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.
"A Sixth Circuit-Themed Primer on the Marks Doctrine, and an Endorsement of a Proposal to Overhaul Marks" - "A Sixth Circuit-Themed Primer on the Marks Doctrine, and an Endorsement of a Proposal to Overhaul Marks": Asher Steinberg has this post at his blog, "The ...
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