then Republicans are in much more trouble than even I think they are. And anyone with any intelligence knows the "facts" are much more favorable to Michael Schiavo's argument now than they are for Terri's parents -- see here and here for example. Once you start reading reliable sources (court opinions based on the actual record, for example) you start to see just how much misinformation and, frankly, out-and-out lies are being spread by Terri's parents and the groups advocating for them. They are the ones who don't care about the true facts - they just want a result.

Hewitt closes with this:
Whenever the collective attention of the country turns to one drama, all sorts of unexpected revelations occur.
I agree with that point, but I obviously disagree about what those revelations are in this case. My revelation - Republicans aren't really conservative anymore - they are just religious ideologues.
This from the American Council on Science and Health - and its Republican president - Dr. Elizabeth M. Whelan:

While we at ACSH have been determined to remain on the sidelines of the raging national debate about the fate of Terri Schiavo (this is largely a legal and ethical issue, not a scientific one), we cannot remain silent about the outrageous misrepresentation of scientific facts about this case that has been occurring in the past ten days.

The medical reality of Ms. Schiavo's case is this: She has been in what is medically referred to as a "permanent vegetative state" for the past 15 years, ever since her heart temporarily stopped (probably due to the severe effects of an eating disorder), depriving her brain of oxygen. Brain scans indicate that her cerebral cortex ceased functioning--probably just after she experienced cardiac arrest in 1990. Ms. Schiavo's CAT scan shows massive shrinking of the brain, and her EEG is flat. Physicians confirm that there is no electrical activity coming from her brain. While the family video repeatedly shown on television suggests otherwise, her non-functioning cortex precludes cognition, including any ability to interact or communicate with people or show any signs of awareness. Dozens of experts over the years who have examined Ms. Schiavo agree that there is no hope of her recovering--even though her body, face and eyes (if she is given food and hydration) might continue to move for decades to come.

Those are the harsh facts.

Thus it was shocking and outrageous that Sen. Bill Frist--a heart surgeon before becoming Senate majority leader--went to the Senate floor twice last week to argue that Florida doctors had erred in saying that Terri is in a "persistent vegetative state." How did Frist arrive at this diagnosis? From watching the family videotapes.

Frist's comments were picked up by journalists, including FoxNews's Fred Barnes, who cited Sen. Frist as an authority in a debate with Morton Kondracke on The Beltway Boys last week.

Yesterday, there was another public challenge to Ms. Schiavo's well-established diagnosis: Florida governor Jeb Bush announced that a "very renowned neurologist," Dr. William Cheshire, had concluded that Terri had been misdiagnosed and that she was really only in a state of "minimal consciousness" rather than a persistent vegetative state. He used this "new diagnosis" to argue that "this new information raises serious concerns and warrants immediate action."

As it turns out, Dr. Cheshire is not "renowned" as a neurologist--his limited publications focus on areas including headache pain and his opposition to stem cell research. Dr. Cheshire never conducted a physical examination of Ms. Schiavo, nor did he do neurological tests. Dr. Cheshire is director of biotech ethics at the Center for Bioethics and Human Dignity, a nonprofit group founded by "more than a dozen leading Christian bioethicists." Everyone is free to be guided by a personal agenda--and it is clear that Dr. Cheshire has his.

Let's call tripe when tripe is served. Dr. Cheshire, his advocate Gov. Bush, and Sen. Frist actively attempted to mislead people (and in many cases, surely succeeded) about the scientific facts. They distorted science to promote their own ideological and/or religious beliefs. All of us are entitled to our own personal views on the Schiavo case, what her fate should be, and who should make decisions for her. But all of us should be united in rejecting politically-generated junk science. Republicans should be embarrassed and ashamed that that their leadership has sunk to such a new low.


Wednesday, March 23, 2005
This New York Times article discusses the affidavit that was issued today by Dr. Cheshire, who works for what is clearly a right-wing institution. Based on this affidavit Governor Bush is trying to take custody of Terri Schiavo. The article is a good read, but here is the key part I think:
Dr. Ronald Cranford, a neurologist and medical ethicist at the University of Minnesota Medical School who has examined Ms. Schiavo on behalf of the Florida courts and declared her to be irredeemably brain-damaged, said, "I have no idea who this Cheshire is," and added: "He has to be bogus, a pro-life fanatic. You'll not find any credible neurologist or neurosurgeon to get involved at this point and say she's not vegetative."
I think that says it all. A doctor from the University of Minnesota is pretty credible - the University of Minnesota Medical School is one of the top schools in the world. As a lawyer I know you can find an expert to say almost anything. So when you get these no-name doctors who haven't even really examined the patient making bold claims, it is just presumptively bogus in my mind.

And on the other side of the coin, when I see a well credentialed doctor say something like this, I feel pretty comfortable in believing him.
Daniel Drezner thinks that could be the case - and I think he is right:

This is my nagging thought -- could it be possible that making a federal case out of Terry Schiavo actually shrinks the culture of life? I wonder after reading this Chicago Tribune story by Bonnie Miller Rubin:

The wrenching debate over Terri Schiavo has made many people wonder if they can be sure their loved ones would carry out their wishes in a similar situation.

In Schiavo's case, both sides say they are acting as she would want. But without written documents, no one can know for sure, which is precisely why some legal experts are finding themselves busier than usual.

"We've had quite an increase in calls," said John Wank, acting director and general counsel of the Illinois Guardianship and Advocacy Commission, an agency that provides adult guardianship for people who did not appoint their own guardians. "A lot of folks are wondering if what happened in Florida could happen here. And if so, what can they do to prevent such a tragedy?"

I don't know if there has been polling on this, but I just have to imagine that most people that see the video of Terri immediately think to themselves that they would never want to live like that (if you can even call it living) - I know I wouldn't.
The answer is a definitive yes. Here is what Jim Geraghty has to say:
You'll recall that I predicted that the Schiavo controversy would only be a big issue to those who were already paying attention to or felt strongly about end-of-life/assisted suicide/living-will issues. I also doubted that any conservative would vote against the GOP over this. [The post then notes a couple of emails from people who disagree, and then concludes:] Okay, there are some folks out there for whom this is a make-or-break issue. But I still have my doubts as to whether there are enough of them to swing any races.
I obviously disagree with Mr. Geraghty. I am an independent, and I have voted for both Democrats and Republicans in the past. I lean generally toward Republican candidates because my libertarianism and conservatism (as in "small government") values tend to outweigh other values in my final decision-making process. The religious right branch of the GOP, and their values, is what keeps me on the fence for the most part. While I feel they have the right to their views and values (and frankly I respect them for holding true to those values) for the most part I don't share them.

So I tend to vote for Republican candidates only because I feel that their positions on libertarianism and small government issues (which I agree with) outweigh their positions on social issues (which for the most part I disagree with). But given what just happened, I cannot rely on that calculus anymore. So I will be left to some extent to vote based on social issues. Certainly I will still favor moderate candidates - but now it is more likely those moderate candidates will be Democrats. And I would be shocked if there aren't many people out there like me who are thinking this exact same thing.

Sure this one specific issue may not swing any races, but in politics it is never one issue that makes a long-term shift in voting patterns. This is just one domino. But it is a domino that will have a long-term effect.

Lots of readers are writing about a graphic used on Google's search page yesterday. It showed the word "Google" half full of water, dripping into a bowl. Readers have interpreted the graphic to be an anti-Terri Schiavo commentary.


I checked into it yesterday. If you clicked on the graphic, Google took you to a page about World Water Day, which was designated by the United Nations.

There is really nothing to add to that..... (at least nothing that won't probably get me stalked by those same "lots of readers.")

Great post by Ann Althouse that notes Congress' actions as to Schiavo may mess up their plans to push through conservative judges. But the really great part of this post is this:
Viguerie is, of course, exactly wrong. What Judge Whittemore did is very dramatic proof of the judiciary's deep commitment to the rule of law and its firm resistance to political pressure and emotional entreaties.

And what do "conservatives" really think of judges? Do they want them -- as the third paragraph in that block quote says -- not "to ignore the will of the public and elected officials"? I thought good conservatives wanted judges to set aside political preferences and faithfully follow the dictates of the law. The criticism of "activist" judges is that they abuse the law by making it into what they prefer politically, but the solution isn't that they should do more of what other people prefer politically. It's that they ought to do what the law requires.

Do Balch and Viguerie seriously think that Justice Scalia would agree with their assessment of Judge Whittemore? Obviously, they are promoting activist judges of the social conservative stripe, and there is nothing properly conservative about that at all.
Great op-ed by Charles Fried in today's NYT. Here is the best part:

For years now, Congress has more and more stringently demanded that federal court intervention be limited to cases where the state courts have acted not just technically incorrectly, but with egregious lack of reason. Whatever might be said of the Florida state court proceedings in this case, they certainly have not crossed that line, and indeed probably accord with what state courts all over the country have ordered or permitted for years in these difficult and agonizing cases.

Finally, the law passed by Congress on Monday was an obvious attempt - under the pretense of allowing the determination of federal constitutional rights - to delay the outcome decreed by Florida state law with the hope of making that outcome impossible. That is precisely the worrisome tactic employed with increasingly imaginative stays and orders of re-litigation in a number of federal courts, most noticeably the Court of Appeals for the Ninth Circuit, which covers nine Western states. And it is also precisely the sort of tactic that Congress sought to discipline in the Effective Death Penalty Act.

As I think I have demonstrated in all the previous posts on this site that actually quote from the actual Florida cases, not only were the Florida courts' actions here probably in accord with other states, they bent over backwards to ensure that Schiavo received a full hearing (actually several full hearings).
Powerline notes some pretty suspicious inconsistency vis a vis the "talking points memo" republicans supposedly produced for the Schiavo bill. They also note a possible investigation about the memo:

That won't stop the Democrats from trying to make political hay out of it, however. The same left-wing site that published the memo now says:

Hoping to determine who distributed talking points to GOP senators on how they could capitalize on the Schiavo tragedy, Sen. Frank Lautenberg (D-NJ) will send a letter to the Rules Committee today calling for an investigation. Reports suggest the points could have been circulated on the Senate floor, violating Senate Rules....
Are the Democrats moving to capitalize on their own hoax?
I say more power to Lautenberg - lets have a full investigation about this memo. Of course the only logical starting point is: who wrote it? I hope it wasn't one of Lautenberg's staffers.
From Instapundit:

Kojo Annan, son of Kofi Annan, United Nations secretary-general, received at least $300,000 from Cotecna, a Swiss inspection company awarded a contract ultimately worth about $60m under the Iraqi oil-for-food contract.

The amount was almost double the sum previously disclosed, but payments were arranged in ways that obscured where the money came from or whom it went to.

It's as if they knew they were doing something wrong. . . .

And is there any reason to try to cover-up the source of the funds going to Kofi's son, unless they were actually pay-offs for actions that Kofi himself was going to take? It's not looking good for either Annan.
Via Instapundit, after denying for months that the U.N. (which essentially means U.S. taxpayers) was paying the legal fees for Benon Sevan - who was denounced by the U.N.'s own less than impartial investigative committee for his central role in the oil-for-food fraud - the U.N. yesterday admitted that in fact they have been paying his attorneys' fees. It appears the costs exceed $300,000 dollars....

The U.N.'s new motto should be: why play the lottery when you can work at the U.N.? What is really scary is that we are left to hope that Clinton will be named the next Secretary-General so he can clean up the organization - how bad does it have to be when Clinton can restore integrity to an institution?
Tuesday, March 22, 2005
Via Powerline, this purports to be a rebuttal to Judge Whittemore's decision to deny the TRO in the Schiavo case. I find it a totally unconvincing argument.

The post first quotes the text of the bill:
The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted. [Italics mine.]

That is all well and good, it is good to start with the text of the bill that gives the court jurisdiction and authority. But then the article delves into a discussion of how this language means that Judge Whittemore must not accept any factual finding of the Florida courts. And if that were relevant in this particular situation, it might be a good point.

But guess what this article never mentions - not once - the Complaint. No where in that bill was the court authorized to sua sponte pursue any possible deprivation of a right, it can only examine claims that are raised in the Complaint, a copy of which can be found here.

As this article notes, Judge Whittemore himself mentioned that the Complaint failed to discuss how the supposed medical affidavits that might show Schiavo is not in PVS related to the claims. The reason he said this: it is clear that their claims do not attack the PVS findings. The Complaint, to put it bluntly, is horrific. I suspect it was drafted well before they knew what the bill language would be. Clearly they didn't know they would be entitled to such broad de novo review - or if they did - they really screwed up. Notably, the Complaint never states - not once - that Terri is not in a PVS. Rather it merely states that Judge Greer found her to be in PVS despite never examining her. (Compl. para. 30.) They never allege facts or any conclusions even to contradict Judge Greer's finding.

So McCarthy's analysis just completely misses the point. The judge had no choice but to deny their TRO frankly. And as we will soon find out I bet, any judge that reviews the record of proceedings in Florida is going to have to work very hard to try to come up with any plausible argument to support a finding that Schiavo was deprived of any due process rights. Because she wasn't. But instead of realizing that the Complaint simply failed to make a meritorious argument at all, McCarthy states this:
But most disturbing about Judge Whittemore’s opinion is its refusal to delve into the questions that impelled Congress to act in the first place: Whether Terri is really a PVS case and whether she really evinced an informed desire not to be sustained — let alone to submit to two weeks of starvation and dehydration, which is unquestionably torture for a person who is responsive to stimuli and aware of pain.

Not only does Whittemore decline to get into the heart of the matter. In the one fleeting footnote in which he alludes to it, he blames Terri’s parents and their attorneys for this dereliction: “Plaintiffs have submitted affidavits of health care professionals regarding Theresa’s medical status, treatment techniques and therapies which are available and their opinions regarding how and whether these treatments might improve Theresa’s condition. Plaintiffs have not, however, discussed these affidavits in their papers and how they relate to the claimed constitutional deprivations.” (Italics mine.)

Did Judge Whittemore really think the Schindlers submitted these affidavits simply to pad their submission with physical heft? Those submissions were obviously included because Terri’s parents contend the factual findings made in Florida are wrong, and could be proved wrong at a de novo hearing.

When Congress provided for de novo review, uninhibited by what had already been determined in Florida, it seems clear that this is what they thought they were getting at. They were saying: Before we allow state action to deprive the constitutional right to life, let’s be certain we really are dealing with a PVS case and a woman who actually made an informed choice to refuse sustenance. Judge Whittemore, to the contrary, has decided to interpret Congress’s command as limited to an inquiry about whether Florida’s procedures are likely to produce good results. As for the results actually produced — a finding of PVS and informed choice to die — he doesn’t see the need to kick those tires because, he lamely notes, the Schindlers haven’t explained how they could possibly relevant.

The judge, I believe, is wrong and needlessly stingy in construing what the just-passed law directs him to do. Terri Schiavo has had neither the standard medical tests (including an MRI and PET scan) nor the extensive clinical observation that should be mandatory for any finding of PVS on which an effective death sentence is to be predicated. If the proof supporting the PVS finding or the informed-choice finding — which Florida law require to be proved by clear and convincing evidence — is blatantly inadequate, then she has then not received the due process of law necessary to justify a taking of life under the Fifth and Fourteenth Amendments. If she is not a PVS case and she is being tortured by starvation and dehydration, the Florida ruling removing the feeding tube is subjecting her to cruel and unusual punishment under the Eighth Amendment.

That’s what we need a de novo review of: Why weren’t standard tests done, why shouldn’t they be done before a final PVS conclusion is made, and, in their absence, why should we be confident in the accuracy of the PVS diagnosis? There may be good answers to all these questions, but that is what evidentiary hearings are for.

That’s why the medical-expert submissions made by the Schindlers are relevant, even if Judge Whittemore is correct that, in the dizzying pace of the last few days, the Schindlers’ lawyers failed to connect the dots in their papers — a failing many, many courts would have understandably forgiven in these dire, hurried circumstances, where life is at stake.

Or in other words, who cares about the law, or the pleadings, just rule the way I think you should and then you would be doing the right thing. Really, Congress should have just passed that bill - the "Terri Schiavo wanted to live bill." Since that is all they really want. Even if she didn't.
Via Instapundit, has a good editorial on the Schiavo case and suggest the following:
Here is what I would like to see happen in the aftermath of this sad, tragic, horrible case: I would like to see Congress pass, and the President sign, a law that says if any person who has no living will comes to be in a position where a living will would be helpful, any decision in a squabble or dispute over her care must err on the side of maintaining life, and hearsay evidence such as that offered by Michael Schiavo would not be admissible.
At least in Florida, there is no need for Congress to pass anything as this is already the law:
In Browning, we stated:

In making this difficult decision, a surrogate decisionmaker should err on the side of life. . . . In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.

In re Guardianship of Browning, 543 So.2d at 273. We reconfirm today that a court's default position must favor life.
In re Schiavo, 780 So.2d 176, 179 (Fl. Ct. App. 2001).

This goes to a larger issue, people seem to think that the standard of proof the husband had to meet was the ordinary preponderance of the evidence standard in ordinary civil cases. This is not so:
Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence.
. . . .
After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Id. at 179-80.

So this wasn't simply a case where the evidence the husband presented was just slightly more convincing than was the parents' evidence. To the contrary it was "clear and convincing," and had to overcome the presumption of life. And as noted in my prior post on this below - the appellate court even looked at the evidence de novo and concluded they would have ruled the same way as Judge Greer. So all the arguments about Judge Greer being biased, or having connections to the Hospice are sheer nonsense.
Monday, March 21, 2005
I just read the Schiavo complaint, and frankly it is pretty bad. One of the claims reminds me of something you would read coming pro se from an incarcerated individual trying to sue the president or something like that - a claim based on the free exercise of religion clause. You have to be kidding me. The complaint is available here.

I would be absolutely shocked if this complaint was successful, there is simply no merit to these claims that I can really imagine. The equal protection argument is probably the best bet - but I think it is easily dealt with. The due process arguments are completely without merit as will be demonstrated below. If Schiavo did not get due process, then due process is an impossible standard that will never be achieved. No legal system could exist if it was requird to provide every litigant with the due process Schiavo received, much less more due process rights than she received. And someone needs to explain to me why a judge should examine Schiavo - is he a Doctor/ Judge? No. I suspect Judge Greer heard testimony from at least a dozen, and probably many more doctors in this case. How could he add to that by his lay examination?

Beyond the complaint, I just completed reading most of the almost 2 dozen appellate decisions available from Lexis for the In re Schiavo litigation (to be fair, most are simple refusals to hear appeals on various issues due to procedural or other deficiencies). But I am pretty sure there has not been a more thorougly reviewed case - the sheer volume of expert testimony alone. And the Appellate Court even went beyond the standard of review at one point to view issues de novo, and holds even under a de novo review they would affirm (for non-lawyers, de novo simply means they review the case without any deference to the lower court's findings of fact - literally, a new look at all the evidence). Here are some quotes from various decisions that I think make this point pretty strongly.

This is the initial appeal:
Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid-1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

Theresa has been blessed with loving parents and a loving husband. Many patients in this condition would have been abandoned by friends and family within the first year. Michael has continued to care for her and to visit her all these years. He has never divorced her. He has become a professional respiratory therapist and works in a nearby hospital. As a guardian, he has always attempted to provide optimum treatment for his wife. [*178] He has been a diligent watch guard of Theresa's care, never hesitating to annoy the nursing staff in order to assure that she receives the proper [**4] treatment.
780 So.2d 176, 177-78 (Fl. Ct. App. 2001).
The testimony in this case establishes that Theresa was very young and [*180] very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years [**11] in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Id. at 179-80.

This is the original appeal from the denial of the Schiavo parents' motion for relief from judgment. The denial was affirmed:

However, at this time, the Schindlers have not seriously contested the fact that Mrs. Schiavo's brain has suffered major, permanent damage. In the initial adversary proceeding, a board-certified neurologist who had reviewed a CAT scan of Mrs. [**21] Schiavo's brain and an EEG testified that most, if not all, of Mrs. Schiavo's cerebral cortex-the portion of her brain that allows for human cognition and memory-is either totally destroyed or damaged beyond repair. Her condition is legally a "terminal condition." § 765.101(17), Fla. Stat. (2000). Although it is conceivable that extraordinary treatment might improve some of the motor functions of her brain stem or cerebellum, the Schindlers have presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and sound or to communicate or respond cognitively to those perceptions.

The new information the Schindlers provided to the guardianship court in the hearsay affidavits supporting their motion for relief from judgment is not as forceful as the evidence described in our hypothetical scenarios. n9 The affidavits concern alleged statements by Mr. Schiavo several years ago. We note that the guardianship court's original order expressly relied upon and found credible the testimony of witnesses other than Mr. Schiavo or [**22] the Schindlers. We recognize that Mrs. Schiavo's earlier oral statements were important evidence when deciding whether she would choose in February 2000 to withdraw life-prolonging procedures. See § 765.401(3), Fla. Stat. (2000); In re Browning, 568 So. 2d 4, 16. Nevertheless, the trial judge, acting as her proxy, also properly considered evidence of Mrs. Schiavo's values, personality, and her own decision-making process.
792 So.2d 551, 560 (Fl. Ct. App. 2001).

This is apparently from similar motions that were refiled by Schiavo's parents, and in addition, they also sought to disqualify the judge, remove Michael Schiavo as the guardian, and to order an independent medical examination. The trial judge denied all the motions, the appellate court reversed as to the independent medical examination but otherwise affirmed. Here is what the appellate court stated in reversing on the one issue (to me this just shows how far the court's went to protect Schiavo and how deferential they were to the Schiavo parents' arguments):
In support of these arguments, the Schindlers filed numerous affidavits from licensed physicians who have reviewed Mrs. Schiavo's medical records, who have considered affidavits providing anecdotal evidence from lay people about her condition, and who have watched a brief videotape of her interaction with her mother at a time close to the original trial. Mr. Schiavo, [**9] as the ward's guardian, has not permitted these doctors to physically examine Mrs. Schiavo or conduct any diagnostic tests.

The affidavits of the several doctors vary in content and rhetoric. Among the affidavits filed by the Schindlers, however, the most significant evidence comes from Dr. Fred Webber. Dr. Webber is an osteopathic physician practicing in Clearwater, Florida, who claims that Mrs. Schiavo is not in a persistent vegetative state and that she exhibits "purposeful reaction to her environment." He swore under oath as follows:

Within the past year, I have treated patients with brain defects similar to Mrs. Schiavo's. In most cases, using cardiovascular medication style of therapy, my patients have shown some improvement, although the degree of that improvement is variable. By "improvement" I mean cognitive and physical items such as speech recovery, enhanced speech clarity and complexity, release of contractures, and better awareness of the patient's surroundings. In my opinion and judgment, based on my 26 years of practice, Mrs. Schiavo has a good opportunity to show some degree of improvement if treated with this type of therapy, although I cannot anticipate how much [**10] improvement.

Purely from a lay perspective, this court must express skepticism concerning Dr. Webber's affidavit. Nevertheless, when a doctor claims under oath that he may be able to restore Mrs. Schiavo's ability to speak and otherwise restore her cognitive function, and when numerous doctors dispute the diagnosis of persistent vegetative state based on the records available to them, it is difficult for judges untrained in any medical specialty to summarily reject their opinions without additional evidence.
800 So.2d 640, 644 (Fl. Ct. App. 2001).

On remand from that decision the trial judge allowed the Schiavo parents to provide additional medical evidence, and on appeal after the judge found against the parents again, the Appellate court had this to say:
On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. [**7] However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.

Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current [*185] medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the [**8] medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was sub jected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions. He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue. These therapies cannot replace [**9] dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state. Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bambakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.

The guardianship court determined that Mrs. Schiavo [**10] remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube. In re Guardianship of Schiavo (Schiavo v. Schindler), Case No. 90-2908-GB-003, 2002 WL 31817960 (Fla. 6th Jud. Cir. Ct. Nov. 22, 2002). When the parents appealed that order, the guardianship court stayed the removal of the nutrition and hydration tube pending review by this court.
851 So.2d 182, 184-85 (Fl. Ct. App. 2002) (emphasis added). The Appellate court properly found that its review was an abuse of discretion review. But yet they went farther and actually conducted a de novo review of the evidence (how was Schiavo deprived of due process rights again? Her parents received less deferential reviews (i.e., more favorable to them) than she was legally entitled to). Here is what the Appellate Court stated:
The Schindlers have urged this court to conduct a de novo review of the evidence in this case, primarily because of the finality of this decision for their daughter. The guardianship court heard live testimony from many physicians. When it reviewed the videotapes of Mrs. Schiavo and the diagnostic tests and brain scans, it did so with the assistance and expertise of those physicians. This court can review the evidence in the record with only its training in the law and its lay experience. It is simply not proper for this court to review such a fact-intensive determination using a de novo standard.

Despite our decision that the appropriate standard of review is abuse of discretion, this court has closely examined all of the evidence in this record. We have repeatedly examined the videotapes, not merely watching short segments but carefully observing the tapes in their entirety. We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the guardianship [**13] court's decision de novo, we would still affirm it.

The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith.

But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life- prolonging procedures. See In re [*187] Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (affirming In re Guardianship of Browning, 543 So. 2d 258, 273-74 (Fla. 2d DCA 1989)); [**14] see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3). It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives. It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life. We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment. [**15]

At the conclusion of our first opinion, we stated: In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did. . Nothing in these proceedings has changed this conclu sion. The extensive additional medical testimony in this record only confirms once again the guardianship court's initial decision. On remand, following the issuance of our mandate, the guardianship court should schedule another hearing solely for the purpose of entering a new order scheduling the removal of the nutrition and hydration tube. Affirmed.
Id. at 186-87.

There is a great deal of additional subsequent appellate history, but these are the most merits focused opinions (at least based on my quick review).

After reading these opinions I just do not understand how you can make any due process argument. And I cannot imagine that a federal court will reverse the decisions of the Florida state courts. So in the end, more time will lapse, but the same result will occur. I think the real losers in all of this are the parents and other family of Terri Schiavo who clearly are in denial and have not dealt with their grief. It is pretty sad really. Hopefully they will be able to move on. But I have to wonder, why didn't Congress spend 10 minutes reading these opinions before spending days passing a law that will end up doing nothing to change the outcome? It seems to me those who claim it is for pure political gain have some pretty strong support for their argument. I am sure it is a very ideological decision as well, but I find it hard to believe that ideology can completely explain what is really a shocking move by congress.
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