Sunday, March 27, 2005

 

"DeLay, c'est moi"

I have to say, as a lawyer, I think this is the best explanation I've read yet, why the Terri Schiavo putsch is the worst festering excrescence on the law since Bush v. Gore:

When [Florida state trial] Judge Greer ruled that Terri wouldn't have wanted a feeding tube, he made a finding of fact. As far as the law is concerned, Terri's wishes are no longer up for debate. An appeal court affirmed Greer's finding, noting that even in siding with Michael Schiavo in the controversy, Greer had erred on the side of life. From that point, on the law is crystal clear. If the patient wouldn't have wanted the tube, the tube must come out. That's all there is to it.

The federal legislation is remarkable because it gives Terri Schiavo's parents the right to demand a new trial in federal court. The bill states explicitly that the new trial would disregard the findings of all of the state courts who have ruled on the issue over the years. A new trial would have allowed Terri's parents to reopen the question of Terri's wishes. No Florida court has ever found in favor of Terri's parents. No principle of law in Florida gives them legal standing to sue on behalf of their daughter. Terri's parents had no legal standing until it was granted to them by the legislation. They are not Terri's legal guardians. They have not convinced a court to revoke Michael Schiavo's guardianship of his wife.

The Schiavo legislation is also remarkable in that it applied explicitly and exclusively to Terri Schiavo and her parents. It is not generally considered acceptable to write laws that apply exclusively to a particular case. The law is supposed to be a system of principles that are impartially applicable to anyone who meets the relevant criteria. An impartial law would apply to every case that was relevantly similar to Schiavo's, not just to a particular group of individuals.

The fact that the legislation violates the rule of law also impugns it on the grounds of separation of powers. If Congress is entitled to intervene, it is to protect the rights of Terri Schiavo. However, the only arguments that might establish that Schiavo's rights had been violated should also apply to everyone else in a similar situation. For example, if discrimination against the disabled is a good enough reason to send Schiavo's case to federal court, why shouldn't the same principle apply to all Americans who have suffered discrimination under similar circumstances? If the Florida guardianship system is systematically biased, why should the law protect only Terri's family and not the thousands of other people affected by the system?

The writers of the Schiavo bill probably thought they were being very clever in drafting such a narrowly tailored piece of legislation. By writing a law that applies only to Terri Schiavo and her family, they hoped to avoid accusations of making a general power grab on behalf of Capitol Hill. However, the bill's narrowness is also its undoing. If this bill only applies to one case, it may respect the separation of powers. However, if the bill applies only to one case, it can't claim to be upholding the right to due process as such – otherwise the bill should apply to everyone whose rights were threatened, not just to Terri. When squeezed between due process and the rule of law, the true motivations of the lawmakers become damningly clear. The bill is simply an attempt to further a partisan agenda by granting special privileges to a single family.

This, then, is the Bush promise: Screw equal protection for everybody. We can't possibly guarantee you that.

If you're lucky, though, and you play your cards right, we'll give you --

DoublePlusJustice: HyperEqual Protection! By Lottery!!

posted by Michael 10:07 PM