Congress: We don't need no Constitution

[thaiboxerken]

I think I'll go with the neurologists' expert observations on the fact that Terri is missing most of her cerebral cortex and that she's PVS.

 

[punchdrunk]

Could be, but it is impossible to tell from the picture. It only shows us a small slice of it. Also without a scan from the side, it is difficult to see how much of her cerebral cortex is missing. The picture shows us a hole in the middle, while the cortex is the outermost part. The photo might give us a misleading impression that the cortex is largely intact, which is not necessarily true.

FWIW, I've read that the entire cerebral cortex is liquidized.

 

[Ladyhawk]

http://abcnews.go.com/Politics/Schiavo/story?id=600937
GOP Talking Points on Teri Schiavo


Judge for yourselves.

 

[Furious]

FWIW, I've read that the entire cerebral cortex is liquidized.

Also of note, the brain damage is not in dispute, even the family's doctors have no significant objection to the amount of damage and the fact that there has never been someone with that kind of damage recovering.

However, the family lawyers argue that more can be done to rehabilitate Terry through some experimentel therapies and that Terry would have changed her mind if she had known these therapies were in existence.

That is their current line of legal reasoning, from what I understand.

 

[TragicMonkey]

There is an exemption for a proceeding "which no party disputes, and the court finds, that the incapacitated person while having capacity, had executed a written advance directive valid under applicably law that clearly authorized the withholding or or (sic) withdrawl (sic) of food and fluids or medical treatment in the applicable circumstances."

This is just a memo, but is it really saying that the food tube could be removed when:

"Which no party disputes AND a written advance directive"

meaning that a living will would be ignored if any party disputed it?

Of course, whoever wrote this memo is a very sloppy writer.


eta: This is from Ladyhawk's link,
http://abcnews.go.com/Politics/Schiavo/story?id=600937
GOP Talking Points on Teri Schiavo

 

[Ladyhawk]

Also of note, the brain damage is not in dispute, even the family's doctors have no significant objection to the amount of damage and the fact that there has never been someone with that kind of damage recovering.

However, the family lawyers argue that more can be done to rehabilitate Terry through some experimentel therapies and that Terry would have changed her mind if she had known these therapies were in existence.

That is their current line of legal reasoning, from what I understand.

Now, there is a dangerous path to walk. Just think if they win on that argument. You could throw living wills right out the window. Same argument as I posted on a similar thread a few days ago. Reasoning goes: "Well, yes, Ladyhawk left a living will witnessed by several family members, her husband and her hairstylist that she wouldn't want to be kept alive under these circumstances. BUT...she signed that will 5 years ago. New therapies have been developed since then..."

 

[Ladyhawk]

For those who oppose the actions of Congress over the weekend, it appears we are not alone. Illegal Argument posted this link in a sister thread to this topic....I've taken the liberty of copying it here...

No Role for Government in Schiavo Case

 

[DavidJames]

http://abcnews.go.com/Politics/Schiavo/story?id=600937
GOP Talking Points on Teri Schiavo


Judge for yourselves.

I thought the second quote below is the most telling.

"This is an important moral issue and the pro-life base will be excited that the Senate is debating this important issue."

"Care must taken not to alienate the Republican skeptical and atheist base, those 11 votes may come in handy some day"

 

[Brown]

Here's a link to the request for restraining order. This matter is being heard right now.

Alleged grounds for relief include:

• The trial judge was not impartial;
• The trial judge failed to appoint a guardian ad litem;
• the judge disobeyed Florida guardianship law; and
• the patient's freedom of religion has been infringed.

Ordinarily, the first three grounds raise issue of state law, but the document asserts that these grounds raise 14th Amendment concerns.

The religious freedom claim is based upon statutory and constitutional law. The argument is that the patient was a Catholic, and the Catholic Church (in 2004) took a stand against the removing of feeding tubes; therefore the patient would have desired as part of her free exercise of religion not to have the tube removed.

 

[TragicMonkey]

The religious freedom claim is based upon statutory and constitutional law. The argument is that the patient was a Catholic, and the Catholic Church (in 2004) took a stand against the removing of feeding tubes; therefore the patient would have desired as part of her free exercise of religion not to have the tube removed.

So the reality of "cafeteria Catholicism" isn't taken into account?

 

[TragicMonkey]

http://story.news.yahoo.com/news?tm...3&u=/ap/20050321/ap_on_go_co/schiavo_congress

Asked if Bush would sign a broader bill, McClellan said, "That's speculative at this point."

He also would not say what action the White House would support if the federal district court upholds the state court decision to permit the removal of Schiavo's feeding tube, hinting only that alternatives have already been discussed.

"We've looked at options that were available previously," McClellan said. "We'll see what happens with the court now."

So, the point of all this was to get it decided in federal, not state court.....and if the decision of the feds isn't to their liking, they'll pursue something else?

This pretty much seems like blatant affirmation of wanting to get their way, rather than actual legal concerns about venues and jurisdictions.

Yeah, pass a law for the express purpose of putting this into the hands of a particular court, and if that doesn't get you what you want, ignore it and try something new.

Isn't this like agreeing to abide by a coin toss, then saying "Best out of three" when it comes down the wrong way?

 

[Ladyhawk]

http://story.news.yahoo.com/news?tm...3&u=/ap/20050321/ap_on_go_co/schiavo_congress



So, the point of all this was to get it decided in federal, not state court.....and if the decision of the feds isn't to their liking, they'll pursue something else?

This pretty much seems like blatant affirmation of wanting to get their way, rather than actual legal concerns about venues and jurisdictions.

Yeah, pass a law for the express purpose of putting this into the hands of a particular court, and if that doesn't get you what you want, ignore it and try something new.

Isn't this like agreeing to abide by a coin toss, then saying "Best out of three" when it comes down the wrong way?

And then, best out of four, no wait, best out of five, no..come on, one more toss..

Well, you can't say that any of this comes as any honest kind of surprise, can you?

However, I do wonder how long it will take for the RP to realize that this latest FUBAR of theirs is not meeting with a majority approval of Americans ( as cited in the link posted earlier).

I wouldn't be the least surprised if the federal judge upholds the state's decision. It's gonna be one hell of a mess if he doesn't. Ironically, the case is going before a judge appointed by Clinton. I think the stage is already set.

 

[TragicMonkey]

And then, best out of four, no wait, best out of five, no..come on, one more toss..

Well, you can't say that any of this comes as any honest kind of surprise, can you?

However, I do wonder how long it will take for the RP to realize that this latest FUBAR of theirs is not meeting with a majority approval of Americans ( as cited in the link posted earlier).

I wouldn't be the least surprised if the federal judge upholds the state's decision. It's gonna be one hell of a mess if he doesn't. Ironically, the case is going before a judge appointed by Clinton. I think the stage is already set.

Or perhaps it will be seen as the excuse for a court-stripping crusade, where the "activist judges" are deprived of power, and judicial review is curtailed. After all, in a democracy, isn't it only right that the legislature should be in charge?

 

[Brown]

The more I read that Talking Points Memo, the angrier I get. The clear meaning is that Republicans have pushed this law for all the wrong reasons:

--because it is "an important moral issue";

--because "the pro-life base will be excited that the Senate is debating this important issue";

--because it will be used as leverage to defeat Democrats, and in particular, Senator Nelson of Florida.

First of all: Federal legislation should never be premised principally upon something being "a moral issue." It must be premised upon constitutional authority. To suppose that Congress is the moral guardian for the nation is simultaneously laughable and horrifying. The so-called "compromise bill" did not even make a pretense of being based upon constitutional power.

Second: Taking action specifically to appease a special interest group is unconscionable and an abuse of power.

Third: Taking action for political gain in coming elections is also unconscionable and an abuse of power.

Fourth: There was no meaningful "debate." This law was rammed through without thoughful discussion. It is obvious that there are serious problems with this law, both in terms of the meaning of the legislation and its constitutionality.

Had it not been for the outrageous Bush v. Gore decisions in 2000, it would be hard to imagine that the federal courts would allow this sort of legislation to have any effect. But in light of Bush v. Gore, we know that there are justices on the Supreme Court that will, for political reasons rather than jurisprudential reasons, abandon long-held judicial principles to obtain a desired result. One may rightly feel a lack of confidence in the judicial branch to apply the law fairly.

 

[The Central Scrutinizer]

Also of note, the brain damage is not in dispute, even the family's doctors have no significant objection to the amount of damage and the fact that there has never been someone with that kind of damage recovering.

However, the family lawyers argue that more can be done to rehabilitate Terry through some experimentel therapies and that Terry would have changed her mind if she had known these therapies were in existence.

That is their current line of legal reasoning, from what I understand.

So with these "new therapies", they can upgrade her from an ashtray to a potted plant.

 

[Brown]

President Bush's "reasons" for signing this legislation are also disturbing.

In cases like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. This presumption is especially critical for those like Terri Schiavo who live at the mercy of others.

It doesn't take too much imagination to see that the real target here is abortion.

If you were a federal judge, and you were handed this case, what standards would you apply, especially to questions of state law? According to the legislation, "In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings." Does this mean that previous state court decisions are not to be binding, or even instructive? Does it mean that the doctrine of issue preclusion is abolished? Does it mean that the federal court can tell a state court what its state statutes mean? Does it mean that the court HAS TO decide that the patient's rights have been violated?

Why then didn't Congress simply GIVE the rights that it seeks to protect? Surely Congress could adopt a law to the effect that the patient shall have a federal right to "food, fluids, and medical treatment necessary to sustain her life."

If the federal District Court decides that the previous rulings are correct, then the District Court would be wise to rule in the alternative. What this means is that the District Court would be wise to provide multiple grounds for action, to make the matter difficult to overturn on appeal.

For example, the District Court could rule:

1. Even if previous decisions were completely disregarded, the court would reach the same results after a de novo review;
2. Even though the Court completely disregarded the previous decisions, the result should also be the same under federal choice of law rules and preclusion rules holding that the previous decisions cannot be disregarded;
3. Even though the Court completely disregarded the previous decisions, the Court's jurisdiction is limited to "the Constitution or laws of the United States," and therefore questions of state law decided by the state courts are binding;
4. The Court has, upon de novo review, found the case to be without merit, and has set forth reasons in support of its decision, those reasons being in addition to or different from the reasons set forth by the state courts;
5. The parents have no standing in spite of the legislation, as they have no federal (or state) right to represent the patient;
6. The federal statute granting the parents rights is unconsititutional, based upon several independent constitutional grounds, and if any one of these constitutional grounds is correct, then the entire case must be dismissed.[/list=1]When a trial court sets forth, say, a dozen independent reasons for its decision, then the appellate court generally has to find all of those reasons wrong to overturn the decision.

 

[Bentspoon]

How far with technology?

If I can make on observation: this is not about removing a feeding tube it is about leaving one in and I think that is an important distinction.

It really came home to me when they showed the tube protruding form her navel. Nutrients fed driectly to the intestines. It is almost "borgian".

This woman is being kept alive beyond all reasonable hope by technology and I believe she could be kept alive for many years.

I would ask the people who think the tube should be restored.

What if she has a heart attack next month and it is determined that she needs triple bypass. There is no doubt that we could do it and we could keep her alive through it. Maybe the year after that she needs a kidney. Do we do that? Where do you draw the line?

where do you draw the line. Remove her head and still keep her alive because we can.

Tom Delay has said that she has shown coherent communication. Now this is really obscene. Hundreds of hours of testimony before the courts. Expert opinions and diagrams, witnesses for the "not tube" and the "keep tube" sides. Legalities weighed by judges. And yet Tom knows better.

How can these guys even think they know better? What does Tom Delay know about brain activity

I ask again

WHAT DOES TOM DELAY KNOW ABOUT BRAIN ACTIVITY

here is another one

For god's sake WHAT DOES PRESIDENT BUSH KNOW ABOUT BRAIN ACTIVITY.

Renegade Politicians

Bentpsoon

 

[The Central Scrutinizer]

I'm kind of hoping that the judge who heard the case today takes about 3 weeks to make his decision.

Is that wishful thinking?

 

[Ladyhawk]

The more I read that Talking Points Memo, the angrier I get. The clear meaning is that Republicans have pushed this law for all the wrong reasons:

--because it is "an important moral issue";

--because "the pro-life base will be excited that the Senate is debating this important issue";

--because it will be used as leverage to defeat Democrats, and in particular, Senator Nelson of Florida

True enough, Brown. I'm upset as well. But, apparently, so is most of the country. And, apparently, Judge Whittemore is somewhat skeptical of this effort to 'rush to judgment'

Parents beg judge, but tube stays out

''I think you'd be hard-pressed to convince me that you have a substantial likelihood'' of ultimately winning the case, U.S. District Judge James Whittemore of Tampa told the parents' lead attorney. That is the usual threshold for the issuance of a preliminary injunction.

I especially loved this one:

''The mother and father are pleading with this court, as they have pleaded with Congress and the nation,'' David Gibbs, the parents' lawyer, told the judge. ``The [state] court has ordered her to ignore her church and even jeopardize her mortal soul.''

WHAT???!!!! Her mortal soul? I wonder if they have scientific evidence to support existence of her mortal soul, as well....

But, maybe my prediction will come true....

Whittemore was nominated to the court in 1999 by President Bill Clinton and has been described by The Tampa Tribune as ``one of the best judges in Tampa's courts.''

In Washington, Republican Sen. Mel Martinez of Florida, a sponsor of the bill, said he was prepared to accept the judge's ruling and no further action was planned by Congress.

''We're a country of laws,'' Martinez said. "I think I've done all I can do and I feel that Congress has done all it can do.''

Is the backpeddling beginning so soon already? The plot thickens....

 

[Ladyhawk]

I'm kind of hoping that the judge who heard the case today takes about 3 weeks to make his decision.

Is that wishful thinking?

Not in my mind. In fact, who could realistically expect any judge to take on a case that's been ping-pong'd so over the last 7 years and render any reasonable, objective judgment in less than 3 months, let alone 3 weeks or less.

But, based on the last update I just posted, it may take less time than that....