For those of you on the fence or internally debating "rule of law" with "humanity and morality", I implore you to read Henniger's Piece in the Opinionjournal........everything that is right and wrong with this human tragedy is boiled down to its essential oils right here.
hat tip Catherine the Great
In Solomon's Absence
The Schiavo case made bad law and good politics.
BY DANIEL HENNINGER
If we lived amid the wisdom of Solomon, Terri Schiavo would be turned over to her loving parents and family. If it is their wish to live out their lives attending the constant needs of their damaged child, so be it. However, we live in an age bereft of the wisdom of Solomon, and so Terri Schiavo is likely to die. That the American legal system is incapable of common sense is very upsetting, but I don't see why it should be found surprising or shocking.
The U.S. Supreme Court declined yesterday to intervene in the Schiavo case. The original court decision, the basis and cause for all that we have witnessed the past several weeks, was rendered in February 2000 in Pinellas County Circuit Court by Judge George W. Greer.
It is true that Judge Greer has ruled against Terri Schiavo's parents, the Schindlers, many times. But by my count, in the five years from the original circuit court decision, the rulings against them include the following:
Florida's appeals court: eight times; the Florida Supreme Court: five times; U.S. federal courts: five times; the U.S. Supreme Court: three times.
This is a lot of judges. Some of the opinions are long discourses combing back through the details of the case. It is difficult for me to believe that these are all "liberal" judges intent on "killing" Terri Schiavo.
For the record, let us examine the basis for Judge Greer's original decision to withhold artificial life support.
Judge Greer decided to pursue what Terri's wishes were and said he was guided by a Florida Supreme Court case called Guardianship of Estelle M. Browning. It set three tests, one of which is that "the evidence of the patient's oral declaration is reliable."
"This is the issue before the court," Judge Greer wrote. "All of the other collateral issues [such as the beliefs of family concerning end-of-life decisions] truly are not relevant to the issue which the court must decide."
Judge Greer then cited testimony taken from Michael Schiavo's brother and sister-in-law, who said Terri had said, "I don't want to be kept alive on a machine" and several similar statements. Judge Greer said this "rises to the level of clear and convincing evidence to this court."
These are the trial court's findings of fact, and in our system all subsequent appeals courts give great deference to these original findings. Several lengthy appeals court rulings also cited Terri's "oral" declarations. This is the reason we are hearing so much now about living wills and the like.
This doesn't make it any easier to accept the trial court's decision. Depriving the Schindlers of the chance to minister to their child on the notion that she blurted this "oral will" to her in-laws is absurd and repellant (surely many Democrats railing against the Republican Congress's anti-federal intervention would at least agree that Terri belongs with her willing parents). But "wrong" decisions occur constantly. Judges go home every night disagreeing with the decisions of juries, which the judge may believe has found the guilty innocent or wrongly sent the innocent to prison. The standard for setting aside these wrong decisions is very, very high.
As to Michael Schiavo's status as guardian, it was not unassailable, but nor was it obviously insupportable. Michael Schiavo is entitled to the sweeping claims for his wife's desires he has been making from every TV screen, but the most morally reprehensible act in this whole drama has been his refusal to simply turn Terri over to her poor mother, whose connection to her child-like daughter is more authentic and earned than anything that existed between Terri and Michael Schiavo.
Many conservatives have brought Terri Schiavo's case into the battle against a too-activist judiciary. They should reconsider. Most judges hate getting these close-call medical cases. Expecting the courts to do the "right thing" in every such case is hopeless. The more likely result of pressing these cases into a courtroom of any political persuasion is an impossible tangle of bad, useless precedents.
Democrats, and others, have accused Republicans and President Bush of playing politics with the Schiavo case. Let's hope so. Unlike most, this is a necessary politics that ought to draw the whole country into the argument.
In 25 years, the baby boomers will be on the cusp of 85, becoming what a physician friend has called "history's healthiest generation of Alzheimer's patients." As the tsunami of red ink collapses the struts beneath the tar-paper shacks of Medicare and Social Security (which the Congressional elders say isn't broken) the "scarce resource" argument will re-emerge, with soothing persuasiveness, for triaging the most ill among us, very old or very young.
The outpouring of support to give Terri Schiavo back to her parents may prove quixotic, but it ensures that these future questions of who lives and who dies won't be decided by the professional class alone in conferences and courtrooms. It will be done in full view, where it belongs.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.