Demagogue

The WBA and Dubya are yet again revealing themselves to be liars and hypocrites.

Zoe's post about the compromise legislation in the Schiavo case inspired me to look at the bill itself.

As for the lying part, consider, e.g., the WBA's statement about the purpose of the bill: "We should investigate very avenue before we take the life of a living human being." This argument--essentially, that Terri Schiavo's parents (or Terri herself) should have their day in court--deliberately misrepresents the facts. The case has already been heard by 19 judges in six different courts. There are no "avenues" left to "investigate." The "Christian" right just disagrees with the outcome. That's an important disagreement, of course, based on profound questions of morality, autonomy, and what it means to be a human being, but the idea that there is anything for the courts to investigate is nonsense. DeLay and Bush know that, of course, Dubya's statement that he thinks there should be a "presumption of life" notwithstanding.

If there were anything new for the courts to consider, this extraordinary provision, from section 2 of the bill, wouldn't be necessary:

In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

In other words, the federal case is supposed to rehash everything that's already been litigated ad nauseam in the Florida courts, to the extent that it can be recast as a claim under federal law.

So far as hypocrisy goes, the "federalist" GOP is telling the federal courts to ignore a raft of doctrines that (usually) prevent them from interfering in state-court proceedings. Apart from authorizing the federal district court to deny full faith and credit to final judgments of the Florida courts, the bill also prohibits doctrines such as abstention and exhaustion of state remedies (ask a lawyer), and it authorizes the federal trial court to stay a state court order.

If you think that "federalism" should go out the window when there may be "avenues" to "investigate" with respect to whether a human life should be allowed to end, then compare this bill to the Antiterrorism and Effective Death Penalty Act of 1996, passed by the GOP Congress elected in the watershed 1994 election and signed--shame!--by Bill Clinton. That bill codified some limits the "federalist" bloc on the Supreme Court had previously imposed on habeas corpus and added further limits. The purpose was to impose a variety of procedural obstacles to efforts by death-row inmates to bring claims in federal court. Those obstacles are exactly the kind of rules that the Schiavo bill expressly gets rid of, and they have prevented inmates in some cases even from presenting newly discovered evidence that they are innocent. Even when the inmates can get into federal court, review is not de novo as is called for in the Schiavo bill; among other things, the federal courts cannot grant relief if the state courts have misapplied the U.S. Constitution, but can intervene only if the state courts' action was a clearly unreasonable application of preexisting U.S. Supreme Court precedent.

Maybe those stringent procedural restrictions are justified to cut down on the seemingly endless appeals that have characterized death penalty litigation in the past 30 years. But human lives are at stake, and, as we have been reminded in recent years, innocent people do end up on death row more often than we would like to believe. The WBA has no problem leaving "avenues" univestigated when it comes to killing fully conscious, competent individuals, so it's a bit of a contradiction for him to insist on yet another round of hearings and appeals in a case in which there is no new evidence to hear and no new claims to be raised.

The last thing I'd like to mention about this bill is what an empty gesture it is. This is pure political grandstanding. The bill allows Terri Schiavo's parents to bring a claim on her behalf that she is being deprived of her rights under the federal Constitution or federal law. There is no way--none--that such a claim has any chance of winning. What's the argument going to be? A denial of due process, after all of the endless proceedings in Florida state court? A claim that Terri Schiavo has a constitutional right to have the Florida courts intercede to force the hospital to continue feeding her? Remember, any constitutional claims will have to be against state action, not against the actions of private persons like Michael Schiavo or the doctors, so the Schindlers' lawyers will have to contend that by failing to stop those private persons from removing the tube, Florida has violated a constitutional duty.

I would not be surprised to see the federal court grant a stay of the state court's order, for the same reason that stays are routinely granted during death penalty appeals: if you don't issue the stay for a long enough time to decide the case, the person will be dead anyway and the proceeding will be pointless. But even if a stay issues, I would be very surprised if the federal court didn't dismiss the case, or at the very most have an expedited factual hearing and then rule against the Schindlers. Again, they might get a stay from the 11th Circuit pending an appeal; but, again, they'll lose in a slam dunk. And the Supreme Court will deny a stay and decline to hear the case--just as it did when the Schindlers tried to appeal from the Florida state courts' decisions.

The Congressional GOP knows all this. They know they're giving the Schindlers false hope, and that this bill will accomplish nothing in the end other than to prolong a grotesque public spectacle--and, of course, to pay back some of the debt they owe the religious right before heading into the 2006 election.

But I wouldn't get too excited, if I were a right-wing evangelical. This bill specifically applies only to Terri Schiavo and her parents, who are named in the bill. And consider this part of the bill:

SEC. 8. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing is this Act shall constitute a precedent with respect to future legislation.

Remind you of another case of federal-court interference in Florida judicial proceedings?