How Many Conservatives Does It Take to Splinter the GOP Right?

Jacob Sullum | March 23, 2005

In a story ostensibly about dissension on the right concerning the wisdom, propriety, and constitutionality of congressional intervention in the Terri Schiavo case, The New York Times offers criticism from two moderates (Sen. John Warner of Virginia and Rep. Chris Shays of Connecticut), two libertarians (Steve Moore and Bob Levy of the Cato Institute) and one self-identified "process conservative" at a think tank (David Davenport of the Hoover Institution). The payoff is a bit disappointing, given a headline that announces "GOP Right Is Splintered on Schiavo Intervention." To be fair, a story in yesterday's Times cited Pepperdine University law professor Douglas Kmiec as another conservative critic of An Act for the Relief of the Parents of Theresa Marie Schiavo. So that's two so far. I'd like to think the Times just isn't trying hard enough.

Comments

Jeff Clothier|3.23.05 @ 10:07AM|#

I wouldn't want to be a judge deciding this case, but I do believe Congress and the Bush administration have no business in this. They have no complaint to make about "judicial activism," as the judicial system, both in Fla. and so far at the Federal level, seems to be taking a very careful approach.

What tips it for me is there is simply nothing in writing, as far as I know, to back up the husband's case regarding Mrs. Schivo's desires. Enforcing a verbal contract requires both parties to be able to speak to it. Absent that, I do think the assumption should be made that no covenant exists to terminate Schivo's life under the present circumstances.

|3.23.05 @ 10:20AM|#

The real culture war is being waged within the GOP. Whoever wins, we lose!

|3.23.05 @ 10:36AM|#

George Will came down hard on the GOP's intervention on Sunday.

clarityiniowa|3.23.05 @ 10:40AM|#

Worse than that, Lewis, this is a political war about to whom our lives belong. Those in power say they belong to God, which, in practical terms, means the State.

ConReps believe in liberty in all but our private, personal lives. That, they firmly believe, needs to be strictly controlled in the name of "morality", which is to say, in the name of outside control. Orwellian indeed...

|3.23.05 @ 10:43AM|#

John Derbyshire has taken the husband's side in the Corner (NRO), if I understand him correctly.

|3.23.05 @ 10:48AM|#

John Derbyshire has been quite compelling. He relates his experience listening to his mother, a nurse in a hospital, and her friends talking shop when he has a little kid. On occasion, one of them would utter in disgust, "Why don't they just let the poor thing die?"

Dear Lord, if I am ever ill and hospitalized, please let the decisions about my comfort and lingering be made by the nurses, and not the surgeons. Amen.

R C Dean|3.23.05 @ 11:01AM|#

What tips it for me is there is simply nothing in writing, as far as I know, to back up the husband's case regarding Mrs. Schivo's desires.

There is nothing in writing that supports her parent's account either. A judge has heard both sides, and has found by clear and convincing evidence, including testimony from people other than Mr. Schiavo, that she would not want to be fed through a tube in a permanent vegetative state.

Enforcing a verbal contract requires both parties to be able to speak to it.

No it doesn't. It only requires evidence of what the oral (not verbal) contract was. If either party to an oral contract can get out of it simply by refusing to confirm its terms to a judge, well, that isn't much of a contract, is it? In any event, this is not a contract case, so even if this were a legal principle, it wouldn't apply.

Absent that, I do think the assumption should be made that no covenant exists to terminate Schivo's life under the present circumstances.

Even if we did start with that assumption, would you allow "clear and convincing" evidence to rebut that assumption, even if it is not in writing?

Morat|3.23.05 @ 11:17AM|#

Enforcing a verbal contract requires both parties to be able to speak to it.

Actually, there is a written contract here, of vital importance to the case. It's called "the marriage certificate" and it, among other things, grants guardianship -- and the responsibility and power to make all medical decisions -- to Terry's spouse.

Part of "getting married" (unless you amend it specifically later) is -- in a written contract -- granting your spouse the power to make any and all medical decisions for you, should you be incapacitated.

In short, Terry agreed to let Michael make this decision the day they got married.

|3.23.05 @ 11:26AM|#

In short, we all knowingly grant this power over ourselves when we get married. Your spouse, BTW, is the only relative you choose voluntarily. That's why, in the "next of kin" department, spouse outranks parents, siblings, children and crazy spinster aunts.

ed|3.23.05 @ 11:27AM|#

I expect to read at any moment that Gov. Jeb Bush has sent in the Stormtroopers, a la Elian Gonzalez.

Rob McMillin|3.23.05 @ 11:33AM|#

My wife came up with a good point on this subject:

Oh, and if you're a true religious conservative, you should be angry. You've been used. What the Schiavo case means is that the Republicans in power can now claim to have fought for "life", but they don't have to actually do anything more about the far more divisive, and opposition inspiring, issue of abortion itself.

|3.23.05 @ 12:00PM|#

I love all the commenters on this case (on this and other threads) who say "it should be thus and so", or "I think that it should be up to X." The proper response to all this is, SO WHAT? What any one individual thinks *should* happen here is completely and totally irrelevant (see "rule of law")--and it's a good thing, too, considering the depth of ignorance commonly being displayed on the facts in this case.

Florida law explicitly states that such desires do NOT have to be expressed in writing, and that the standard for a court's ruling in such a case is clear and convincing evidence. Two trials and multiple appeals have all reached the same conclusion: that clear and convincing evidence exists that Terry's wishes are/were to not be sustained by artificial medical procedures (which under Florida law uncudes artificial provision of food and hydration). End of story.

Thank god this will all be over soon. The number of people in this country willing to throw out centuries of constitutional and common law over one case is truly breathtaking. And scary.

|3.23.05 @ 12:01PM|#

Uh, replace "uncudes" by "includes" above. Someday I will lose my unclue and get it right.

|3.23.05 @ 12:05PM|#

Jeff,
Florida law allows the type of verbal living will. Your issue is with the lawmakers, not the judges. The judges are merely enforcing the laws made by the people of Florida.

|3.23.05 @ 12:07PM|#

In other words, what Chuck said. :)

|3.23.05 @ 12:09PM|#

Another "the right is split" story, registration-free:

http://apnews.myway.com/article/20050323/D890NAB00.html

Whatever the merits of the "save Terri" arguments, it seems that the Congress goofed when writing the private bill ordering a Federal review. The District Court judge refused to adopt the view that the facts of the case be reviewed de novo. Now the Appeals Court has turned the parents down, and the only rung on the ladder left to them is SCOTUS.

An emergency filing to the high court would go first to Justice Anthony Kennedy, a Reagan appointee who has staked a moderate position on social issues.

http://apnews.myway.com/article/20050323/D890P8G00.html

Meanwhile, Gov. Jeb Bush is trying to get the FL legislature to pass yet another law to stave off The End.

Closure on this issue still seems days, if not weeks away.

Kevin

|3.23.05 @ 12:35PM|#

Rob McMillin, That is brilliant.

|3.23.05 @ 1:53PM|#

kevrob, "Meanwhile, Gov. Jeb Bush is trying to get the FL legislature to pass yet another law to stave off The End. "

Foxnews was just live at the FL legislature, and they dont' think any bill will pass anytime soon.

|3.23.05 @ 1:56PM|#

I'm curious, has anyone seen a "National Inquirer" story about a link between the pope's health and that of Terri Schiavo? Will the new cry be "Save Terri for the Pope!"?

I'd pay extra to see that.

|3.23.05 @ 2:28PM|#

"The District Court judge refused to adopt the view that the facts of the case be reviewed de novo."

Are you sure? I thought he refused to grant a temporary restraining order until the case went to trial.

Pragmatically, there seems to be little difference, but as a point of law, there's a distinction.

|3.23.05 @ 4:24PM|#

CNN.com has an article up which quotes President Bush as follows:

"I believe that in a case such as this, the legislative branch, the executive branch, ought to err on the side of life, which we have," Bush said. "And now we'll watch the courts make their decisions."

Phase II of the strategy has begun. Sure enough, activist judges will be blamed for everything, and the compassionate executive and legislative branches will be portrayed as Good Samaritans who tried their best to do the Right Thing but were stymied by the big bad judges. But to me, this quote also indicates that Bush doesn't intend to try any more last-minute system hacks either, which may finally allow this case to end. I don't see the FL legislature rushing into the breach, either. They've already been scalded once, and several of the (Republican) state Senators are now publicly saying that it's time for *all* the legislatures to butt out.

|3.23.05 @ 4:55PM|#

It's beginning to dawn on the Republicans what a train wreck this jihad is for them.

Too bad they spent the last week making sure every religious right activist in the country was paying extra close attention. They staked their commitment to the pro-life movement on this, and now they have to back slowly away. And what excuse do they offer to the people who they promised a ferocious fight for the basic values they hold dearest? "We have to defer to the federal judiciary." You just know the people lying on their faces and howling in front of the nursing home are going to eat that right up.

And after they went and won a clear mandate and everything.

|3.23.05 @ 6:17PM|#

joe--

yep. How long before we start seeing the Bush=Pilate comparisons? Any bets?

|3.23.05 @ 7:21PM|#

Chuck, it's too late. At 11:15 AM EST, WorldNet Daily posted a commentary piece that closes with the following lines:

"If Gov. Bush will confront this evil by sending in the state police or national guard to protect Terri, he will be remembered for his courage and integrity. Moreover, his commitment to his oath of office and to protecting the citizens under his care will likely ensure him a successful run for the White House in 2008. The publicity value of his actions alone will guarantee that his name will become a household word in America as the dwindling pro-death crowd hiss about him and those who value life praise him.

If, on the other hand, Jeb Bush fails to protect Terri, her blood is on his hands and America will not forget his moral cowardice."

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=43451

|3.23.05 @ 7:22PM|#

And what excuse do they offer to the people who they promised a ferocious fight for the basic values they hold dearest?

Hey! Look over there! Let's go save Social Security!

|3.23.05 @ 7:27PM|#

If, as we've been told, marriage is such a precious, sacred institution that we dare not let homosexuals desecrate it, why do the brainless hypocrites in government feel they can just stomp all over the spouse's wishes with utter abandon?

|3.23.05 @ 7:35PM|#

Actually, I just discovered that it's *really* too late to make a Jeb Bush/Pontius Pilate analogy. This was posted to WorldNet Daily on October 20, 2003 when "Terri's Law" was being debated:

"Gov. Bush, I must also tell you that your pitiful attempt to make people think you are impotent to act in this matter is not credible. It makes people think you are acting in bad faith - washing your hands of a difficult matter just as Pontius Pilate did with Jesus 2,000 years ago. If such is the case - and I believe it is likely - you sir are a coward without modern-day peer. I hope I'm wrong. But, if you let this woman die, her blood is on your hands."

http://www.wnd.com/news/article.asp?ARTICLE_ID=35158

|3.23.05 @ 7:39PM|#

Thinking about it, the more interesting wager now is whether Michael Schiavo will be charged with murder if Terri dies. Not from the starvation, mind you, but because many pro-tubers are getting remarkably cavalier about throwing around accusations that Michael tried to kill her in the first place.

|3.23.05 @ 8:25PM|#

"If Gov. Bush will confront this evil by sending in the state police or national guard to protect Terri, he will be remembered for his courage and integrity."

Huh. Yeah, that's what they said to Bull Connor, too.

|3.23.05 @ 8:27PM|#

"Closure on this issue still seems days, if not weeks away."

Seems like the issue will be moot sooner than that.

raymond|3.24.05 @ 3:50AM|#

Al-Qaeda operative Terri Schiavo has been captured at a Florida hospice, en route to contaminate a U.S. city with a neurological bomb. Ms. Schiavo, a U.S. citizen, is now being held in the hospital wing of a Navy brig as an "enemy combatant."

"Under the terms of the PATRIOT Act," stated Attorney General Alberto Gonzales in a dramatic announcement from his summer home in balmy Guantanamo Bay, "we have taken Ms. Schiavo into custody and will use whatever interrogation techniques we consider necessary and legal to gather from her whatever intelligence she may possess."

When asked to comment on the latest developments, President Bush, at his ranch in Texas, said: "We tried airing on the side of life. We aired a lot. Now we must air on the side of national security. Ms. Schiavo is a threat to the US Constitution, and my administration will continue to air until the Constitution is no longer a threat."

|3.24.05 @ 9:34AM|#

Heh, raymond,

are you sure that you at least understand your own joke?