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Published: Saturday, 3/26/2005

Who will stand for justice?

THE law and justice often take divergent paths. This was the theme of Stanley Kramer's 1961 masterpiece, Judgment at Nuremberg.

Spencer Tracy plays Dan Haywood, an American judge presiding over the trial of four German judges accused of war crimes. Three are Nazi functionaries. The fourth is Ernst Janning (Burt Lancaster), a distinguished jurist who despised Hitler.

Janning is convicted for having sentenced an elderly Jew, Feldenstein, to death for having sex with a young "Aryan" woman. There was evidence presented at trial that Feldenstein did indeed have sex with Irene Hoffman (Judy Garland), and this was a violation of Hitler's Law for the Protection of German Blood and German Honor. But Janning is convicted because the law he enforced was unjust. A judge's responsibility, Haywood said, is to stand for justice when standing for something is most difficult.

When U.S. District Judge James Whittemore authorized the killing of Terri Schiavo, he could claim he was following the law. But no one will accuse him of standing for justice.

The state trial judge, George Greer, determined as a matter of fact that Terri was in a persistent vegetative state from which she could never recover, and that she had expressed the desire to have her life ended if she ever were in that condition.

If that was clear, there would be little controversy. But four dozen neurologists think Terri was misdiagnosed. And Judge Greer's finding that she would want to die is based solely on the testimony of her husband, who is living with another woman by whom he has fathered two children, and who stands to inherit her estate.

Judge Greer did not appoint a guardian for Terri, even though it was clear her interests diverged from those of her husband. He never ordered an MRI or a PET scan, the only way to determine the actual extent of her brain damage. This is equivalent to ignoring DNA evidence in a murder trial.

Those who would have us believe in Judge Greer's finding of fact also want us to believe that starving someone to death is "withdrawal of life support," and that death by starvation is painless.

Specious as his fact finding was, Judge Greer dotted his i's and crossed his t's with regard to legal procedure. All subsequent legal reviews have been of the law, not of the facts. It was to get a fresh look at the facts that Congress passed legislation to permit review of the case in federal court.

Hugh Hewitt, among other things a law professor, notes that it is common practice for federal courts to issue injunctions when it is endangered bugs or plants that are at risk. But Judge Whittemore found the narrowest grounds he could to refuse to order reinstatement of Terri's feeding tube. In doing so, he stuck his thumb in Congress' eye, as Judge Greer had done earlier when he ignored a congressional subpoena.

The disdain judges exhibit for the people's elected representatives is leading to a confrontation that will reverberate long after Terri Schiavo's bones have moldered.

"We are no longer a nation of laws," said a reader of Mr. Hewitt's blog. "We are a nation of lawyers. It doesn't matter how carefully we frame a law. It doesn't matter what sort of initiative the voters pass. The elite judges do whatever they want."

No public interest is advanced by Terri Schiavo's death. No harm would have been done by permitting her parents to care for her. If the law demands Terri's death by this cruel means because her existence became inconvenient for her husband, then, as the Charles Dickens character Bumble said, "the law is a ass."



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