Friday, March 25, 2005

Another Great Letter

In response to this.
The Courts Should Stick to Their Job
Greg Richards - New York

Mr. Henninger ignores several points that have emerged in recent days. Most important among those are: (1) to what extent is Michael Schiavo Terry's "husband," given that he has a common-law wife and children; (2) since his interests are very likely not aligned with Terri's, why should his wishes be paramount; (3) three nurses have now come forward to say that there have been signs of life in Terri; (4) the reason that Terri has not received rehabilitation is that Michael Schiavo denied it to Terri; (5) it appears there is no authoritative medical opinion as to just what Terri's mental condition actually is; (6) she is not on life-support; she has been on a feeding tube; (7) what is the rush to kill this woman given points 1 through 6 above? Those, I suggest are the points at issue.

As to the procedure of the courts. Permit me to comment as a citizen that we have had to accept a series of intellectually outrageous results from the courts since the 1970s. The Supreme Court found a constitutional right to abortion, which nobody had noticed for 200 years. I speak here, as Mr. Henninger does in his article, to the legal reasoning, not to whether abortion itself should be legal or not. The Supreme Court of Massachusetts discovered in the Massachusetts Constitution a right to gay marriage that had escaped every other observer since the Pilgrims first put ashore at Plymouth Rock--that is to say for 380 years. Again, I am not addressing the merits of gay marriage itself, but rather the pretensions and procedures of the courts in discovering such a right. There are many other examples, of which readers of the Journal will are aware.

My point is that the courts have been so promiscuous for so long that they cannot now clothe themselves in Victorian modesty and pretend they are restricted in their ability to consider new evidence in a case of life or death.

Finally, Mr. Henninger takes the philosophical and world-weary attitude that he claims is typical of the legal profession, that the courts are poor discoverers of the truth and that indeed judges go home every night believing that justice was not done in their courts that day. If that is the case, then let's have a bit more of that attitude shouted from the rooftops when we are invited--actually required--to defer to the musings of courts.

Perhaps after the morning prayer in Congress, there should be a "crier" who gets up in front of each body every day and proclaims, "Remember the courts are poor discoverers of the facts and the law, that judges are convinced that injustices occur every day in their courts, and that they stand well below the standard of Solomon in rendering their verdicts." Perhaps with that salubrious reminder, the predicate would be laid--as the lawyers like to say--to withdraw from the courts some the power they have arrogated to themselves. Let's remind judges what it is that we have hired them to do, and more importantly, what we have not hired them to do.

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