I have become quite disheartened from all of the talk about "judicial tyranny", the courts being an active participant in the "culture of death" and how the "liberal court system" is ruining this country. Contrary to talk radio, there is no Article III crisis or a seizure of power by the judiciary.

My side is always right and yours is always wrong!

TERRY SCHIAVO

There is a long-standing right of Americans to reject medical treatment. This is a good thing. We would all be the worse for it if the government could tell us what medical treatment we had to have or what we couldn't have. There are limits, of course, as there are in all rights. You don't have the right to assisted suicide (this might be good or bad). You do not have the right to take laetrile for cancer because this has been proven to be quack medicine. You do have the right to rely solely on prayer for treatment and the right to refuse blood transfusions even if a transfusion would certainly save your life.

Over the last 35 years or so every state legislature has passed a right to withhold medical treatment act. These acts recognize that for a competent adult, they are to be allowed to make informed decisions as to what medical treatment to accept and what to decline even if death is the sure result. These acts typically state that for persons unable to state their own intent (such as Terri Schiavo) living wills are to be given effect and, if there is no living will, the end of life decisions are to be made based upon the expressed intent of the patient if it can be discerned or by the best interests of the patient if there is no statement of intent by the patient. Far from being a judicial seizure of power, these statutes were passed by the legislatures and signed by the governors. It is only the findings of fact that are left to the judiciary. I believe that every state considers PEG tubes (feeding tubes) to constitute an extraordinary life-sustaining measure. Certainly the Florida statute and the Texas statute signed by our President contain this determination. That is not something that the judiciary simply made up.

So, imagine poor Judge Greer. He is assigned by luck of the draw to hear the Terri Schiavo petition to terminate her life support system. He is a Southern Baptist and generally considered to have conservative leanings. You know - the typical "culture of death" kind of guy. The first thing he does is appoint a guardian to investigate the facts and circumstances. Surely he looks long and hard to find another "culture of death" conspiracist in order to insure Terri's death. The guardian reports that Terri is in a permanent vegetative state. He bases this on the opinions of Terri's treating physician and another neurologist. He also reports that the Schindlers have no recollection of her making any statements about life-sustaining procedures one way or another and that Michael Schiavo has an enormous conflict of interest over the money in Terri's estate. His conclusion is that Terri's intent is not shown by clear and convincing evidence by Michael's statements alone and that, in the absence of better evidence, THE TUBE SHOULD NOT BE REMOVED. You can read the Guardian's report in full here - http://www.miami.edu/ethics2/schiavo/122998%20Schiavo%20Richard%20Pearse%20GAL%20report.pdf 

So comes the trial. The trial is held 19 months after the Petition is filed. There is no rush to judgment here. Each party has lots of time to marshall their information and prepare their case. It is true that Michael is better financed due to his ability to pay these legal fees from Terri's trust account, but Terri's parents never request money from the trust for experts, attorneys, etc. nor do they raise an issue that their case is ill-prepared due to lack of funding.

At trial, Dr. Barnhill and Dr. Gambone testify that Terri is in a permanent vegitative state. The court reviews the x-rays of Terri's brain and her CAT scan. There was no counter-vailing medical testimony. The Schindler family testify that they believe Terri is responsive, but the dsoctors say that this is simply reflexive reaction, not uncommon in persons in PVS. Staff from the nursing home testify that they did not see any reactions from Terri that they believed constituted awareness. Ms. Schindler and a family friend testified that Terri stated that they shouldn't remove the tube from Karen Ann Quinlin. Michael Schiavo, his brother and the brother's wife testify that she talked with each of them on several occasions about not wanting to be maintained on life support. The sister-in-law stated that they had talked about a dozen times, mostly resulting from the death of a mutual friend's baby following extensive medical intervention. In the end, the judge found that Terri's statements made about Karen Ann Quinlin weren't specific to Terri's wishes about herself and, in any event, preceded her statements to Michael, his brother, and his sister-in-law. He ultimately ruled that (1) Terri was in a permanent vegitative state and (2) it would have been Terri's wishes not to be maintained on life support after all reasonable hope of recovery was eliminated - the criteria found in the statute passed by the legislature and signed by the governor for removing life-sustaining measures. The judge's order can be found here - http://www.miami.edu/ethics2/schiavo/021100-Trial%20Ct%20Order%200200.pdf   It is noteworthy that in all the years since, no one else has come forward and stated that Terri expressed her desire to be maintained on life support to them. Certainly I can accept anyone who says in good faith that they would have decided differently based on these facts. I can accept people saying that this evidence wasn't "clear and convincing" because even lawyers and judges cannot provide a "bright line" test for that standard. But, I am really bothered by people who state that Judge Greer failed to do his job or carry out his responsibility in this matter, or that Terri has not been afforded due process by the courts, or that the judicial decision should be ignored because the judge is overstepping his bounds, or that the courts are creating juducual tyranny.

FWIW - those known radicals at the 2nd DCA in Lakeland unanimously agreed with the trial court and those flamers at the Florida Supreme Court agreed with the 2nd DCA. The Federal Courts ruled that no federal question was presented and declined to review the case. When the Schindlers brought another collateral attack - that developments in the field would allow Terri to be rehabilitated to the point where she would not require life-sustaining measures (i.e. she could be taught to swallow and, hence, be fed orally rather than by tube), the courts ordered another evaluation by 5 doctors. Two of the doctors opined that Terri was in a minimally conscious state and could benefit from the treatment that only they could provide (each also opining that the treatment proposed by the other wouldn't work). Three doctors including the only truly neutral one again asserted that Terri was in a permanent vegetative state and could not benefit from any or all treatments.

So enters Congress. They pass a bill stating that the Federal Courts have jurisdiction to review this case de novo  - "from the beginning". Some members of Congress want the bill to include a provision stating that there shall be an automatic stay of the state court's order allowing removal of the feeding tube during the review. The Senate lets it be known that the bill cannot pass quickly with the stay provision (and perhaps not at all). Both chambers pass a bill without an automatic stay provision knowing that the legal stanbdard otherwise to get a stay is "demonstrating a likelihood of success" in the case. The Schindler's were unable to demonstrate any real likelihood (i.e. new evidence) that they could show either that Terri was minimally conscious or that she had stated an intent to be maintained by life-support equipment. Put simply, the Schindlers presented the same facts to be applied to the same law. The court ruled they were likely to get the same result. Hardly judicial activism. Again, those former members of the SDS residing on the 11th Circuit Court of Appeal agreed with the district court, twice, and the U.S. Supreme Court, that noted bastion of agit-prop anarchists agreed, unanimously, not to review the case twice.

ELIAN GONZALEZ

The Elian case stands, at its roots, for the proposition that we will allow a parent to make the important decisions for a minor child. This is hardly a shocking proposition. As it turns out, the Executive Branch was in agreement with the Judicial Branch as to what should happen to Elian. The Legislative Branch stood on the sidelines. I really fail to see how there was judicial tyranny at action here.

Upon reaching Florida, Elian was placed in the temporary custody of his uncle by a state court. The Uncle applied for assylum for Elian. The father (no doubt with the full encouragement of the Cuban government, and perhaps at the point of a gun) opposed assylum and requested his return to Cuba. When the father got to the U.S. to fight the assylum request, custody legally reverted to him. He did not have the right to take Elian out of the country, but he did have the right to have custody of his son in the United States. The Uncle and other American relatives refused to hand Elian over. After protracted negotiations had failed, the INS seized Elian and gave him to his father.

Even after this turn of events, fathe and son were not allowed to return to Cuba. The Courts protected Elian's right to a hearing by enjoining the pair from leaving the country. A full trial was held wherein the judge determined that Elian was not entitled to assylum and the father was free, then, to return to Cuba with his son. Again, the appellate court agreed.  Again, I can accept people who hold the opinion that they would have decided the case differently if they were the decision maker, but I cannot accept that the Courts failed to apply the law of the land, as adopted by Congress and signed by the president.

Imagine if your child were to fall into the legal system in Canada and your nut-case brother (who moved to Canada after GWB was reelected, just like he said he would do) petitioned to have your child be given assylum and placed into his custody because the U.S. is engaged in an illegal and unrecognized war in Iraq. Sure, our two countries have differences of opinion over the legality of the war. The Canadians are probably proud and foolish enough to believe that they could give your child a better life in the land of Maple Leafs and Beavers. Is any of that enough to allow your brother to keep Little Timmy in Canada over your wishes? Just because we believe ourselves (justifiably) to be vastly preferable to Cuba, does that abbrogate parental rights or choice?

CONCLUSION

The Courts are one equal third of our government, but only one third. Of course they make mistakes (i.e. Dred Scott) as do the Legislature (who didn't outlaw slavery either) and the Chief Executive (i.e. anything Clinton did). But, it is imperative that we all obey the rule of law whether we agree with the decisions or not. If the judiciary is just flat wrong, they can be overruled (congress can pass new laws, the president can appoint better judges, the constitution can be amended). Similarly the Congress can be overruled when wrong (the President refuses to sign the bill; the courts find the bill unconstitutional) as can the President (congress passes new laws; the courts find he has exceeded his powers).

The judiciary is all that stands between the citizens and the true tryanny of unbridled power in either the congress or the President. Remember, the pendulum swings both ways. The Republicans haven't been in power forever and will not be in power forever. Jack around with the courts too much, and you might not like it the next time you're seeking protection in the courts (I'm not a Sore Loserman, I've gotten over it. Without the courts, GWB might be no more than a footnote in history textbooks).

In both the Terri Schiavo case and the Elian Gonzalez case, the courts applied the laws of the land as enacted and signed into law to the facts presented. That is their role.

MORAL

This is why both sides of the political aisle should be demanding moderate, middle of the road, extremely intelligent judicial nominations. Any nominee who can't get enough votes to get cloture in the Senate probably shouldn't be on the bench anyway.

Just my $0.02. You're probably right.