Phyllis Chesler Interviews Carol Gould

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The Judiciary and the Schiavo Case
Last uploaded : Thursday 7th Apr 2005 at 17:45
Contributed by : Carol Gould


Every time an event occurs that brings the Executive branch of the United States government into conflict with the Judiciary one is tempted to wonder what Benjamin Franklin and Thomas Jefferson would have thought of the matter in question.

In recent weeks the United States has been gripped once more by the story of the severely disabled stroke-victim Terri Schiavo; it had dominated the news last year but had faded to make way for more pressing news stories, but near the time of Holy Week her plight was once more the number one item on the national networks. Mrs Schiavo?s husband Michael had been actively pursuing a court order to allow him to have her feeding tune removed by the Florida hospice in which she was confined. Effectively, he was asking the care facility to cause her fatal dehydration and starvation. Many argued that a pet would not be treated in such a manner; indeed in Great Britain strict laws about the treatment of domestic animals can land a negligent owner in jail.

Governor Jeb Bush of Florida tried to intervene to save the woman?s life but the courts refused his request. Television commentators remarked that Bush, a Roman Catholic, was toeing the line of the ?pro-life,? anti-abortion activists who had spent days and even months camped outside the hospice.

In a scene reminiscent of a Hollywood scenario, the President of the United States, Jeb?s brother, and the United States Congress convened on a Sunday to draft emergency legislation to save Mrs Schiavo?s life. Angry American commentators suggested it would behove the Congress and President to take as much care on a Sunday in their Easter break to pass emergency legislation to help 45 million Americans without health insurance, or to assist millions of Americans who cannot afford their medications.

The courts in Florida resolutely refused to honour the Congressional decree. Starved of nutrients and dehydrated, Mrs Schiavo died on 31st March. One could not help but think of the stories the late Rabbi Hugo Gryn told of his father and brother trying to survive in a string of concentration camps and preserving a tiny pat of butter to make a Chanukah light rather than eat it. At times during this agonising American saga -- covered wall-to-wall by every network -- one was torn between sympathy for the pro-life protestors and for the husband, whose life had gone on and who had since fathered children with a new partner.

The issue of the right to live was debated across the world and many poignant articles appeared in the British press from parents and spouses who had fought ugly battles with one another to keep a loved one alive. It appeared from these articles that the overwhelming statistic to hand was victory for the relative who wanted to end the patient?s life.

Melanie Phillips, who it has to be mentioned here is Jewish, has made an impassioned plea for more care to be taken in the future and has roundly condemned the manner in which Mrs Schiavo?s life was brought to an end. Rabbis across the globe debated the issue: was the young woman?s death a form of euthanasia or even torture? Was it a mercy for her to die?

This issue will continue to torment religious and secular commentators but the issue we wish to discuss here is the separation of judiciary from executive in American political discourse.

From the time of the Founding Fathers, the separation of religious belief and the state has been sacrosanct. The judiciary is also expected to be independent of political influence, though the American practice of the election of judges in certain precincts leaves this open to question. Nonetheless, the Schiavo case has raised a vital issue: the absolute independence of the judiciary even when the Chief Executive and the legislative branch intervene to overturn a local decision. Though it may seem fanciful one could envisage a maniac ascending to the White House, along with Congressmen and Senators elected on his or her coattails, who is determined to initiate punitive practices that destroy the rights of citizens. Those citizens petition for what Thomas Jefferson deemed ?a redress of grievances? and are successful, but the dictator-President intervenes and orders them punished or even killed.

What the Schiavo case has proven is that the American people, vilified and described as ?stupid? by the British Daily Mirror, are troubled by Executive and Congressional intervention; after the Schiavo bill was passed President Bush?s approval rating plummeted.

The death of Terri Schiavo was tragic and in many people?s eyes unnecessary. It is conceivable that her parents could have given her care until her natural demise. From a Jewish post-Shoah viewpoint the idea of a human being imprisoned within a helpless body being starved to death raises powerful ethical questions.

However, the fierce independence of the American judiciary is the paramount issue. In recent months several American judges have been attacked and in Chicago last month the mother and husband of a judge were brutally murdered in what appears to have been a crime of retribution against a judicial decision. Judges in gun-a-plenty America risk death when they evince independence, and no doubt the judge in the Schiavo case will not sleep well for the remainder of his given life.

Returning to our opening premise: what would Ben Franklin and Thomas Jefferson have thought? The intervention by the United States Supreme Court in the 2000 Presidential election will forever be a subject of fury amongst a good half of the population and one has no doubt that Franklin and Jefferson would have disapproved.

Judicial independence is a cherished cornerstone of American separation of the branches of the governance structure created in Philadelphia some two hundred and thirty years ago, and the preservation of that separation is crucial to the survival of the Founding Fathers? unique experiment in democracy.
As a matter of interest---
A few minutes after we posted our editorial, this message was sent to Democratic activists by Sen Harry Reid:

'Today I stood in front of the Supreme Court and collected more than 1 million petitions from people all across America. Standing there, I heard your voices urging the Senate to reject any attempt to do away with the system of checks and balances our founding fathers created to protect the rights and voices of all Americans.

'I want to say thank you for standing up and lending your voice to this debate.

'Republicans want to go "nuclear" and turn the Senate into a rubber stamp for President Bush. They want to silence Senate Democrats -- the one remaining check on President Bush's power. If they can do away with debate in the Senate, they can get whatever they want -- right-wing Supreme Court Justices, Social Security privatization, and tax breaks for the wealthy that will plunge us deeper in debt.

'But Senate Democrats are going to fight them every step of the way. And this fight will be different than any other fight in the history of the Senate -- because it will include you.

'The Republicans are arrogant with power. If they don't like the rules, they break them. If they don't like someone standing in their way, they attack them. We have some Republicans in the Senate that are considering throwing out 200 years of Senate history in order to pack the courts with right wing judges. And we have a Republican Leader in the House of Representatives who attacks judges who don't agree with him and corrupts our government by running roughshod over the ethics committee.

'It's a complete abuse of power by the Republicans and if they can get away with this on judges, they will get away with this on legislation like Social Security too. There is no distinction.

'This is about more than a few unqualified judges, this is about protecting the rights of disabled Americans to work, the rights of minorities to vote, the rights of every American to have clean air, safe drinking water and be heard in Washington.'

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