Ted Koppel is leaving ABC.

Posted by: annika at 08:31 AM | Comments (7) | Add Comment
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While i didn't agree with everything in this article by Andrew McCarthy of NRO, i did find the following passage persuasive:

In the PVS context, we are talking about a person’s own right to life. It doesn’t matter what we, individually or collectively, would want for ourselves. What matters is what, if anything, that person subjectively wanted — even if it doesn’t track our predilections. What matters is whether that person has considered and communicated those desires in an informed and reliable way. If she has, and PVS turns out both to be an appropriate basis to end life and actually to exist in the case at hand, we should not interfere in that choice if the state has made it available through surrogate action. If she hasn’t, we should be erring on the side of life, lest we inevitably venture further down this slope into even more ethically dubious takings of life.

As I have argued here, before the state may permit the termination of life in a PVS case, the guardian should be required to establish beyond a reasonable doubt* that the stricken person is in a PVS and that the stricken person evinced, in a knowing and intelligent way, a desire to be removed from sustenance if ever in a hopeless, incapacitated state. On the latter finding, we should encourage living wills to induce a person who considers and feels strongly about this choice to make her intentions clear. In the absence of such a living will, there should be a presumption that the person wants to live. It is life, not death, that our constitution protects.

There is a good argument that this should not merely be a presumption but a conclusion. On balance, however, I think we need to make reasonable allowances here, out of respect for the individual’s self-determination, out of the desire to minimize government intrusion into painful family matters, and out of the recognition that it would be unduly haughty to think ourselves capable of fashioning an unbending rule that will do justice in all conceivable situations — because we simply can’t conceive of all the situations that might arise in this area.
[emphasis added]

* The correct standard, in civil cases, would be "clear and convincing evidence." Which, i understand, was the standard used by Judge Greer in the Florida Court. Whether rightly or wrongly, well, that depends on whom you ask.

Posted by: annika at 04:37 PM | No Comments | Add Comment
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A commenter asked whether i was going to write about the Terri Schiavo case. i haven't yet because i don't know enough about the facts, and it's such a sad story i didn't want to think about it.

But this weekend, it's been hard to ignore the story.

There are so many issues, i find my opinions whipsawing back and forth. i'd rather say i don't have an opinion, and go back to enjoying my spring break. But i do have an opinion. Several opinions, as a matter of fact, and they aren't necessarily consistent. Nor am i comfortable with them.

Firstly, as background, i am Catholic. i oppose abortion for secular as well as religious reasons. There's a huge difference between the Schiavo case and the abortion issue, despite what the idealogues on both sides say. But since i'm pro-life, it's probably not surprising that when i look at the Schiavo case, i feel a great degree of sympathy for her parents' side.

Dura lex sed lex...

But i'm also profoundly uncomfortable with the legislative branch of the Federal government stepping in to oversee the ruling of a state court. That's my libertarian sensibility talking. My belief in federalism, the separation of powers, Jeffersonian democracy, the vision of our Founders. All that rot.

In 1904, Justice Oliver Wendell Holmes said "Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."¹

This is both a "hard" case, and a "great" case. Great because the issues at stake are the most fundamental to which the law can be applied. Hard because no matter what happens, Terri Schiavo will die. So it must be for all of us. But in Terri's case, the law can influence the manner and timing of her death. And that's part of the problem.

Left to the judgment of the Florida Court, Terri Schiavo dies a lingering death of starvation sometime in the next week or so. Congress steps in (as they just did moments ago), and she may - repeat may - get to live out the rest of her life, bedridden, brain-damaged, and feeding from a tube through her stomach. Only to die from some other more "natural" cause.

Dura lex sed lex...

Who should decide how she dies, when Terri's own wishes were never recorded? Here the law is clear: her husband should. But what if her husband is an asshole, whose motivations are suspect? Should this "accident of immediate overwhelming interest" be allowed to distort the judgment that would normally keep the federal legislature from intervening in a state judicial matter just because it disagrees with the outcome of one particular high profile case?

Dura lex sed lex...

...which means: The law is hard, but it is the law. Watching the House debate tonight, i find myself in the unusual position of agreeing with many of the Democrats, as they take the floor to give impassioned speeches in support of the "rule of law." (Where were they when the issue was purjury, and no life was at stake?) Hard as the law may be, they say, should Congress change the law for the benefit of one single person? i ask myself the same question.

Dura lex sed lex...

But then i think, what law? What law indeed. Here's a law that inevitably must figure into this controversy:

nor shall any State deprive any person of life, liberty, or property, without due process of law²

And then i think, there is another, even greater law, that may also apply here. One which helps guide me through my own conflicted thoughts:

Thou shalt not kill.³

The law is hard, but it is the law.

i am not saying that we should subordinate the civil law to the religious, like they do in Iran. i am not in favor of a theocracy. But this is a case about morality as much as it is about the rule of law. We have to be guided by moral principles as well as legal ones.

Talmudic and Christian scholars tell us that there are situations in which it may be moral to kill, or at least not immoral. This indeed may be one of those situations. All i'm saying is let's make sure. Ideally, i wish the court would order those diagnostic tests that her husband has refused to allow.

At the very minimum, i think the procedural rush to euthanize her should be slowed down. So, despite my public policy concerns about federal intervention, i do think that the uncertainty of the situation demands the same opportunity for federal review of her due process rights that a death penalty case would receive.

Update: There's an interesting discussion of the federalism issue by an expert on the subject, Ann Althouse. She quotes today's WSJ editorial, which reminds me that perhaps i should have cited the fourteenth, not the fifth amendment, supra. i have made the correction. Hey, at least my blue book cites were good.
_______________

¹ Northern Securities Company v. United States, 193 U.S. 197 (1904)(Holmes, J., dissenting).

² U.S. Const. amend. XIV § 1. Section 5 of this amendment states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Bingo.

³ Exodus 20:13 (King James).

[cross-posted at A Western Heart]

Posted by: annika at 08:18 PM | Comments (16) | Add Comment
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1 "...i don't know enough about the facts, and it's such a sad story i didn't want to think about it." I know too much about the facts, and I want to think about it even less. I've thought and written and watched and listened about it all far too much for my own good in the past few days: I've felt some kind of obligation to, given my own previous if peripheral involvement with it. There's too much to say, and I'll never feel I've said enough. I could respond to each of the points you've made in turn, but I no longer have any desire to: I think your words have put it more elegantly and clearly than I possibly could any more, since it all really is getting me pretty inarticulate at this point. Thanks.

Posted by: Dave J at March 20, 2005 11:13 PM (cZ/tT)

2 "Too bad we don't use the chair anymore. He deserves to fry in old sparky." Thou shalt not kill?

Posted by: d-rod at March 21, 2005 10:22 AM (CSRmO)

3 D-rod, the more literal Hebrew translation is actually "thou shalt not murder."

Posted by: Dave J at March 21, 2005 10:48 AM (cZ/tT)

4 Obviously, it has generally been interpreted in a way that opposes "unjust killing". Exodus 21, however, goes on to say that if a man kills a slave under his hand and the death is not immediate he is pretty much exempt from this commandment. Is that not a case in the Bible for letting a murderer walk away scot-free?

Posted by: d-rod at March 21, 2005 11:24 AM (CSRmO)

5 Not having kept up with the Shiavor case very much, this is my question: Isn't Congress' involvement really a kabuki dance - with their real concern being abortion v. right to life? Isn't this the elephant in the room? Or do I have the wrong impression?

Posted by: gcotharn at March 21, 2005 12:25 PM (OxYc+)

6 As i implied in that post, d-rod, my stand on the death penalty is in a state of flux. The Groenigen protocol and the Schiavo case have had a lot to do with that. Still, Scott Peterson is not innocent, as Terri Schiavo is. And most likely, he will never be executed, anyway.

Posted by: annika at March 21, 2005 01:06 PM (zAOEU)

7 for seven years or so terri has had nothing but due process, 20 judges (in both state and federal courts) over seven years. This is about 16 or 17 more judges than your typical death penalty case gets and ecrtainly no condemned prisoner has ever had a president awaken in the middle of the night to sign a special bill for him. this president in fact, when he was governor, mocked and laughed at karla faye tucker's appeals. I agree with most of your post, pretty much up until your ending. That man is her husband, even the bible says that no one should come between husband and wife. here her parents want to do exactly that -- and not that i blame them. it sucks that he now speaks for her. but he does. it's florida's law, u.s. law and even biblical law. if he is lying or has impure motives (although i don't think it's money, since by all accounts all the medical malpractice money has been spent on the case and he just recently turned down 1 million dollars to walk away from her) then he will have to answer for that before God (or the florida state police if charges are investigated).

Posted by: dawn summers at March 21, 2005 02:16 PM (HLOeu)

8 I know annie. I was more questioning invoking some ancient commandment to this issue. For example, should "honor thy father and thy mother" be obeyed if the father happened to be Scott Peterson or Charles Manson? Dave J. might argue that honor might be better translated as respect, but whatever. I have to agree with Dawn's conclusion to let her die.

Posted by: d-rod at March 21, 2005 02:56 PM (CSRmO)

9 Happily, Annie, I'm with you on this one. Actually, there isn't much about which to be happy, is there?

Posted by: Hugo at March 21, 2005 03:17 PM (Qst0d)

10 Annika, I agree with your entire post, except your ending about the "procedural rush." As far as I know, and as you said about yourself, I don't know enough about the case to be sure, the cases started over 7 years ago. If that is the case, it doesn't really seem to be a rush. Also, is the husband (I can't remember his name, not that I really care to) really an asshole? My wife suffers from a chronic illness - nowhere near Ms. Schiavo's, but I can, to some extremely limited extent, identify with his pain in watching his wife exist in her state. Would I react the way he has were my wife to be in that state? I hope not, but I cannot fairly say. However, over and above all of that, I am highly impressed by your ability to rationally analyze the case. I am a practicing laawyer and I know very few lawyeers who could set aside their personal feelings as well as you did to analyze what is, in the end, a highly emotional and agonizing affair no matter where you stand on it. I look forward to hearing about your life as a lawyer.

Posted by: JJR at March 21, 2005 04:25 PM (HxEi3)

11 BRAVO! Well done!! Let's have a death penalty convo sometime. I know the path.

Posted by: Casca at March 21, 2005 04:41 PM (cdv3B)

12 Terri is a disabled woman who is aware and responds to her environment. Physically and mentally sound people have presumed to know what she wants. That presumption is that she must want to die because she is disabled, because who would want to live like that? Is hers a life not worthy of life because of the fact that she is disabled? Disabled people everywhere must be very, very frightened. And non-disabled people who could become disabled at some future date should be very, very frightened. Terri is you and Terri is me, and I for one, want to live.

Posted by: Carol at March 21, 2005 06:04 PM (N5d+F)

13 I don't think she should die this way. Starvation is a cruel way to go. Not as cruel as some other wys but not something to be lightly dismissed. That being said it's disappointing that the feds have intervened. The due process argument falls short. If Terri was tried for a crime I could see where a due process claim might (mighty big word might is) be approporiate. But this is as best a civil, not a criminal matter. It's in accordance with Florida's laws (afaik). You can't say someone's been denied due process when they're beign affected by legal actions. & as someone pointed out it's not like there's been one or two court proceedings - there have been several. But the feds didn't like the outcome so they made a play for more power. See aside from the constitutional issues there's one that people often ignore. I bring it up whenever anyone advocates a smoking ban - if a government has the power to prohibit something they also have the power to mandate it. Ban smoking in public places? When that happens they also assume the power to mandate smoking in public places. Demand federal review of a life or death state case? That means they can also deny such review. Or putting it in simpler (if somewhat less accurate) terms - if the feds assume the power to save one life then they assume the power to take it. So I'm agin federal involvement. However there's a state angle which everyone seems to be overlooking. I'm sure Florida has some laws pertaining to adultery on the books. Possibly laws pertaining to appointing a guardian in such matters if for some reason a spouse is not competent to look after her interests. Now if both of those assumptions of mine are true about Florida law then since Terri's hubby has a common law wife & a couple of kids I'd think the best route would be to have someone sue him for divorce on her behalf. If said divorce is granted then the parents should (I assume) become her guardians. But that relies on a few assumptions that I have neither the time nor inclination to delve into. Regardless starvation is cruel as hell. The hubby would gain much more respect if he would abondon the plan of just jerking out her tube. If the situation is as he describes (which seems doubtful) then he'd stand a good chance of acquital if he slipped something into her tube to peacefully kill her. But it seems he wants her dead without getting his hands dirty. I disagree with the decision to end her life & his being a punk about it doesn't do a damn thing to change my mind. Oh, about the detah penalty - in principle I'm in favor of it. In practice I waiver from case to case - mainly because I don't trust our legal system to get it right & when we do pick the right guy we take way too damn long. Ideally the death penalty should be imposed at the time of the crime by the would be victim. But that's another topic entirely & perhaps one too foreign to Californians to discuss in a comments section.

Posted by: Publicola at March 22, 2005 05:06 AM (DQj8i)

14 OK, I'm probably going to be banned for saying this, but... I can't be the only one who saw "lurid sex with Durex" sprinkled throughout this post. Kevin

Posted by: Kevin Kim at March 22, 2005 07:25 AM (bbI6U)

15 Kevin, Durex didn't exist in ancient Rome. They used Trojans. okay now i have to ban myself.

Posted by: annie at March 22, 2005 07:37 AM (F5sOy)

16 I see law school has already warped Annika's mind. She's perfectly citing U.S. Supreme Court cases! Mark, J.D.

Posted by: Mark at March 22, 2005 05:29 PM (Vg0tt)

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A Kerry quote from his February 28, 2005 Distinguished American Award fête at the JFK Library:

A lot of the mainstream media were very responsible during the campaign. They tried to put out a balanced view, and they did show what they thought to be the truth in certain situations of attack. . . . But it never penetrated. And when you look at the statistics and understand that about 80 percent of America gets 100 percent of its news from television, and a great deal of that news comes from either MTV, Jon Stewart, Bill Maher, Jay Leno, David Letterman, you begin to see the size of the challenge. . . . And so I don't have the total answer. I just know it's something that we've really got to grapple with.

i guess what Kerry was trying to say was that he couldn't get his message out. Of course it couldn't have been the message itself. No way. Not that.

Hat tip to Roscoe.

Posted by: annika at 10:00 PM | Comments (5) | Add Comment
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When Tony Pierce interviewed me last month, i criticized the president for "his maddening inarticulateness" and his administration for its "horrible job of articulating the argument for war."

So today, i was pleased to hear the President's remarks to the National Defense University at Fort McNair. The speech covered subjects that the President has emphasized often, and unfortunately it's not getting the attention it deserves. It was a historic speech, and deserves to be considered among this presidentÂ’s finest. i think the president explained our foreign policy today with more clarity and less defensiveness than he has ever done until now.

The theory here is straightforward: terrorists are less likely to endanger our security if they are worried about their own security. When terrorists spend their days struggling to avoid death or capture, they are less capable of arming and training to commit new attacks. We will keep the terrorists on the run, until they have nowhere left to hide.

During the presidential campaign season, i often tried to point out that Bush had the only long term strategy for keeping America safe. Kerry wanted to hunt down Osama, but it was clear to me that eliminating one man was not going to prevent future attacks. Only changing the Middle East could do that. Bush made that point beautifully today.

Our strategy to keep the peace in the longer term is to help change the conditions that give rise to extremism and terror, especially in the broader Middle East. Parts of that region have been caught for generations in a cycle of tyranny and despair and radicalism. When a dictatorship controls the political life of a country, responsible opposition cannot develop, and dissent is driven underground and toward the extreme. And to draw attention away from their social and economic failures, dictators place blame on other countries and other races, and stir the hatred that leads to violence. This status quo of despotism and anger cannot be ignored or appeased, kept in a box or bought off, because we have witnessed how the violence in that region can reach easily across borders and oceans. The entire world has an urgent interest in the progress, and hope, and freedom in the broader Middle East.

. . . By now it should be clear that authoritarian rule is not the wave of the future; it is the last gasp of a discredited past. It should be clear that free nations escape stagnation, and grow stronger with time, because they encourage the creativity and enterprise of their people. It should be clear that economic progress requires political modernization, including honest representative government and the rule of law.

. . .

Across the Middle East, a critical mass of events is taking that region in a hopeful new direction. Historic changes have many causes, yet these changes have one factor in common. A businessman in Beirut recently said, ‘We have removed the mask of fear. We're not afraid anymore.’ Pervasive fear is the foundation of every dictatorial regime -- the prop that holds up all power not based on consent. And when the regime of fear is broken, and the people find their courage and find their voice, democracy is their goal, and tyrants, themselves, have reason to fear.

HereÂ’s how President Bush acknowledged that very important, and welcome, shift in our foreign policy:

The advance of hope in the Middle East also requires new thinking in the capitals of great democracies -- including Washington, D.C. By now it should be clear that decades of excusing and accommodating tyranny, in the pursuit of stability, have only led to injustice and instability and tragedy. It should be clear that the advance of democracy leads to peace, because governments that respect the rights of their people also respect the rights of their neighbors. It should be clear that the best antidote to radicalism and terror is the tolerance and hope kindled in free societies. And our duty is now clear: For the sake of our long-term security, all free nations must stand with the forces of democracy and justice that have begun to transform the Middle East.

Encouraging democracy in that region is a generational commitment. It's also a difficult commitment, demanding patience and resolve -- when the headlines are good and when the headlines aren't so good. Freedom has determined enemies, who show no mercy for the innocent, and no respect for the rules of warfare. Many societies in the region struggle with poverty and illiteracy, many rulers in the region have longstanding habits of control; many people in the region have deeply ingrained habits of fear.

We know that freedom, by definition, must be chosen, and that the democratic institutions of other nations will not look like our own. Yet we also know that our security increasingly depends on the hope and progress of other nations now simmering in despair and resentment. And that hope and progress is found only in the advance of freedom.

This advance is a consistent theme of American strategy -- from the Fourteen Points, to the Four Freedoms, to the Marshall Plan, to the Reagan Doctrine. Yet the success of this approach does not depend on grand strategy alone. We are confident that the desire for freedom, even when repressed for generations, is present in every human heart. And that desire can emerge with sudden power to change the course of history.

. . . Those who place their hope in freedom may be attacked and challenged, but they will not ultimately be disappointed, because freedom is the design of humanity and freedom is the direction of history.

Posted by: annika at 10:26 PM | Comments (4) | Add Comment
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Rolling Stone has a good article regarding the ineffectiveness of those arrogant jerks at MoveOn.org. Here are the highlights:

They signed up 500,000 supporters with an Internet petition -- but Bill Clinton still got impeached. They organized 6,000 candlelight vigils worldwide -- but the U.S. still invaded Iraq. They raised $60 million from 500,000 donors to air countless ads and get out the vote in the battle-ground states -- but George Bush still whupped John Kerry. A gambler with a string of bets this bad might call it a night. But MoveOn.org just keeps doubling down.

. . .

Moveon is guided by a tiny, tightknit group of leaders. There are only ten of them, still deeply committed to the Internet start-up ethos of working out of their homes and apartments in better-dead-than-red bastions such as Berkeley, California, Manhattan and Washington, D.C. For a political organization that likes to rail against 'the consulting class of professional election losers,' MoveOn seems remarkably unconcerned about its own win-loss record. Talk to the group's leadership and you won't hear much about the agony of defeat.

. . .

But some insiders worry that putting left-wing idealists in charge of speaking to the center seems about as likely to work as chewing gum with your feet. 'There's a built-in tension between the views of people who are part of MoveOn and contribute to it, and the people they're trying to reach,' says Ed Kilgore of the centrist Democratic Leadership Council.

. . .

If speaking to the center was MoveOn's goal, 'they failed miserably,' says Greg Strimple, a media consultant who advised the Senate campaigns of three GOP moderates. 'None of their ads had an impact on the center electorate that needed to be swung.' If the group's leadership saw anything broken with its advertising during the campaign, though, it shows no signs of fixing it. In a rush to get its new Social Security ad on the air, MoveOn didn't even test it.

The ad, which depicts senior citizens performing manual labor, was not only paid for by MoveOn members but was also created by them. This kind of closed feedback loop is indicative of a larger problem: the group's almost hermetic left-wing insularity. 'We don't get around much,' acknowledges Boyd. 'We tend to all stay in front of our keyboards and do the work.'

. . .

So who is MoveOn? Consider this: Howard Dean finished first in the MoveOn primary. Number Two wasn't John Kerry or John Edwards -- it was Dennis Kucinich. Listing the issues that resonate most with their membership, Boyd and Blades cite the environment, the Iraq War, campaign-finance reform, media reform, voting reform and corporate reform. Somewhere after freedom, opportunity and responsibility comes 'the overlay of security concerns that everybody shares.' Terrorism as a specific concern is notably absent. As are jobs. As is health care. As is education.

There's nothing inherently good or bad in any of this. It's just that MoveOn's values aren't middle-American values. They're the values of an educated, steadily employed middle and upper-middle class with time to dedicate to politics -- and disposable income to leverage when they're agitated. That's fine, as long as the group sticks to mobilizing fellow travelers on the left. But the risks are greater when it presumes to speak for the entire party.
[emphasis added]

Or not.

Update: Brittany weighs in with her own opinion of Rolling Stone:

I think the same guy who does Rolling Stone does Us Weekly. He's this big old fat man.

Posted by: annika at 12:56 PM | Comments (8) | Add Comment
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The challenge: create a photoshop image that is even more freakin' disturbing than yesterday's Ward Churchil image.

Mission accomplished? i'll let you be the judge.

That's pretty ugly, but not as ugly as what he said on the floor of the Senate today, when he equated Senate Republicans with Hitler. Radio Blogger has the details.

Bird has completely lost his senses. How ironic for a Klansman to be lecturing on Nazism. At least he knows his subject.

By the way, i fully support this idea. If it's good enough for our stamps and money, it's good enough for West Virginia.

Posted by: annika at 09:47 PM | Comments (3) | Add Comment
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Ward Churchill is in full meltdown mode. Last Thursday, he swatted a newspaper at a Denver tv reporter, when the reporter tried to ask about the "Winter Attack" painting. Churchill wants to get fired. Like the Pearcy couple here in Sacramento, he thrives on his own controversy. He lives for it.

The University may oblige him.

Internal discussions at Colorado University are centering on a buyout offer to controversial professor Ward Churchill in order to quell the tempest caused by his characterizations of victims of Sept. 11, 2001, as 'little Eichmans' and to avoid a costly, drawn-out lawsuit, the Denver Post reports.

. . .

Colorado regents have authorized an internal review of Churchill's writings and speeches to determine if he should be fired. A decision is scheduled for the week of March 7, although Churchill could appeal if the university terminates his employment. Such a dismissal, even if not mired in the controversy surrounding Churchill's case, could last years and inpose [sic] expensive legal costs.

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