Wednesday, May 23, 2018
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Marilou Johanek

Judicial activism OK - when it suits GOP

HENCEFORTH no campaign against activist judges by Republicans should hold any credence. Ever. The Terri Schiavo show blew that political plank to smithereens. It is now abundantly clear - if it wasn't before - that the GOP is opposed to activism on the bench unless it agrees with the outcome.

Unless a court interprets the law to its way of thinking and rules in favor of its positions, the judges are overstepping their jurisprudence, or legislating from the bench, or on a tangent to affect social change instead of adjudicating its legitimacy.

What a crock. In a years-long legal fight between the husband and parents of Terri Schiavo, the courts have repeatedly ruled in favor of Terri's spouse. Even the U.S. Supreme Court has weighed in on the case, slapping down a legislative maneuver by Florida lawmakers and Gov. Jeb Bush to contravene earlier court rulings that upheld the sanctity of a husband acting on behalf of his severely brain-damaged wife. And let's be real here, the 41-year-old woman is beyond help in the cognitive department.

Over many courtroom challenges and medical reviews, court-appointed physicians agree Terri is in a persistent vegetative state. Her acutely limited brain function allows her to breathe on her own and that's about it. A feeding tube implanted in her stomach was all that kept her alive for 15 years. Her reflexes and facial expressions are involuntary gestures of a brain tragically deprived of oxygen when her heart stopped beating briefly in 1990.

How ironic that a possible potassium imbalance brought on by an eating disorder started Terri Schiavo on a journey that would eventually lead to the U.S. Congress and the President aggressively acting to keep her tethered to a feeding tube. What would she think about becoming a "great political opportunity" of the Republican-led Congress and born-again President to make points with the fundamentalists and moral minders who put them in office? They don't begin to know her any more than you or I do.

And yet the party big on the rule of law sought to bend it to a particular point of view in ways the Supreme Court ruled unconstitutional with Florida lawmakers and the obliging brother of the President. The party likewise big on state's rights sought a way to nullify what state courts decided in a state case. The party big on making citizens jump through hoops to sue and that supports caps on jury awards broke precedent for a woman whose medical malpractice settlement helped pay for legal bills and medical care until Medicaid picked up the slack.

Fortunately for the Terri Schiavos of the world, the party also big on cutting Medicaid programs has had second thoughts. Fortunately, too, for Terri Schiavo's feeding-tube fans, the President is not acting as the former governor of Texas once did. Then Gov. George W. Bush signed a law that, had this case occurred in Texas, would have permitted Michael Schiavo, as her legal surrogate and with the full medical concurrence of her doctors, to discontinue her life support years ago.

Nowhere does the law presume to inject politics into the wrenching medical decisions countless families face with a loved one who would die but for artificially or technically supplied sustenance. Yet President Bush and his fellow opportunists on Capitol Hill brazenly forced their way into the private hell of a husband and his tragic wife to ensure that the right course of action was taken - according to them. How dare they?

How dare the President or Sen. Bill Frist, a doctor who determined the extent of Terri's brain damage by viewing video clips, and the ethically challenged House speaker, portend to speak for a woman they never met and know nothing about?

How dare the President and congressional leaders use the power of their offices to ride roughshod on the judicial branch of government where judgment has been rendered, appealed, and upheld for a husband exhausting his last emotional resource to give his wife a measure of dignity in death?

How dare partisans fuel a national soap opera of Michael Schiavo's motives, relationships, and marriage to Terri? When an activist President and activist lawmakers go searching for activist judges to press a point, look out. Life, liberty, and the pursuit of happiness can be redefined as one size fits all.

Clearly the GOP campaign against activism on the bench is moot after what Mr. Bush and Republican leaders pulled to placate party evangelicals by exploiting poor Terri Schiavo. Not another GOP rant on that score.


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