Friday, March 25, 2005

Kangaroo Courts...
Re: Terri Schiavo and something I've noticed happening with regularity elsewhere: the courts in this country are screwed up beyond all belief.

The sticmking point, for lack of a better term, in Terri's case, seems to be a black-letter reading of the law. In this case, Terri's husband Michael is her guardian by virtue of marriage. In every true legal sense, he is/was authorized to make the request that Terri's feeding tube be removed seven years ago. Because there can be no verification of what Terri's true wishes might have been at the time (i.e. she was unable to make them known, there was no living will, etc.), a judge was bound by the law to order it. Medical evidence notwithstanding, there was no question that Michael was empowered to ask the judge to do so.

Thus, the legal battle to keep her alive comes down to somoething that has been engraved in stone since the inception of the legal system: the right of a spouse to make medical decisions for a disabled husband or wife.

However, such a decision discounts common sense and humanity. Get the "right" judge, the "right" experts and the 'right" venue, and you can argue that a ham sandwich has more mental firepower than Terri Schiavo. Extend that argument just a bit, and you can argue that the ham sandwich should have it's life terminated, since it's not a living thing. Terri, in the minds of many, is no longer a living thing.

One gets the impression watching the courts work on this case that the judges involved, all the way up to the Supreme Court, wishes this woman would just die already and save them from the embarrassment of having to defend a point of law that, in this case, makes the entire legal system look heartless. The courts are punting in order to save an established premise of the law in order to avoid making a decision that might one day come back to bite them on the collective ass with unintended consequences.

But courts create unintended consequences every day with some of their rulings.

When sanctuary laws lead not to protecting the innocent and oppressed, but instead to exacerbating the illegal immigration problem, that's an unintended consequence. When the recognition of gay marriage by one court in one state leads to another potential Terri situation in another state that does not recognize such a union, that'll be another. The discovery of new, unintended rights in the Constitution on a daily basis leads to many uninteded consequences: abortions are performed, criminals avoid punishment, the foundations of society such as marriage and the family, are altered beyond recognition and under assault.

Many have complained for decades that our courts are runaway trains, hijacked by radicals intent on destroying the very fabric of American society. Instead, I'd like to think that perhaps our courts have been hijacked by people with a profound lack of common sense. They hide behind the authority and the respect of the law and wash their hands of the consequences.

Part of this is our fault. In the past we have glorified the law and elevated the lawyer to heights so lofty that they appear to be something from a Cecil B. DeMille movie. We very often take what is said by a judge or a lawyer as if it had been handed down from Mount Sinai and don't stop to take the time to think about what a decision might mean for the rest of us.

Perhaps it's time to start holding our judges to account. No more semantic arguments about the intracacies of the law. No more interpretation of the Constitution in the loosest terms. Perhaps it's time we pass an amendment to the Constitution stating that judges be elected, instead of appointed. Stop lifetime tenure for Supreme Court judges. Some will argue that if judges have to run for election, they might start skewing their legal decisions to satisfy a constituency and therefore, make bad law. In response, judges are not supposed to make law, only interpret it, and secondly, perhaps if judges feared losing their jobs when making indefensible decisions, they might start applying common sense to their decisions. Since our system allows appeals to a judges decision, anyone that feels they got a bad rap from a judge could always seek remedy.
While we're at it, let's take a look at the entire legal profession, top to bottom. I'd like to know what the ABA talks about in smoky rooms on a daily basis; it has a direct effect on the public. I'd like to see more transparancy in the Supreme Court --- perhaps C-Span could create a new Supreme Court channel. After all, if cameras can be placed in a courtroom for a murder trial, they can be in place for a case regarding the amendments to the Constitution. The courts, in my opinion, have gotten away with murder (in this case, literally) because they enjoy anonymity. Their inner workings and personalities are often shielded from the public because we usually don't care unless the case is a juicy, celebrity murder.

No more judges under the impression that they are Solomon, or even worse, God.

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