Finocchio

Legislative And Executive Activism

The U.S. Court of Appeals for the Eleventh Circuit, in a 10 to 2 decision, rejected yet another request from the parents of Terri Schiavo that the court order that Mrs. Schiavo's feeding tube be reinserted and also that the court reopen the case to determine whether the record below contained sufficient clear and convincing evidence to establish that Mrs. Schiavo had expressed a desire not to be kept alive artificially.  In a single sentence, the court stated that "the Emergency Petition for Rehearing En Banc is Denied."

Mrs. Schiavo's parents filed an appeal with the U.S. Supreme Court, submitting their petition just after 9:00 p.m., Wednesday.  The court, with all nine members having reviewed the petition, issued its decision at 10:40 p.m., denying the requested relief without comment.

The Eleventh Circuit's decision is notable not for its result, but for a twelve-page concurrence by Judge Stanley Birch (as commentators quickly noted, a Bush, Sr. appointee), who voiced the strong disapproval of the decision of Congress and the White House to insert themselves into the Schiavo affair which many judges, lawyers and scholars have felt and reasoned about this matter (see also here).  Judge Birch notes the irony in the Schiavo-interventionists having engaged in precisely the over-riding, personal activism that they decry in others (especially judges).

"Generally, the definition of an 'activist judge' is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.  In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution."

As no court has done prior to Wednesday's concurrence, Judge Birch addresses what is for any court the first point of consideration -- whether the court has jurisdiction to hear the case before it.  Defenders of Pub. L. 109-3 have asserted that it does not violate separation of powers as between the legislative/executive branches and the judiciary because, pursuant to Article III of the Constitution, Congress is empowered to determine the jurisdiction of the federal courts (what are termed "Article III courts").  All Congress did, this view holds, was to extend the jurisdiction of the federal courts in one very specific instance.

Judge Birch takes a less favorable view.  "If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. section 1331," he writes, the Act would not be in violation of the principles of separation of powers."  However, as he notes, Congress did more than this.

"The Act, however, goes further.  Section 2 of the Act provides that the district court:  (1) shall engage in 'de novo' review of Mrs. Schiavo's constitutional and federal claims; (2) shall not consider whether these claims were previously 'raised, considered, or decided in State court proceedings'; (3) shall not engage in 'abstention in favor of State court proceedings'; and (4) shall not decide the case on the basis of 'whether remedies available in the State courts have been exhausted.'  Pub. L. 109-3, section 2.  Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as the 'rule of decision'), the Act invades the province of the judiciary and violates the separation of powers principle. . . . By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robs federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking. . . . In sum, while Congress may grant jurisdiction to a federal court consistent with Article III as it did in Section 1 of the Act, it may not 'assume [] a function that more properly is entrusted to' the judiciary. . . . By arrogating vital judicial functions to itself in the passage of the provisions of Section 2 of the Act, Congress violated core constitutional separation principles, it prescribed a 'rule of decision' and acted unconstitutionally."

It is difficult (and, I think, inaccurate) to divorce the attempt by Congress and the White House to overturn judicial procedure in order to determine a particular outcome in the Schiavo case from a broader movement which rejects judicial indepenence entirely.  With the loud but thoughtless rallying cry of "judicial activism," adherents of this movement insist that governmental validity derives exclusively from legislative acts. 

Writing in Slate, Bert Brandenburg has recently considered these prolonged attacks upon the judiciary.  "The judiciary is fast becoming enemy No. 1 in the culture wars—and the side wearing the black robes is losing," Brandenburg writes.

"Last year, for example, even as the federal courts mulled litigation involving the Pledge of Allegiance, the House of Representatives was passing a measure to forbid courts from ever hearing such a case in the first place. As the debate raged over a courthouse display of the Ten Commandments, a measure was written to deny federal courts the power to hear any suit involving a governmental official's 'acknowledgment of God as the sovereign source of law, liberty, or government.' And the recent California marriage decision reignited efforts to amend the U.S. Constitution in order to deny state courts the ability to interpret their own state constitutions.

These efforts at court-stripping don't just represent just good wedge-issue politics; increasingly, they have become the law of the land. The USA Patriot Act reduced judicial discretion to review law-enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies. The 2003 'Feeney Amendment'—protested strongly by Chief Justice William Rehnquist—sharply limited the ability of federal judges to issue sentences below federal guidelines in order to set punishments that fit the crime."

Steve Sanders, writing at Reason & Liberty, has written recently on anti-judicial hostility and the Schiavo case here and here.  Andrew Sullivan's recent analysis is here.

But the separation of powers is not the only point of friction.  A deeper division has emerged between a Christian right, weilding absolutist positions, aggressively asserting in American politics, and a longstanding tradition of respect for plurality. In an OpEd article in Wednesday's The New York Times, former Senator John C. Danforth (R-Mo.) sharply criticized the direction of the Republican party, stating that the party has been transformed into "the political arm of conservative Christians."  Citing the party's religion-based insistence upon imposing a constitutional ban against marriage equality for gays and lesbians, its opposition to stem cell research in any form, and its over-reaching intrusion into an inter-family dispute long adjudicated in the Florida state courts in the case of Mrs. Schiavo, Danforth voiced the dissatisfaction of many within the Republican party with the party's shrill and doctrinaire dominant wing.

"I do not fault religious people for political action. Since Moses confronted the pharaoh, faithful people have heard God's call to political involvement. Nor has political action been unique to conservative Christians. Religious liberals have been politically active in support of gay rights and against nuclear weapons and the death penalty. In America, everyone has the right to try to influence political issues, regardless of his religious motivations.

The problem is not with people or churches that are politically active. It is with a party that has gone so far in adopting a sectarian agenda that it has become the political extension of a religious movement.

When government becomes the means of carrying out a religious program, it raises obvious questions under the First Amendment. But even in the absence of constitutional issues, a political party should resist identification with a religious movement. While religions are free to advocate for their own sectarian causes, the work of government and those who engage in it is to hold together as one people a very diverse country. At its best, religion can be a uniting influence, but in practice, nothing is more divisive. For politicians to advance the cause of one religious group is often to oppose the cause of another."

The Lady Vanishes

We return, with affection, to Deborah Voigt.  When last we mentioned her, the Diva had triumphed over her Covent Garden detractors, shedding, well, an small understudy's-worth of soprano while losing nothing of her vocal power.

Ms Voigt is now preparing to sing the role of Amelia in Verdi's "Ballo in Maschera" at the Metropolitan Opera, beginning April 4th.  One warms to Ms Voigt's humor and ambition in an article in The New York Times:

"'I'm doing many more Toscas than I ever thought I would,' she said of Puccini's glamorous Roman prima donna. (Some of those 'Tosca' performances will be at the Met next season.) And down the road, Ms. Voigt, a renowned Strauss singer, hopes to achieve what she called a 'personal triumph' by singing the title role in a production of Strauss's 'Salome.' She has sung the role only in concert.

The opera's climax is Salome's seductive 'Dance of the Seven Veils.' Ms. Voigt used to joke that her Salome would have to do the 'Dance of the 77 Veils.' But now she can't wait to take it on."

In June 2004, Ms Voigt underwent gastric bypass surgery, which enabled her to lose at least 100 pounds.  The risks of such surgery for anyone are obvious.  For a singer, the fears are compounded.  Even without surgery, significant weight loss can have unfortunate consequences on the voice.  The most intriguing observation Ms Voigt makes on her voice post-surgery is this:

"Ms. Voigt explained, since her surgery she has had to make adjustments in her singing. 'There is no question that I have to think about my technique more than I did,' she said. 'The sort of automatic engagement of the abdominal muscles from the excess weight doesn't happen anymore.'"

We adore Ms Voigt, and we applaud her courage.  Whatever shall we do now with those spare 70 veils?

The Audience Takes The Stage

In the wake of a mutiny by performers and staff of La Scala's orchestra against Maestro Riccardo Muti in which the orchestra called for the Maestro to resign, La Scala's audience has produced its own new turn.  Writing in The Financial Times, Andrew Clark reports that:

"Leaflets distributed this week outside La Scala opera house in Milan announced the world premiere of 'an opera of a few minutes (because that's enough)', composed by the theatre's audience. The music consisted of loud heckling whenever members of La Scala's orchestra appeared. The libretto was curt: 'Don't touch the maestro. Riccardo Muti belongs to art. He belongs to us!'"

I Ching

Reaching for a book on a high shelf, I happened to knock against another, which fell to the floor.  Picking it up, the now slightly creased page fell open to some underlining from years ago.  It is from Simone de Beauvoir's The Ethics of Ambiguity:

"Moral choice is free, and therefore unforeseeable.  The child does not contain the man he will become.  Yet it is always on the basis of what he has been that a man decides upon what he wants to be.  He draws the motivations of his moral attitude from within the character which he has given himself and from within the universe which is its correlative. . . . The drama of original choice is that it goes on moment by moment for an entire lifetime, that it occurs without reason, before any reason, that freedom is there as if it were present only in the form of contingency."

On Discretion And Fealty

Following passage of the narrow legislation bestowing standing on Terri Schiavo's parents to seek review of Mrs. Schiavo's case by the federal judiciary, Rep. Tom Delay declared:  "We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. . . . Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."

However, that was not the immediate result of Congress's intervention.  Judge James Whittemore of the United States District Court for the Middle District of Florida, evaluating the four factors courts utilize when deciding whether to grant a preliminary injunction, the most important of which is that a movant have a substantial likelihood of success on the merits of the case, found that Mrs. Schiavo's parents were not able to show such likelihood of success on any of the five counts in their motion.

Congress is in the law business, and one would expect that serious consideration of legal process and the rule of law would be acknowledged in more than the breach.  But we have witnessed over the years a troubling attack on the judiciary, mostly on the right.  Mr. Delay, hardly a paragon of rules-following, plainly did not intend for the federal courts to actually follow the law, even the law as set forth in this singular act.  What Mr. Delay (and perhaps others) believed he was doing in his weekend efforts was to determine an outcome (over-ruling the decision reached by the Florida courts), not establishing a process for further review.

Writing in The Daily Standard, Hugh Hewitt intones the now-too-predictable criticisms -- his hand tipped by the article's title, "Runaway Judiciary": 

"I cannot think of a more clear-cut expression of Congressional intent and urgency than the extraordinary intervention of last weekend and the clear pronouncements of many legislators on the matter of Terri Schiavo. They assumed the federal district court would stay Terri's starvation pending the outcome of the de novo proceeding they had mandated, even as convicted murderers have their executions stayed as federal courts process their appeals from state proceedings."

Mr. Hewitt and others would be well-advised to consult the decision issued by the United States Court of Appeals for the Eleventh Circuit, affirming Judge Whittemore's decision.  This point of such a consultation is not to find a higher court affirming the lower court's conclusion, but to review the circuit court's reasoning on precisely the issue that so exercises Mr. Hewitt.

The court devoted considerable discussion to the issue of whether or not Congress had mandated that a federal court issue a preliminary injunction pending full review of the merits.  The court noted that:

"Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay."

Indeed, the circuit court quotes at length from an exchange between Senators Levin and Frist on precisely the question of mandatory versus traditional discretionary injunctive relief.  In an earlier version, the bill stated that a federal court "shall" issue a preliminary injunction.  In subsequent versions, Congress changed "shall" to "may," and, in the bill as enacted, the section was omitted entirely, leaving existing law unchanged.

In his exchange with Senator Levin, Majority Leader Frist makes this explicit:

"Nothing in the current bill or its legislative history mandates a stay.  I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination.  Nevertheless, this bill does not change current law under which a stay is discretionary."

The court observes that:

"To interpret Pub. L. No. 109-3 as requiring that temporary or preliminary relief be entered regardless of whether it is warranted under pre-existing law would go beyond reading into the Act a provision that is not there.  It would require us to read into the Act a provision that Congress deliberately removed in order to clarify that pre-existing law did govern this issue."

Congressional, Executive and ideologues' disdain for the judiciary is perhaps not surprising, but it is disturbing just the same.  For it to be coming from those who should understand the role and importance of the independence of judicial review is nothing short of heart-rending.

"You Can't Handle The Truth"

It is a dismayingly familiar spectacle -- the nation's honesty taken to task.  With the statements and misstatements leading up to the invasion of Iraq, we may (perhaps too charitably) accept the administration's insistence that it was "faulty intelligence" at work, a combination of historical probability (Hussein had developed and had used such weapons in the past) and Hussein's own blustery bravado, resulting in a mirage of immediate threat.  (An aside, albeit an important aside:  The emerging democratization of Iraq in the aftermath of the war is an important and hopefully very positive development in a region long bound up in a violent stasis.  This fact doesn't change the harm done by the WMD argument in the lead-up to the invasion; neither does that harm invalidate recent Iraqi progress.  But vindication is not quite how one should regard it.)

With North Korea, the threat is better-documented, and still we find the administration editing the facts, tarting-up its case.  Now, it appears, the administration has elided the inconvenient fact of our ally Pakistan's participation in the transfer of nuclear material from North Korea to Libya.  As the Washington Post reports:

"In an effort to increase pressure on North Korea, the Bush administration told its Asian allies in briefings earlier this year that Pyongyang had exported nuclear material to Libya. That was a significant new charge, the first allegation that North Korea was helping to create a new nuclear weapons state.

But that is not what U.S. intelligence reported, according to two officials with detailed knowledge of the transaction. North Korea, according to the intelligence, had supplied uranium hexafluoride -- which can be enriched to weapons-grade uranium -- to Pakistan. It was Pakistan, a key U.S. ally with its own nuclear arsenal, that sold the material to Libya. The U.S. government had no evidence, the officials said, that North Korea knew of the second transaction."

Worth reviewing and considering in this context is an article by Selig S. Harrison in the current issue of Foreign Affairs which suggests that three years ago, in its statements concerning North Korea's violation of the 1994 agreement freezing Pyongyang's nuclear development program, the administration cooked its intelligence.

If the administration doesn't believe it can entrust the public with the truth, and doesn't believe it can entrust our allies with the truth, whom does the administration trust?

The Rule Of Law

In reporting that the Senate has unanimously passed its extraordinary interventionist bill, seeking to reverse the decisions of Florida courts in the Schiavo case, The Washington Post reports on the political maneuvering behind the vote:

"In a memo distributed only to Republican senators, the Schiavo case was characterized as 'a great political issue' that could pay dividends with Christian conservatives, whose support is essential in midterm elections such as those coming up in 2006."

In an OpEd column in Friday's Wall Street Journal, Peggy Noonan draws the politican conclusions of the Schiavo case without considering the legal and, specifically, the constitutional issues involved in this matter.  Noonan disparages and then dismisses Mr. Schiavo's assertion that his wife had declared her wish that, should she ever fall into a persistent vegetative state, that she not be kept alive artificially, but that she be permitted to die.  Mrs. Schiavo's parents insisted that their daughter would never have expressed such a sentiment.  Noonan states:

"So politically this is a struggle between many serious people who really mean it and one, just one, strange-o. And the few bearded and depressed-looking academics he's drawn to his side.

It is not at all in the political interests of senators and congressmen to earn the wrath of the pro-Schiavo group and the gratitude of the anti-Schiavo husband, by doing nothing.

So let me write a sentence I never thought I'd write: Politicians, please, think of yourselves! Move to help Terri Schiavo, and no one will be mad at you, and you'll keep a human being alive. Do nothing and you reap bitterness and help someone die."

In the Nancy Cruzan case and in subsequent cases, the United States Supreme Court has held that an individual has a constitutionally-protected right to decline medical treatment, even where such a decision will result in the individual's death.  It has long been a tenet of U.S. family law that a spouse has medical power of attorney with respect to decisions affecting his or her incapacitated spouse. 

In the Schiavo case, courts as the finders-of-fact, have been charged with determining whether (1) Mrs. Schiavo is in a persistent vegetative state, from which she will not recover; and (2) Mr. Schiavo is a competant and believable witness to Mrs. Schiavo's expressed wishes.

Neither the fate of this family nor the fate of any family should be put to a plebisite, for the will of others (no matter how heartfelt) to overtake the individuals' rights.  Congressional contempt for the role and intengrity of the judiciary, as well as its disregard for the rule of law, is deeply disturbing.  Noonan, perhaps unintentionally, puts her finger on the present replacement of law with mere power:

"Here's both a political and a public-relations reality: The Republican Party controls the Senate, the House and the White House. The Republicans are in charge. They have the power. If they can't save this woman's life, they will face a reckoning from a sizable portion of their own base. And they will of course deserve it."

The Senate, the House and the President may have the power to do this.  Will they pause, even for a moment, to consider what they will be doing in this process to the rule of law?

The Schiavo Conundrum

Th deeply sad and saddening case of Terri Schiavo is once again before the public.  Unlike her family and her caregivers, we only visit their pain.  We do not dwell in or with it.

The Florida courts have heard this case and have ruled on it many times (indeed, in no fewer than 19 hearings before 6 different judges).  In 2003, Governor Jeb Bush signed legislation which, like the proposal now before Congress, would have prevented the removal of Mrs. Schiavo's feeding tube (however the mechanism by which it accomplished this was quite different).  The Florida Supreme Court struck down that law as violative of Florida's constitution.

In an action that, at the federal level, is constitutionally worrying on three grounds (as violating the spirit, but not the letter, of the prohibition against bills of attainder (which single out individuals for punishment -- but for a discussion of the spirit and genesis of this separation of judicial and legislative functions, see Justice Scalia's discusson in Plaut v. Spendthift Farm, Inc.), by seeking to legislatively overturn the result of a final judicial determination (which charge it may narrowly escape on the technicality that the proposed legislation seek further -- federal -- judicial review), and as an infringement of a state's rights under principles of federalism) Congress, dissatisfied with the result rather than the process in Florida, is now poised to enact legislation crafted for this one case.  The President, in a disturbing bit of grandstanding, has returned to Washington in order to be available to sign this bill into law.

Public discussion of this case, and of Congress's action, leaps over the question of the proper course of action with respect to "right to die" issues and concentrates instead on this single case on a rushed, thoughtless, "emergency" basis.  A broad and thorough public discussion is required and has not taken place.  No matter how much members of Congress insist that their hurried, politicized move "is not precedential," it is, nevertheless, precedential.

Writing at Left2Right, J. David Vellman, professor of philosophy at the University of Michigan, and who has written forcefully against the institutional right to die, strongly opposes Congress's interference. 

"The patient in this case left no written instructions as to how she wished be treated in case of irreversible brain damage of the kind that she suffered fifteen years ago. But a court acting on her behalf, having consulted many people who knew her and having reviewed all of the medical evidence, reached a judgment as to what she would have wished, and that judgment has been upheld by a court of appeal. The patient has a right for her medical treatment to be guided by this judgment of her wishes. That's all there is to the case.    

Many commentators have noted that the moral of the story, for those of us still living, is that we should execute living wills. Dwelling on this moral enables us to view the case with complacent detachment, secure in the thought that we will never the subject to the sort of interference currently being visited on this patient. But an advance directive can never be so precise and exhaustive as to require no judgment, on the part of those charged to carry it out, about how we would have wished it to be interpreted. Even if we could envision every possible medical contingency, we cannot envision the totality of circumstances that will face our future care-givers when we are no longer competent to make medical decisions for ourselves.  Peering into an unimaginable future, all of us must hope that our wishes will be interpreted by better informed parties who have our interests at heart.  And none of us can hope that our care will be guided by better informed or less biased parties than the judges who have acted in the present case."

Congress is acting out of its own political expediency, with an inappropriate lack of respect for legal process, and in this move of imperial legislation, the President is complicit.  In whose best interest are these parties acting?

Desert Island Discs -- Gutenberg Version

Care of Downtownlad, comes a terrific book meme.  And since I have always been a sucker for puzzles, games and quizzes ("Desert Island Discs," "Texaco Opera Quiz," etc.), naturally I was entranced.

The first question is especially intriguing, since I take it to be about what is perhaps my favorite scene from Truffaut's filmed version of Bradbury's Fahrenheit 451.  In a society in which print is forbidden (as well as reading and introspection generally), a society of readers/outcasts escape to the hinterlands where, in order to preserve written culture, each person is designated as the embodiment of one specific book, which he/she commits to memory.  In the final (and immensely charming) scene of Truffaut's film, the members of this literary society stroll through a gray, snowy wood, each giving voice to his/her book.  Madame Bovary, David Copperfield, etc.  (The film has the additional fascination, for those of us easily fascinated by such things, of substituting auditory credits -- no written words pass across the screen).

This living library is second only, among book-or-library-inspired scenes in films, to Bruno Ganz and his fellow angels watching solicitously over a library's readers in Wings of Desire.

In the book meme, one simply answers seven simple questions:

(1)  You're stuck inside Fahrenheit 451, which book do you want to be?

(2)  Have you ever had a crush on a fictional character?

(3)  The last book you bought is

(4)  The last book you read

(5)  What are you currently reading?

(6)  Five books you would take to a deserted island

Well, to take a stab at some answers --

(1)  You're stuck inside Fahrenheit 451, which book do you want to be? This is something I would have to live with and live as.  Borges's Labyrinths or Voltaire's Candide.

(2)  Have you ever had a crush on a fictional character?  (Aren't all of our crushes on fictional characters?)  Yes, Bruce Chatwin, who was always his best creation.

(3)  The last book you bought is: Harriet Rubin, Dante in Love -- The World's Greatest Poem and How It Made History

(4)  The last book you read:  Michael Chabon, The Final Solution

(5)  What are you currently reading?  Harold Bloom, Where Shall Wisdom Be Found?

(6)  Five books you would take to a deserted island: 

The Complete Works of William Shakespeare

Dante, The Divine Comedy

Proust, Remembrance of Things Past

Freud, Interpretation of Dreams

Rilke, Complete Works

These are, in some ways, pragmatic choices -- rich, capacious.  They provide the materials for generating more stories.

We'll Always Have Paris

In a piece of very heartening news, the venerable Paris Review has announced the appointment of Philip Gourevitch as editor.  Gourevitch is the second person to fill that slot since the death of Paris Review founder George Plimpton.

"'I'm not coming in to tear it up and make it over,' Gourevitch, who ruled out any 'fashion' issue, told The Associated Press on Thursday. 'I have been given a broad mandate to edit the magazine and to do my best to carry it forward. I want the magazine to do some of the things its always done, like introducing new voices.'

Gourevitch did say he wanted to add nonfiction, especially 'voice-driven' reporting 'you want to read' because of how it's written as opposed to what it's about. He also wants to publish more poems by fewer poets, allowing readers to get more familiar with an individual's work."

In fact, that's been a motto of ours for years -- more poems, fewer poets.