What He Said II

I'm beginning to wonder if the Republican party will soon oppose the whole concept of an independent judiciary. Just read William Bennett's screed in National Review. It contains the sentence: "It is a mistake to believe that the courts have the ultimate say as to what a constitution means." Bennett and his co-author argue that Jeb Bush should send in state troops to reinsert the feeding tube and break the law if necessary. Screw the science. Screw the court system. Screw the law. I disagree with Jonah that this is a minor spat with no long-term consequences. We are looking directly at the real face of contemporary Republicanism. Sane, moderate, thoughtful people are watching this circus and will not soon forget it. - Andrew Sullivan

Yes, I'm aware that Ramesh Ponnuru and others have already taken the "Sane, moderate, thoughtful people" line and snidely abbreviated it "SMTPs" as if mockery constituted argument. And they could be completely right. Maybe most Americans are no longer into the whole rule of law/separation of powers concept. At this point nothing would surprise me.

What struck me about this post was the line about Republicans moving towards outright opposing the very concept of an independent judiciary. I've been saying this stuff half-jokingly in comment sections, but now I'm starting to believe that this is really the case. I seriously am beginning to believe that there are large numbers of conservatives who don't think judges should have the power to interpret the constitution. In some comment thread on Karol's blog some time ago we were having one of those interminable, pointless debates on gay marriage. At one point blogger/lawyer Dawn Summers made the point that "the people" don't get to interpret the New York State constitution. Sean Doherty responded with something about how her condescending attitude just showed everything that was wrong with liberals, or with lawyers, or with something. He didn't even understand what she meant (that the constitution of the state is interpreted by the state's independent judiciary not by popular opinion). He didn't even get that! I don't mean to single Sean out. He seems like a smart guy, which is what makes this trend all the scarier.

Comments

[Trapeze]

What struck me about this post was the line about Republicans moving towards outright opposing the very concept of an independent judiciary. I've been saying this stuff half-jokingly in comment sections, but now I'm starting to believe that this is really the case.

Jesus F'ing Christ, get a grip. A woman is being put to death by starvation, dude. What kind of reaction did you expect from the religious crowd? I'm not so sure that justice is being served here myself. I don't trust the judiciary any more than I trust politicians. That is why this has to go to trial so a citizen JURY can decide.

I seriously am beginning to believe that there are large numbers of conservatives who don't think judges should have the power to interpret the constitution.

"Interpret", or "follow" the constituation? If you're OK with judges applying their own "interpretation" to the constitution, vote Democrat next time. Those guys do it all the time.

[Brian]

What he said. Something about this case has struck a nerve and it's you, the author of this weblog, who have become hysterical. There is nothing new here: the case echoes both previous medical euthanasia controversies going back to the 80s and unrelated uproars like the Elian Gonzales flap. My advice is to have a tall glass of warm milk and read less Andrew Sullivan, whose mood swings and straining hyperbole are legendary. I swear the man was born on tenterhooks.

[Matthew Cromer]

Trapeze is right -- there is something terribly unsavory about this particular case. Does anyone doubt that Terri's parents care more about her welfare than Michael "when is this bitch gonna die" Schaivo? And I'd rather be governed by elected representatives who can be recalled than a class of unelected judges with lifetime tenure who more and more constitute an American Nomenclatura. Are you not aware of the broad sweep of powers that judges have arrogated for themselves?

[MarkJ]

I second the "get a grip" comment. We're barely two months into Bush's second term...it's way too early to decide that some kind of meltdown has occured.

I am strongly libertarian in my beliefs, and I disagree wholeheartedly with Bush's big-government approach to things like education. But in the Schiavo case, I am somewhat sympathetic to the position of the so-called "religious right", even though I am not Christian. My sympathy is based on three points:

(1) Is the woman actually brain-dead, or just severely handicapped? I heard read on the radio the affidavit of a nurse who worked with Schiavo for several years, and according to what she had to say, Schiavo was not brain-dead. What's more, her husband's behaviors were suspicious -- things like saying "is the bitch dead yet?" In addition, there was online commentary by a doctor who had extensive experience evaluating brain scans, and who said that in his opinion, the scan of Schiavo's brain in 1996 was little different from that of a somewhat senile older person. It may in fact be the case that these people are wrong and she is in fact brain dead, but I'm not convinced of that.

(2) Even if she is brain dead, I am not comfortable with the fact that she can be killed on her husband's say-so against the wishes of her parents. Who loves you more, generally speaking, than your mother and father? There is something wrong with a situation where a husband can have his wife killed (and that's what this is) against the wishes of her parents. Why not let them take care of her if they want to? What's the harm to the husband? Why not err on the side of life?

(3) Even if she is brain dead, and even if it is right for social policy reasons to allow her husband to have her killed against the wishes of her parents, why is it ok to make her die of thirst? If water is withheld, she will 100% certainly die...so why make her suffer for a week or two? Why not give her an overdose of morphine and get it over with?

For these reasons, I am disturbed by the Schiavo case and so I can believe that the conservatives that supported doing SOMETHING to help her parents were behaving from truly-felt motives. I don't see anything nefarious here on the part of the Republicans.

[Thomas]

"I seriously am beginning to believe that there are large numbers of conservatives who don't think judges should have the power to interpret the constitution."

Actually, I'd say the problem is in the middle.

The courts adopted the 'power' to interpret the constitution. It's not in the constitution that they have this power.

This is fine and good. It's the natural filling of a vacuum as the courts need to be that strong third pillar of government to oppose the two others.

The only problem is, there are no checks on the judicial branch and we are seeing the resulting frustration.

The latest 'outrage' is that the Federal courts were told to review this case. It's not a request. The Congress had the power to mandate a review, they exercised this constitutional power, and the Federal judge just said, 'naaahhh'.

That combined with the perception that judges have used the right to interpret the constitution to (in the eyes of conservatives) force legislation / public policy on us Examples, abortion rights, telling legislators they must vote for new taxes for education, and the best are the two recent cases of the Supreme court ‘interpreting the constitution’ by using European precedents [eye roll]... You have us saying, 'ok, the judges are the watchers, but who watches the watchers???'.

As the judiciary has become more politicized, what check do the other branches of government have on them if THEY refuse to follow the law (as congress believes a federal court judge just did in this case)?

They need some kind of legitimate check on their power (besides the appointment process)... Unless we just want to be ruled by judges…

[Brian]

The only check you can have besides appointment is impeachment. Nothing else will work without creating further imbalances. The courts have overreached plenty but I don't fault their conduct in the Schiavo case (their judgment, maybe, but courts are supposed to exercise judgment). Florida needs to clarify its rules for this sort of euthanasia, or come to some sort of compromise if it just can't make up its mind.

[brett]

Eric, you're right. This whole case is a good reminder of what the Republican Party really stands for on the domestic front - dogmatic moral certitude, big government programs, and submission of the rule of law to the rule of religion.

> (1) Is the woman actually brain-dead, or just severely handicapped?

She is brain-dead. Read the guardian ad litem's report. CAT scans show that her brain is shrunken and liquefied, and she has a flat EEG.

[Ed Bristol]

If Terri Schiavo's brain were any smaller, she'd be as dumb as the Preznit himself.

Posted by: Brian | March 25, 2005 12:14 PM

"The courts have overreached plenty but I don't fault their conduct in the Schiavo case (their judgment, maybe, but courts are supposed to exercise judgment)."

I fault this first Federal judge. He was told to review the facts in the case and did not. He totally refused to follow his constitutionally approved course of action. If our system had proper checks and balances, he'd be held in contempt of congress and thrown in jail.

"Florida needs to clarify its rules for this sort of euthanasia, or come to some sort of compromise if it just can't make up its mind."

True, this is the lesson of this case (vs. the hysterics of some republicans and the larger issues that this case only represents a part of). We need to clear up this gray area of law.

[Thomas]

Posted by: Brian | March 25, 2005 12:14 PM

"The courts have overreached plenty but I don't fault their conduct in the Schiavo case (their judgment, maybe, but courts are supposed to exercise judgment)."

I fault this first Federal judge. He was told to review the facts in the case and did not. He totally refused to follow his constitutionally approved course of action. If our system had proper checks and balances, he'd be held in contempt of congress and thrown in jail.

"Florida needs to clarify its rules for this sort of euthanasia, or come to some sort of compromise if it just can't make up its mind."

True, this is the lesson of this case (vs. the hysterics of some republicans and the larger issues that this case only represents a part of). We need to clear up this gray area of law.

[Mark]

I have a hard time understanding how someone could have supported President Bush in November 2004 and become so hostile to his political agenda in March 2005.

Was President Bush's Methodist Christian faith a secret way, way back in November 2004? Was President Bush's signing of the Medicare Prescription drug benefit unknown to voters in November 2004 (even though the bill was signed in 2003)? How about Bush's signing of the bloated farm bill in 2002?

I guess all this information was withheld from us until last week. Today we are shocked (shocked!) to discover that President Bush isn't governing like someone from the Ayn Rand Institute. Oh my gosh! We really live in a theocracy!

Cut the drama-queen schtick. Quit reading Maureen Dowd and Andrew Sullivan columns and you might be able to recover your equilibrium.

[Sean]

I understand fully what she meant, that the legislature is supposed to interpret the law.

The people, however, WRITE the laws through the legislature, usually with a a clear intent. There was a time when "interpreting" the law was far more concerned with fully understanding the intent of the original writers of the law.

Nowadays, liberal and lawyers "interpret" laws by twisting the wording so, if you read it this way and ignore the intent of the law as it was written, technically the law could mean this.

A "living constitution" is one that has mechanisms for amendment, not one that you're allowed to "interpret" as social fades and mores change.

[Sean]

I understand... that the JUDICIARY is supposed to interpret the different laws if there is some confusion.

That's what I meant...

[Ramesh Ponnuru]

Let me get this straight: You are saying that your side has a monopoly on sanity, thoughtfulness, and moderation, and I'm the one who is avoiding making an argument by objecting to that move? I guess I'm supposed to write an essay when you call Robert P. George "scary."