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March 25, 2005



PAUL GIGOT: Welcome to the Journal Editorial Report. This week we devote most of the program to the questions that have gripped the nation this week. Should Terri Schiavo's feeding tube be removed? Should the congress and president intervene to save her? Are we concerned about morality or politics or both?

Judging by the initial polls on the issue the public seems strongly opposed to Washington's intervention. A CNN/USA Today poll done by Gallup shows a clear majority in favor of removing the feeding tube. A CBS News poll shows an overwhelming 82% believe congress and the president should have stayed out of it and 74% say it's all about politics. We'll be talking a lot about politics and we'll try to look ahead to what all this says about the fights to come over federal judges and over the right to die.

Joining me are Dan Henninger, columnist and deputy editor of The Wall Street Journal editorial board; Melanie Kirkpatrick, associate editor of the editorial page; Rob Pollock, senior editorial page writer; and David Rifkin, an attorney who has written often for this page and worked in the Justice Department under Presidents Reagan and Bush.

I'd like to begin with a quote early in the week from David Davenport of the conservative think tank, the Hoover Institution. "When a case like this has been heard by 19 judges in six courts and it's been appealed to the Supreme Court three times the process has worked even if it hasn't given the result that the social conservatives want. For Congress to step in really is a violation of federalism." David, welcome to the program.

DAVID RIFKIN: Nice to be with you.

PAUL GIGOT: Good to have you with us. You heard the quote from David Davenport that the Republicans were violating states' rights. Is that what's happened in this case?

DAVID RIFKIN: Not at all. A couple of things worth mentioning: first of all, the Republican intervention is very modest. We're not talking about a statute that prescribed a particular result. All it did is ask the federal courts to take another look it. Second of all, the real culprit in this case is not the State of Florida as a sovereign. It's Florida courts that have been in the past often willing to flout the will of the legislature and the Florida governor. As you know, they tried to intervene in this situation again now and year ago. So there's a very modest intervention -- intervention limited to another judicial review by the federal courts.

PAUL GIGOT: So it was procedural issue more than substantive issue. Is that the way in which this intervention is different from the kind that conservatives often criticize, for example, when federal judiciary comes in and says to a state law on abortion or juvenile death penalties “


PAUL GIGOT: Recently in Roper v. Simmons.


PAUL GIGOT: How, how is this intervention different?

DAVID RIFKIN: The fundamental difference is that the intervention here was limited to a very narrow issue “ the lawyers call it procedural due process “ to look at the basic integrity of the state procedures involved in reaching this decision. The cases you are talking about really involve judges substituting their values judgments and replacing explicit decisions made for the political process.

You know, Roper's a perfect case. You have a majority of state legislatures in those states that have death penalty for juveniles, several explicitly said set the 16 year cut off. A, a court coming in and saying it doesn't matter, we are the guardians of public morality and we're going to look at what's happening in the world. So in many respects it is exactly antithetical to the kind of wrongful interventions you were talking about.

PAUL GIGOT: What about the argument that this is a rare thing that congress does, which is to pass a bill about an explicit individual? The phrase bill of attainder is sometimes used, which is banned by the Constitution.

DAVID RIFKIN: The people who say that don't really understand how congress works. Congress passes what, what are known as private bills every session giving people citizenship, resolving claims individuals bring against the United States. The bill of attainder “ which you're right “ an explicit constitutional prohibition, only applies to a punishment being imposed on an individual.

PAUL GIGOT: Interesting. Dan, you've followed this going back to the state courts in Florida. Are they the real problem here? Is this why so many people have been frustrated by this case? Because of the initial judge, Judge Greer's factual determination in this case that in fact it was Terri Schiavo's desire that she not be taken care of if she was in this kind of a state?

DAN HENNINGER: Well yeah, there's a lot of dissatisfaction with the entire legal process here. I mean the courts “ Judge Greer made the finding of fact that Joan and Scott Schiavo -- Michael's brother and sister-in-law -- had heard Terri at some point say that she would never live this way. This is seven years after the incident began. And Judge Greer decided that this was clear and convincing evidence of her oral expression of feeling on this case. And this appears on the second last page of the opinion. The final page therefore affirms that life support should be withdrawn from Terri Schiavo. That's the finding. And the way the courts work is if you appeal they generally respect that finding of fact and people are now extremely upset that, whether it's the, you know, the appeals courts in Florida or the federal district court, they have not overturned that original finding of fact.

DAVID RIVKIN: Well there are generally good reasons for not overturning the factual determination by a trial judge, in part because at appellate level you don't have a benefit of a witness so you cannot look at their credibilityų


DAVID RIVKIN: ų cannot look at their facial expressions. You cannot recreate the past. But this is an example of a system “ and you're obviously right Dan “ the system got broken at the trial judge stage. Because there are a lot of good reasons for doubt in my opinion whether or not. But in the question of what she wanted, the question is did she express these decisions with requisite solemnity? If you, for example, in any state in this country, if you orally express the desire, for example, to distribute your estate to one person but you don't leave a written will it would not be honored. Not because they doubt that you said it, because you did not express yourself with the requisite seriousness.

PAUL GIGOT: Now Rob, for that reason I think you, you, you argue that the congress should have gone a lot further than it did to intervene in this case. Explain why you think that's the case.

ROB POLLOCK: Well I feel that way because I don't think I'm the only non bible-thumping person in this country who was outraged at the thought of a woman starving to death. We don't do that to dogs in this country. If Terri Schiavo was an animal the authorities would go in there and remedy this situation. That's pretty incredible. And I don't see why congress ought to be praised for what in the end was essentially sort of a procedural game. Taking this very serious matter and throwing it back to the courts knowing full well, or at least they should have know full well that this result, what we're seeing now “ this, of course, wouldn't change anything. It's just that this is what was likely to happen. And I think congress would have been fully within its rights to pass a law that would have actually remedied the situation by saying, for example, that in America we don't starve people.

PAUL GIGOT: Well it did “ would that have been possible, David? Would that have made a difference?

DAVID RIFKIN: You frequently in, in, in life “ and it's tough because there's this life at stake “ congress does not resolve a given problem. It tried one more limited approach, sees it fail and uses it to go to consensus or a broader solution. I agree with Rob, ultimately congress could pass “ let's call it a new civil rights legislation “ that would require that disabled individuals “ and this not, uh, just would just follow up on the American with Disabilities Act. Look, in this country in this country require that people have the rights with their chair, their chair lifts, you know, move their wheelchairs around. You have the right to that ramp.

PAUL GIGOT: Put it under the Americans with Disabilities Act.


PAUL GIGOT: We micromanage that at the storefrontų

DAN HENNINGER: Right, so here we have a right not to be starved unless you freely express your will, for example, in writing. But I think, Rob, what happened in the requisite time to give the Democrats, by and large, wouldn't have supported it. So in some respects it was a necessary step to get at the broader solution. That often happens. Look at the Megan laws. Frequently the tragic occurrence “ nothing gets remedied as far as the individual involved but it gives impetus to a broader solution.

PAUL GIGOT: And the Megan laws are those laws governing the case of abuse of a child.

DAN HENNINGER: Right, child and “

PAUL GIGOT: Child abuse.


PAUL GIGOT: What about Rob's point that this was a procedural game, Melanie? Was, is, is that really what was happening here, that this was just an attempt to, uh, kind of, uh, fool people that they were somehow going to be able to do something about the case?

MELANIE KIRKPATRICK: No I don't think so. I think congress was doing a couple of things. One, they were listening to their voters and a lot of people, after they take a look at the case, feel pretty upset about it and they understand what is really going on as, as Rob expressed. That's part of it. Another part of it is I think just the idea that the people deserve a voice in a case like this and congress is the voice of the people. And third I think they were trying to push back a little bit against the idea of judicial intervention or judicial authority saying, hey, you know, the legislative branch has a role here too.

PAUL GIGOT: In baseball terms a brushback pitch to the, to the judges saying look, you have to listen to us on occasion. There's a frustration that's building on this issue.

DANIEL HENNINGER: There is great frustration and I think partly it, you know, this, the, the Schiavo case and even our conversation here is suggesting why these sorts of circumstances do not belong in court. And typically they are not settled in court. Normally you don't have people contesting, members of a family contesting over whether to pull the plug on a patient. We went through this, uh, the same sort of thing, back in the 1980s with the so-called Baby Doe and Baby Jane Doe cases, which involved “


DANIEL HENNINGER: Terribly disabled newborns. And the Reagan administration tried to intervene; the judges insisted that the decision should be left with the parents and the doctors. The result of all that was just, as David has suggested, laws that created mechanisms within hospitals under these circumstances for the doctors and the parents and clerics to talk about what is the right thing to do rather than pushing them into the courtrooms. Believe me, judges hate these cases. They don't want these end-o- life cases that they have to kind of flip a coin and make a decision, which is essentially what Judge Greer had to do. It's the worst place to be resolved.

ROB POLLOCK: I disagree that Judge Greer had to flip a coin in this case. I mean there, there's not a single blood relative of Terri Schiavo who doesn't feel the same way about this, which is that she ought to go on living and they're willing to take responsibility for her. I mean I, I find, you know, that “

MELANIE KIRKPATRICK: Well this, this is where the legal system really has failed Terri I think, which is, as Rob says, there is family who are begging to take her. And this would be the humane solution and a commonsensical solution. But yet because a judge ruled a number of years ago that her husband is the sole guardian and has the authority to make all the decisions, under the law that humane solution can't happen.

DAVID RIVKIN: The right answer would be to have a serious debate. And debate is nothing “ the word politics is not a dirty word. There's nothing wrong with a debate that looks at it and comes up with a right solution. I happen to think that absent a compelling evidence of one's intent to end his or her life under those circumstances as expressed in writing “

PAUL GIGOT: In a living will or “

DAVID RIVKIN: In a living will, notarized, we should err on the side of caution. Look in this country you cannot transfer land without putting it in writing. You cannot perform contracts over, longer than a term of years. Is it too much to ask for this fundamental decision to be expressed this way? In Europe the base line presumption is different. Base line presumption is if you're an older person, if you are a sick person given the stresses on their social welfare systems, they will pull a plug for you, on you without even asking for your opinion. Do we want to go there as a country?

PAUL GIGOT: We want to have that debate in this country and that's what this case has helped to “

DAN HENNINGER: And not in the courts.

PAUL GIGOT: Right, that's right, not in the courts. Now how do you have been the accusations of politics or political motives here. You can't really avoid it. But if you look at the polls that we cited earlier the Republicans “ the, the public is opposed to what the, the congress is doing in this. So how do you square that public opposition with the accusation, the idea that the Republicans were doing this out of fundamentally self interested political motives?

MELANIE KIRKPATRICK: I think a couple of ways. One, I'm not sure that most Americans understand the very limited nature of what congress did.

PAUL GIGOT: That's what we described earlier.

MELANIE KIRKPATRICK: As we just discussed. Um, but “ and, and second, um, every person “ many people who look into the case carefully and understand what's really going on here, understand, take a different view and they think well, you know, maybe the moral thing to do is to stand up and take action.

PAUL GIGOT: To the House's credit, they at least had a roll call vote. Everybody had to be counted. The Senate, on the other hand, didn't do that. They had a voice vote. Was that political timidity because they really didn't want to stand up and be counted? Uh, why do you think that happened?

MELANIE KIRKPATRICK: Yeah, I think that's probably right, and I, I would note in the House vote that its, uh, you know, there's a lot of Democrats who voted for this as well. It was not purely a, a party decision.

PAUL GIGOT: 47 out of the 100 “


PAUL GIGOT: Who voted Democrats who voted on this voted to intervene.

DANIEL HENNINGER: You know, Paul, those who saw the debate on C-Span said it was very impressive the way the House members stood up and expressed why they were doing this. I mean I think this was actually a rare instance of politicians acting on compulsive belief. I mean normally they poll this stuff. And then this is one case in which it's clearly not a sure winner at all. I think the Republicans just decided that this was a case they should intervene in and, uh, did it on principle.

ROB POLLOCK: Let, let me second Melanie's point about the polls. I mean I've talked to initiated conversations with a lot of people this week about this case. And in, in almost every case where I heard people express the opinion that Terri Schiavo ought to be allowed to die, when they were informed of the fact that she was not on a respirator, that, that she breaths on her own, and when they were informed of the fact that this family's willing to take care of her they changed their opinion -- in every single case where I had this conversation.

DAVID RIVKIN: And there's a point to be made quite aside from the factual issues. There's a benefit in a democracy for symbolic affirmation of a culture of life on the part of the members of a political class, Paul, especially on a bi-partisan basis even if it did not alter the outcome in this case. Because symbolism does matter in political life. And I think in addition to the intervention hopefully being a, a prelude to more serious legislative effort. It was an important step.

PAUL GIGOT: Well let me quote a Democrat who has who is prominently against the intervention, Representative Barney Frank of Massachusetts, who said the following. "It is clearly wrong for the congress of the United States, this body of elected officials driven more by ideology and by self electoral considerations and advancement to other offices and re-election, to be trying to cancel out the decision made by the State of Florida."

Now Congressman Frank has been known in the past to favor federal judiciary intervention. Does this mean that the, that the Democrats are going to suddenly get new respect for the virtues of federalism?

MELANIE KIRKPATRICK: Well we can dream. But, uh, no I don't think that's case at all. You know, when it comes to issues like abortion and, uh, homosexuality and the juvenile death penalty they take a different view. But, um, perhaps it will help, uh, the country and Democrats as well come to a more nuanced view of federalism and, uh, this debate on right to life issues and how to deal with the severely disabled could only help on that score.

PAUL GIGOT: Yeah, Rob.

ROB POLLOCK: No there's actually no disagreement here between the federal government and the state, and the State of Florida. What there is is there's disagreement between the executive and legislative branches of government on one side and the courts on the other. Uh, the Governor of Florida wants, uh, Terri Schiavo alive, the Florida legislature has expressed that. This is not a disagreement between states and federal government. This is between the branches of government.

DAVID RIVKIN: Interesting parallels, of course, between Bush versus Gore in terms of how the political branches in both federal and state level, if you will, are acting and the, the real problem is in the courts.

PAUL GIGOT: One of the movers in the Senate on this in, in urging, uh, in-, intervention here was Democrat of Iowa, Tom Harkin, uh, uh, Dan. And you “ which is interesting and 47 of the 100 Democrats in the House who voted on this voted for intervention. You had a column this week in which you said that Democrats should not want to be the party of the right to die.


PAUL GIGOT: What did you mean by that?

DAN HENNINGER: Well what I meant by that is that, uh, if the Democrats step back and take a look at the issues of this sort that they have ended up being aligned with it, it, the list runs like this. They're pro abortion, they're for partial birth abortion, they're for assisted suicide and on this case it's a little bit more nuanced they are essentially in favor of pulling the plug in hard cases. Now these “ what distinguishes all of these things is that they involve individual choice. You have the choice between life or death.

And I concede that it often is a tough choice and one can disagree about them. But the Democrats as a political matter have got themselves over on the side of being nuanced towards the decision not to support life but death. Now there's one case here that they always bring up and that's the death penalty. I think the death penalty is apples and oranges that involve the criminal justice system, it does not involved matters of individuals making choices between life and death. And I think the Democrats have got to somehow find a way to push themselves back over into the center on this particular issue.

PAUL GIGOT: We're going to get a big debate over a lot of these issues, Melanie, later this year when there's probably a supreme court, uh, nomination. Uh, what does this case, the Schiavo case, mean for the politics of judicial nominations? Is it going to make it even more difficult?

MELANIE KIRKPATRICK: Well the Senate majority leader, Bill Frist, has been quoted as saying that there's no connection. But I don't think I agree with that. I don't know whether this debate will help or hurt the White House get President Bush's nominees confirmed. But I think it's certainly going to have an effect because, um, the key issue here is the balance of power among the three branches of government. And here's another example of in addition to some of the other social issues that courts have taken up and prospective judges are always asked about. Here's another issue that is going to come up again and again in all the confirmation hearings.

PAUL GIGOT: Well in the right to die case the, the Oregon statute that the, uh, the, uh, Oregon law that the Supreme Court is going to review this year, David, that could also roil the waters could it not?

DAVID RIVKIN: Of course, to clarify one thing, there's no right to die yet. And I emphasize the word yet. In the previous cases the Cruzan case, the Glucksberg case affirmed the right of the patients not to be given unwanted medical care, which is an extension of a common law right, again, to reject unwanted intrusions to one's own body. There's no right to die, there's no right to assisted suicide.

But I, I agree with Melanie in one respect. I think on balance it would help the Republicans because it would remind people that there's a broader set of issues in which there's a cultural divide. And this issue to me is far simpler than abortion. Abortion situations reasonable people can disagree because there are competing equities. There's no competing equities here. There's really a human life, there are people “ let's forget legal issues, from a philosophical perspective “ it's her life that people were willing to let her live. And we're airing the way the system is working now against that.

PAUL GIGOT: But and when you have the right to die there is a competing equity, which is they're not, which is the individual's desire to not live in pain. That would be the, the profound argument on the other side.

ROB POLLOCK: Look, and I don't if we have a case where there's a clear cut, uh, desire expressed by an individual not to live in pain, I don't think there's a lot of people “ or certainly there would be a lot fewer people who would challenge the so-called right to die in that case. But, but, again, can we, can we take off hand comments essentially that were made a long ta-, time ago when a woman was very young as evidence of, of some serious intent. I think that's frankly absurd.

And let me emphasize one other thing about this case. It's, it's that the faith based position in, in this case is, is, is the people who are comfortable with, with Terri Schiavo, uh, dying, the people who are saying don't worry, we know she's not feeling any pain. We don't know any such thing. I mean that “ we, we don't know what's going on in there. The, the cortex is not liquefied as has been said on TV. There's some of it left. We just don't know.

PAUL GIGOT: Well if nothing else this case has brought the attention of the public to these important issues and for-, and forced us all to really know a lot more about them and, and, and to think about them a lot more, uh, than we have in the past. Alright, thank you all. Next subject.