My Thoughts on the Schiavo Case

Would I really be able to call myself a "blogger on the law" if I didn't make some comment on this issue? No? Okay, here goes.


I'm a conservative. Really, I am. I just don't get it, though, why most of my conservative brethren (and sisteren, for that matter) are getting all in an uproar about this Schiavo case. We, as conservatives, are supposed to care about the rule of law, aren't we?

The law in this case, despite the wranglings by our U.S. Congress, places the responsibility for such determinations on the state courts. The ruling by the Supreme Court of the United States (SCOTUS) in Cruzan v. Director, MDH clearly stated that the previously stated wishes of an person, now incompetent, may be carried out by a surrogate if those wishes are proven in state court by "clear and convincing evidence."

That standard, "clear and convincing," is not for public opinion to decide. It is for the courts, and the courts alone. The Florida Supreme Court itself, in In Re Guardianship of Browning, clearly showed its support of SCOTUS' Cruzan decision, and even went so far as to broaden the scope of the holding, by making it clear that, in the case of an incompetent person, the surrogate may act without court intervention.

If such action is challenged, as it has been in the Schiavo case, that's when the clear and convincing standard comes into play.

I can't begin to understand what the parties in this case are going through. What's different between me and my conservative colleagues is that I don't pretend to.

We hear constantly on conservative talk radio how "evil" Mr. Schiavo is. He's compared to Hitler, the anti-christ, etc. But none of the people making these claims, despite their volume, have any idea what his motives are in doing what he's doing. They say that he has every opportunity to walk away, and leave her to the care of her family, and thus it points to some malicious motive that he does not do so.

I would posit that it's equally likely he's simply fighting, to the bitter end, to carry out his wife's wishes as they were explained to him earlier.

I won't for one second advance such a claim as the God's-honest truth, because I can't. Only Mr. Schiavo knows for sure.

My prayers go out to him, to the Schindlers, and, most importantly, to Terri.

An Aside: or, For the Benefit of Brent

Since I've been so recently told that my blog is suffering from a sincere lack of public substance (a la no Brad & Jen references), I decided to speak out on an issue of critical societal importance. This particular post will, hopefully, revolutionize the way we look at a service we all utilize on a regular basis.

Restaurants.

I offer these little tidbits to any restaurateurs who may be listening, and to all of you who care about the state of our eating establishments both locally and state-wide.

Rant #1:

Miracle Whip is not Mayo, and vice versa. If I say I want Mayo one more time, and get Miracle Whip instead, I believe I might just have to take matters into my own hands.

...

Actually, that's all I got.


But that Miracle Whip thing really pisses me off.

More substance later, I promise.

SCOTUS Oversteps... Again

SCOTUS decided today that minors may not be executed any longer. Basing its decision upon an illusory "national consensus," it said that severity of the crime no longer matters, nor does the jury's ability to weigh evidence at the punishment phase of a trial. It's a free ride, youngsters! Since the death penalty had no appreciable deterrent effect upon you before, you don't have to worry about it at all any more.

O'Connor makes the best argument, that you can't arbitrarily exclude an entire class of people from the application of the death penalty based solely upon a subjective reason. What's next? If someone made an argument that white people are traditionally less likely to resist peer pressure, or that women don't normally see themselves in a class that traditionally is punished severely for their crimes, they shouldn't have the death penalty applied to them, either?

It's ridiculous. O'Connor's right. The reason for the death penalty being so rarely applied to juveniles is not because people are loath to do it, but because juveniles so rarely engage in criminal acts of a sufficiently depraved nature to warrant its application. It's a chipping away at the basis of the death penalty by means other than the process by which such laws should be changed.

Every time the courts start acting as moral arbiters, and we allow it, we are doing nothing more than setting the stage for a ramming of the morality of the few down the throats of the morality of the many, or vice-versa.

SCOTUS shouldn't concern itself with why people do what they do. The process is there, and may be utilized by everyone, to prove mitigating factors denying the application of the death penalty in any case. For SCOTUS to step in and simply announce that a penalty that it itself has deemed to be neither cruel nor unusual no longer applies to an entire class of people. It's simply age discrimination by the highest court in the land. And it's also one of the worst examples of legislation by judicial fiat that I've seen in quite some time.