Monday, March 28, 2005

On Morality and Hard Cases

The Schiavo case has exposed a rift between social conservatives and "federalist" conservatives. Religious conservatives express unqualified support for the Right to Life, laud Congress' unprecedented move to intervene in a state court matter, and regard the entire judicial system's refusal to do so as "judicial tyrrany." Federalist conservatives criticize Congress' intervention in a case involving only state law, and support the exclusive jurisdiction of the State of Florida to resolve the legal issues of the case.

While some fear this is a potentially crippling rift between these two important Republican constituencies, I believe that once tempers have cooled, the future of the party will not be significantly affected by these disagreements. However, to the extent that social conservatives feel compelled to exert a sustained, organized campaign against the judiciary for its role in the case, I believe they risk damaging the Republican Party's ability to continue to attract a winning national consensus.

Infused in the plethora of comments social conservatives have offered in bellweather conservative blogs offering a forum for them is a deep and abiding suspicion (if not contempt) for the Rule of Law, and its (multiple, consistent) applications in this instance. The trial judge (Greer) was (a) biased against the parents, (b) a liberal choice advocate, (c) incompetent, (d) arrogantly ignoring the clear will of Congress. They have taken every opportunity to try and retry the case, offering their own findings of fact on everything from Michael Schiavo's marital infidelity (hence absence of credibility) and murderous intentions, the truth or falsity of the factual evidence offered at trial, even the competence of the lawyers.

These individuals apparently have a great deal of difficulty understanding or accepting the resiliency, and necessity, of a judicial process under which the facts are found and the law is applied with finality.

Regardless of political perspective of the viewer, any attempt to "second guess" a trier of fact is really beside the point. The procedural rules provide an opportunity for all "interested parties" to present all of the facts they feel are relevant to the issue at hand, and argue the application of the law to those facts. The standards by which appellate courts review the findings of fact and conclusions of law applied by a trial judge are well established, of necessity rather rigorous, and have stood the test of time.

In the Schiavo case, these rather fundamental principles are under attack because a committed and devoutly pro-life constituency does not believe that the Rule of Law should be used to permit a person to die unnecessarily. Life is of paramount importance, so regardless of the law or the facts, this person should not be put to death, and any means possible should be employed to thwart the legal outcome. Absent a change in statutory law to support their position, such action would constitute an act of anarchy.

If we are to thrive as a society, we must base our conduct on both moral judgment and the Rule of Law. In many cases these principles are mutually supportive. In rare instances they may be perceived as contradictory. In this case, the principle of morality is enigmatic, because the definition of "life" varies substantially among people of moral being. The Rule of Law is not, and that is what allows our society to have disagreements such as this without (frequently) rioting in the streets.

The only question that is relevant, morally and legally, in this (or any other) case is: Did Terri Schiavo receive a full, fair, and constitutional process by which her interests were represented and determined?

She did. We might abhor the outcome (in candor, I am not opposed to it), it is possible even that the Judge was mistaken -- make up whatever factual diabolism you care to invent --- but that too does not matter --- legally or Constitutionally. There was a thorough process. Facts were found, law was applied. Appellate reviews were made. No reversible error was found to have occurred.

Even assuming the worst -- there is a difference between a moral travesty and a violation of an individual's legal rights.

I found Congress'es meddling in this case to be a travesty -- particularly the outrageous statements accusing Judge Whittemore of being in contempt of Congress. From my perspective, Judge Whittemore applied the letter of the law, as the rules of statutory construction required (insofar as those rules were necessary to interpret a law that was clear on its face). The law did not compel him to order reinsertion of the feeding tube, as some members of Congress protested. The law directed him to render such injunctive relief as would be necessary to insure that her rights were not violated. It did not order the judge to ignore the federal rule that requires a showing a likelihood of success on the merits for an injunction to be issued. Perhaps it could have (if not in obviously violation of the Seperation of Powers clause), but it didn't -- and it didn't because the Republicans in Congress understood that such a bill would not have sufficient political support. They got what they could, and had to hope that it was good enough for the result they wanted. But the Democrats would not have permitted (much less voted for) a law that directed a federal judge to issue an injunction to preserve Terri's life while a full trial on the merits was held. We can scream all we want on that part -- but it is politics, not law.

It is politics -- legislative politics!! -- that are the start and end to this social dispute. Not judicial tyrrany. To conclude otherwise would require a conclusion that dozens of judges, state and federal -- including the conservative federal 4th circuit and the Supreme Court --- were acting, independently or in collusion, tyrranously. That's just paranoid nonsense.

There will be a (hopefully healthy) debate, anew, on the legal issue of "substituted judgment," and that may be a good thing. It should take place in legislatures, and if social conservatives are successful in some places, they will have won the opportunity for another judge, in another tragic circumstance, to have a difference set of rules to apply.

In the meantime, social conservatives and "process" conservatives will figure out how to live with one another. But the Republican Party might have a tiger by the tail if it allows the social conservatives to occupy too much of its limelight on matters as deeply personal as this one.

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