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Victory to Irishlaw, On Points

I've always enjoyed watching the squabbles between Ohio-blawgers Chris Geidner and the annoyingly-pseudonymed Irishlaw, and their latest back and forth over the Terry Schiavo case is no exception. In general, I approve of Irishlaw's process and Chris's substantive positions, but the entertainment comes from watching them act like an old married couple. [1] That said, this time I think IL has Chris on points, simply because he's trying to prove too much.

First, let me say that I have no position on the whole Terry Schiavo case itself, and intend to follow Prof. Volokh's lead: "I know nothing about the Schiavo matter, and despite that have no opinion." As a matter of policy, I couldn't tell you whether the bill Bush just signed giving jurisdiction to federal courts over the case is wise in this instance or not. When it comes to politics and law, I'm more interested in the overall structure of things than interventions in single instances. In that sense my impression is that intervention in the case is a bad precedent; on the other hand, it seems unlikely to be a matter that gets frequently legislated, and thus falls off my radar screen of major interest.

But in the Geider/IL dustup over the matter, Chris in two posts implies that Republicans (or at least those who oppose judicial "activism") are being hypocritical. The trouble is that making out the four corners of a hypocrisy charge--to murder a metaphor--can prove particularly difficult, especially because all the defendant need do is make some reasonable distinction between the supposedly hypocritical positions. When you look at someone crying hypocrisy, be on the lookout for a false equivalency: it's the most common logical error.

So, for instance, take Chris's attempt to make the charge:

The problem could be seen as, to put it in terms IrishLaw and others will understand, "adjudicating from the legislature." Sen. Majority Leader Bill Frist and others are taking on the resolution of an individual case -- the judicial function -- as their own role.

I find it unfortunate that IrishLaw would encourage in the Schiavo case the mirror image of the behavior that she has spent the past years in her blog decrying from the right. Separation of powers either is your battle cry or it isn't, but some consistency would be nice.

But of course, there are three answers to this:
  1. First, Senator Frist has done no such thing. The Congressional subpeona no more "resolves" a case than this blog entry does. It ultimately overrules no judicial decision, though admittedly it may procedurally delay a ruling from taking effect. It does seem silly to subpeona someone who cannot respond, but I know of nothing that puts it outside the bounds of Congress's power. Nevertheless, neither subpeona nor any "hearings" brought by Congress can last forever, and they certainly aren't resolving a case. (Indeed, even today's law merely passes the matter to a different court, not decree a specific resolution.)
  2. This then gets to the false equivalency of Chris's position. As Irishlaw correctly states, "What conservatives . . . are frequently upset about with regard to 'legislating from the bench' is judges going outside of their authority to reasonably interpret the existing law in order to enact their own policy preferences." Chris seems to imply that conservative are willing to abandon a procedural position when substantive expediency demands it, but he can only make that case if he feels that issuing a subpeona is beyond the authority of Congress. Perhaps that's true, but he's not put anything forward to suggest this. Instead, the implication is that any interference into an individual case, whether within the formal power of Congress or not, is beyond the pale. If Chris wants to make hypocrits of Republicans, surely he should find something that makes them constitutionally impotent.
  3. Which then gets us to the separation of powers argument. There are several different views of what exactly is partitioned by "separation of powers." Is it different types of authority (adjudicating/legislating/enforcing)? Or perhaps different areas of authority (after all, courts promulgate ethical rules for lawyers that many states maintain are the perogative of the judiciary and not subject to legislative review, even though they look a lot like legislation)? Or is it simply that each branch has the power it can abrogate to itself, and its reach is merely restricted by what the other branches will tolerate?

    If your philosophy about SoP tends more towards the first option, then "adjudicating from the bench" isn't a problem at all, because Congress isn't adjudicating. Chris, in his next post, brings out the hypocrisy charge again by making an alleged inconsistency between attempts to remove jurisdiction on gay marriage from federal courts, but to grant such jurisdiction in Shiavo's case. While this may not be particularly intellectually consistent, it certainly doesn't run into problem with a functionalist conception of the separation of powers. Congress is perfectly permitted to be intellectually inconsistent, so long as it violates no other Constitutional mandate. Indeed, it often is. Don't get me wrong, a neutral principle is prudential, logical, wise policy, and probably politically astute, but it's not a requirement.

"Legislating from the bench," therefore, is not the mirror-image of "adjudicating from the legislature," though of course it is convenient for Chris to pretend so. Whatever the sins and consequences of each, they are different problems facing different constraints. First, "adjudicating from the legislature" would at least require passage of some law resolving a case on the merits, and no such law has been passed yet, nor has Chris pointed to such an attempt.

Secondly, such a vice is constrained by the political process. (As Prof. Leiter points out, this entire affair seems somewhat unpopular, and elections are coming.) A judge who legislates from the bench takes issues out of the hands of the political process. Every time Chris makes some comment about "inscribing hatred into Constitutions", he should remember that judicial legislation leaves this as the only option for political opponents.

I started this by stating that I have no opinion on the substantive merits of the Shiavo case, and this hasn't changed. On the other hand, Professor Bainbridge does, in a post where he struggles through the conflicting policies implicated by Congressional intervention in the Schiavo matter. In the end, he finds himself torn between a dedication to a culture of life and the rule of law.

A liberal (or other, for that matter) who thinks Shiavo should die might just as easily make their way through a policy argument: why respect for the rule of law should trump a culture of life, or why some other normative value should be paramount in this case. I might very well agree with it. But Chris instead takes the easy option of trying to hoist his opponents on dud petards of his own devising.

[1]: YES, I'M JOKING. Come on, folks... CG and IL as an old married couple: you tell me that didn't put a few folks at Moritz in stitches.... Ok, fine, if you must have some self-deprecating humour to soften the joke, you can imagine me as the know-it-all mother-in-law pestering the both of them about how her pseudonym isn't all that fetching and is he really going to bring that tired old argument out in public again...


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» weighing in (or not) from divine angst
I, like Anthony and Prof. Volokh, don't know very much about and don't really have an opinion on the Schiavo case. But I think this interview with a Catholic priest provides an interesting perspective I haven't seen much of.... [Read More]

» Those Durned Republicans from Fools' Blog
The title of this post is inspired by Fr. Bill’s comments at 3 Years of Hell to Tony’s post here. While conceding that Congress’s actions with regard to Terri Schiavo were “unwarranted, overly political, and unfortunate in raising false hopes... [Read More]

» Winning the battle . . . from IrishLaw
Over the past two days, Chris and I have posted and responded (I also wrote in comments on his first post) about the Terri Schiavo case and the validity of Congressional actions intended both to give Terri a shot at a de novo, fair hearing in federal... [Read More]


I'd agree about the hypocrisy charge being both tired and meaningless. As you know, I treated of it in another arena when it comes to "conservative" judges, and found the approach wanting there. I also don't get this: if it is hypocritical to propose this because one is normally a states' rights person, is it not equally hypocritical to oppose it on states' rights grounds as a liberal enemy of states' rights arguments? Shouldn't this "hypocrisy" be celebrated as "coming round to the truth"? Similarly, tonight the estimable Laurence Tribe was opining about the unconstitutionality of the law on the NewsHour with Jim Lehrer. But despite listening carefully, I could not make out the faintest contours of a legal argument, let alone a constitutional one. Apparently up at Harvard "Tribe doesn't like it" counts as constitutional argument. This law may be foolish, but it's just a case of forcing appellate review rather than leaving it up the discretion of SCOTUS. That has always been constitutional, as far as I can tell.
Oh, and another thing, while we're here. I have heard the argument today that Florida courts have had plenty of time to look at the evidence here and they should be trusted. This argument is invariably made by people who HATE state courts, especially southern state courts, when it comes to their ability to review the evidence in death penalty cases. Apparently state courts are to be relied upon to end life prematurely, so when we like that they are good and when we don't they are bad. (As a death penalty opponent and as one with some doubts about the outcome of this case, I rather like that formulation). For the record, I think the Congressional action here was unwarranted, overly political, and unfortunate in raising false hopes for the family, who just don't have a federal case here. But much of the criticism of it has been extraordinarily sloppy, even by academic commentators, who are appear blinded by their zeal to make every issue evidence of the absolute perfidy of those durned Republicans in Congress.
On Hypocrisy: I think you're making too strong a point. Even if someone claims that they're making a distinction between this and that, you needn't accept it. If, say, Howard Dean calls George Bush a hypocrite for supporting Schiavo's parents on the grounds that it's always better to err on the side of life, while being a rather stern supporter of capital punishment, then the distinction drawn in Bush's defense will either be valid or it won't; either it will be honest or it will be pretextual. It takes judgment to make the distinction, and the judgment can't be "proved" (as is consistently thrown in my face by another friend whom you don't know and who is a relativist of the highest order who I'm convinced doesn't believe in morality at all). Nevertheless, it can be known. Merely a point about deference to the arguments of another. Or rather, "false equivalency" may be no more common than the "distinction without a difference." Secondly... I've been trying to be polite. And I haven't yet read Chris's argument. Nevertheless, I find your conclusion that IrishL won any argument at all simply astounding. The solecisms apparent in her postings are dizzying. And she has neither contemplation nor respect for the separation of powers. Witness: The district court could eventually rule that Terri Schiavo should, in fact, die in accordance with her husband's wishes (that actually presents some irony, in that it will still be a court deciding this case). Whatever your views on separation of powers (and yours are far stronger than this), this objection is absolutely unfathomable. No one but courts decide individual cases. I absolutely fair to see any appeal in her argument, whatsoever, and I remain mystified at your preference. Again, I haven't read her interlocutor's piece, but I can't comprehend the possibility of this earning better than a draw. Finally: It's a very odd formulation to say that liberals "think[] Shiavo should die," except in a rather extreme you-intend-the-natural-consequences sort of reasoning well-suited to the criminal law, but not so much here. (No more so than anyone who voted for George Bush could be said to think proper any of the likely consequences of that election; it may be true, but it's not fair to presume with only that much.) Rather, although I think the congressional intrusion completely offensive to common decency, I don't believe I think Schiavo _should die_; I merely hope that her wishes (as determined by the court) and those of her guardian in a very difficult and painful issue would be honored. I comprehend intellectually that the other will lead to the one, but I no more prefer her death than my Republican friends voted "for torture," as some at dailykos.com would have it. PS to Fr. Bill: You may be right. But it seems far likelier that Prof. Tribe, aware that he was on a popular television show rather than a legal-specialty forum, chose to frame his argument accordingly. It's maddeningly rare that I ever get a proper legal argument (outside of Linda Greenhouse) anywhere in the mainstream media. And Prof. Tribe does appear to have a better understanding of what the Constitution means than that it only forbids what he doesn't like, I think you'll agree.
TtP: Again, I haven't read her interlocutor's piece, but I can't comprehend the possibility of this earning better than a draw. Read the argument to which she's responding, and the statement makes more sense. She's not disagreeing that decisions are made by courts; she's making the point (not really ironic) that while Chris says Congress is deciding the issue, the decision remains in the courts. It's a very odd formulation to say that liberals "think[] Shiavo should die," Eh, po-TAY-to, po-TAH-to, TtP. If one believes that the position of her guardian/husband is the correct legal outcome, then the outcome is that she should die of starvation rather than be kept alive through unwanted medical intervention. I don't see anything particularly wrong with that position: if one holds that in this situation she'd wish to die, then one should believe she should die. I think it's a respectable position, but I see no reason to parse around it for the sake of squeamishness.
Read the argument to which she's responding.... Feh. Rather comfortable giving out homework, are ya? Alright, will do. 2d point: I think HLA Hart or Joseph Raz have something to say about this. Or ... Hohfeld, maybe that's who I'm thinking of. Let me just restate the distinction between: 1) Schiavo should have the power to elect to end her life; and 2) Schiavo should have the duty or obligation to end her life (or, Hohfeldean, S should have the -disability- of yada yada). Reductive, obviously, given her state and ability to express consent, but still. Fine, say "should" if you like. Just keep in mind that it's not entirely the most precise way to express it, and---I guarantee---given the terms of this debate, if enough people read your post, _somebody's_ going to misinterpret it.
Grrr. Not only do I not find myself any more enlightened, my frustration with the frailties of the human mind is not exactly alleviated. First, let me rephrase my objection to your judgment: You're being too charitable to the potential argument in IL's favor. In the battle of your argument against lawdork's, I'd have to say that you win. But IL herself doesn't cut it. But there is one failing in your explanation. Separation of Powers goes far beyond what-activity or what-sphere; incursion by one branch into others needn't be and has not been a bright-line kind of thing. When one branch unduly interferes with the ability to execute / adjudicate according to its duties, it's not going to be held a defense that the incursion-ing branch (sorry) was acting of-a-type or in-a-realm of its delegated powers. But I digress. There are two major themes inveighed against aggressive or activist judicial action: separation of powers, and the antimajoritarian problem. The former is a textualist or otherwise faithful-to-the-constituion concept; the second is more interpretivist and democratic-theory-based. For obvious reasons, conservatives have tended (not unanimously, of course) to invoke the first, and liberals have been more likely (again, not unanimously) to use the second, too. But it's clearly an insufficient understanding of why judges shouldn't legislate from the bench to argue that only the second attaches, and tho' I don't underestimate the capacity of liberals for stupidity, it's a rare bird who ever argued that it did. Merely that "the people" don't have a say in such judicially-removed issues isn't the exhaustive reason against judicial activism; there are constitutional limits on judges' power, too. IL seems to have overlooked this constitutional nicety, however, and cares only for the democratic concerns. "The People," as she never tires of pointing out, can overrule Congress by throwing the bums out. This ignores the very point of a written Constitution: To limit the power of elected government for those times between elections, when we can't directly control our governors, but still, you know, have rights and things that we might like to be respected. Even assuming that pro-life voters would be as uncomfortable with subpoenaes to abortion seekers on election day as they were when the subpoenaes were issued (yeah, right), it's rather cold comfort for those women who had to suffer it in the meantime. Which doesn't bring me anywhere, but seems as good a time as any to take up this gem: As for wanting to protect the right to life --which is explicitly protected by the Constitution to the extent that the state may not abrogate it without due process of law, which hasn't been followed here I must have missed something. Weren't there, like, years of judicial proceedings? Does she really think that the Court didn't entertain the notion that Ms. Schiavo's life is at stake? Of course not; she just doesn't like the conclusion that the court came to, that Schiavo's wishes for such a situation would be not to be kept alive artificially, and she assumes that the process must have been deficient. (Although polls aren't relevant to matters of principle, it does seem that she must have had quite a strong conviction against that decision to inspire her cheer, "Good news from Capitol Hill," when such overwhelming numbers of Americans polled opposed and opposed strongly that very congressional action.) I don't see any way to read IL other than as someone who has a particular desired outcome in mind, refuses to contemplate that it might be controversial or that reasonable people might disagree, and a lamentable capacity to ignore inconvenient facts that would trouble her in her quest to reason 'round to where she started from. The only good thing I find in this is the morbid cheer it gives me to get to turn around the Andrew Sullivan line I've absorbed so much of in the last four years whenever a conservative argues that our clear constitutional traditions have led to a bad result and ask: Why do conservatives hate America? Why do you hate our freedom? [/snippiness] But again, let it not be overlooked: Your response to lawdork (am I getting that name right?) is far more comprehensive and, with the single exception noted, not at all susceptible to my rant above. And you get obvious points for "to murder a metaphor." Heh. Ahmina hafta steal that.
Fr. Bill--- I also don't get this: if it is hypocritical to propose this because one is normally a states' rights person, is it not equally hypocritical to oppose it on states' rights grounds as a liberal enemy of states' rights arguments? No, and clearly not. The argument made against the conservative states' rights movement was never that no states' rights existed ('s a weird concept to wrap one's head around; state legislatures do legislate, after all), it was always---and it was always clear---that states' rights did not go so far as conservatives were saying. So while conservatives have clearly betrayed a supposedly sacred principle---that the federal government cannot go even so far as to interfere with a grain farmer's consumption of his crop, say---the liberal judgment, that the government indeed could, certainly doesn't entail that the federal government must be able to go so much further.
Tony (the Pony...ahem), Let me then charitably assume that we are saying the same thing. Since I don't think there is hypocrisy on one side, my putative symmetry of hypocrisy should clearly be false, as you suggest. Thus, let us agree that nobody holds the untenable position that federalism represents an absolute principle, nor that opponents of federalism hold an absolute position. Thus both sides should be able to explain why they do what they have done. The Wickard case, of course, does not stand for the unadorned principle you announce here, but that is for another time.
guys i need information about terry's case under the joseph raz's look.. i've an urgent work about this case and Raz thanks

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