No respect for Life, Facts, or Congress

Andrew C. McCarthy on Terri Schiavo on National Review Online

Here, it bears noting that Whittemore was placed on the federal bench by President Clinton in 2000 after spending a decade as a judge in the state courts of Florida. His opinion is a staunch approbation of the integrity of Florida’s procedural framework, and extremely deferential to the performance of his former state-court colleague, Pinellas Circuit Court Judge George Greer. Essentially, Judge Whittemore reasons: Florida’s procedures are fair and designed to achieve a just result, there is no basis to suspect that those procedures did not produce a just result here, and, therefore, federal due process has been satisfied — without any need to revisit (i.e. , conduct a de novo review of) the facts that were actually found here under those fair procedures...

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.)

What an asshole. Is he pissed that the Schindlers did not actually tell him what to think? Is he that divorced from the reality of his job?

Congress is the heart of the republic and the courts should give it due respect. Whittemore ruled on Florida's process but not he facts. This is a extreme offense to the de novo request of the Congress. In the end it is about the facts of the case, not the process alone. Our courts seem to have removed themselves from the real world where the rest of us live. Now, I am with Scalia on the Due process issue

the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee.

So, I have a dilemma. Due Process was followed -- I think. But an extreme injustice was committed by the courts and no respect was shown to the facts of the case.

What do you do when one branch of government secedes from the union by seceding from the real world? Take up arms? Maybe, but let's try voting first. Again Scalia:

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, ... it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.