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Bad Faith

By Charles O'Brien

Start with Katha Pollitt. In the April 18 issue of The Nation, she unsurprisingly holds forth (unsurprisingly) on the controversy surrounding Theresa Schindler Schiavo. She comes down, of course, on the side of pulling the tube (or as she nicely says, "Schiavo's feeding tube was withdrawn"). There's no real argument offered, but she makes it clear that she's not happy with what she sees on the other side:

The Terri Schiavo freak show is so deeply crazy, so unhinged, such a brew of religiosity and hypocrisy and tabloid sensationalism.¹

It's all there. Contrary arguments are "crazy" and needn't be engaged. Religion is religiosity." Hypocrisy is this: juxtapose two facts, assume dishonesty, and you're set. Tabloid sensationalism is the other guy discussing a hot story; what Pollitt does is "debate."

She names names: "I don't believe they [the antecedent is "Americans"] want Tom DeLay to be their personal physician."

Now, it's easy to imagine Tom DeLay, the Hammer, threatening, twisting arms, browbeating, calling in favors, forcing a bill through by one or two votes. But here, DeLay does not get paternity. The Congressional act ordering Federal judicial review of the case passed the House overwhelmingly, and the Senate without a single vote against. DeLay matters that much to Pollitt, not because he matters that much, but because she knows her audience. Medical questions come up in Congress all the time (Medicare, research, V.A. hospitals): can't any member of Congress be derided as "personal physician?" Better to save the sneer for the declasse bug-squasher from Texas.

Newt Gingrich makes the list. His offense was to call Ms. Schiavo by her first name. Such informality is something she claims "they" (Americans) don't want. But Gingrich himself is more often spoken of in public by his first than by his last name. And Pollitt herself - who only wants the woman dead, after all - feels free to call her "Terri."

And Senator Frist, she goes on, has "diagnose[d]" [Schiavo] by video."

Granted, Frist is a politician, making political points, and may deserve some distrust. But he is a practicing doctor (or in Pollitt's pompous preference, "physician"), and doctors can make diagnoses without being in the same room as the patient. Frist's diagnosis may be wrong, but it will take more than the word "video" to show that it is. ²

Jesse Jackson's there, too. A lot of The Nation's readership swooned for him when he ran for President in 1988; and a lot of that readership swooned for Ralph Nader in 2000. Jackson and Nader were on the same side here - they spoke up for prolonging Ms. Schiavo's life. In Pollitt's cropped picture, only Jackson is allowed to appear. She couldn't squeeze Nader into the "religious left" (scare quotes in original), or convincingly have him "pop in for a prayer." This was all about religious zealotry, and the many people on that side of the question who clearly had nothing to do with religion - in Pollitt's world, it just can't be.

And Randall Terry was guaranteed to show up, outside the hospice, and inside the column. A comparison with the Rev. Sharpton may be useful. Not even he expects everything he says to be taken seriously. Some causes he's embraced have been hoaxes. Some have been very real. Families that have lost someone to a mob or a police shooting have turned to him. He's the guy that's there for that kind of thing. You may question his motives or the families' judgment, but about the merits of each case, you know nothing up front. Pollitt throws out the name Randall Terry, who is a guy for this other sort of thing. Pollitt knows nothing up front, and she won't learn.

And there's Pollitt's find: "Scott Holdreth, a convicted sex offender who told an A.P. reporter that driving long hours to the hospital and getting arrested was all his 10- year-old son's idea. The least of it first: "all his 10-year-old son's idea." The word "all" conveys Pollitt's disbelief adequately; but it doesn't begin to justify it. What, at all, does she know about the man and his son and any conversations they ever had? "Convicted sex offender," though, is the supposed scoop. What kind of sex offender? One thinks immediately rapist. If he was that it was inept not to say so. If it was something less, it was less than honest not to specify. And what is this "sex offender" doing in Pollitt's column? Does she mean that he was typical of people outside the hospice? Should public demonstrations run background checks on participants, because a rap sheet or two invalidates the whole thing? At a time when the voting rights of felons are hotly contested, Pollitt has taken an extreme position: felons - assuming Holdreth is a felon - shouldn't have the right to an opinion.

For Pollitt, the Schiavo case is tied up with abortion. The connection is rather fanciful. She claims that the starving of and denial of water to Schiavo is a metaphorical abortion (and abortion is sacrosanct). But anything can be a metaphor for anything, as she would understand were she a less pedestrian writer. There is also some slippery-slope sentiment at work in her piece. Let the "religious right" and "its Republican friends" (i.e. the overwhelming, bipartisan majority of Congress) have their way on this, and it's on to a regimen of compelled pregnancies, of "mak[ing] women pay for sex with childbirth." (That Karl Rove, he plays a deep game of chess!) Sometimes this will lead to that, but not always, and not here. People are capable of making distinctions.

Pollitt even shows us people making distinctions. She notes that Tom DeLay took his father off life support and that Robert Schindler (Theresa Schiavo's father) took his mother off life support. Here, she intimates, is proof of hypocrisy. It is no such thing. Putting DeLay's name first was supposed to cinch it. Delay knows that pulling the plug is the right thing to do. Stringing the yahoos along here is to his political advantage. Robert Schindler is not a politician. But in Pollitt's logic, if DeLay is a proven hypocrite, so must Schindler be.

But, like people, let's make distinctions. The cases are not the same. Theresa Schindler Schiavo was never on life support, and this was never a right-to-die case. Suspect DeLay all you want (as long as you don't pretend to know). But Robert Schindler's willingness not to stretch out his mother's life lends his campaign here more credibility. That campaign was not the fruit of abstraction. Years spent with his daughter told him this was a life worth saving, a life necessary to be saved.

The particulars of the case, though, are of no interest to Pollitt. The woman at the center of the case gets the heave-ho from Pollitt, who just wants to talk about the usual villains and "John Q. Public" and "Cousin Jim," and Americans in general, helpfully defined in her second sentence as the people who "tell pollsters the earth was created in six days flat³ and dinosaurs shared the planet with Adam and Eve." And just about dead center in her piece, and the thing she really came to say is this:

"It's about time Americans woke up."

Theresa Schindler Schiavo had little chance of waking up. Little wonder, then that Pollitt would consign her to cinders with so little concern.

In the ordinary run of things, an article by Katha Pollitt would be a thing apart from any serious consideration of an issue. Here, however - and it is a disturbing thing - some of her attitude seems to have spread to others. The case for starving Theresa Schindler Schiavo went like this:

Terri Schiavo died 15 years ago. Her family, i.e. her husband, has cared for her during that time and has sought to effectuate her wish not be kept on life support. Other relatives have interfered. Nevertheless, courts have, in carefully crafted decisions, ordered that her wishes be respected. Recently, the Evangelical Right - a nascent theocracy - has mobilized around this non-issue. The Republican Party has signed on.

Justice prevailed, of course,. But the judiciary has become a target: its independence is threatened, and the physical safety of judges is at risk. Theocracy still looms.

It didn't happen that way, though.

The question whether it is legitimate to cut a life short - what's come up in right-to-die and assisted suicide cases - was not at issue here. The disagreement was less over legal principle than over Ms. Schiavo's condition. The justifications for speeding someone's death are basically these.

1. Death is inevitable and will come soon. If someone is allowed to die in one hour, instead of a day, or in a day, instead of ten, no harm has been done. Ms. Schiavo could have been sustained indefinitely.

2. The patient is in great pain. Ms. Schiavo had none.

3. The most discomfiting, and probably the commonest: Long-term and/or intensive care for a patient will work the financial ruin of a family. Here, the Schindlers were willing to cover the expenses (and there was money remaining from a judgment earmarked for Schiavo's long-term care).

Michael Schiavo, it was frequently said, proposed to take his wife off life support. She was not on life support. She was being fed through a tube. There were no machines performing organs' functions. "Life support" may be defined expansively, of course. But anyone with an oxygen tank, a pacemaker, an ampule of insulin in the refrigerator, an appointment at the dialysis center needs to be wary of such expansion.

There was nothing reassuring about Michael Schiavo. In the role of the devoted husband - his required role - he was not at all credible. (In the Lifetime movie of the week, who could play him? Tom Sizemore? Michael Madsden?) It's well-known, and apparently regarded as unimportant, that he lived with another woman whom he wanted to marry, and with whom he had two children. His wife was an obstacle - the only one - to his happiness, such as that was. Ending her life also made all her property his. Somebody who was a fiduciary for even $500 of somebody's money would be disqualified for far less. He, and he alone, was called "the family." Her natural family, against whom there were no claims of a conflicting interest, were treated as undesirables. ⁴ "Her family", i.e. her adulterous husband, swore that he was only carrying out her wishes. ⁵ It's true that she never said it in writing, in the form of a living will. Ultimately that absence wouldn't matter. On tv, it was often said that this was useful reminder, that everybody needed to see a lawyer right away. Most people would say, I think, thanks. Katha Pollitt, in her fatuous way, says that the young don't think to write out living wills. She has a living will, or means to get one; and the rest of the population is now on notice.

But no, according to Michael Schiavo, she said she wanted to cut things short. This, he alleged, happened after she saw a movie on tv about somebody on life support. Now, it happened that I had finished watching the first three seasons of Curb Your Enthusiasm just before the Schiavo story took over the news. Larry David is unusually fond of funerals as settings (true of many Seinfeld episodes, too). "Clear your mind of cant," said Samuel Johnson, and Larry David is here to expatiate. There's a very narrow range of what may be said in certain settings e.g. in the presence of the dead. If you hear of someone being horribly mangled, and more so if it's a presented in a movie, consider two responses. The first is the heartless, technocratic, unfeeling, unempathetic one. It talks about prostheses, wheelchairs, adjustment to a diminished life, reconstructive surgery. It sounds robotic - and it may be the only useful thing to be said. The other is the sensitive, caring, all-heart, ostentatiously human one. This is terrible. And I feel it deeply. I would stake my own life on it. Just kill me! An oral statement is not equivalent to a written authorization. The writing may reflect the author's wishes, but that is secondary. It confers a right on some other person, and how the author felt about it all is not of too much interest. It is surprising that a vacuous remark about a movie could be mistaken for the expression of anyone's deepest, most considered wishes; astonishing that it could be the basis for a death sentence.

Remember, too, that the alleged expression was fifteen years old. People can change their minds with time, and if they do, they can always tear up a document, or write a different one. A casual remark, which they are unlikely even to remember, how might it be revoked? Or consider this scenario: A candidate for a fellowship far excels any other candidate. But it is learned that when he was five, he said he wanted to be a cowboy when he grew up. The fellowship is denied him, for fear that he'd run off with the rodeo.

And the witness to the statement is Michael Schiavo, the most conflicted man in the world. Did she say it? Had he disclosed such a statement while he was seeking damages for his wife's condition (and making sworn statements to get those damages), he would likely have been awarded far less. Award in hand, Michael Schiavo came to regret his selfish desire to give her long-term care and hopes for rehabilitation. He would do the right thing: see her dead, and the quicker the better.

How explain (but not justify) the result? Trial courts are not commissions of inquiry. They adjudicate differences between this party and that. A Michael Schiavo, comes to court for permission to terminate his wife, seriously damaged, and unlikely to recover. He throws into the mix an alleged statement by his wife giving the go-ahead. The probate judge could go along, or declare the testimony perjurious - on what proof? - and tantamount to attempted murder (a subject outside his jurisdiction). The Schindlers, for their part, could not rebut Schiavo's claim: they weren't there. And appellate courts - they weren't there, either, in the courtroom - are barred, in just about every case, from upsetting findings of fact. The advocates for Terry Schiavo's death have rested a lot on Michael Schiavo's string of court victories. He hasn't been proven right again and again, only won a single dubious judgment, that inertially replicates itself.

Ms. Schiavo's death has had a lot of sugar-coating. After her starvation had begun, the media continued to talk about the hospice "where she was being cared for." Katha Pollitt complained about the "fanatics moaning [!] and praying outside the hospital while they [Pollitt's conception of plain folks] 're making hard decisions." The "hard decisions" made here were, of course, harder on some people than on others. And nobody was "making" hard decisions. Those decisions had been made long since and were being pursued remorselessly, with no evident agonizing or hint of a second thought. This was what she wanted, it was insisted. People want quick deaths, not two weeks (an index, by the way, of her vitality) without food or water. She felt nothing, yet she was given morphine. George Felos, Michael Schiavo's lawyer, and author of Litigation as Spiritual Practice, described her as "peaceful" and "beautiful." Dante, a somewhat more consequential poet than Katha Pollitt, has some lines on starvation. In Canto XXXIII of The Divine Comedy, Ugolino describes the death of his children

Pianger senti fra 'l sonno i miei figliuoli dimandar del pane
I heard my sons cry from out their sleep and plead for bread

E se non piangi, di che pianger suoli?
And if you do not weep, when will you weep?

When will you weep? Not, apparently, if the politics are not in order. There was nothing inherently left/right about the case. Conservative Republican judges ruled for Michael Schiavo. Politicians like Barney Frank opposed those rulings. (Pollitt: "The Dems 6 who mostly cowered.") Disability activists, from Not Dead Yet, were prominent outside the hospice (Pollitt: "freak show"). It was true, though, that most of the Right stood with the Schindlers. That was enough. In the mindlessness of Nation-style politics, it's always, "Gimme none of what he's having." The rulers of Afghanistan, Iraq, Sudan, whoever, wherever will be taken under a protective wing, and cooed over. The insurgents are doing just fine in Iraq and Michael Schiavo is Father of the Year. When Pollitt says that Jesse Jackson "seems not to have gotten the memo," she- altogether by accident - says something true.

The support of many religious people for the Schindlers won Michael Schiavo many adherents. There's a lot of talk of the Religious Right, "Christianists," "fundamentalists" (the moral equals of a Zawahiri), theocrats. Such could be found outside Theresa Schiavo's hospice. The larger crowd looked different.

The most noticeable group there - apart from the wheelchair-bound - were Roman Catholics, who are hardly evangelicals. For purposes of polemic, the Catholics were wished away. The evangelicals, for present purposes, made a better target. But there was nothing necessarily religious about wanting to spare Theresa Schiavo, and a number of people taking her side made a point of their absence of religious belief.

But grant (as you shouldn't) that religion was central to the Schindlers' position. So what? Abolitionism and the civil rights movement, it will be acknowledged came out of the churches. And, more recently, the toppling of the Taliban (Stop Bush's War on Women!) and the liberation of Iraq were preceded by many a prayerful hour at the White House. This kind of thing is often found: A cleric who denounces an execution speaks truth to power; a cleric who denounces an abortion imposes religion. To raise the religious objection, as in the Schiavo case, is to reverse the order of argument. You must prove a position wrong before you can criticize its etiology - a separate argument to be made. There is no neat distinction between religious thought and other thought. Until recent times, the same people who did theology also did philosophy. Such fields as ethics, politics and anthropology were understood within a religious context, and they are not thereby any less philosophy. Take Hegel, if you will. His early writings were theological, and, famously, he made up part of the curriculum at divinity schools when Martin Luther King Jr. was studying. Even his more secular works are not innocent of religion. If Hegel is in hell, it might be for cheating the Holy Ghost of royalties.

A secular legal order is something all but a tiny minority believe in. A legal order purged of anything shared with religious tenets (Thou shalt not steal?) is not to be had, and not to be sought.

Late in the day, the legislative and executive branches of the United States combined in an effort to save Ms. Schiavo's life. They bumped into the Federal judiciary. That judiciary is a hot issue these days. Let's go into it. In 1803, in Marbury against Madison, John Marshall threw out a case brought under a Congressional act that purported to expand the original jurisdiction of the Supreme Court in violation of the plain meaning of Section 2 (2) of Article III of the United States Constitution. What is not plain anywhere in Article III, is the power of any Federal court to invalidate acts of Congress. English courts did not toss out acts of Parliament. Surely, if the Constitution afforded the Article II branch, the President, the limited power to undo the work of the Article I branch, the Congress, by veto, and did so expressly, it would have been more forthcoming about this extraordinary, unprecedented new power assumed by the Article III branch. Marshall writes, "It is emphatically the province and duty of the judicial department to say what the law is." Emphatically, it is not. How did he get away with it? First, the country's political institutions were a-building, and Marshall's reading was, if not definitive, at least not altogether implausible. Second, he was declining a case, not ruling on it. When George Washington asked the Supreme Court to render an advisory opinion, he was told they lacked jurisdiction. Better not to insist. Third, and most important, the result in Marbury was a congenial one to the Congressional majority that first heard it. Marshall's long, involved reasoning could be taken as ornamental. ⁷ Since then, the judiciary has received great deference. If courts can rule on the constitutionality of a statute, legislators are spared some work, and lifetime appointees can take some political risks - when they will - that elected officials prefer to avoid.

Let's distinguish three terms: judicial independence, judicial ultimacy, and judicial supremacy. Courts should be independent, in the sense that results shouldn't be pre-judged. There are limits on that independence. Just as Congress can't find someone guilty of a crime, a court can't impose a greater sentence than Congress has legislated.

And a judge's independence is not compromised because a jury's acquittal cannot be reversed. Independence properly means freedom from interference in carrying out proper judicial functions. Past that, whether it is courts declaring themselves beyond regulation or beyond criticism or, as the Supreme Court has recently done, pronouncing legislation "unwise" - it's a dishonest slogan.

Judicial ultimacy is just the idea that the fate of a law once it gets to the courts is what the courts make of it. Ultimacy, too, has it limits. A judicial interpretation unacceptable to a legislature will result in revised legislation. And as the judiciary is ultimate relative to the legislature, so the executive is ultimate relative to the judiciary. The executive usually does defer to the judiciary. But Lincoln's reading of Dred Scott is the great counter-example. He said the case bound only the parties to the case, and Roger Taney had no authority to extend it to anyone else. Had Taney opposed Lincoln on the point, it is not hard to picture (not unpleasant either) a couple of soldiers showing up at the Capital with an order from the President in hand, and escorting Roger Taney to a ship bound for exile.

Judicial supremacy is, essentially, a myth. The Supreme Court did not explicitly claim its rulings were "the law of the land" until the second half of the Twentieth Century. It is a doctrine not found in the Constitution itself and never ratified by either collateral branch. Judicial supremacy is harmless enough as a controversial hypothesis.

It becomes dangerous when it masquerades as judicial independence.

Those on Michael Schiavo's side are also on the side of such judicial "independence." "Terri's Law" directed the District Court in Florida to hear the Schiavo's case de novo. By way of comparison, a civil case in New York involving a few thousand dollars can be heard de novo after a verdict, as a matter of right. That the Congress could direct a Federal trial court to sit as a Federal trial court - this was not Marbury - would seem beyond dispute. The District Court disagreed. It refused to hear the case de novo, preferring to treat the case as an appeal and, predictably, it saw nothing irreversible. And its idea of a stay was not to keep the patient alive throughout the litigation, which was likely to be brief, but to keep her starving and dehydrated, on the fast track to the crematorium. The Federal appeals court, jeeringly, affirmed. The Supreme Court declined to hear the case. At least, we were spared a variant of "Three generations of imbeciles is enough."

In the left/right alignment of the Schiavo case, the judges opposing the will of, oh, the Worst President Ever and Tom DeLay and Randall Terry and that sex offender are the progressives. That many of the judges are known to be conservative Republicans is offered as proof of the extremism of "Terri's Law." The institutional solidarity of judges is imagined away. When judges are of one mind, who knows whether that mind is of the left or of the right? The knowing know.⁸ The Supreme Court (and by some illogical extension, all courts) acquired a halo more than a half-century ago. Little in its history presaged Brown vs. Board; nothing since has matched it. We may, for argument's sake, take Brown as more typical of the Court's practice than Scott against Sanford. Even so, the cult of the Supreme Court should look a little closer at Brown. The case was first argued during Fred Vinson's last term as Chief Justice. The preliminary vote was 6-3 to retain segregation. Earl Warren was to replace Vinson, so decision was reserved, and argument was rescheduled. Assuming a Court made up of learned jurists applying settled Constitutional principle, we would expect the vote in favor of separate-but-equal to be either 5-4 or 7-2. It was, of course, 9-0 to end segregation in the primary schools. Warren lobbied his associates effectively and insistently. Two aims of that lobbying stand out. First, segregation was a serious handicap for the United States in the prosecution of the Cold War; i.e., the immediate political situation outweighed the intent of the Congress that wrote the Fourteenth Amendment. Second, Warren only needed to flip one vote to get a 5-4 majority, but he saw a unanimous Court as necessary to secure compliance from a recalcitrant South. (When George W. Bush came back to Washington to sign "Terri's Law", of course, that was just grandstanding.) The main thing that the cult of the Supreme Court should understand is this: what Brown overturned was less the rule of a Kansas school board, than the "law of the land" as pronounced by the Supreme Court in the Nineteenth Century and affirmed over and over again in the Twentieth.

But there's more to it than Brown's warm afterglow.

"Progressives," who can't win elections (i.e., who are not the majority) turn to courts instead. It ought to be a bitter pill to rely on such anti-majoritarian institutions, but nobody seems bothered. There are costs, naturally. First, the vision of political action becomes this: small teams of professionals, preferably graduates of elite schools, funded by large fortunes, either directly or indirectly through foundations, win one-vote majorities of this or that appellate branch. The idea of democracy as the public life of a free people is, well, it'd be a freak show. The thought of a people once upon a time in Michigan, seizing their factories, making themselves at home there, fending off official violence, emancipating themselves, and all in open contempt of Federal injunctions - was it all just a dream?

Second, there is a cultural component. Any savage can run for office, and with enough votes, serve. The judiciary are the gatekept. Judges, with virtually no exceptions, are people in suits with graduate degrees. One is expected to stand in a judge's presence, etc., etc.

The gatekept may, in fact, often act more justly than the elected savage. But it is noxious to a democratic ethos to favor a politics that filters out the yahoos (also/known/as one's fellow citizens).

III

It's been said that the Schiavo case was a major defeat for the "right." Don't be so sure. People are said to have rallied around the judiciary in the face of extremism. Tom DeLay has threatened to impeach judges. Except he hasn't, and he's not a Senator, and nobody's getting impeached, and it is not beyond the pale to mention constitutionally prescribed measures. The spectre of violence is raised. The family of a Federal judge in Illinois was killed, and a state judge in Georgia, along with other court employees, was killed. In the first case, the killer was a disappointed litigant, in the second, a desperate criminal defendant. Neither had any political affiliations. The lesson: This is where criticism of the courts leads, and why it must stop now. (By contrast, at a time when one man has confessed to participation in a plan to fly a jet into the White House, and another man has been indicted in Virginia for planning to kill George W. Bush with a car bomb, nobody has suggested that it is out of order to criticize the Chimperor.)

A few public opinion polls have been offered as evidence for a backlash against the alleged overreaching of the far right. An ABC poll showed a majority favoring Michael Schiavo's position - but the question wrongly included the words "life support." Time's poll showed a similar majority - but the question took this form: The Schindlers' say x. Michael Schiavo says y. The judge ruled for Michael Schiavo. Who do you like? On the other hand, a Zogby poll showed 79% favoring the Schindlers' position. Howard Dean has said he means to "use" this case in 2006 and in 2008. It's unlikely to do him any good. Those who regard the resolution of this case as an occasion for gloating, are, whatever a flawed poll or a perfect Katha Pollitt might say, few, and their victories ought to be few. And the untimely death of Teresa Schindler Shivao is, for the small, a small victory.

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Notes

1 If only she had been talking about Feb. 15, 2003!

2 By contrast; Howard Dean retired from medical practice years ago (and what a waste of a bedside manner that is!). But out on the campaign trail, would slip the smock on again and treat his audience to his recovered memories of innumerable minors he saw in his practice impregnated by their fathers.

3 This little word "flat" tells us a lot about Pollitt. There are some people who believe the Creation account in Genesis is literally true, some who believe it is literarily true, some who think it's all nonsense. Has anyone ever said, "I could believe God made the world, but in just six days? Come on, it'd take a least a coupla months."

That Pollitt presumably credits some sort of non-theistic Big Bang theory shows her snideness about "six days flat" even sillier.

With Pollitt, there's no reasoning. "Flat" is just attitude. The rest of her sentence says that she disdains this canaille. "Flat" says, No, I really disdain it.

4 It is possible to sympathize with the man in a noirish, all-too-human perspective. He's got an unconscious wife, no good to herself, and to him nothing but a burden. And he's got a whole contraband family. He wants out. Of course, the lightest breath of that sympathy is also the whirlwind that carries all the public posturing away, and no one knows where. [Or more blandly he's moved on. But if he's moved on, he's no longer her family.]

5 Assume even it was her wish. She had no need to die now. The need was all his, and even a living will would have given him authorization but now commanded him to let her die.

Supporters of Michael Schiavo like to imagine that if only Terri had five minutes of full consciousness and the full use of her hands, she'd surely sign a living will. Isn't it at least as likely that she'd sign a divorce petition?

6 "Dems"? Is it the proud full sail of her great ego that has her referring to the Democrats in such a chummy, breezy way, even as she slanders them? Dems is acceptable in a headline, where mordancy (not something Katha Pollitt does) is prized. "Dems" in this context is just vulgar, and not in a good way.

7 Twenty years later, in Johnson against M'Intosh, a parcel of land in today's Midwest had been sold by a local Indian tribe and also sold as United States property (the title claimed by James I had passed to the U.S.). Marshall ruled that the claim of the United States would prevail. He wrote "these claims have been maintained as far west as the river Mississippi, by the sword. It is not for the courts of this country to question the validity of this title."

Where the sword was drawn, it would be impolitic for him to oppose.
Judges have the last word as they have careers: only during good behavior.

8 Some further left/right commentary: The New Republic and The Nation
(!) ran articles expressing some nervousness about the privileging of courts. Charles Krauthammer and Ted Olson came to the defense of the judiciary.

THE POST MORTEM

Congressman Barney Frank of Massachusetts voted against “Terri’s Law.” I had mistakenly taken some remarks he made to George Stephanopolous on March 28, 2005 to the effect that talking to advocates for the disabled had convinced him that Schiavo-style euthanasia might be the product of a coercion as evidence that he had voted accordingly. No such luck. After publication of the autopsy findings, Frank holds forth in an article by Anne E. Kornblut in the New York Times (June 16, 2005): "this fanatical party willing to impose its own views on people and, frankly, powerful enough to do it."

It’s all foolish stuff. Republicans are, like it or not, the executive branch, the strong majority of both houses of Congress, most Federal judges, most governors. Deep blue New York State has a Republican governor. Deeper blue New York City has a Republican mayor. Barney Frank’s home state has a Republican governor. Most everybody else may easily be wrong. But crazy? Fanatic is an unfortunate word. It may have some use, but most commonly it means only “extraordinarily devoted to a cause I don’t believe in.” And they are, says Frank, “willing to impose [their]] views on people.” Frank is a legislator: what does he think he does for a living? And that little word, “frankly”, deserves a moment’s attention. Somebody once wrote that when Newt Gingrich used it – and he used it a lot – it meant [lie to follow]. Well, maybe. But “frankly” so reeks of condescension because it is the preferred term of social betters to social inferiors. It announces that the politesse of equality and shared humanity, all that hoopla, just went out the window. What follows “frankly” may be real, but it doesn’t even want to be right.

If I owed Frank an apology, he’d have it. As it is, he owes me. And as to the point I was making in the article, substitute “Tom Harkin” for “Barney Frank”, and we’re back in business.

Theresa Schindler Schiavo’s brain was about half normal size, her condition was not reversible, she could not see, and there was no evidence that her husband had assaulted her. She was said to be in a “persistent vegetative state”, although, now as before, the term itself is controversial. Given these findings, what needs revision?

• Everyone agreed she had suffered severe brain damage. The extent was not known because her husband refused further tests, and the courts ratified that refusal.

• Her parents hoped for rehabilitation, and some Republican legislators claimed her chances of recovery were good. They were wrong, and they were wrong because they said more than they knew. Those who denied the possibility of rehabilitation also spoke more than they knew. They tripped over something that was true. They were “right” in the ordeal-by-water sense: if you float, you’re a witch, and you prove your innocence by drowning. Is this now the recommended procedure: determine someone’s fitness for rehabilitation by autopsy?

It is a false choice, anyway: reparable or killable. The autopsy left unanswered when her condition became irreversible. Michael Schiavo has spent years, with or without court permission, trying to terminate his wife. And during that time, rehabilitation was not even attempted. (The trial de novo mandated by Congress would, of course, have compelled further physical exams.)

• She could not see. Could she interact otherwise? According to Barney Frank, the autopsy is a "direct refutation of [Frist’s] diagnosis." Anne Kornblut’s Times article rather incautiously quotes Frist himself: "Based on the footage provided to me, which was part of the facts of the case, she does respond."

Frist’s words are an accurate description of what was shown on tv. Blind or not, she certainly seemed to respond. And witnesses (not just family) claimed to have seen responses.

• Her husband did not put her in a coma. One can believe him completely innocent in that regard. It is his conduct in recent years that is questionable. I went easy on him. Read Joan Didion’s article in The New York Review for a harsher rendering.

How did the politics of the case play out? Two claims enjoy great currency. The first is that the Republicans acted as they did for political gain. The second is that their position is unpopular, deeply and hugely. I have nowhere seen it suggested that politicians who supported the ostensibly popular position did so for political gain. They acted on reason and principle. (And I have nowhere seen it suggested that Republican pollsters are incompetent).1

The word that has come up again and again – and here we’ll let the New York Times stand in for a whole slew of formers of opinion – has been vindication. Michael Schiavo has been vindicated. George Felos has been vindicated. Even Barney Frank, Katha Pollitt, all, all, vindicated. The Times editorial page for June 18 has this: CONGRESS ASSAULTS THE COURTS, AGAIN:

"Since the Supreme Court decided Marbury v. Madison in 1803, it has been clearly established that the courts have the ultimate power to interpret the Constitution."

That comma in the headline is a nice touch. The Times doesn’t just huff and puff, it sighs, too. That v. in Marbury vs. Madison is nice, too. The general usage is “vs." But Supreme Court Justices use v. and the Times knows that one must choose sides. Best of all, though, is the assertion that “it has been clearly established that the courts have the ultimate power to interpret the Constitution.” Just as an indictment establishes guilt and a not guilty plea establishes innocence, so the Supreme Court reconstitutes itself as the House of Lords, Bob Marely was quicker than Chief Justice Marshall:

Lively up yourself, ‘cause I said so.
Or in this case, Die, because we said so.

But wait, the Times hadn’t even got to “Politics and Terri Schavo”. And here is die schoene Seele in full cry:

"Terri Schiavo was finally allowed to rest in peace..."

"For the American people, the episode was a terrible lesson..."

"it was heartbreaking..."

"the tragedy..."

"For most of the nation, the news [the autopsy] provided closure on a wrenching episode..."

"disturbing the family’s peace..."

"going down a terrible road..."

Take this rag away from my face. I said earlier that this woman’s death was a small victory for the small. This “vindication” is an even smaller victory, and those now reveling in it have shown themselves to be smaller still.

Note

1 There’s a medium position: the Schaivo vote was a gesture for the Republican base. It’s unlikely – apart from the fact that there’s no evidence for it – since this is not an election year. Also, those who would find the theory most congenial are more committed to "the fanatical party" thesis.

From June, 2005

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