Terri Schiavo, RIP

I am sure that it is, in some sense, a relief to everyone involved that all of the arguing over Terri Schiavo should now cease. It was a case made more difficult than it should have been because of the personalities involved, and one that could have had a much quieter, more peaceful resolution but for, for whatever reasons, the iron will of Michael Schiavo. Having acted on principle to ensure what he claims was his wife's wish not to be kept alive with tubes, he now looks to all the world a cad, but a cad nonetheless free to get on with his life. Truly, may God bless all of Terri's family and give them the comfort of knowing that her condition is no longer subject to debate.

In one of life's remarkable ironies, Pope John Paul II -- one of the strongest voices for the culture of life in a generation that now champions a right to die and exhibits a culture of death -- has been given the last rites of the Catholic Church on the same day that Terri Schiavo left this earth. God bless this wonderful man who has served the Lord so faithfully.

Schiavo confusion

If Terri Schiavo is in a persistent vegetative state, as we have repeatedly been assured, and she is not in any pain as a result of the withdrawal of the feeding tube, as we have repeatedly been assured, why is she being given morphine for "light moaning and facial grimacing and tensing of arms"? That sounds like pain. Curious.

Terri Schiavo

I have refrained from commenting on the drama unfolding in Florida over the past few weeks in the case of Terri Schiavo, in part because I don't have all of the facts at my command to comment thoroughly, and in part because almost everything that there is to be said has already been said in other venues. There are a couple of points that I feel deserve attention, however.

As a matter of judicial practice, it seems irresponsible for the federal courts, after Congress passed a bill in extended session which the president flew back to Washington in order to sign into law, giving federal courts jurisdiction to review the case de novo, to essentially abdicate this extraordinary authority by refusing to order the re-insertion of the feeding tube that would keep the subject of the legislation alive long enough to conduct the review contemplated by the law. The courts have not conducted that review, and likely never will, as Ms. Schiavo will probably die before they have the opportunity. This seems to me to be a deliberate poke in the eye by the judicial branch to the other, coordinate, equal branches of the federal government, and the unblinking acceptance by most of the populace of this tragic example of judicial supremacy is discouraging.

Where I part company with many other conservatives on this issue is on the question of who should make the ultimate decision for Terri Schiavo. If Florida law gives that authority to the spouse, then unless there is a compelling reason to deprive the spouse of that authority, his decision should be honored. What makes this case difficult is Michael Schiavo's actions over the past few years. After testifying at trial that he wanted the money to take care of Terri for the rest of her life, he received the award and went on with his life, fathering two children by another woman, and later recalled that Terri had once told him that she would not want to live on artificial life support. His actions suggest that his motives may be less than pure, and they are certainly self-serving.

As is probably obvious from the previous paragraph, I have little confidence in the motives of Michael Schiavo, and his fidelity (or lack thereof) to his wife speaks for itself. But if the law provides that he make this decision, the law should be respected. Of course, in Oliver Twist, Charles Dickens wrote, "'If the law supposes that,' said Mr. Bumble . . . 'the law is a ass, a idiot.'" That may well be true in this particular case, and the answer is to rectify the law through the political process, not the judicial process. As far as Michael Schiavo's situation is concerned, though, Mr. Bumble is right.

Thanks for a great season

Kentucky lost a heart-breaking regional final to Michigan State Sunday in double overtime, putting an exclamation point on the most exciting weekend of NCAA regional finals basketball the men's tournament has ever seen. Unfortunately, the loss also put a period at the end of the UK basketball season. CBS analysts Clark Kellogg and Seth Davis had both predicted a Kentucky loss, which had me fairly confident that the Cats would win, since both had predicted Kentucky would lose to both Cincinnati and Utah, and Davis even predicted that Kentucky was the No. 2 seed most likely to be upset by a No. 15 seed in the opening round. The game was one for the ages, rivaling the 1992 UK-Duke regional final that also saw UK lose in overtime on a last-second shot by the player I will not name (scroll down).

With his start in Sunday's game, Kentucky senior Chuck Hayes tied Alex Groza's school record for 110 consecutive starts. Groza was no slouch, leading Kentucky to two national championships as a member of the Fabulous Five, the team that also formed the starting lineup that led the US to Olympic gold in 1948.

Thanks to the Cats for another fun season. Losing only two seniors makes thoughts of next year that much more exciting.

This week's top ten

In the final regular season poll, Illinois has returned to a consensus No. 1:

AP:
1. Illinois (1)
2. North Carolina (2)
3. Duke (5)
4. Louisville (6)
5. Wake Forest (3)
6. Oklahoma State (10)
7. Kentucky (4)
8. Washington (14)
9. Arizona (8)
10. Gonzaga (11)

Out: Kansas (9), Boston College (7).
SEC representatives in top 25: Kentucky, Florida (16), Alabama (21).

ESPN/USA Today:

1. Illinois (1)
2. Duke (5)
3. North Carolina (2)
4. Louisville (6)
5. Kentucky (4)
6. Wake Forest (3)
7. Washington (13)
8. Oklahoma State (11)
9. Arizona (8)
10. Kansas (9)

Out: Boston College (7), Michigan State (10).
SEC representatives in top 25: Kentucky, Florida (18), Alabama (21).

The (second) most wonderful time of the year

After Christmas, of course, is March Madness. The field of 65 teams is set, with play beginning Tuesday night. Surprises? Louisville is a No. 4 seed; they expected higher, and given that they won both the regular season Conference USA championship and the conference tournament, that was probably not an unrealistic expectation. Washington flew under the radar to grab a No. 1 seed. They fell out of the top ten last week, but won their conference tournament by defeating Arizona. Boston College continues a late-season slide, from fifth in the polls two weeks ago, to seventh last week, to a No. 4 seed in Illinois' bracket. The SEC placed five teams in the big dance, with only Mississippi State seeded lower than No. 6 (they are a No. 9).

Disappointment? Kentucky played away a No. 1 seed by losing in the SEC tournament championship yesterday to Florida, opening the door for Washington to grab the fourth No. 1. In theory, that could mean that the committee sees Kentucky as the strongest No. 2 seed among Connecticut, Wake Forest and Oklahoma State. Kentucky now faces Eastern Kentucky in the opening round game, scheduled to tip-off at 12:20 p.m. on Thursday. Looks like a long lunch hour.

Should the United States lead the world?

No, if you are the managing editor of the Washington Post. In this interview with China's People's Daily, Phillip Bennett was discussing President Bush's stated goal of promoting democracy in the world, when he was asked, "In such sense, do you think America should be the leader of the world?" Bennett's response was as follows:

"No, I don't think US should be the leader of the world. My job is helping my readers trying to understand what is happening now. What is happening now is very difficult to understand. The world is very complex. There are various complex forces occurring in it. I don't think you can imagine a world where one country or one group of people could lead everybody else. I can't imagine that could happen. I also think it is unhealthy to have one country as the leader of the world. People in other countries don't want to be led by foreign countries. They may want to have good relations with it or they may want to share with what is good in that country.

"That is also a sort of colonial question. The world has gone through colonialism and imperialism. We have seen the danger and shortcomings of those systems. If we are heading into another period of imperialism where the US thinks itself as the leader of the area and its interest should prevail over all other interests of its neighbors and others, then I think the world will be in an unhappy period."

Bennett has confused the concepts of leading and ruling, and for this reason he is wrong. In reviewing these definitions for lead, I can't see any in which I believe that if the United States were playing that role, it would be a bad thing. "Show the way by going in advance," "guide or direct in a course," or "to play a principal or guiding role in" -- none of these seem to be imperialistic in nature, but instead demonstrate that leading is merely setting an example.

Colonialism, by contrast, is defined as "a policy by which a nation maintains or extends its control over foreign dependencies," and imperialism has much the same meaning. These words essentially mean to rule, defined as "governing power or its possession or use; authority." What Bennett is referring to with his remarks about imperialism is extending U.S. governing authority into other countries, which, as I understand it, has never been the stated goal of the administration.

It is possible that Bennett merely has used poor syntax, or that the interview has lost something in the translation. Leaving aside that much room for the benefit of a doubt, it is shocking, but not surprising, to hear the managing editor of arguably the nation's second-most influential newspaper making disparaging remarks about the ability of the United States to lead in the world. Geopolitics being what it is, some nation will lead, and others will follow. The United States, as the oldest and longest-functioning democratic republic in the world, has quite a bit to contribute to the international conversation on the best way for a country to function. Whether he will admit it or not, the United States does possess some moral authority, although the concept of morality is nebulous to modern liberals. To automatically equate leading with ruling, though, is a stretch Bennett was wrong to make.

I will not hold my breath waiting for the Washington Post editorial page to criticize the United States Supreme Court for its use of foreign laws to interpret the American Constitution. In spite of Bennett's professed desire for countries to be free from foreign influences, I think it is safe to say that this sentiment runs only away from the U.S., and never comes into play when the foreign systems are being used to influence the U.S. Constitution. That portion of the recent death penalty opinion was completely ignored in the paper's editorial on the decision. His candor only goes so far.

Hat tip: Drudge.

This week's top ten

Not a lot of movement near the top of the poll today after Illinois lost its first game of the season, North Carolina won by two at home, and Kentucky lost by one on the road. The Cats may be hanging on to that fourth number one seed by a claw:

AP:
1. Illinois (1 - 48 first-place votes)
2. North Carolina (2 - 22 first-place votes)
3. Wake Forest (4)
4. Kentucky (3)
5. Duke (6)
6. Louisville (9)
7. Boston College (5)
8. Arizona (11)
9. Kansas (7)
10. Oklahoma State (8)

Out: Washington (10).
SEC representatives in top 25: Kentucky, Alabama (20).

ESPN/USA Today:
1. Illinois (1 - 21 first-place votes)
2. North Carolina (2 - 10 first-place votes)
3. Wake Forest (4)
4. Kentucky (3)
5. Duke (6)
6. Louisville (9)
7. Boston College (5)
8. Arizona (11)
9. Kansas (7)
10. Michigan State (12)

Out: Oklahoma State (8), Washington (10).
SEC representatives in top 25: Kentucky, Alabama (19), Florida (25).

Senator Byrd

I have so far not discussed Senator Robert Byrd's remarks on the Senate floor in which he likened the Republican proposal to end filibusters on judicial nominees to the tactics of Hitler, not because the story was meritless, but due to constraints of time. The story received little coverage in the mainstream press until the Anti-Defamation League condemned the remarks. Last night I heard an apologist for the Senator state that Byrd never likened the Republicans to Nazis, but was simply making a historical analogy. You be the judge:

"Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini’s Italy, have never stopped being a nation of laws, not of men. But witness how men with motives and a majority can manipulate law to cruel and unjust ends. . . . Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal. And that is what the nuclear option seeks to do to Rule XXII of the Standing Rules of the Senate."

Byrd still won't let go of the argument against changing Senate rules, though, as this op-ed piece is in today's Washington Post. Captain's Quarters has done an excellent job of dissecting Byrd's Senate remarks, and attempted defense of the speech, here and here. Senator John Cornyn of Texas has already compiled this piece shredding Byrd's claims.

I would add the following to Cornyn's piece. Senator Byrd claims in the op-ed that "The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints." This longstanding tradition is due to Senate rules, not with any Constitutional madate.

The Supreme Court case cited by Senator Cornyn dealt with a rule change by the House of Representatives. After noting that the Constitution gives to each house the right to prescribe its own rules, the Court went on to state that,

"within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

As Cornyn notes, Senator Byrd recognized this in 1979, when he sought a change in Senate practices: "This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate."

Senator Byrd is not being well-served by his staff, to allow him to continue making these contradictory arguments. The "dean of the Senate" is looking more and more like the crazy uncle at the reunion.

Hat tip: The Corner.

The Decalogue in the Supreme Court

I forgot to include this link to the Supreme Court's website discussing the use of the tablets bearing the Ten Commandments in the architecture of the Court building, and their symbolic role as they relate to the law. The following is the pertinent paragraph:

"Tablets of the Law: Throughout the history of western art, tablets have been used to signify 'the Law.' This tradition is closely associated with Moses, the Hebrew lawgiver, who according to the Book of Exodus descended from Mount Sinai with two stone tablets inscribed with the Ten Commandments. Over time, the use of two tablets has become a symbol for the Commandments, and more generally, ancient laws. Tablets signify the permanence of the law when 'written in stone.' Locations: In three spots, as part of larger sculptural groups, Moses is depicted with tablets: in the North Courtroom frieze, in the East Pediment and in one of the Great Hall metopes. Other tablets with the Roman numerals I-X appear on the support frame of the Courtroom's bronze gates; on the lower, interior panels of the Courtroom doors; and held by the figure representing 'Law' in the Library woodwork. A single tablet inscribed with 'LEX' is held by James Earle Fraser's Authority of Law, located to the right of the front steps. Also, a single tablet is centrally located in the East Courtroom frieze, entitled The Defense of Human Rights and the Safeguard of the Liberties and Rights of the People. This single 'pylon' with ten Roman numerals represents the Bill of Rights, the first ten amendments to the Constitution."

Take two Tablets and call me in the morning

The United States Supreme Court heard arguments today over the constitutionality of including the Ten Commandments in "Foundations of Law" displays in two Kentucky courthouses, and a Decalogue monument on the lawn of a Texas courthouse. Initial press reports have been somewhat more encouraging than my initial take on the matter when the Court granted certiorari in these cases, but only slightly. Justice Kennedy remains an unknown quantity, and as noted by Mark Levin on The Corner, his rulings have become more and more activist as his tenure on the Court increases. Nevertheless, these comments are simply common sense, and considering the source, refreshing: "'If an atheist walks by, he can avert his eyes,' Kennedy said. Saying the government can't accommodate religion is 'hypocritical and it's asking religious people to surrender their beliefs,' he said."

Without reviewing oral argument transcripts, it is dificult to gauge the tenor of the proceedings. But the press reports appear to indicate that Justice O'Connor may be the swing vote, and she apparently felt some trepidation regarding the Kentucky courthouse displays that she did not exhibit toward the Texas monument, which leads to an interesting dilemma -- the Court could attempt to be Solomonic (no pun intended) by allowing the Texas monument (which displays only the Commandments) to remain because of the "park-like" nature of its surroundings, but strike down the Kentucky displays, in which the Decalogue is just one of approximately ten documents reflecting the development of Western, and American, law. This seems like a silly result, but I would not be surprised if O'Connor advocated it.

Finally, two comments included in the above-linked press accounts merit discussion. Erwin Chemerinsky, a Duke University law professor arguing against the Texas monument, stated that "The Ten Commandments is enormously divisive right now." So is the issue of abortion, whether in toto or partial-birth, yet that has not stopped the Court from weighing in on the side of preserving that "constitutional right" time and again. In fact, abortion is much more divisive than the Decalogue, as surveys show an overwhelming majority of Americans support the public display of the Ten Commandments. An AP poll in February showed that 76% of Americans approve of such displays.

This point was driven home by Justice Scalia's references to the fact that the Commandments are "a symbol that the government derives its authority from God. It says our laws are derived from God. And that's what the vast majority of the American people believe." It's what the Founders believed, as well. Jefferson's words in the Declaration of Independence still resonate: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

The second comment is a "man-on-the-street" comment that has appeared in news articles since before the arguments took place. "'I don't think government should be in the business of morality,' said David Condo, 40, of Beltsville, Md." Absent further context, this quote is nonsense. The entire criminal law is based, in part, on the fact that it is immoral to do harm to another human being's person or property, or to society at large. This is why we have laws against murder, rape, theft, and a host of other social evils. Moral judgments also underlie a good portion of the civil law as well. Divorcing government from "the business of morality" is the first step to a decadent and decaying society.

Unfortunately, Justice Kennedy gave this view some credence in the Lawrence v. Texas decision, where, in striking down Texas' sodomy law as unconstitutional, he stated that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Kennedy gave those who want government out of the "business of morality" a foot in the door. Let's hope O'Connor doesn't remove the door from its hinges.

SCOTUS is off-base, again

The United States Supreme Court today ruled, in an 5-4 decision with the majority opinion authored by Justice Anthony Kennedy, that it constitutes cruel and unusual punishment, in violation of the Eighth Amendment, to apply the death penalty to minors, even though only fifteen years ago the Court held that it was a constitutional practice. For those not keeping score closely, there have been exactly zero amendments to the Constitution affecting the Eighth Amendment in the past fifteen years, so the Constitution hasn't changed. What has changed, according to Justice Kennedy, are "'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." This is, quite frankly, a shabby way to interpret the framework document.

Kennedy's shabbiness does not end there, however. In one of the most oft-cited portions of the opinion already in news stories, Kennedy states, "When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity." Potential to attain a mature understanding of his own humanity? These words are cold comfort to the family of the woman who, in the Court's words, suffered the following fate at the hands of this seventeen and a half year old defendant: "Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. . . . Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman 'because the bitch seen my face.'" What about a mature understanding of her humanity?

Kennedy continues the abhorrent practice of citing to foreign law and practices to interpret the meaning of the United States Constitution, a practice he is chastised for by Justice Scalia in dissent: "What these foreign sources 'affirm,' rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. 'Acknowledgment' of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment -- which is surely what it parades as today."

Kennedy also cites as authority for today's decision the International Covenant on Civil and Criminal Rights, a treaty the United States ratified with the following reservation: "The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age." (Emphasis added.) The majority also uses as authority the United Nations Convention on the Rights of the Child, which it acknowledges the United States has not ratified, and is therefore not a party. These sources do not add to the force of the Court's arguments, but detract, as the failure of the United States to join, or to join as to a specific portion, constitutes evidence that there is not an evolving consensus against capital punishment for juvenile offenders in this country.

Determining which of these errors of judgment is the most outrageous is a debate that will rage, but another contender for the honor is Kennedy's praise for federalism, which Scalia termed the "parting attempt" to diminish the significance of foreign legal influence on the opinion: "The [Constitution] sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own." (Emphasis added.)

But there is no fealty to federalism when the decision to impose a blanket constitutional proscription against capital punishment for 16 and 17-year olds is based on the decision in the past fifteen years of four state legislatures to abolish the death penalty for juveniles. Such a practice, in effect, allows the public policy decisions of a few states to dictate to the rest of the country, via the Supreme Court, the permitted range of criminal punishments. This is not federalism. And today's decision is not sound constitutional jurisprudence.

UPDATE: By the way, who do we have to "thank" that, rather than having Robert Bork on the Supreme Court, Reagan was forced to settle on Anthony Kennedy? Arlen Specter: "I not only voted against Bork, I led the charge against him." Oh, well then, thanks SO much, Arlen. Really. You've been very helpful to the left.