Conservatives seeking to reinsert Terri Schiavo's feeding tube have articulated the ethical principle that we should "err on the side of life" - that's why more and more judicial reviews of her case are necessary. Even President Bush has used these words. Is there any reason to believe them? Could they be seeking something else?

Winston Smith explains some of the implications of this principle (which he calls "L"):

L seems to indicate that we are rarely justified in executing criminals. Given the background of the Schiavo case, L seems to commit the President to the proposition that we are not justified in executing a convict unless we are more sure that this convict is guilty than we are than Ms. Schiavo is non-conscious. I know virtually nothing about brains and about the same amount about the legal system, but the doctors closest to the case seem to have concluded that it is extraordinarily unlikely that Ms. Schiavo is conscious. If I understand things aright here, her doctors have concluded that there is no reasonable doubt about her condition. If their evidence is insufficiently strong, then it is likely that our evidence for conviction in death penalty cases is often insufficiently strong.

Other implications are offered, but this is among the most interesting given how many people Bush had executed when he was governor of Texas. I don’t think that Bush really believes in this principle nor do I think that any of the other vocal Republicans believe in it. I think that they are cynically using it for their own political gain.

And what is it that they hope to gain? Obviously they please a narrow base of extremist supporters, but there may be more. If the law they passed isn't struck down, it establishes the principle that the Republicans in charge can and will overrule any court if they don't get the results they like.

Tristero writes:

The Bush administration demonstrated in public - not in secret, as with the Gonzales torture memos - that they have the will and the means to overturn any law they disagree with. Regardless of what happens now to the Schiavo case, the right wing extremists who control our government have made their point. Openly, they have asserted, and proven, that they are literally above the law of the United States. They are now unequivocably beyond any judicial control. Only a fool would believe that they won't do this again on a different issue. And again. And again.

Tristero insists that this represents a serious step forward towards a fascist state. Such language certainly sounds strong — perhaps even hysterical — but he also quotes newspapers making similar points in similar language.

The Los Angeles Times says:

Republican leaders, eyeing an opportunity to appease their radical right-wing constituents, convened Congress over the weekend to shamelessly interject the federal government into the wrenching Schiavo family dispute. They brushed aside our federalist system of government, which assigns the resolution of such disputes to state law, and state judges. Even President Bush flew back from his ranch to Washington on Sunday to be in on what amounts to a constitutional coup d'etat.

Conservatives are the historical defenders of states' rights, and the supposed proponents of keeping big government out of people's lives, but this case once again shows that some social conservatives are happy to see the federal government acquire Stalinist proportions when imposing their morality on the rest of the country. So breathtaking was this attempted usurpation of power, wresting jurisdiction over a right-to-die case away from Florida's judiciary, that Republican leaders in the end had to agree to limit this legislation's applicability to the Schiavo case. [emphasis added]

The New York Times says:

The new law tramples on the principle that this is "a nation of laws, not of men," and it guts the power of the states. When the commotion over this one tragic woman is over, Congress and the president will have done real damage to the founders' careful plan for American democracy.

Republicans have traditionally championed respect for the delicate balance the founders created. But in the Schiavo case, and in the battle to stop the Democratic filibusters of judicial nominations, President Bush and his Congressional allies have begun to enunciate a new principle: the rules of government are worth respecting only if they produce the result we want. It may be a formula for short-term political success, but it is no way to preserve and protect a great republic. [emphasis added]

Constitutional coup d'etat.

Damage to America's democracy.

Rules are only worth respecting if the produce the result we want.

All of this is magnificently reflected in recent comments from Senator Rick "I live in Virginia but represent Pennsylvania" Santorum:

"You have judicial tyranny here," Santorum told WABC Radio in New York. "Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress."

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo," the Pennsylvania Republican explained. "That means he has to hold a new trial. That's what the statute said."

It's "judicial tyranny" when a federal judge doesn't do what Republicans want him to do. And what did Congress instruct? That a court should have an entirely new trial without regard to any decisions made at lower levels — but Congress doesn't have the authority to do this. That's why we see such extreme language in the above articles. If this isn't an example of undermining the principle of America being a nation of laws, what would?

How is it not a step towards fascism for Congress to illegitimately assume the authority to tell a federal court to ignore lower court rulings and start over from scratch... then attack the judge when he refuses to be their puppet?

Republicans here want to ignore rules, laws, traditions, and procedures to get what they want. Democrats (though not enough of them) want to uphold rules, laws, traditions, and procedures in order to ensure that justice is done.

 

Who are the conservatives here?

 

 

Update: World O'Crap has some interesting quotes which also express the idea that when courts reach unpopular decisions, the executive branch should assume dictatorial powers to act in whatever manner it thinks is best:

We will have an around the clock vigil at Governor Bush's mansion, urging him to use his executive powers to take Terri into custody. As the governor, he swore an oath to uphold the Florida Constitution, which guarantees the right to life of disabled people. He has been told by many lawyers and legal scholars that he has the right, authority, and the duty to use his power to save her. The question is whether or not he has the will to do so.

Take Terri "into custody"? Based upon what authority? Should Governor Bush do the same in every case where a family member wants to discontinue breathing or feeding machines?

Also:

The life of Terri Schiavo is solely in the hands of Florida Gov. Jeb Bush. ... Gov. Bush, put a stop to this travesty right now, for the sake of all that our nation stands for, in the interest of meriting God's merciful protection of our country in the years ahead.

Finally:

This ad hoc partnership of religious and political organizations-which will gather in front of the White House and the Florida governor's mansion-will call on President George W. Bush and Gov. Jeb Bush to use their Executive powers to protect Terri Schiavo from starvation. ... There are two people in the United States who can save Terri Schiavo's life right now. The president of the United States and the governor of Florida have the authority to use the police services at their disposal to take Terri into protective custody, restore her food and hydration, and arrest anyone who would interfere," said Dr. Paul Schenck, executive director of the National Pro-Life Action Center on Capitol Hill. "For the sake of Terri's life, we cannot afford to wait while the courts dither over jurisdiction."

I think that these same people would be happy using the same arguments when it comes to abortion: have the president or the governor use their police powers to just shut down abortion clinics, arrest the staff, and take the mothers into "protective custody" in order to ensure that their babies are born. Why not?

Sure, there are laws protecting a right to abortion, but there are also laws protecting one's right to make decisions regarding the care of their spouse, even if other family members disagree. These Republicans don't care about the law, remember? They only care about results — and if that requires getting the executive branch to exercise dictatorial powers in an authoritarian atmosphere that has eliminated all vestiges of checks, balances, and justice, well that's what needs to be done.

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